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 the question of whether you wanted the child or not. 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:
- medical care
or means that are necessary for providing the person with these essentials. This legal duty to maintain is called the responsibility to keep or the obligation to 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 for providing the child or other person who has a right to maintenance with a decent living and upbringing. It includes providing necessities such as food, clothing, and 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 order that the child is registered on one of the parties’ medical schemes as a dependent. To enable the court to grant a proper maintenance order, both parties must provide the court with proof of their expenses.
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 does not have any 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 will be forfeited to the State.
If you die without a will, you would not have had the opportunity to appoint an executor (the person responsible for carrying out all the duties involved with the administration of the deceased estate). It 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 of the child 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 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 will not be able to inherit from the deceased’s estate under intestate law.
Why you need to have a 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 (called 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 for the payment of 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 have some property sold 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 the paternal grandparents 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 entirely separate matters, and one has no relation to the other. Furthermore, children of either party do not influence the duty to support. However, the amount of maintenance to be paid may be amended by the court if either party brings such an application.
Do you have a cohabitation contract?
Couples need to know their rights. Not just concerning children, but their rights generally.
For example, did you know that in South Africa, there is no law governing cohabitation relationships? Therefore, in a situation where 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.
Increase or decrease in maintenance
Suppose you are receiving maintenance and you feel the amount being paid to you is insufficient. In that case, you can request that the amount paid to you for maintenance be increased or if you are paying maintenance and feel that you can no longer afford to pay that particular amount, you can request the amount you pay decreased.
Paying child support
Maintenance is the obligation to provide a person, (e.g. a minor child), with shelter, food, clothing, education, and medical care, to supply the necessary means for providing 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
- whom maintenance is claimed and can afford to pay the amount that is claimed.
References & Resources: