Due to an increasing number of enquiries from our clients relating to the subject, this issue’s article is dedicated to maintenance. This is not the type of maintenance relating to vehicles, but rather maintenance by parents of their minor children and is also referred to as “support” or “alimony”. In our law there is also a duty on children to maintain their parents, we, however, limit the ambit of this article to the duty of parents to maintain their children.
Both parents of a child have a duty to maintain their children proportionate to their respective means. Furthermore, this duty endures, not until the child reaches the age of majority but, until the child becomes self-supporting. Although fathers have in the past been seen as the “breadwinner” and often were in the better financial position, it does not mean that mothers have no duty to maintain the child. This duty is also not merely a moral one, but a legal one, and any person failing to comply therewith can even face imprisonment. It often happens that parents fail to comply with maintenance orders. It is important to remember that money paid to the other parent is not for the benefit of the recipient, but, for the benefit of his or her child. By failing to pay maintenance the recalcitrant parent is acting to the detriment of his or her child and the courts do not take such non-payment lightly.
When sued for maintenance, it is important to remember that such duty, in general, only stretches as far as one’s financial means. A parent must therefore ensure that, when such parent is party to a financial enquiry by the court, he or she requests and obtains adequate proof of the suing parent’s financial documents prior to the enquiry in order to prepare properly and ensure that he or she is not being requested to pay more than necessary. It is important for the suing parent, to ensure that he or she does not forget to add each and every expense towards the necessities of the child. It is also advisable that such parent keep proof of these expenses in order to convince the court that the amount being claimed is correct and also reasonable.
Although the maintenance court is, in general, very accessible to lay people and most people manage to institute and defend claims quite successfully without the services of an attorney, it is advisable that parents desirous to institute or defend maintenance matters first obtain legal advice on how to prepare the necessary documentation and arguments prior to approaching a maintenance court.
Andries Stander, attorney at Barnard Incorporated.
Barnard Incorporated is a firm of attorneys situated in Centurion, Pretoria.