Maintenance Law prioritises the child, defaulters to be blacklisted

PARENTS have a common-law duty to maintain their child – that is according to a principle that is solidified in the Maintenance Act (99 of 1998).

“A child is defined as a person who is younger than 18 years of age. Both parents of a minor child are responsible for paying maintenance – whether the parents are biological parents, parents by adoption, and whether the parents are married or not,” said Pearl Khumalo, a staff attorney at ProBono.Org in Durban.

She said that child maintenance provides for the reasonable needs of the child such as food, shelter, educational and medical expenses. “A parent or guardian may apply for child maintenance at their closest magistrate’s court using the prescribed forms. Once the forms are completed, the maintenance officer will send a summons to the respondent to attend court on a return date,” said Khumalo.

Also Read: Roadblocks to deal with child maintenance defaulters

Once the maintenance order is granted and the respondent defaults, and if the respondent is working, the court may issue an order for an emolument’s attachment [payslip], which permits the employer to pay the maintenance claim directly from the salary of the respondent.

“In terms of section 27 of the Maintenance Act, the court may order for the execution of the respondent’s movable items to satisfy the claim. In addition, respondents who fail to pay maintenance may be criminally prosecuted, that is they ‘shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding one year or to such imprisonment without the option of a fine’ in terms of section 31 of the Maintenance Act,” said Khumalo.

More recently, the Minister of Justice and Constitutional Development, Thembisile Simelane, signed a Memorandum of Understanding on the Maintenance Online Listing of Defaulters with the Consumer Profile Bureau and Social Justice Foundation to ensure that maintenance defaulters, who have enforcement orders against them, are flagged when trying to apply for new credit.

“Through this memorandum of understanding, we are sending a clear and unequivocal message to those who have been shirking their responsibilities to pay maintenance that their days are numbered. We are indeed coming for them,” said Simelane.

“There is no doubt that the failure to pay maintenance has a negative impact on the best interests of our children and it also undermines the child’s right to be maintained. The said failure contributes to the adversities and poverty experienced by many children, including those who are still at school.”

How to apply for maintenance:

When approaching the Maintenance Court, applicants must bring an identity book, certified copies of the child or children’s birth certificates; the latest three months’ bank statement; the physical or work address of the person responsible for paying the maintenance money; a list of your income and expenditure; and the full name of the parent or person responsible for paying the maintenance money. The matter will be investigated by the maintenance investigator.

Probono.net is a non-profit organisation that aims to provide access to justice to those who cannot afford an attorney through collaboration with the private legal sector. The organisation partners with private lawyers who volunteer their time to assist clients for free with matters relating to family law, labour law, deceased estates, consumer law, and housing and refugee law. For free legal assistance and representation in KwaZulu-Natal, you can contact the ProBono.Org Durban office for an appointment on 031 301 6178 or dbninfo@probono.org.za.

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