Child maintenance can be defined as “payments made by a parent as a contribution to the costs of raising his or her child.”
The obligation to maintain is a shared one between parents and arises out of the common law duty to support apropos one’s respective means. The obligation was legislatively incorporated into Section 13(3)(a) of the Maintenance Act 99 of 1998 (the Act). This obligation persists until the child becomes self-supporting.
Where a parent is not in a financial position to support their child, the duty of support can fall on the maternal and/or paternal grandparents, depending on which parent is not capable to provide support. Where both parents are unable to provide support, the paternal- and maternal grandparents will be jointly responsible for child maintenance.
The law recognises an ‘order of priority’; the parents are first and foremost responsible, failing which the duty to maintain will fall on the grandparents. Should the grandparents be incapable of providing the necessary support, further relatives (such as siblings) may be considered.
When will grandparents be obliged to pay maintenance?
The minor child’s grandparents will be obliged to pay maintenance where:
- The parents of the minor child are minors themselves or where the parent(s) can prove that they are unable to support the child.
- The grandparents stand in loco parentis.
- One of the parents cannot be found but the grandparents can be.
- The estate of a deceased parent is inadequate to contribute to the child’s support.
Petersen v Maintenance Officer and Others 2004 (2) SA 56 (C) confirmed that the grandparents are obliged to pay maintenance even though the grandchild is an extra marital child.
When will there be a claim?
It is important to keep in mind that the person requiring maintenance must need financial help, whilst the person liable to pay the maintenance must be in a financial position to do so. This will be determined by the Maintenance Officer of the Maintenance Court.
Considerations to be taken into account when determining the amount of maintenance
Although the Maintenance Officer has a discretion to decide whether the party can afford to contribute to the wellness and upbringing of the minor child or not, the following will be taken into consideration, viz:
- Fair and reasonable costs of the child. This could include food, housing, clothing and proper education;
- The respective earnings of both the mother and father;
- The financial obligations of each parent towards the minor child, and whether the parent and/or grandparents which are sued for maintenance can afford the amount being claimed; and
- The lifestyle to which the parent claiming for maintenance and the child have become accustomed to.
The procedure in order to obtain maintenance
A maintenance order can be obtained by way of written consent between the parties and then be made an order of court.
Alternatively, one party may sue the other party for maintenance or the Maintenance Officer can make an appropriate order by default, should the defaulting party or party responsible for maintenance not appear in court.
What if the party responsible for maintenance does not pay?
The applicant should then lodge a complaint at the Maintenance Court and the respondent will then be sued to appear before the court and give reasons for his or her default.
Where the respondent does not appear in court, a warrant of arrest or a warrant of execution can be issued. A garnishee order can also be obtained, directing the employer of the defaulting party to deduct the maintenance from the employee’s salary.
For legal advice and/or assistance in the above, please contact:
Juan Smuts and Nicole Gerber | Abrahams & Gross Attorney
t 021 422 1323 | e info@abgross.co.za
