South Africa: #LockdownSA – Unlocking Your Rights To Child Maintenance

If dealing with the proliferation of financial demands manufactured by the current Lockdown isn't as daunting enough – having to deal with non-compliance with maintenance orders can be crippling and infuriating to say the least. It helps to know that the law can be enforced during such difficult times. Specific provisions of the Maintenance Act 99 of 1998 ("the Act") reinforces the common law duty of parents to maintain their children needing support. For the sake of convenience when referring to "child", it will mean a minor child or major in need of support – although the right to institute maintenance proceedings shifts to the child once the child attains the age of majority or by law attains full contractual capacity. These duties extend to financial support that is reasonably required to maintain a proper living and upbringing of the child requiring such support and which support further includes but is not limited to food, clothes, medical needs and education.¹ These duties must be adhered to as it forms the cornerstone of the best interests of the minor child and is enforceable, even if the party failing to comply is unemployed. If the party failing to comply owns property, whether it be moveable or immoveable, such property may be attached and sold in order to comply with the maintenance order. Payment of maintenance must be adhered to during the Lockdown. Failure to make payment could result in the defaulting party's property being attached and a warrant of arrest being issued as the defaulting party would be in contempt of court. Importantly the duty to support can only be discharged once the child becomes self-supporting and not necessarily when the child attains the age of majority.

Establishing your little one's right to maintenance

The parents of the child incur the duty to maintain jointly, and the respective shares of such duty is apportioned between such parents within their respective means.² In plain words, both parents have a duty to maintain their children, if one parent fails to comply the other parent has recourse on behalf of the child. The right to claim maintenance can manifest itself by virtue of being a parent of the child, whether born in or out of wedlock. Importantly, maintenance directions can be contained in the maintenance order obtained through maintenance proceedings issued out of the maintenance court or it can be contained in a divorce order or any subsequent variation or by instituting where there is no maintenance order in place.

Enforcing children's rights to maintenance during the Lockdown

The Lockdown has brought about a rather peculiar circumstance. The regulations passed under the Disaster Management Act ("the Act") as amended by Gazette 43168 of 26 March 2020 and Gazette 43199 of 2 April 2020 provides strict guidelines as to how social isolation should take place. These regulations place restrictions on the movement of persons and goods during the Lockdown.³ Bearing in mind the initial Lockdown was for twenty-one (21) days, but it has now been extended for an extra two weeks. Therefore, the wellbeing of children, who have limited support could be in serious jeopardy during this period as the compromised court procedure can fuel non-compliance as a result of the Lockdown. Attorneys perform essential services in terms of Annexure B of the above Regulations; however, these services are only in respect of urgent matters. The Minister of Justice and Correctional Services passed regulations in terms of the Act on 31 March 2020 ("the Regulations") which further shed light on the aspect of child maintenance. In terms of these regulations, first-time applications will only be dealt with if all the information of the respondent i.e. the person being liable to pay maintenance, is available as well as applications for enforcement.⁴ The Regulations further indicate that sheriffs can execute writs if it is an urgent family matter.⁵ Finally, this means enforcement during Lockdown is possible; however, permits need to be obtained by attorneys to go to court, and requests for permits will be assessed by the Legal Practice Council on a case by case basis. A further potential problem is regulation 9.1(c) of the Regulations which states that permits can only be issued if a matter is enrolled and is urgent – but do not let this hinder you from obtaining legal advice.

Types of enforcement

An application for enforcement would need to be lodged with the clerk of the maintenance court if an order of maintenance remains unsatisfied or the person liable to pay maintenance fails to make payment for ten (10) days from the date on which the relevant amount became due.⁶ The application can be for the attachment of property to sell in the execution of a pre-existing order or attachment of emoluments or attachment of debt. The circumstances of each case will dictate the most appropriate remedy, and consulting a legal practitioner will be advantageous in this regard.

Conclusion

To our Courts, a child's best interests are the overriding concern in all matters affecting the child. It is therefore imperative that where the wellbeing of a child is in danger as a result of non-compliance in respect of a maintenance order, the concerning parent must act swiftly and decisively.

Footnotes

1. Section 15 of the Maintenance Act 88 of 1998 ("the Act")

2. Section 15(3)(a)(i)-(ii) of the Act

3. Regulation 11B of the Regulations of the Disaster Management Act as amended by Gazette 43199 of 2 April 2020

4. Regulation 8(b) of the Regulations of the Disaster Management Act (as Amended) by Gazette 43191 of 31 March 2020

5. Regulation 5(c) of the Regulations of the Disaster Management Act (as Amended) by Gazette 43191 of 31 March 2020

6. Section 26(2)(a) of the Act

Originally published May 2, 2020

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.