LEGAL REMEDIES FOR SINGLE PARENTS:
WHAT TO DO WHEN THE OTHER PARENT REFUSES TO PAY CHILD SUPPORT
1. When parents separate, one of the most important concerns is how to ensure their
children’s needs continue to be met. In South Africa, child maintenance laws are
designed to ensure that every child receives the financial support they need to
thrive—regardless of their parents’ relationship status.
2. This article explores how child maintenance works under South African law,
shedding light on the rights and responsibilities of parents, the maintenance
process, and the legal avenues available when disputes arise.
What is Child Maintenance?
3. Child maintenance refers to the financial support that parents are required to
provide for their children’s living, education, medical, and other basic needs. In
South Africa, both parents are legally obligated to support their children,
regardless of whether they are married, divorced, or in a relationship.
4. According to the Children’s Act No. 38 of 2005, the best interests of the child must
always be a primary consideration in any matter affecting them. This principle
extends to decisions about child maintenance, ensuring that children’s rights to an
adequate standard of living are met.
Who Is Obligated to Pay Maintenance?
5. Both parents have a duty to support their child, irrespective of their marital status
or living arrangements. South African law requires both the mother and father to
contribute to the maintenance of their child, with the financial responsibility divided
in a way that considers their individual abilities to contribute.
6. In cases of separation, divorce, or when parents are living apart, the non-custodial
parent (the parent who does not live with the child on a day-to-day basis) is
generally the one required to pay maintenance.
7. However, if both parents are unable to care for the child due to financial
constraints, either party may seek assistance through the Courts to determine how
to divide the responsibility fairly.
How Is Maintenance Determined?
8. There is no fixed amount for child maintenance, and each case is evaluated
individually. Several factors influence the amount, including:
a. The child’s needs: Including food, education, clothing, healthcare, and
housing;
b. The parents’ means: Both parents’ incomes, assets, and living expenses;c. Living arrangements: Which parent has primary care responsibilities.
d. Previous standard of living: Especially relevant if a significant lifestyle
change would affect the child;
e. Special needs: Such as disabilities or educational support.
9. In practice, a parent who receives child maintenance payments must ensure that
the money is spent on the child’s well-being, including their food, shelter, clothing,
and education.
The Process of Claiming Maintenance
10. When parents cannot agree on child maintenance, the aggrieved party can
approach the Maintenance Court to have the matter resolved. The process for
claiming maintenance in South Africa typically follows these steps:
a. Filing an Application: – The parent seeking maintenance will need to
complete a maintenance application form, providing details of the child’s
needs and the paying parent’s financial situation. Maintenance matters are
usually handled at the Magistrate’s Court closest to the child’s residence;
b. Documents required: – Proof of income, bank statements, birth certificate,
proof of expenses, etc;
c. Court Hearing: – After the application is submitted, the Maintenance Court
will schedule a hearing where both parties can present their case. The Court
will then make a determination based on the evidence provided;
d. Maintenance Order: – If the Court determines that maintenance is necessary,
it will issue a maintenance order specifying the amount, frequency, and
method of payment. The parent ordered to pay must comply with the terms of
the order;
e. Enforcement: – If a parent fails to pay maintenance, enforcement measures
can be taken, under the Maintenance Act No. 99 of 1998. This may include a
warrant of execution against property [Section 27], emoluments attachment
[Section 28], and an attachment of debt [Section 30].
What Happens if Maintenance Is Not Paid?
11. Non-payment of child maintenance is a serious issue in South Africa and can have
significant legal consequences. If a parent fails to comply with a maintenance
order, the other parent can request enforcement through the Maintenance Court.
The Court has various enforcement tools at its disposal, including:
a. Warrant of execution against property [Section 27].b. Emoluments attachment [Section 28].
c. Attachment of debt [Section 30].
12. In addition to the aforementioned, the other parent may also seek recourse
through the High Court by filing inter alia a Contempt of Court application. Failure
to comply with a maintenance order may result in contempt of Court order, which
could lead to criminal penalties, including imprisonment [Section 31].
13. It is important to note that the law protects children, and the Courts are generally
very diligent about ensuring that children’s maintenance needs are met. Non-
compliance with a maintenance order is taken seriously, and steps are taken to
ensure that the financial needs of the child are provided for.
Conclusion
14. Child maintenance is a legal obligation in South Africa, and both parents are
responsible for financially supporting their children. While the law recognises that
both parents must contribute, the amount and method of maintenance depend on
various factors such as income, the child’s needs, and custody arrangements.
15. Parents who are unable to agree on maintenance may seek the intervention of the
Courts to ensure that children’s financial needs are met.
16. For parents involved in a child maintenance dispute, it is advisable to seek legal
advice or consult a maintenance officer to ensure their child’s rights to
maintenance are upheld and enforced. It is a responsibility that is not only legally
binding but also fundamentally important for the welfare and future of the child.
For more information on understanding maintenance for children under South African Law,
please contact Mrs. Cornel Scheepers-Southey from STRAUSS ATTORNEYS INC. via e-
mail: cornel@lawstrauss.co.za or telephone: 044 110 0773.
Disclaimer:
This article is intended for general informational purposes only and does not constitute legal
advice or a legal opinion. Readers should consult with a qualified legal professional for specific
advice tailored to their individual circumstances.