In a country where over one million children are born annually, one of the most common disputes currently flooding South African courts are those pertaining to the maintenance of minor children.
South African law currently provides that it is every parent’s responsibility and obligation to contribute to the maintenance of their minor children. This obligation usually exists until a child attains 18 (eighteen) years of age, but in general practice the obligation is usually extended until the child in question becomes self-supporting.
Thought this obligation exists many parents fail, refuse or neglect to contribute towards the maintenance of their children willingly and legal steps must be taken to secure the contributions. The purpose of this article is to summarise the legal steps that may be taken to ensure the parental obligation is complied with.
To assist the public in securing maintenance orders special lower courts, such as the Children’s Court and Maintenance Court, have been opened nationwide to facilitate the maintenance process without the need of attorneys. Issues of maintenance can still be decided in the High Court, however most feel it is an unnecessarily expensive and time consuming task for the High Court to attend to, in light of the existence of the lower courts.
The Maintenance Act provides in Section 6 that whenever a complaint to the effect that any person legally required to maintain a child fails to maintain the child, or that good cause exists for the substitution or discharge of an existing maintenance order has been made and lodged with a maintenance office at a court, the maintenance office shall investigate the complaint as provided by the Maintenance Act and its Regulations.
Once the maintenance officer has concluded their investigation they may institute an enquiry in in a court in the area of jurisdiction where the children, or the person in whose care the children are, reside with a view to enquiring into maintenance for the child.
A maintenance officer who has instituted an enquiry must be provided with full details of the parent’s assets, income and monthly expenditure in respect of themselves as well as the child or children to be maintained. A maintenance officer will consider the details provided and evidence provided. It must be noted that maintenance officers are empowered to call and question any witnesses under oath during the enquiry.
Once the enquiry process is finalised the findings of the maintenance officer will be presented to a magistrate within the court who will then take the necessary considerations into account and make a maintenance order, alternatively the magistrate will vary, substitute or discharge an existing maintenance order.
Once a maintenance order has been made any factual non-compliance with the order by any party can be enforced through the courts by means of execution or imprisonment of the party who is in contempt of the court order.
If the circumstances the parents change to such an extent that it actually interferes with their capability of complying with the order, it is possible for the process to be started again in order to vary, substitute or discharge a current maintenance order.
While the legislature has done and continues to do much to ensure that maintenance is easily enforceable in respect of minor children, it falls to the parents or caregivers of the minor child to ensure that the necessary maintenance orders are sought to protect the best interest of the child. In the absence of such orders, it is usually impossible to enforce any kind of compliance with the obligation of a parent to maintain their child.