Skip to main content
A CHILD’S RIGHT TO MAINTENANCE – EXPLAINED
Who can claim maintenance?
Every child that is not self-supporting has the right to receive maintenance from his/her parents and/or grandparents.  The Children’s Act, 38 of 2005, defines the term “child” as a person under the age of 18 years. However, it is not only children under 18 years that have a claim against their parents for maintenance.  A person 18 years or older that is not self-sufficient also has a claim for maintenance against his/her parents.  There is a difference in that a minor child is entitled to claim maintenance for all their needs whereas a major child may only claim for necessities.  
Since a minor child cannot institute or defend proceedings in his/her own name, it is the custodial parent who needs to claim maintenance on the minor child’s behalf, from the non-custodian parent.  Once the child becomes an adult (older than 18 years) and should they not be self-sufficient, he/she will have a claim against his parents for maintenance and will have to institute (or defend) such a claim in his/her own name. 
Until when can I claim maintenance? 
The duty to support only ceases once the child, irrespective of age becomes self-supporting.
What happens when both my parents die while I am not yet self-supporting?
Because the duty to support only ceases once the child or adult becomes self-supporting, the child, or adult in need of maintenance, will have a claim against his/her parents’ estates for maintenance alternatively their grandparents.
What happens when my parents are both unemployed?
If the court has made an order finding that one or both parents are able to pay maintenance for the child, the duty to support extends to the relevant grandparent/s.
How much maintenance can I, or my custodian parent on my behalf, claim? 
When it comes to the question of how much maintenance can be claimed there is no hard and fast rule.  Each case will depend on its own set of facts, circumstances and merits. 
When determining maintenance, the court will firstly look at the reasonable needs of the specific child.  This includes expenses such as food, shelter, clothes, transport, school expenses and medical aid to name but a few.  Only after the court has established what the reasonable needs of the child are, will it be in a position to determine each parent’s share in contributing to those needs. 
Secondly, when determining each parent’s share in contributing to the child’s needs, the court will make an order that each parent supports his/her child proportionally according to his/her means.  In other words, should the father earn a large income and the mother the father’s share in contribution will be greater than the mother’s.  The fact that the father earns more than the mother does not discharge the mother’s obligation to pay maintenance. Both parents are liable to contribute towards the need of their child/ren 
Where do I, or my custodian parent, claim maintenance?
The Maintenance Act, 99 of 1998, determines that every magistrate’s court is a maintenance court.   The custodial parent must go to his/her nearest magistrate’s court whom will help him/her to fill out the necessary forms, in order to bring the matter before the court so that an appropriate order can be made.

Written by Talita Erasmus – a practising attorney at Alan José Incorporated.

Comments

Post a Comment

Popular posts from this blog

Partners in a permanent life partnership could now enjoy the same benefits as spouses when it comes to intestate succession.

  The High Court in Cape Town recently decided a matter where a surviving partner, in a permanent life partnership, sought to declare certain sections of the Intestate Succession Act 18 of 1987 and Maintenance of Surviving Spouses Act 27 1990 unconstitutional.   In Bwanya v Master of the High Court and others 2020 (12) BCLR 1446 (WCC) the Applicant alleged that she and the deceased had been partners in a permanent opposite-sex life partnership, with the same or similar characteristics as a marriage, in which they had undertaken reciprocal duties of support and had committed themselves to marrying each other.  The deceased passed without leaving a valid will. The Applicant accordingly claimed against the estate and sought to be recognized as an heir in terms of the Intestate Succession Act. She further also sought maintenance from the estate in terms of the Maintenance of Surviving Spouses Act.   The executor rejected the Applicants claims on the basis that the aforementioned acts does
Post a Comment
Read more

The divorce procedure made easy.

  Following our previous article, Understanding the divorce procedure , we would now like to guide you through the steps you need to take to do your own divorce. Please note that this a very basic guide as there are many different permutations with regards to divorces and we are available to assist you at any point with further legal advice.   In order to start your divorce procedure, you will first need to draft a divorce summons. A divorce summons is a formal notification that a divorce is being requested and the terms of the divorce. Various examples of divorce summons can be obtained on the internet or from the courts. The content of the summons is very important and should be carefully thought through.   If there are minor children involved, you will need to complete an Annexure “A” form, which can be obtained on the internet or from the courts. This form needs to be commissioned by a commissioner of oaths and once completed it must be attached to your summons, before the summons
Post a Comment
Read more

THE EFFECT OF YOUR MARITAL REGIME ON TRANSACTIONS WITH THIRD PARTIES

Court cases discussed in this article: -        Broodie N.O. v Maposa and Others 2018 (3) SA 129 (WCC) [The court of first instance] & -        Marais N.O. and Another v Maposa and Others (642/2018) [2020] zasca 23 (25 March 2020)   [The court of Appeal] When entering into any form of a financial transaction with someone who is married in community of property, that person’s spouse’s consent may also be required for the business contract to be valid, binding and enforceable.  But what does this mean and is there a legal duty to investigate as to what the marital status of the other person is?    These questions were asked and answered in the above-mentioned two court cases. In this article I will explain what the respective Judges decided on these issues. Broodie N.O. v Maposa and Others The facts: Mrs Broodie married Mr Broodie in 1967 in community of property.  The marriage was a civil one in terms of the then Black Administration Act, 38 of 192
Post a Comment
Read more