Does the father have to pay child support if not married? Or if he is unemployed?
Being married or not married is irrelevant to a child support order determination, as is whether you wanted the child. Even if you made it clear you did not want to have a child, the court could order you to pay support unless you can relinquish your parental rights.
The law requires that all parents have a financial obligation to their children. If your child isn’t living with you, you are required to make child support payments unless the custodial parent waives that right or your parental rights are legally terminated.
Child support or Maintenance is the obligation to provide another person, for example, a minor, with:
- housing
- food
- clothing
- education
- medical care
or means that are necessary for providing the person with these essentials. This legal duty is called the obligation to keep or support.
Who must provide maintenance?
The duty to maintain is based on blood relationship, adoption, or the fact that the parties are married.
A child must be supported or maintained by:
- Parents, whether married, living together, separated, or divorced, including parents who have adopted the child
- Grandparents, whether or not the child’s parents were married to each other. However, this varies from one case to another.
The duty to support a family member is not limited to helping a child. Any family member, irrespective of age, can ask any family member to support or maintain the child, provided that the following two conditions are met:
- The family member:
- who claims support is unable to keep oneself
- from whom maintenance is claimed can afford the care claimed.
Which expenses may be claimed?
You may claim reasonable support necessary to provide the child or other person with the right to maintain a decent living and upbringing. This includes providing necessities such as food, clothing, housing, and paying for a proper education.
The court may also order the father to contribute to laying in expenses and maintenance from the date of the child’s birth up to the date on which the maintenance order is granted.
The court may also grant an order to pay medical expenses or register the child as a dependent on one of the parties’ medical schemes. Both parties must provide the court with proof of their expenses to enable the court to grant a proper maintenance order.
Your view of the other parent’s behaviour does not affect your children’s right to maintenance. You still have to pay maintenance, even if the other parent:
- Remarries is involved in another relationship
- that does not allow you to see the children
- if either party later has more children.
What happens if a person dies without a Will?
The deceased has no control over who will inherit from his/her deceased estate if s/he dies without a Will.
If the deceased died without a will and had no one who could inherit from his/her deceased estate in terms of the Act, the deceased estate would be forfeited to the state.
If you die without a will, you will not have had the opportunity to appoint an executor (the person responsible for carrying out all the duties involved with administering the deceased estate). This may lead to a delay in the procedure, additional costs, and frustration for the deceased’s family.
If a parent dies, the other parent will be the legal guardian of the children. However, both parents might be deceased. A Will may nominate someone as the legal guardian of the deceased’s minor children if there is no other legal guardian left. If a deceased person did not have a Will, his/her wishes would not be taken into account, and the children might be placed in the care of someone they are not familiar with or someone who the deceased did not trust.
Suppose a partner in a cohabitation relationship dies without leaving a Will. In that case, his/her surviving partner will not be recognised as a spouse and cannot inherit from the deceased’s estate under intestate law.
Why you need to have a Will:
Please read: https://www.legalwise.co.za/help-yourself/legal-articles/dangers-not-having-will
What if a parent won’t pay?
Suppose there is a dispute between the child’s parents about maintenance. In that case, the parties may approach a family law attorney, social services professional, or another suitably qualified person to attempt to negotiate a maintenance agreement.
If one parent still refuses to pay reasonable maintenance when they can deliver, the other parent may approach the maintenance court in the area the child lives in to claim maintenance. The court will make an order for an appropriate amount. There are people at the court (maintenance officers) to assist the parent in completing the necessary documentation and serving the other parent’s papers to appear in court.
Once an order has been made to pay such maintenance, it must be adhered to, unless and until varied by the court. The order will be altered only if there is a significant change in either parent’s circumstances. If a parent against whom an order is granted fails to pay the ordered maintenance, the other parent may return to the maintenance court to lodge a request to enforce the order. This could include a garnishee order or a warrant for the sheriff to sell some property at auction to pay the arrears, criminal charges, and the non-paying parent committed to prison.
When parents are indigent and genuinely unable to pay maintenance for a child, the court may look to the minor child’s grandparents to decide whether they can produce care for that child.
So, let’s say there’s a situation where, for example, the father of a minor child is killed in an accident, and he doesn’t leave behind any money. Some paternal grandparents are financially able; the mother could ask the maintenance court to order them to pay maintenance for the child unless they can give a good reason not to be ordered to pay so.
Your duty to pay maintenance and your right to access your children are two separate matters; one has no relation to the other. Furthermore, children of either party do not influence the duty to support. However, the court may amend the amount of maintenance to be paid if either party brings such an application.
Do you have a cohabitation contract?
Couples need to know their rights. This does not just concern children but their rights generally.
For example, did you know that South Africa has no law governing cohabitation relationships? Therefore, although a couple may have lived together for many years when that relationship ends, there are no “common-law husband or wife” rights.
For example, even if you lived in your boyfriend’s house for 15 years and have several children together if that relationship suddenly ends, you might find yourself without a home unless there’s a contract in place.
You can approach any legal aid clinic or lawyer to help you draw up a simple document that defines and protects your cohabitation rights, even if you’re not married. Please do it for your peace of mind and your children’s security.
Get help
Steps to follow to apply for child support
- Apply for maintenance at the magistrate’s court in your district.
- Your local court will tell you which court to apply for maintenance if you doubt it.
- Go to the relevant court and complete and submit Form A: Application for a maintenance order.
- In addition to the completed form, submit proof of your monthly income and expenses, such as receipts for food purchases, electricity, and rent bill payments.
- The court will set a date for you and the person you wish to pay maintenance to appear in court.
- A maintenance officer and an investigator will investigate your claim and examine your circumstances.
- The court will serve a letter instructing a person to come to court on the person against whom the claim is brought to appear on a specific date to discuss the matter.
- The respondent then chooses between agreeing to pay the maintenance as claimed and contesting the matter in court.
- A magistrate will review the relevant documentation if the respondent agrees to pay the maintenance as claimed. They will then make an order and may decide to do so without requiring the parties to appear in court.
- If the person allegedly liable to pay maintenance does not consent to an order’s issuance, they must appear in court, where evidence from both parties and their witnesses will be heard.
- If the court finds the person liable for maintenance, it will order the payment of the amount of maintenance and determine when and how maintenance payments must be made.
The court can order maintenance money to be paid in one of the following ways:
- at the local magistrate’s office or any other government office designated for this purpose
- into the bank or building society account set by the person concerned
- directly to the person who is entitled to the money
- Through an order that directs the employer of the person responsible for paying maintenance to deduct the maintenance payment now from the employee’s salary, per the Maintenance Act, 1998 (Act No. 99 of 1998).
Service standard
- You will be treated equally, humanely, and with dignity.
- Complaints will be treated as quickly and as efficiently as possible.
- There is no prescribed time frame for this service. Depending on the cooperation of both parties, the entire process may take several weeks, from submitting your application to receiving your first maintenance payment.
- Witnesses who attend the proceedings, including those who claim maintenance, are entitled to prescribed subsistence and travelling allowances. However, the court will decide at its discretion whether such an allowance will be paid to the person against whom a maintenance order may be made.
- The person who is claiming maintenance must apply to the maintenance officer for the payment of witness fees.
Cost
The service is free.
Increase or decrease in maintenance
Suppose you are receiving maintenance and feel the amount being paid to you is insufficient. In that case, you can request that the amount be increased. Alternatively, if you are paying maintenance and feel that you can no longer afford that particular amount, you can request that the amount you pay be decreased.
Steps to follow
If you are the person who receives maintenance:
- Apply at the magistrate’s court that is located in the district where you and your child live
- Complete the relevant application form and submit it to the maintenance officer, together with a statement of income and expenditure.
- If you are the person who is paying maintenance:
- Apply for the decrease/variation order at the magistrate’s office where your maintenance order was made
- Complete the relevant form and submit it to the maintenance officer.
- Submit a complete statement of income and expenditure and a notice explaining the reasons for the application to the maintenance officer regardless of whether you are the maintenance money’s payer’s recipient. The exact process of when a claim for maintenance is first instituted will then be followed.
Legal framework
Maintenance Act, 1998 (Act 99 of 1998)
All acts administered by the Department can be obtained online.
Service standard
- You will be treated equally, humanely, and with dignity and respect.
- Your application will be handled as quickly and efficiently as possible.
- Lodge any complaints that you may have with the Maintenance Investigator, the Maintenance Officer, the Court Manager, the Regional Head of Justice and Constitutional Development or the Centre of Service Excellence, the National Department of Justice and Constitutional Development’s Project for Maintenance, or with the Directorate: Gender Issues.
Cost
Unless the sheriff asks for an advance to enable him or her to issue an execution order for maintenance, there will be little cost or none.
Paying child support
Maintenance is the obligation to provide a person (e.g., a minor child) with shelter, food, clothing, education, and medical care and to supply the necessary means for these essentials. This duty is based on blood relationship, adoption, or the fact that the parties are married.
The maintenance officer will consider the children’s needs and calculate how much maintenance you should pay. Each parent will make a fair contribution in proportion to the income.
Who should pay for the child’s support?
A child should be supported or maintained by:
- Natural or adoptive parents, regardless of whether they are married, living together, separated or divorced or not and
- Grandparents, regardless of whether the child’s parents were married to each other or not. However, this can vary from one case to another.
The duty to support a child exists in the following cases:
- A child is born:
- in wedlock, both parents must provide support
- out of wedlock; both parents must provide support.
- a child whose parents are deceased, the estate must provide support, regardless of whether the parents were married or not
- some grandparents or siblings of the child have a duty to provide support.
The obligation to support a family member is not limited to helping a child.
Any person, irrespective of age, can ask for support or maintenance from any family member if:
The family member:
- who are claiming support are unable to maintain themselves
- To whom is maintenance claimed, and can you afford to pay the amount claimed?
The court order must state the method of payment that the payer will choose, e.g.
- garnishee order: the company that you work for deducts the money directly from your salary
- cash payment: go to the court and pay the money over the counter
- bank account: deposit the money in the bank account of the person entitled to it.
The payer and the recipient of the maintenance money must always inform the court if their bank account details change because, in such a case, a new court order must be issued.
Suppose the maintenance money is not paid on a specific date. In that case, action will only be taken against the person responsible for payment if the recipient complains to the maintenance officer and makes a statement under oath. In cases of non-payment, the maintenance officer at the local magistrate’s office should, therefore, be approached as soon as possible.
References & Resources:
Justice/Family/Maintenance. https://www.justice.gov.za/vg/mnt.html
Dangers of Not Having a Will | Lifewise. https://www.staylifewise.co.za/2020/10/23/dangers-of-not-having-a-will/
Family Law Clinics – Maintenance. http://familylawclinic.org.za/maintenance.html
Getting a maintenance order | Western Cape Government. https://www.westerncape.gov.za/service/getting-maintenance-order
What Is Needed At Maintenance Court – Burnett Attorneys & Notaries. https://www.burnett-law.co.za/what-is-needed-at-maintenance-court/