Maintenance is the obligation to provide another person, for example a minor, with housing, food, clothing, education and medical care, or with the means that are necessary for
providing the person with these essentials. This legal duty to maintain is called ‘the duty to maintain’ or ‘the duty to support’.
The duty to maintain is based on blood relationship, adoption, or the fact that the parties are married to each other.

A child must be supported or maintained by:

- His or her parents, whether married, living together, separated or divorced, including parents who have adopted the child; and/or

- His or her grandparents, whether or not the child’s parents were married to each other. However, this varies from one case to another.
- The duty to support a family member is not limited to supporting a child. Any family member, irrespective of his or her age, can ask any family member to support or maintain him or her, provided that the following conditions are met:

1. The family member who claims support is unable to maintain himself or herself.
2. The family member from whom maintenance is claimed is able to afford the maintenance that is claimed.
3. The main requirement of the means test is that the person who is liable to pay maintenance must have MEANS and the maintenance claimed must be REASONABLE.
You may claim reasonable support that is necessary for providing the child or other person who has a right to maintenance with a proper living and upbringing. This includes providing necessities such as food, clothing and housing, as well as paying for a proper education. The court may also order the father to contribute to the payment of laying-in expenses and maintenance from the date of the child’s birth up to the date on which the maintenance order is granted. The court may also grant an order for the payment of medical expenses, or may order that the child be registered on the medical scheme of one of the parties as a dependant. To enable the court to grant a fair maintenance order, both parties must provide the court with proof of their expenses.
Your view of the other parent’s behaviour has no effect on your

children’s right to maintenance. You still have to pay maintenance, even if the other parent:

- Remarries
- Is involved in another relationship
- Does not allow you to see the children or
- If either party later has more children.

Your duty to pay maintenance and your right of access to your children are two entirely separate matters and one has no relation to the other. Furthermore, children of either party do not influence the duty to support. However, the amount of maintenance to be paid may be amended by the court if either of the parties should bring such an application.
- Apply for maintenance at the magistrate’s court in the district where you live.

- If you are in doubt, your local court will tell you at which court to apply for maintenance.

- Go to the relevant court and complete and submit Form A: Application for a maintenance order (J101).

- In addition to the completed form, submit proof of your monthly income and expenses, such as receipts for food purchases, electricity and/or rent bill payments.

- The court will set a date on which you and the respondent (the person whom you wish to pay maintenance) must go to the court.

- A maintenance officer and an investigator will investigate your claim and look into your circumstances.

- The court will serve a summons (a letter instructing a person to come to court) on the respondent (the person against whom the .
claim is brought) to appear in court on a specific date to discuss the matter.

- The respondent then has a choice between agreeing to pay the maintenance as claimed, or contesting the matter in court.

- If the respondent agrees to pay the maintenance as claimed, a magistrate will review the relevant documentation. He or she will then make an order, and may decide to do so without requiring the parties to appear in court.

- If the person who is allegedly liable to pay maintenance does not consent to the issuance of an order, he or she must appear in court, where evidence from both parties and their witnesses will be heard.

- If the court finds the person liable for paying maintenance, it will make an order for the amount of maintenance to be paid. The court will also determine when and how maintenance payments must be made.

- The court can order maintenance money to be paid in one of the following ways:
1. At the local magistrate’s office or any other government office designated for this purpose

2. Into the bank or building society account designated by the person concerned

3. Directly to the person who is entitled to the money

4. By means of an order that directs the employer of the person who is liable for paying maintenance to deduct the maintenance payment directly from the employee’s salary, in accordance with the new Maintenance Act, 1998.
If maintenance has not been paid within 10 days of the date on which it was due, you may approach the magistrate’s court in your area and apply for: an order for the attachment of emoluments (salary, wages, allowances, or any other form of remuneration); a copy of the maintenance or other order in question; and The person who fails to pay maintenance is guilty of an offence and if convicted, may be liable to pay a fine or be imprisoned for a period not exceeding one year. If the defaulter uses the defence that he/she is not able to pay maintenance in terms of an order, he/she would have to show that lack of funds was not due to his/her unwillingness to work or due to misconduct.
Section 23 and 31 of the Maintenance Act 99/1998 regulates Criminal offences attached to the failure to pay maintenance and the authorisation of the issue of a warrant of execution to attach the defaulter’s property to cover the outstanding amount plus interest and the cost of execution;

It is possible to recover arrear maintenance (maintenance that has not been paid over a period of time), plus interest, taking into account the ability of the defaulter to pay and the need of the person/s maintained.
Any of these applications for arrear maintenance, which includes completion of Form J306E must be accompanied by:

- A statement under oath/affirmation stating the amount that the defaulter has failed to pay; or

- An order for the attachment of any debt owing to the defaulter presently or in the future.

 

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