Whatshot
Legal Talk
Legal Talk
Date: 2017-02-17
In terms of the Maintenance Act 1998, both parents (not just the father) have a duty to support their minor children, according to their means. The South African legislature and judiciary has over the years adopted a zero tolerance approach to those parents who try to avoid their maintenance obligations to their minor children. One of the important provisions of the Constitution says that every child has the right to basic nutrition, shelter, basic health care services, social services, and education and has the right to be protected from maltreatment, neglect, abuse or degradation.
Maintenance is payable to a child, whether or not the parents are married to each other be it by customary law, civil law, or civil union. Before the order is made, the court will look closely at the financial needs of the child and income of the parent, before it makes its order for maintenance. Affordability by the parent is therefore taken into account. A person who cannot afford to pay a specific amount of maintenance can approach the court to get the amount of maintenance reduced, if he can prove a change in his circumstances. Hence this person is not is being targeted in the draft regulations. It's that person who deliberately refuses to financially support and maintain his dependents.
In South Africa the rise of teenage pregnancies adds to the social burden to the State, means that more has to be done to deal effectively with the problem of maintenance defaulters.
From a political perspective in post apartheid South Africa, government spending on social development has increased significantly. Government social support grants have certainly helped the poorest children in SA, which has in turn contributed towards in reducing the child poverty stats in the last few years.
Failure to pay maintenance ultimately contributes towards the decline in the economy as children are forced to leave school prematurely, and to live a life of poverty. If a parent is employed and refuses to pay maintenance, you can apply to have a garnishee order issued. This means that the employer will be ordered to deduct the maintenance from the salary and pay that over to the claimant failure to pay maintenance is a criminal offence, which carries the possibility of a year in prison with or without the possibility of a fine.
Failure to pay maintenance to your children is also considered economic abuse and is one of the grounds which will entitle a person to apply for and be granted a domestic violence interdict, against the other parent.
Many single parent families are wholly dependent on the maintenance payments to ensure that the children's basic needs and expenses are met. I had a case where a father who claimed to have no income but who owned immovable property, was ordered by the court to sell the property and discharge his maintenance obligations to his minor children.
In another case, a father who remarried brought an application to reduce the amount of maintenance he was ordered to pay my client, on the basis that he had to also support his new family. The court took into account all the man's expenses and ordered that both families lifestyle had to be adjusted downwards and not that only of the first wife and her children.
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