By Palesa Matlala
9 November 2023
According to Statistics South Africa's 2022 general household survey, about 19,5% of all children do not live with both their parents, 32,7% live with both parents, 44,1% live with their mothers and only 3,7% live with only their fathers.
Housing, food, healthcare, education and clothing are basic needs that both parents are obligated to provide for their child or children according to the Children’s Act of 2005. Parents who are unable to financially support the child/children alone have resorted to approaching the child maintenance court in order to legally obligate a monthly financially contribution from the other parent.
Due to application process not being as clear as expected this has led to most parents aborting the process halfway and some not approaching the maintenance court which results in the child’s basic needs not being met. Below is everything you need to know about the application process.
Who must provide child maintenance:
Both parents, whether married, living together, separated or divorced are expected to contributed towards child maintenance. In an event where both parents are unable to, the child’s grandparents are considered for the monthly contribution however this varies from one case to another. There is no age restriction however if the child is over 18 years they need to prove that are unable to provide themselves and can approach the maintenance court on their own.
How to apply for child maintenance:
The most important part is having an idea of how much money you will be requesting from the other parent. Prepare a breakdown of how much you spend per month on your household, child or children and day-to-day expenses. Then establish a reasonable monthly contribution to seek.
On the day you go to court, you will need copies of your ID, child’s birth certificate, three months' bank statements (with your address) or three months' payslips. You will go to a Magistrate's Court in your district and look for the Maintenance Court in that building. There, you will complete and submit the J101 Form A - an application for a maintenance order.
After submitting your application:
The court will set a date on which you and the respondent (the person you are requesting maintenance from) must go to court. The maintenance officer and an investigator will look into your circumstances based on the information you provided in your application. The court will serve a summons (a letter instructing the complainant and the respondent to appear before the court on a specific date).
The complainant (person applying for child maintenance) will be instructed to ask police officers from the South African Police Service (SAPS) to escort them to the respondent’s home (or workplace if they are unsure of their residence as mediators) should the situation turn violet and to identify the correct person to serve with the summons.
If the court finds the respondent liable to pay maintenance, it will make an order for the amount of maintenance to be paid. The court determines when and how maintenance payments must be made. Should the respondent default (not pay) on the order, the complainant has an option to request a garnishee order from the court, which is outlined in the Maintenance Act (1998). The garnishee is an order that directs the employer of the respondent to deduct the maintenance payment directly from the employee’s salary and pay it directly to the parent requesting maintenance.
Challenges that may arise:
In every court case it is common for challenges to arise. The complainant may not know the respondent's home or work address and cannot serve them with the summons, for instance. Both parties must prepare themselves for a long process. You will be expected to arrive at court before 8am and could spend the whole day there, which may result in you missing work. It is common that the respondent might not be present on the day of appearance or could come up with delay tactics (not bringing the relevant documents, requesting a paternity test, etc).
Some fathers will refuse to pay child maintenance because they have been denied access to their child or children.
In an event where both parties cannot reach an agreement, the matter is then referred to court for a formal inquiry. This process could take up to three months to conclude.
Court staff shortages may slow down the workflow, unforeseen instances such as the presiding Magistrate missing work, water shortages and load-shedding lead to cases being remanded, resulting in missing another day of work.
Despite the challenges, Zukiswa Hans-Balleng, a magistrate from the Knysna Magistrate's Court encourages parents to apply for child maintenance.
“Parents need to take responsibility of their children. Children don’t ask to be born and therefore parents must make use the Maintenance Court because we are here for that," said Hand-Balleng. She added that parents with court orders that have not been honoured should approach the court for civil executions.