HOW IS CHILD MAINTENANCE CALCULATED?

The duty to support a child rests on both parents, irrespective of whether the child was  adopted or born out of wedlock. Parents’ maintenance obligations are determined by taking into account the reasonable cost of the child and apportioning such costs between the parents according to their respective means. At a minimum, the reasonable costs of a child include the costs of the child’s basic needs, such as food, clothing, accommodation, medical care, and education. The reasonable costs of the child can, however, entail more than the aforementioned necessities, depending on the parents’ standard of living. There is no ‘standard maintenance’ that a parent must pay nor is there a maintenance calculator that can be used to determine what amount is payable. The amount of maintenance payable by each parent is determined on a case-by-case basis.

HOW TO APPLY FOR A MAINTENANCE ORDER

Maintenance Courts were created with the purpose of dealing with all maintenance-related matters, such as applications for maintenance orders, varying existing maintenance orders, and enforcing maintenance orders in the event of non-payment. A person approaching the Maintenance Court for assistance is not required to have a legal representative present but may choose to obtain legal advice prior to doing so, or appoint a legal representative to assist with the entire process.

In order to apply for a maintenance order at the Maintenance Court, one  must complete the standard maintenance application form. The form may be found online or at any Maintenance Court. The clerk of the Maintenance Court or a legal representative should be able to assist with the completion of the application form and the accompanying expense schedule. Prior to approaching the Maintenance Court, it is useful for the applicant to compile a list of their monthly income and expenses (including the monthly expenses of the child) to ensure that the correct information is contained in the application. The following supporting documentation must be submitted to the Maintenance Court with the application form:

•  Three months’ salary slips for the applicant;
• Proof of the applicant’s monthly expenses, such as grocery slips and medical bills;
• A certified copy of the applicant’s identity document;
• A certified copy of the child’s birth certificate (if maintenance is sought for a child);
• Three months’ bank statements for the applicant; and
• Proof of the applicant’s residential or work address, not older than three months.

Once the application is submitted, the Maintenance Court will send a directive to the applicant and the person against an order for maintenance is sought (the respondent) to inform both parties of the date on which they must appear in the Maintenance Court to commence the process.

HOW TO ENFORCE A MAINTENANCE ORDER
When a person who is ordered to pay maintenance fails or refuses to make such payment for a period of 10 days from the date on which the payment is due, the person in whose favour the order is made may approach the Maintenance Court for assistance with the recovery of the arrear maintenance. The Maintenance Court may issue a warrant of execution, an order for the attachment of emoluments (salary or wages), or an order for the attachment of debt to recover the arrear maintenance.

The standard enforcement application may be obtained online or at a Maintenance Court. This form, together with an affidavit from the applicant setting out the maintenance payments that are due, the payments that were received, and the arrear maintenance, must be submitted to the Maintenance Court for the enforcement of an order. If it is the first application submitted at the Maintenance Court, the following documents must also be provided:

• • A certified copy of the applicant’s identity document;
  • A certified copy of the child’s birth certificate (if maintenance is sought for a child);
  • Bank statements of the applicant for the period that the arrear maintenance is claimed;
  • Proof of the applicant’s residential or work address, not older than 3 months; and
  • The existing maintenance order or divorce order.

Failure to pay maintenance is a criminal offence and a criminal complaint may be laid against an alleged offender. This complaint is also submitted to the Maintenance Court together with the aforementioned enforcement application.

HOW TO VARY A MAINTENANCE ORDER

Any party to a maintenance order may apply for a variation of that order, provided that good cause can be shown to justify such variation. Generally, ‘good cause’ constitutes proof that one of the parents’ financial positions drastically changed since the original order was granted or that the reasonable needs of the child changed. To apply for the variation of a maintenance order, the standard application for the ‘Substitution or Discharge of an Existing Maintenance Order’ must be completed and submitted to the clerk of the Maintenance Court. The form can be found online or at a Maintenance Court. The application form must be accompanied by a copy of the current maintenance order (or divorce order) and the supporting documents, unless the supporting documents are already in the Maintenance Court file:

• • • Three months’ salary slips for the applicant;
    • A certified copy of the applicant’s identity document;
    • A certified copy of the child’s birth certificate (if applicable);
    • Three months’ bank statements for the applicant;
    • Proof of the applicant’s residential or work address, not older than three months; and
    • The existing maintenance order or divorce order.

The onus is on the applicant to show good cause for the variation of the current order.