The obligation to support and maintain a child is a shared obligation between parents and relates to the parent’s respective means. The obligation was legislatively incorporated through the promulgation of the Maintenance Act 99 of 1998. The obligation to support persists until the child becomes self-supporting.
Section 15 (2) of the Maintenance Act 99 of 1988, as amended, stipulates that
“the duty extends to such support as a child reasonably requires for his or her proper living and upbringing and includes the provision of food, clothing, accommodation, medical care and education”.
The parents of the child have the duty to maintain the child jointly. The important factor considered in determining the amount of maintenance is the reasonable needs of the child. The parent who does not have primary care usually has to incur expenses that are equivalent to the parent having primary care. The amount is determined by comparing the income and expenses of both parents and the exclusion of certain expenses which are not necessary. A maintenance order can be obtained by written consent by the parties and be made an order of the court. Alternatively, one party can sue the other party for maintenance. The court will appoint a maintenance officer to facilitate the process and a maintenance enquiry will be held whereby the maintenance officer will determine the reasonable amount the parent should pay whom the maintenance is claimed from.
Should the parent default on payment or fail to appear at the maintenance enquiry, the maintenance officer can make an order by default, a warrant of arrest and a warrant of execution can be issued against the defaulting party, alternatively, an emolument attachment order can also be obtained. In instances where the defaulting party provides a reasonable explanation for the failure of payment by way of unemployment, the maintenance officer will postpone the matter for the parent to seek employment.
The other alternative is that the parent claiming maintenance may claim maintenance from the grandparents of the minor child. The minor child’s grandparents will be obliged to pay maintenance where;
- The parents of the minor child are minors;
- The parents can prove that they are unable to support the child;
- The grandparents stand in the place of the parent;
- The parent cannot be found, only the grandparents; and/or
- The deceased estate of the parent is inadequate to contribute to the minor child’s basic needs.
In the case of Petersen v Maintenance Officer and others (2004) 1 All SA 117 (C), the court dealt with the issue of child maintenance and the grandparent’s duty to an enquiry to pay maintenance. The applicant, a single mother was receiving inadequate maintenance contributions from the father of her children. She requested the respondent to summon the paternal grandparents for an enquiry to establish their ability to pay maintenance. The court held that the common law rule which prohibits calling grandparents for enquiry and subsequent payment of maintenance, if possible, is unconstitutional as it also failed article 36 of the Constitution as it is unjustifiable. The court further held that the paternal grandparents have a duty of support towards the child irrespective of whether the child was born out of wedlock.
The best interest of the minor child is the main objective within the South African justice system and succeeds any other rights. Should you require assistance with regard to the maintenance of your minor child, do not hesitate to contact us.
Charne Sebonka
charne@bbplaw.attorney
Associate
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