Advocate Veerash Srikison explains your options when maintenance claims and payment become problematic to fulfil.
Section 18(2)(d) of the Children’s Act 38 of 2005 says that “a parent’s maintenance towards the child is part of the parental responsibility and rights” regardless of whether or not the biological parents are married. During my mediation sessions with unmarried parents, I provide concise and detailed information on how maintenance is calculated and budgeted for, how a Maintenance Agreement can be achieved and subsequently how the maintenance order is granted.
How Maintenance Is Determined
Here is an overview of what is discussed, with the current legislature in mind (the Maintenance Act 99 of 1998) along with the proposed changes made in 2015 that the Maintenance Amendment Act 9 of 2015 hopes to implement in the future.
As an unmarried parent
As an unmarried parent you can apply to a clerk at the Maintenance Court for an order for maintenance for your children and/or for yourself. The court is found in the Magistrates Court of the area in which you live and will be extended to the area where you work in the future.
- The clerk will then summon the other parent to appear for a maintenance enquiry, where the clerk will either accept the maintenance agreement or assist in creating one. If no resolution can be reached, the clerk will refer the matter to a Magistrate.
- The Magistrate then hears your matter formally. Both you and the other parent will give evidence regarding your financial circumstances and needs. The Magistrate will hear you both and then grant the Maintenance Order.
After a Maintenance Order has been granted
Once a Maintenance Order has been granted and if a parent defaults on payment, a complaint may be lodged with the maintenance officer and a formal application process may begin.
- You can apply to the maintenance court in the area you live in for a warrant of execution to be issued, an order for the attachment of debt, or an emolument order also known as a garnishee order.
- A garnishee order is a court order that is served on the employer ordering the employer to make deductions from an employee’s salary to settle debt owed by the employee according to the Maintenance Order. The employer must then present the court with information on the employee’s ability to pay.
- The personal information of the defaulting parent can also be handed over to the credit bureau. This can prevent any further credit being granted to the defaulter while they owe maintenance and opening them up to the possibility of becoming blacklisted.
If you believe it is possible for you and your co-parent to enter into discussions and create a Maintenance Agreement through mediation (or by going to the maintenance officer), you should be encouraged to do so. You may also apply for an interim order, which will partially assist you financially until the final order is granted. The mediator/clerk/court will always look to the best interests of your child and at the best way both parents can provide for them.
Mamas & Papas
Volume 9, Number 87