Maintenance Matters Part 2: Maintenance orders

Whilst the payment of maintenance is a legal obligation, it is often necessary to force the natural parent to pay maintenance by way of a maintenance order.

Where do I get a maintenance order?

You are able to obtain a maintenance order in either High Court or Maintenance Court (which is situated in the Magistrates Court in your district).

It is expedient and practical to include the amount of maintenance contributions in the Divorce Decree at High Court (assuming you were married to the other parent).

If you have not included the maintenance in the High Court Order, or should you not have been married to the other parent, it is advisable that you approach the Maintenance Court for a maintenance order.

How do I apply for a maintenance order?

The first step is to attend at the Court and fill in an Application for Maintenance Order form. You will be required by the Clerk of the Court to produce certain documentation so remember to take the following documents with you:

1.    Your ID book
2.    Your child/ren’s birth certificate/s
3.    Proof of your residential address

It is our suggestion that you take it home and complete it carefully and when you have time to properly consider your financial position (whilst using your bank statement to make sure it is correct!)

The form will require that you set out what you require as a maintenance contribution from the other parent. In addition it will require that you insert the relevant figures of your income and average monthly expenses, in respect to yourself and your children.

This is represented in the example below:

Rental: R4 000
No. of children: 3
Your contribution: R1 000
Child/rens, contribution: R3 000
Total: R4 000 per month

Once you have completed and returned the forms to the Clerk of the Maintenance Court you will be given a date when both you and the other parent have to appear at the Court.

On that day you will attend at an informal hearing with a Maintenance Officer and will discuss the matter with reference to your respective earnings and the needs of the child or children involved.

Maintenance trials

Should you be unable to reach agreement on the provisions of the maintenance that should be paid, the matter will be adjourned for a formal enquiry (also referred to as a maintenance trial).

At trial, evidence must be led as to the needs of the child and the financial position of each party. In order for such evidence to be led, documentation such as bank statements, IRP5s, proof of income, and vouchers for monthly expenditure must be provided to the Court and to the other party.

Likewise they must provide copies of the documentation in respect to their financial position.

Once all the evidence has been led, the Magistrate will make an order as to the terms of the maintenance that must be paid.

Often maintenance issues, at this level and especially when participating in a trial, are complicated and can present a proverbial minefield of pitfalls. For this reason, we do suggest that you consult with an attorney when embarking on an Application for a Maintenance Order.
About the author

Andrea Goldman is a Partner at Goldman Schultz Attorneys. For more information contact info@gslaw.co.za or www.gslaw.co.za