Law Clinix

Knowledge is power and your peace of mind

MAINTENANCE

Alimony , maintenance or spousal maintenance is a legal obligation on a person to provide financial support to his or her spouse before or after marital separation or divorce.

The obligation arises from the divorce law.Traditionally, alimony was paid by a husband to his former wife, but since the 1970s there have been moves in many Western countries towards gender equality with a corresponding recognition that a former husband may also be entitled to alimony from his former wife.

The legal process of divorce may also involve issues of spousal support or maintenance, child maintenance.

Divorce can be a stressful experience affecting finances, living arrangements, household jobs, schedules, parenting and the outcomes of children of the marriage as they face each stage of development from childhood to adulthood. If the family includes children, they may be deeply affected.

 

Child and Spousal Maintenance

A. Child Maintenance

One of the basic principles of child maintenance is that the extent of the obligation is based on the standard of living, income and means of the person/s obliged to pay.

The obligation does not rest solely on the father; it rests on both parents, according to their respective means. 

Once a child has reached the age of 18, a parent cannot claim maintenance on their behalf.

The child must institute action in his/her personal capacity. 

The fact that a child is visiting a parent temporarily does not entitle that parent to suspend or reduce his/her maintenance during that period.

A parent’s duty of support towards his/her child is not affected in any way by a remarriage and a step-parent is also under no obligation to support a stepchild.

The refusal to allow a parent contact does not entitle that parent to stop paying maintenance.

In order to fulfill their obligations to support their child, parents must use both of their incomes and, if necessary, their capital.

A court may order that the assets be sold to satisfy the obligation to pay maintenance. This also prevents a parent from evading his/her duty to pay maintenance by giving up work and becoming, for example, a full-time student.

The ordinary rules relating to parents’ duty to support also apply in respect of children born out of wedlock.

B. Spousal maintenance

Although women and men are equally entitled to seek maintenance awards against each other , but  the most of cases maintenance cases are brought by women.

Neither spouse is automatically entitled to spousal maintenance on divorce. Our law favours the ‘clean break’ principle, which basically means that after a divorce the parties should become economically independent of each other as soon as possible.


The duty of support

During a marriage, each spouse owes to the other a reciprocal duty of support each other and the children if any, provided that the person claiming such support is actually in need of it and that the other spouse can actually provide it.

This support includes accommodation, clothing, food, medical services and other necessities, and is balanced by the couple’s social status, their means of income and the cost of living.

The duty to support each other is the responsibility of both spouses and means that if, for example, a woman does not have the financial means to support herself, her husband has a legal obligation to support her, and vice versa.

This reciprocal duty of support comes to an end on termination of the marriage, whether by death or divorce.

However, in divorce situations, the Divorce Act 70 of 1979 makes provision for court orders relating to maintenance.

When a spouse dies, the surviving spouse can claim maintenance against the spouse’s deceased estate in terms of the Maintenance of Surviving Spouses Act 27 of 1990. 


Neither spouse has a statutory right to maintenance. The ex-spouse seeking an award for maintenance has no right as such.


 

Maintenance Courts 


The Maintenance Court is situated in the Magistrate's Court. Mothers or fathers who do not get support for their children from the other parent can go there to claim maintenance from that parent.

There is a Maintenance Officer in charge of the Maintenance matter. It is not necessary to have an attorney to claim maintenance. The Maintenance Officer will help you to fill in the necessary forms.

If one of the parents of the child refuses to pay maintenance then the case must go to the Maintenance Court. If so, the Maintenance Officer will give details on when to appear in court and which court to go to.

PATERNITY

If a man and woman are going out together – like a girlfriend and boyfriend – and the woman falls pregnant, it is assumed that her boyfriend is the biological father. The boyfriend will then have to give proof that he is the father if he wants to claim paternity.


If paternity is disputed, the court may order a paternity test. If paternity is disputed and both parties agree to a test, but cannot afford it, the court has discretion to order state to pay part or all of the cost of the test.


HOW TO APPLY FOR MAINTENANCE ORDER:

Apply for maintenance at the local magistrate's court in the district where you live.

1. Go to court and complete and submit Form A, "Application for a maintenance order." Submit proof of your monthly income and expenses, such as receipts for food purchases, electricity and/or rent bill payments.

2. The maintenance prosecutor will serve a summons on the respondent (the person against whom the claim is brought) to appear in court on a specific date to discuss the matter.

3. If the respondent agrees to pay the maintenance as claimed, a magistrate will review the relevant documentation and then make an order, and may decide to do so without requiring the parties to appear in court.

4. If the respondent allegedly liable to pay maintenance does not consent to the issuance of an order, he or she must appear in court, where evidence from both parties and their witnesses will be heard.

5. If the court finds the person liable for paying maintenance, payments must be made.

6. The court can order maintenance money to be paid in one of the following ways:

6.1  At the local magistrate's office or into the bank account of magistrate's office.

6.2  Into the bank or building society account of the applicant or designated by the person concerned.

6.3.  Grant a emoluments attachment order that directs the employer of the person who is liable for paying maintenance to deduct the maintenance payment directly from the employee's salary, and pay it into the bank account of magistrate's office or into bank account of the applicant.

MAINTENANCE 


They may be approached when maintenance is sought from a person who is legally liable towards a minor child (Form A) must be completed.


The Application for the discharge or substitution of existing maintenance orders. (Form B) must be completed.

COURT PROCESS - PROCESS BEFORE MAGISTRATE

A MAGISTRATE BECOMES INVOLVED IN THE FOLLOWING MAINTENANCE PROCESSES (after the informal enquiry process of Section 6 has failed):

1.  Where parties consent to an order been made.

2.  Where no settlement is possible and magistrate should conduct formal enquiry.

3.  Arrear maintenance enquiry in terms of Section 31.

Abbreviations explanation:

PO= Presiding Officer/Magistrate

PP= Public Prosecutor

PARTIES CONSENT TO MAINTENANCE ORDER Form G J214E


1.  Maintenance officer or Public Prosecutor brings matter to court and advises court the parties have settled the matter. 

2.  If parties are unrepresented the PO should advise the parties of their right to legal representation before the court considers granting the consent order.                

If the parties are represented or do not want legal representation the PO should proceed to look at the consent order and look out for the following:

2.1.  Full names of both parties on order (person paying maintenance is always the Respondent)

2.2.  Check that file number is the same on file and on court order.

2.3.  Amount to be paid for the child and date of birth of child is recorded on the consent form.

2.4.  Date of first payment and latest date upon which order should be made must be reflected (respondent is usually given 7 days to make payment).

2.5.  Correct account number of applicants banking account and banking institution.

2.6.  ensure that the “and/or” portion on the form is deleted if there are no additional items to be paid by the respondent. If there are entries ensure that the “or” is deleted. 

2.7.  Ensure that the respondent (person who must pay maintenance) has signed on the line provided on the form. The applicant must sign acceptance of the offer on a drawn in line next to the Respondents signature.

2.8.  On the back of the Form G you should make sure that the second paragraph is deleted if this is a first order being made. If it is a second order then you must make sure that you indicate what paragraphs are being replaced.

2.9. If the payment must be deducted from Respondents salary then the next paragraph must be completed with employer’s details and details of order must be recorded under this. If respondent will be paying over to the applicant make sure this section is deleted.


3.  Once you have looked at the order you are ready to speak to the parties before you. You should ask the following:-

3.1.   Respondent do you confirm that you have agreed to pay (read the order in front of you). He must then confirm that it is all correct.

3.2.   Ask respondent to confirm that he can afford the amount offered. If the answer is no stop the proceedings and refer it back to the maintenance officer doing the enquiry.  If it is yes then

3.3.   Ask the applicant if she/he accepts if she has a “but” or if the answer is no then no refer it back to the maintenance officer.

3.4.   Confirm with applicant and respondent that they both signed the consent order.

4.  Only now should you sign the order. 

5.  Now inform the Respondent as follows:

5.1.   If he changes his employment or residential address it is his duty to inform clerk of court.

5.2.   If he pays later than either the 7 th or 2 nd (check order granted), or pays less than the order states or pays nothing at all,  then he will be in contempt of court and may be arrested and placed on trial and if   found guilty be sentenced to imprisonment.

5.3.   It is respondent’s duty to inform court immediately if he is not able to pay the maintenance as set out in the order.  He must do this as soon as he knows he will be unable to pay. He will then apply for a reduction in maintenance and will have avoided being arrested for non-payment of maintenance. 

 

NO SETTLEMENT REACHED MATTER REFERRED TO COURT BY MAINTENANCE OFFICER – SEC 10 ENQUIRY


1. Prosecutor deals with this enquiry and must act as a facilitator for the court not represent either party.  

This is important as the pp must assist both parties and one of them if they are unrepresented. This means that PP must assist in leading evidence of both parties if unrepresented and still has opportunity to ask questions of the same party after cross-examination.

BEFORE THE PP BRINGS MATTER TO COURT IT IS ADVISABLE TO INSIST THAT THE PARTIES CONFIRM TO THE PP WHAT ISSUES ARE IN DISPUTE (MAY USE FORM CREATED TO ASSIST PARTIES AND COURT WITH THIS).

IN THE EVENT THAT ONLY SOME ISSUES ARE DISPUTED HEARING MAY PROCEED WITH BOTH PARTIES HANDING IN DOCUMENTS NOT IN DISPUTE THAT ARE ADMITTED AND THEN TRIAL CAN PROCEED WITH EVIDENCE BEING LEAD ON DISPUTED ITEMS ONLY. 

N.N.B the pp must ensure that the court gets the original documents as proof of each parties claims and that there are sufficient copies of each parties documents for the other party and for the PP before this matter is called in court.


2.  If parties are unrepresented the court must as soon as the matter is placed on the role by the PP advise the parties of their right to legal representation and record their election. If they elect to remain unrepresented the court should advise them how the process is going to proceed, i.e. that this is an application for maintenance or first application/application for increase/application for decrease/ application for discharge.

The person applying is referred to as the applicant and the other party is the respondent.  Explain how this process will be dealt with so that both parties understand.  You can give a summary of what follows here under to explain to them how the full trial proceeds.

Remember that Magistrate must take active part in this enquiry and if evidence has not been lead the court MUST call for evidence that either party has left out. This is an enquiry and not a purely civil process.  

It is a good idea to insist that all items that are either disputed or admitted which have supporting documents be numbered for easy reference by the parties and the court.

3. PP/attorneys should after calling case advice court which items are in dispute in respect of the applicant and respondents matters and those which are not each party should confirm which pages of the documents of evidence they refer to. The trial then proceeds on opposed items only.

4. PP or attorney for applicant calls complainant, court swears in the applicant who then proceeds to give evidence of her income and expenditure and hands in documents as proof of each item. (only disputed items as admitted items already handed in.  Respondent will have an opportunity to cross examine on evidence lead IRO disputed items after the evidence in chief is lead.

The PP must then be given the opportunity to ask any questions regarding the evidence lead and thereafter the court may ask any question. The duty of the PP in this process is to assist the court in the court process and not to represent any particular party.

5. Applicant may call any other witness to prove his/her case who will lead evidence and be cross examined and asked questions by PP and court as with any other witness.

6. Applicant will close his/her case and the respondent will be called to give evidence.

7. Court swears in Respondent and PP/Attorney leads evidence in respect of disputed items only as admitted undisputed items already handed in as evidence.

8. After evidence in chief the applicant/ attorney for applicant can cross examine the respondent where after the PP will be entitled to ask questions of the Respondent and thereafter the court may ask questions.

9. Any witnesses for the Respondent will be called next and same procedure as in 7. above will be followed.

10. Respondent will close case.

11. Applicant/attorney will address court.

12. Respondent/attorney will address court.

13. PP will address court.

14. Judgement by Magistrate.

15. Order is recorded on form J168E

 

Useful source of case law for maintenance matters: HANDBOOK OF THE SOUTH AFRICAN LAW OF MAINTENANCE – Lesbury van Zyl and specifically pages 113-152. Remember to check for updated case law! 

APPLICATION FOR ARREARS IN TERMS OF SECTION 31 CRIMINAL PROSECUTION FOR ARREARS

This process can only be brought before magistrate by a public prosecutor. This process can be used first for recovery of arrears but other options of recovery should be considered by the PP first (i.e) garnishee orders, warrant of execution of assets and attachment of debt. The Section 31 process should be dealt with as follow:

1.  The prosecutor will call the matter.

2.  Magistrate advises accused of his right to legal representation.  If accused elects to conduct his own defence the court must advise the accused of the charge and the possible defences to the charge of arrear maintenance and the sentence which can be imposed if found guilty. The process of the trial should also be explained. 

3.  The prosecutor reads out charge to accused.

4.  Accused is asked what he pleads. If accused pleads:

4.1.  Guilty – then a statement may be presented to court by either the accused or his legal representative or the court can ask the accused to what he pleads guilty.

The accused must admit the following to be found guilty of an offence i.t.o. Sec. 31- that an order of court existed that maintenance was to be paid, from when and for how much and for whom and that he failed to pay that amount for that period. He must further confirm that he knew it was an offence not to make payment of that amount and that he had the means to pay the amount which in arrears.

4.2.  Not Guilty – The court will now ask the accused whether he/she wishes to make any formal admissions.

He can admit the following:- there was an order of maintenance made. He was aware of the order and precisely what it ordered and that he failed to make payment of this amount and if he wants to disclose the reason for non payment he can do so.


 

IF THE ACCUSED ADMITS SOME OF THESE ELEMENTS STATE DOES NOT NEED TO LEAD EVIDENCE IN RELATION OF THAT IF ACCUSED DOES NOT ADMIT ANY OF THE ELEMENTS THE STATE MUST LEAD EVIDENCE ON ALL ELEMENTS.

 

5.  PP must now call the complainant to give evidence. Court must administer the oath and then PP may lead evidence.PP must, through the evidence of the complainant prove:

5.1.  the existence of a court order (produce original or court certified copy) hand it up to court.

5.2.  prove that respondent was aware of the order;

5.3.  ask complainant if accused made regular payments and if not prove to court how much was paid and how much is in arrears. Complainant must hand in bank statements as proof of non payment.

5.4.  Complainant must state whether according to him/her the accused had employment and/or had assets to sell to pay the maintenance yet did not.

If accused was unemployed did he have provident or pension fund which he could have used to pay maintenance. These are all general questions and any question unique to these parties should be asked by the PP.

6.  Accused or legal representative can now cross examine the complainant. 

7.  PP can re-examine if necessary then call next witness if they have and follow same procedure.

8.  The state will then close case and accused will be asked if he wishes to testify.

9.  If accused wants to testify he should be sworn in. Once he has given evidence and either proved he has paid the amount or had no means (money or assets to pay the maintenance at the time of arrears).

10.  PP will be able to cross examine the accused based on evidence he has produced. 

11. IF AT THIS STAGE IT IS CLEAR TO THE COURT OR THE STATE THAT THE ACCUSED DID NOT HAVE THE MEANS TO PAY THE MAINTENANCE THE COURT MUST CONSIDER CONVERTING THE CRIMINAL PROCEEDINGS INTO AN INQUIRY ITO SECTION 41 OF THE ACT.

THIS MEANS THAT THE CRIMINAL PROSECUTION CEASES AND THE MATTER IS CONVERTED INTO AN ENQUIRY AS WOULD BE DONE I.T.O SECTION 10. 

12.  If the process is not converted then the accused can bring any further witnesses to testify and be cross-examined. 

13.  The accused will close his case and both PP and accused/representative will be given the opportunity to address court.

14.  Deliver Judgement and if required deal with sentence.  A magistrate may NOT write off arrears!

The Maintenance Officer may make a maintenance order compelling the defendant to pay maintenance in a particular form and manner. He may also order the defendant to pay arrears from date of birth as well as costs of birth.

The Maintenance Officer may make specific orders such as compelling the defendant to add his child as a dependent on his medical aid scheme.

He may also attach annuities, provident funds and similar for maintenance, but this is restricted to cases where defendant has acted in bad faith. He may also order an emolument attachment order.

When variation of existing order is sought, the defendant must show “good cause” - basically changed circumstances of the minor child, or the parents, that would justify a higher or lower amount.

Should Defendant not arrive but has consented in writing to the judgement (Form G) an order may be made. An order may be made against an absent Defendant if he consents in writing to judgement.

Should defendant fail to attend, and he does not consent to judgement in writing and Maintenance Officer is satisfied that he had knowledge of the proceedings, he may allow plaintiff to adduce evidence and make an order as he sees fit, including default judgement.

  

FORM DOWNLOAD FOR APPLICANTS AND RESPONDENTS

 


Form A: Application for Maintenance Order (J101E)

FormA.pdf (612.01KB)
FormA.pdf (612.01KB)



Form B: Substitution or Discharge of existing 
Maintenance (J107E)

FormB.pdf (622.62KB)
FormB.pdf (622.62KB)


 

Form G: Consent and Maintenance Order (J214E)

FormG.pdf (44.13KB)
FormG.pdf (44.13KB)


 

Form I: Application for Variation/Setting Aside of an Order by Default (J256E)

FormI .pdf (46.73KB)
FormI .pdf (46.73KB)


 Form M: Application for Setting Aside of a warrant of a Warrant of Execution (J435E)

FormM.pdf (47.17KB)
FormM.pdf (47.17KB)


 


 

Form N: Application for Suspension, Amendment or Rescission of an Order for the attachment of Emoluments (J438E)

FormN .pdf (46.78KB)
FormN .pdf (46.78KB)


 




Form P: Application for Suspension, Amendment or Rescission of an Order for the attachment of Debts (J458E)

 

FormP .pdf (46.83KB)
FormP .pdf (46.83KB)


 

Guidance Manual to obtain Maintenance Order
Step 1,2 and 3 Maintenance Guidance.pdf (34.36KB)
Guidance Manual to obtain Maintenance Order
Step 1,2 and 3 Maintenance Guidance.pdf (34.36KB)


 


Useful contact numbers

If something unpleasant has happened to you and you need some help or you want to find someone to talk to your parent or parents first.

Also try talking to your teacher or a close adult family member. If none of these people can help try to contact the telephone numbers given on the link below:

Useful numbers


Do you find this page helpful:

  Yes   No