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Parent24 is speaking to legal professionals and experts to help outline the law on maintenance, and provide some insight into this often contentious issue.
Follow the #maintenancematters series here
Attorney Deborah Di Siena of Di Siena Attorneys says the law places a duty on both parents to maintain their child. It is a parental responsibility as defined in the Children’s Act. The duty to maintain a child arises when the child is born and continues until such time as the child becomes self-supporting.
The duty is not dependant on the child’s age (in other words, the duty to maintain does not end when a child becomes a major at the age of 18), whether the child is adopted, born in or out of wedlock or whether the child is born of the first or subsequent marriage.
Presumption of paternity
There is a presumption in law, that when a woman is legally married to a man and a child is born during the course of the marriage, that her husband is the biological father of the child.
The presumption can be rebutted, if the man is able to prove that he is not the biological father. Should the man dispute being the biological father of the child, the court will order for a blood test to be done and even though blood tests are not 100% accurate, they can be as accurate as 99.9%.
Also read: What happens if a parent stops paying their maintenance order?
Once the father’s paternity has been established, either by acceptance or through a paternity test, the duty on the part of the father to maintain the child commences.
In the case of adoption, once a child has been adopted, the adoptive parent’s duty to maintain the child commences and will continue until the child is self-supporting.
Pregnancy expenses
A mother is entitled to claim what are known as 'lying in expenses' – these are reasonable costs a mother has incurred while pregnant to carry the baby and to prepare for the birth of the baby. These expenses can only be claimed after the birth of the baby and once paternity has been determined.
Lying in expenses refer to doctors appointments, hospital expenses and necessary toiletries for the baby.
The expenses must be reasonable but relate to the baby only. It does not include personal expenses of the mother, such as food and housing.
Both parents have a duty
Where the parents are married to one another, generally there will be no dispute in regard to when the duty to maintain the child arises as both parents have a duty to ensure that the child’s needs are met.
The dispute regarding the duty to maintain usually arises where the father disputes paternity, the parties are not married at the time of the child’s birth or where the parties get divorced and the child is still a dependant.
Also read: Maintenance money: to some, more divisive than divorce
Parents can enter into an agreement to regulate maintenance for the child. The agreement will regulate maintenance until the child becomes self-supporting.
However, in the event that there is a change circumstances (for example, an increase or decrease in income or a change in the child’s expenses), that parent may approach the maintenance court to change the maintenance payable.
Where no agreement exists regulating a child’s maintenance and when a parent requires maintenance, that parent may apply for a maintenance order at the Maintenance Court.
Past, present and future maintenance
The court will hear the matter, and will make an order in terms of past, present and future maintenance.
Where a child has reached the age of majority, that is, 18 years of age, and there is no agreement in place regulating maintenance, that child will need to apply to court for a maintenance order against one or both parents.
Children’s maintenance includes, but is not limited to, the day-to-day living expenses of the child, school fees, additional school expenses, tertiary education, medical expenses and the child’s portion of the monthly household expenses, for example, rent, water and lights, and such.
To calculate an amount see How much maintenance money must a parent pay?
A criminal offence
Failure to pay maintenance is a criminal offence, and the offending parent may have his or her assets attached, face having a portion of his or her salary attached on a monthly basis (known as a garnishee order) and may be ordered to pay a fine or face imprisonment for up to three years, or both.
Compiled for Parent24 by Elizabeth Mamacos
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