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Frequently Asked Child Maintenance Questions – And The Answers

Last year I posted about the new child maintenance law and I received an overwhelming amount of e-mails and comments from readers seeking advice. I felt terrible, because I was not qualified to give them the answers they so desperately needed – but now I can…

Barry Greyvenstein is a practicing family law mediator & trainer (accredited by the South African Assoc. of Mediators or SAAM) from Family Justice and also owns a private mediation practice, and he was kind enough to answer some of the most frequently asked questions regarding child maintenance in South Africa.

 

Q 1: I want to take the father of my kids to maintenance court but he is not cooperative when it comes to giving me his address, his relatives and friends are also not willing to share the information.  What can I do in this situation? Can I proceed without his residential address?

 

Q 1 Answer: Unfortunately the father’s home or work address is a mandatory requirement as summons cannot be served nor any court proceedings started without this information.  Most tracing companies work on a no-find-no-pay basis and cost around R250-R400 per trace.  The problem is that the courts are inundated with cases and that movement is usually very slow.  Now bear in mind that 70% of all maintenance orders are defaulted on in the first year!  This type of case is perfect for mediation as we find that most instances of non-payment have at its root a non-monetary conflict which can be resolved through a cooperative settlement process.

 

Q 2: The father of my child has been unable to pay maintenance due to being unemployed. His parents are, however, quite well off. They have never contributed financially towards our daughter… Is it not his parents’ responsibility to help me if he does not have an income?

 

Q 2 Answer: Correct, the duty to support follows the blood line through the parents up to the grandparents (and beyond)

 

Q 3: The father of my child has not been able to hold down a permanent job for longer than a year. Since she was born every year he would pay only 3 or 4 months, he has never paid a full year. Throughout the past 8-years he’s been in arrears, but for the latest, he hasn’t been giving anything since May 2015 until now. He has 3 children by different woman and he is supporting the other two, what do I do? Can I do something about the arrears?

 

Q 3 Answer: The arrears remain payable until it has been settled in full, and interest is calculated at 15.5% p/a (subject to the in duplum rule which holds that the interest may not exceed the capital amount).  The alternatives are to approach his parents for support, to have his assets attached, to have his emoluments attached at his currents place of work or even to have him imprisoned for non-payment.  The efficacy of court proceedings remain problematic.

 

Q 4: With my experience maintenance investigators and prosecutors are corrupt.  You don’t have an attorney your case will not be heard they work together and they are being bribed by the fathers who don’t want to support their children.” – in your professional experience, is this true?

 

Q 4 Answer: There are definitely cases of corruption though I would not want to create the impression that this is very common.  Most court staff work under extremely stressful conditions with insufficient support. The real problem here is the disconnect between the available capacity, the need for justice and a judicial system which is not geared to provide in the needs of the public.

 

Q 5: My grandson has been in foster care with me since birth as my daughter has a personality disorder and cannot raise him and the father is unknown. To what extent is my daughter’s father liable to contribute financially? My daughter is unemployed and cannot hold down a job due to her condition, placing the burden of providing for my grandson solely on me.

 

Q 5 Answer: The father shoulders the responsibility in the first instance, though a part of the responsibility falls to the grandparents.  Should the father not be able to contribute it is possible to claim for maintenance and arrears maintenance from his parents.  You are also entitled to recover arrears from the father.

 

Q 6: How do you go about getting maintenance from your child’s father if they refuse to pay? What is the process?

 

Q 6 Answer: One can approach the clerk of the court (or assistant registrar) at Maintenance Court, Children’s Court, Family Court or Civil Court to institute proceedings against the father.  A variety of remedies are available here, including attaching assets, attaching emoluments (e.g. a salary) or even arresting the father.  The efficacy of these remedies are however up for debate – especially so when approaching the court without a legal representative.  At the same time, should the reason for non-payment be the result of cash flow problems, using legal representation would erode the relatively small amount of finances available to pay for child maintenance.  The use of an Alternative Dispute Resolution mechanism like mediation provides the best results for a relatively small amount of money.

 

Q 7: If the father does not have a job, does this really mean that he is not obliged to pay maintenance? That is quite unfair on the mother, is it not?

 

Q 6 Answer: The obligation to maintain ones children never goes away.  Should he come into money at a later stage or become employed, the mother can recover the skipped payments at interest.  In practical application it serves well to keep in mind that you cannot get blood from a stone.

 

Q 8:  If your child’s biological father has never paid child maintenance or has never been in the child’s life – can you file for abandonment? If he refuses to sign his rights away, how do you go about having him forced to relinquish his right and be removed from the birth certificate? In this case the woman’s new husband is wanting to adopt the child.

 

Q 8 Answer: The concept of ‘signing one’s rights away’ does not fit with SA family law.  My first question would be whether the father qualifies for rights and responsibilities under Section 21 of the Children’s Act (http://www.justice.gov.za/legislation/acts/2005-038%20childrensact.pdf).  Should the father agree to the adoption it can be filed with the High Court, though this process is expensive and usually takes around 2-4 years.

 

Q 9: Can you go to jail for not paying child maintenance?

 

Q 9 Answer: Absolutely, failure to maintain one’s child can indeed land you in jail.  Bear in mind that jailing one person costs the tax payer R107,000 per annum and that the father has limited (if any) means of earning an income while in prison.

Frequently Asked Child Maintenance Questions - And The Answers

Barry recently attended the South African Law Reform Commission’s meeting on family dispute resolution.  The consensus was that the traditional (i.e. litigative) approaches are not able to provide the access to justice as envisaged in the constitution.  From the meeting’s discussions it seemed that mediation is set to become mandatory in matters of maintenance and care and contact disputes (custody and access). It also appears as if voluntary arbitration in family matters may be implemented to complement the existing judicial apparatus.  In short – the courts are inundated with maintenance cases and the demand for resolution significantly outstrips the capacity available at the courts.

 

Here are some statistics…

 

  • 67% of children in SA grow up without both parents in the household (i.e. divorced, unmarried, death of one of both of the parents)

 

  • 58% of children in SA are born to unmarried parents who do not marry during the child’s childhood

 

  • 70% of maintenance orders are defaulted on within the first 12 months (as mediator I believe that this is due mainly to the fact that people do not respond positively to court orders where they did not participate in the decision making process)

 

  • The key variables in family law – divorce rate, % children born out of wedlock, occurrence of domestic violence, payment of maintenance – bear little significant correlation to either socio-economic or demographic factors and occur in all sectors of South African society

 

Just a final word on maintenance and the parent-child-relationship:

 

  • The right to have a relationship with one’s child and the child’s right to be maintained are mutually exclusive and do not influence one another.  Whether the father pays maintenance or not, both father and child have a right to a relationship.

 

  • Our laws consider the child’s right to be maintained as fundamental, and child maintenance receives a preference over other payments

 

  • If no money is available to pay child maintenance, assets may be liquidated to pay for the child’s expenses

 

  • Excluding a parent from the child’s life during the formative childhood years leaves a lasting mark on childhood development.  It also impacts significantly on matters such as partner selection and parenting ability as it effectively removes the role of husband/wife/father/mother from the child’s reference framework.

 

The above are subject legal procedural changes which I may be unaware of and the info is provided from my experience as a practicing family law mediator (accredited by the South African Assoc. of Mediators or SAAM).

 

Family Justice offers training in the field of Family / Court Annexed Mediation – if you want to be part of this exciting new development in our law and you want to get a head start, now is the time to get the necessary qualifications and become an accredited mediator. For more information – click here.

To contact Family Justice:

Tel: 0860 877 877 or 011 731 8235
Fax: 086 571 7899
E-mail: info@familyjustice.co.za

 

Frequently Asked Child Maintenance Questions - And The Answers

 

I would just like to thank Barry for reaching out and offering his time on this very sensitive subject.

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Maz Halliday

Maz is a Fashion Designer from Cape Town, South Africa. She is a full-time working mom to two of the most gorgeous, yet tiring kids you will ever lay eyes upon. She maintains her sanity by blogging at Caffeine and Fairydust and rocking from side-to-side in her bath tub at night (with a glass of bubbly - no one ever said you can't be fabulous while having a nervous breakdown). She aims to broaden people's perspectives - and in the process will either make you laugh or p%#@ you off. Don't be shy... come say hi!

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13 COMMENTS

  • Chevone

    Thanks Maz, very informative.

  • Lauren

    The problem is the system. Why should the single parent who is working hard to try make ends meet and need to keep their job to support their child have to go through such pains by going to maintenance court multiple times when the parent who doesn’t pay can merely choose to not attend. There’s got to be a more efficient way. You should be able to submit all documentation electronically or via post and the maintenance officers should be able to get on with the investigation. My husband and I went to apply for an order. Went back on the date and at the time given to us. Sat waiting for 5 hours and left because we could be using that time to work and make money to support our child. Meanwhile mother of child ignores appointed date and carries on living it up. She got everything in divorce as she’s caniving and has no morals … Basically a sociopathic narcissist. She got everything in the divorce because she had an affair with her boss who paid for a lawyer for her and my husband couldn’t afford a lawyer and was so broken and defeated no longer had the will to fight let alone to live after being taken to the cleaners. This happens to the best of people and we’re helpless in preventing it. If you play fair and play nice you get nothing. If you’re able to manipulate, cheat and steal you get EVERYTHING. I am so fed up with it. As far as I’m concerned those stinking useless pathetic excuses for parents should NOT have the right to be parents and should not be able to see their children if they cannot help support them financially. How can I as a step mother be willing to give this child all he needs but his own mother us not because hair extensions, designer clothing, exotic pets and partying all override her sons needs. She’s smiling all the way and we’re trudging along trying to cover essentials like food and vehicle maintenance to get our child to school.

  • Gugulethu

    I’m a single Mom currently unemployed i’ve had job but was only contract now i’m baking for special orders, i’m also landlord to get income i’m applying for new jobs but it’s quiet, I’ve been raising my son on my own his 6years old now, but now it’s tough I’m struggling his Father wanted me to abort him when he found out i was pregnant i was 3months had no idea was expecting. I applyed for maintenance recently the father of my son since birth has done nothing only for his 3 birthday’s when we call he’ll bring cake few snacks for him and i’ve burged him to help pay for school transport also he pays sometime but hav to push him and I allow him to take our son to his parents when ever they have family gatherings and they think that he’s supporting him, He has two kids from different Mothers, If he did’nt want my son can I apply for maintenance?

  • Selby Ngomane

    I have been paying child maintenance grand almost a year by a court order, unfortunately I’ve been retrench at from my work from the 22 November 2016. I have submitted the retrechment letter to the court. I want to know if I could change my case to my nearest court as I don’t have the money to attend the court where the case was opened, it’s about 350 km to get there.

  • nadine parker

    thanks for information, very helpful as i am planning on going the maintenance court route with my ex, just 1 question – he has now remarried and wife earns well, they do not have an anc (i too have remarried and have an anc w/o accrual(, can i ask that his wife pay?

    • Maz
      AUTHOR

      I am not a lawyer, so I cannot give you legal advice… but I doubt that you can ask his wife to pay. It would be very unfair as it is not her kids and not her responsibility unless she adopts them.

      • nadine parker

        the current wife was aware that he had a child from his previous marriage, he should not be neglecting his duties, and since they are married in cop, i dont see why she cant share in his “expenses”

  • Sam

    To have the answers to all these questions are all good and well but at the end of the day the court most of the time takes the father’s side. I was told to buy my son’s nappies and everything else at Shoprite but my ex spends over 3000 rand a month on take out. He spends thousands on name brand clothing and in 2017 is telling the court he can only pay R1300 a month on a take home salary of over R21000 a month. Now remember that’s after all deductions. Since my son was born I have been going to court to settle this maintenance issue but the case is being postponed because he does not bring his expenses. Why does the court not make a default judgement? I don’t understand, he is clearly wasting the courts time. He even has the audacity to make New debt in his name so that he does not have to pay more. How sick is that. And when I Google rights of a single mother you can’t find any but only for a single father. This man even had the audacity to steal the money his colleagues gave as a gift for our son so he could eat out. For me I would then rather see him arrested for a year to show him the error of his ways and will pay the R107000 for his food and rent in jail for the year out of my own pocket. These men play the victim but they are actually bullies. They cannot be called men, because a.man would pay maintenance without the court having to force him to pay.

  • shawn

    My Ex wife divorced me for an older man without any work or savings. she left me with our 4 children and a letter saying that she would pay R1000 per child per month. i consider this very little. anyway, I PAYED HER OUT 50% OF MY HOUSE AS IT WAS IN BOTH NAMES. . when she got fired for being under the influence, and the company payed her out her provident fund. I advised her to purchase a flat. She did not do so. later she stopped paying maintenance and when I questioned her , she said she had no money. She got employment at a club and i still got no payment. Her grandmother passed away, she got inheritance and i still got no payments. 13 months later, i eventually took her to court. but as courts are, they FAVOR the woman, they dropped her payment to r200 per child per month. she paid twice only. 7 months later, she is now R56300.00 in arrears and there is nothing i can do, The last time she took the children for a weekend is 22 months ago. if i take her to court again, they’ll just make the payment less again. It’s not worth fighting over. i’ll be happy if she just signs over sole custody.

    • Maz
      AUTHOR

      I am so sorry… this is absolutely awful!

  • Nicklaus

    I am writing this with the intent to get some legal advice from an expert, I sincerely hope to get assist. I found myself in a little conundrum. A lady that use to date my best friend 15 years ago is claiming that I am the father of her 10year old son, I have never been intimate with her in anyway. This lady was suppose to be married about 12 years ago after breaking up with my best friend. Her fiancé broke off the marriage as he was not sure if he is the child’s father now this lady is saying that I am her 10 year olds father but I have never been with her. I asked her for a paternity test which she refused. I am currently married for 11 years now and my personal life is being affected. What I need to know is what are my opinions as I can fathom the fact that she knows my family and where I live but claims she is taking me to court as it took her 10 years to find me. What do I do from here?

    Please any advice will really be appropriated

    • Louise

      If she doesnt want to go for tests it is obvious she is lying! I would laugh in her face!

  • Charné

    Hi, I am 17 years old and currently live with my grandparents. My biological father I have met once in my life and my mother I bearly see. I don’t know what to do because neither of my parents pay maintenance and my grandparents are near to retirement and money is a bit of a struggle. can anyone give me any advice?

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