Child maintenance and what you need to know
Child Maintenance and the Common Law of Duty
Child Maintenance, or Duty of Care, is a legal obligation to provide support to a child. This duty is a reciprocal duty that has to be offered to the child by both parents jointly, irrespective of whether the child was born in or out of wedlock or is born of a first or subsequent marriage as stated in terms of section 15(3) (III) of the Maintenance Act 99 of 1998.
Therefore, parents are obliged to support their child/children by providing all the necessities that they may require (food, clothing, accommodation, medical and dental needs, and educational needs). The level at which support will be determined will depend on the standard of living of both parents.
The Maintenance Act No. 99 of 1998 is the most important instrument of enforcement of maintenance in our law in cases where a parent refuses to support their child or does not comply with a maintenance order.
Does the Duty of Care extend to the grandparents of the child?
The duty to support a child can fall onto the maternal or paternal grandparents if the parents of the child are not in a financial position to support their child. In this circumstance, the parent with the primary care of the child may lodge an application to the maintenance officer against the paternal/maternal grandparents.
When will the grandparents be obligated to pay child maintenance?
The grandparents will be obligated to pay child maintenance where;
- The parents of the child can prove that they are unable to support the child/children
- One of the parents, cannot be found but the grandparents can be found
- The estate of a deceased parent is inadequate to support the child/children
How much money should be paid for maintenance?
In order to establish how much a parent should contribute towards supporting their child, the reasonable needs of the child on a month-to-month basis must be determined. The accepted principle is that, parents are obliged to maintain his/her child in accordance to their means. Each parents’ income and expenditure will be the determining factor.
It is important to note that maintenance may not only be in monetary value. In most cases, our courts are more considerate on the parent that has the primary care of the child because the parent is providing shelter and food for the child.
At what age does the duty of support towards a child end?
The fact that a child has reached majority age (18 years) it does not mean that the duty of support by a parent ends. The parents must support the child until he/she is self-supporting.
At which court can you lodge a maintenance claim?
In terms of the Maintenance Act, you may lodge a Maintenance claim at a Magistrate’s Court within the jurisdiction where the child resides.
Can the maintenance amount be increased/decreased at any time?
A parent whom a maintenance order was made against may make an application to the court to have the maintenance amount decreased, only if there is a change in his/her financial position.
The same applies to a parent who applied for the maintenance of a child and he/she may apply for an increase only if the child’s needs have changed.
The court will consider reasonable factors and grounds that exist to grant or deny the application.
Sources: Maintenance Act 99 of 1998
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