van dyk attorneys - we serve without fear or favour

Q & A ON MAINTENANCE

What is maintenance?

This is an amount of money that someone, who by law has a duty of support towards another person, must pay to that person on a monthly basis.  An example would be that the father of a child has a legal duty to support his child taking into account his financial position as well as the specific needs of the child. Both parents have an equal duty to financially support their children.

 Who is entitled to receive maintenance?

  •  All children are entitled to receive maintenance from their natural parents regardless of whether the child is born during a marriage or not.
  •  Adopted children are entitled to maintenance from their adoptive parents and not their natural parents.
  •  Parents can also claim maintenance from their children if they have no or little income and only if the child has the financial means to pay maintenance.

 Can partners claim maintenance from each other?

  •  Partners in customary, civil and religious marriages have a duty to support each other.
  •  Partners in life-long same sex relationships may claim maintenance from each other.

 Who can lodge a claim for maintenance on behalf of a child?

  • Parents, guardians and curators can claim maintenance on behalf of children.

 What is included in a claim for maintenance?

  •  Food, clothing, accommodation, medical care and education, which may include university education.
  •  The amount of the maintenance is also determined by the standard of living of the parents and their standing in the community.
  •  In addition to food, clothing and accommodation, provision for electricity, water, linen, cutlery and the washing of clothes should also be taken into account.

 A Maintenance Order may be made for:

  •  Expenses in connection with the birth of the child
  •  Expenses in connection with the maintenance of the child from the date of the childs birth to the date of the enquiry
  •  In the case of a divorce, the ex-spouse is entitled to receive maintenance if it was included as part of the Divorce Court procedure.

  What we need to assist you in applying for maintenance?

  •  Your Identity Document
  •  ID number and photo of parent/person responsible for paying the maintenance money
  •  Your home and work addresses and telephone numbers
  •  Birth certificate of your child of you are claiming maintenance for the child
  •  Your marriage certificate or your divorce order containing the maintenance order if you  are claiming maintenance for yourself
  •  A full list of your/child’s expenses and receipts, eg proof of payment of child’s school clothes & education etc.
  •  Bank statement if you have a bank account
  •  Your salary slip and a list of any other income you may receive
  •  The salary slip and work telephone numbers and address of the person who you are claiming maintenance from, if possible
  •  The home and work addresses and telephone numbers of the person  who you are claiming maintenance from
  •  Proof of any other source of income of the person who you are claiming maintenance from.

 What happens next?

  •  We will assist you with the necessary application
  •  If necessary, the Maintenance Officer will subpoena anyone or the Defendant (the person who you are claiming maintenance from) to bring any documents to court to prove  the financial position of the Defendant
  •  A subpoena will be served on the other party informing him/her of the date, place and time of the informal enquiry
  •  A consent form will be attached to the subpoena and of the other party agrees to the maintenance arrangements, he/she can sign it.
  •  The consent form will be taken back to court to be made an order of court by a Magistrate.

 What happens if the other party has not signed the consent form?

  •  Both parties must be present at the informal enquiry with the Maintenance Office
  •  The other party will be required to bring along pay slips, bank statements and any other financial information requested by the Maintenance Officer.
  •  The Maintenance Officer will already have your statement of income and expenses on file.
  •  The Maintenance Officer may suggest a solution and if accepted by both parties, a consent form must be signed and the Maintenance Officer will ask the Magistrate to make it a court order.
  •  If you do not come to agreement at the informal maintenance enquiry and a consent form is not signed the matter will go to court.

 What happens if the other party does not appear at the informal maintenance enquiry?

  •  If a subpoena was successfully sent to the other party and he/she failed to attend the informal enquiry, the Maintenance Officer may apply for a maintenance order to be made in his/her absence ‘by default’.
  •  A Warrant of Arrest may also be issued for the other party’s arrest.

 What will happen if the parties have not reached an agreement at the informal enquiry?

  •  A court date will be set so that the matter can be heard in the presence of the Magistrate in a court.
  •  The other party may bring his attorney with him to court
  •  The Magistrate will then look at the evidence and make an order regarding how much the other party must pay for the maintenance of the children.
  •  You will receive a file number starting with 14/3/2 followed by your reference number allocated by the office
  •  Once you have been granted an order your file will remain at that court.
  •  Should you move home, your file can be transferred to the Magistrate’s Court in your new area. 

 

How long will I wait for a court order to be issued?

  • It depends on the co-operation of both parties.  Should the parties reach an agreement, the first payment should be done as specified by the Court Order.

 What are the different ways that I can collect Maintenance money?

  •  Garnishee order -  the company takes the money directly from the responsible person’s salary and pays it into the Court’s bank account
  •  Cash payment – you collect the money over the counter at the Court
  •  Direct payment  into your bank account – the respondent makes a deposit into your bank account

  •  The best way is to collect Maintenance by direct payment into your bank account as there is no travelling to Court, no transport costs, no standing in queues and no lost time at work.

 How long will I wait for the money to be paid out?

  •  The payment date is dependant on the Court order.
  •  The person responsible must make payment to the Court for the payment to be made to you.
  •  If the money is not paid in, the Court will first try and track whether payment was made and if not, will tell you what to do next.
  •  Delay in payment may be due to the computer system being offline or that payment cannot be traced due to incorrect reference number supplied.
  •  Remember that if money is paid in by cheque into your bank account, the money will only be available after seven days.

 How do I enforce a maintenance order?

  •  The person responsible for paying the maintenance has the right to appeal against the Maintenance Order.

  •  If the person with the maintenance order against them does not make a payment in line with the maintenance order after 10 days you may apply for:

  1.  A Warrant of Execution.  This means attaching and selling the other party’s property eg. Furniture, car etc.
  2.  Attachment of Emoluments. This means attaching his/her salary for payment of the amount every month.

  •  The application must be accompanied by a copy of the maintenance order
  •  Include a statement under oath stating the amount which the person against whom the order was made has failed to pay
  •  Complete a FORM K – available from the Maintenance Court.
  •  The Clerk of the Court can issue a notice to be served on the other party’s employer and tell them to make payments at certain times and in a certain way. 

 

If I am the person paying the Maintenance money, what do I need to do?

You can use the following methods of payment:

  •  Garnishee order – your employer takes the money directly from your salary
  •  Cash payment – you come to Court and pay the money over the counter
  •  Direct payment into a bank account – you make a direct payment directly into the bank account of the beneficiary.
  •  Keep the bank deposit slip to produce as proof of payment when required to do so. 

  •  Direct payment can only be ordered by the court as the method of payment where the court deems it fit in the circumstances or upon the request of the respondent and/or the applicant to the court.

  •  Your method of payment must be recorded on the Court Order.

  •  The reference number given by the court must always be given when making a direct payment into the bank account or over the counter.  Always fax proof of payment (deposit slip or receipt) to the Court when paying money directly into the bank account of the Court.

 What if the bank account where the money was supposed to be paid in has been closed?

  •  Furnish the Court with the new banking details
  •  The Maintenance Officer will advise the Respondent of your new banking details and the amount owed by him
  •  The new banking details will be recorded on the maintenance file.

 What if the person who collects the Maintenance money becomes ill, disabled, dies or is out of the country?

  •  In the case of death, the Executor of the applicant’s estate or Guardian of the child, is given permission to collect the money
  •  In the case of illness, disability or where the authorized person is out of the country, a third party needs to be appointed. This can be done by producing a Power of Attorney document which authorizes the third party to collect maintenance.