Stop worrying about how you will ensure your children’s financial future and get clued up.
Nothing is as precious to parents as their children. From the moment they are born, your children become your primary concern, and there is nothing that parents will not do to protect their children, and give their children the very best in life.
Why then do so many parents have to struggle to ensure that their children are properly cared for financially? It is a question probably best left to psychologists to answer.
Unfortunately, sometimes parents are compelled to seek assistance from the courts but, if you find yourself in this unfortunate situation, where do you begin? It can be rather daunting to navigate your way around the legal system if you do not have the assistance of an attorney.
Of course, a lot will depend on your particular circumstances in determining the best route to follow. Here then is a brief guide.
1. If you are in the process of getting divorced:
As is often the case, once a couple starts the process of divorce, their relationship can become acrimonious. As a result, one party might stop paying certain expenses in order to “punish” the other spouse. Our law makes provision for this situation. In terms of Rule 43 of the High Court Rules (or Rule 58 of the Magistrate’s Court Rules if you are divorcing in the Regional Court) you may apply to the divorce court for a court order for maintenance for your children, maintenance for yourself, as well as for a contribution towards your legal costs, should you require it.
You will need to sign an affidavit stating what your financial circumstances are and why you require the financial assistance of the other spouse. The other party will have an opportunity to file an affidavit in reply and after this the case will be argued in front of a judge who will then make an order. Once the court has granted this interim order, it remains in place until the divorce is finalised.
2. If you are not married:
If you are not married, or you are married but have not taken steps to file for divorce, you may approach the Maintenance Court for an order for maintenance for your children and/or for yourself. You will need to approach the court which is closest to where you live or work.
The Clerk of the Court will help you to fill out an application form. The court will then subpoena the other parent to appear in court on a particular date for a maintenance enquiry. At the enquiry the Clerk will assess your financial circumstances, as well as those of the other parent, and will ask for documentary proof to be provided by both parties.
The Clerk will then try to assist the parties in reaching an agreement regarding maintenance which will then be made an order of court. If an agreement cannot be reached, the clerk will refer the matter to a Magistrate. There will then be a formal court hearing where both parents will give evidence regarding their financial situation. The Magistrate will then make a ruling which will become an order of court.
3. In an emergency:
What about those times when you are desperate and cannot wait the weeks or months it takes in the High Court or Maintenance Court? If the situation arises where you require urgent assistance, you may approach the Magistrate’s Court for a Domestic Violence interdict where you ask for urgent or emergency monetary assistance.
This situation can arise where, for example, a parent flees an abusive situation with their child, but as a result has virtually no immediate financial support from the other parent. In these situations you can ask the Clerk of the Domestic Violence Court to assist you in filling out the necessary forms.
The Magistrate will consider your application and, if satisfied, will grant you an interim interdict which will be served on the other party by the Sheriff of the court. You will be given another court date where you are required to return to court, together with the other party, in order for the other party to be heard. The Magistrate will then determine whether a final interdict should be granted. In all probability the urgent monetary relief will not appear in the final interdict as you will have to approach either the divorce court or the Maintenance Court for an appropriate order in due course.
4. What about grandparents?
In terms of our maintenance laws, if a parent is unable to contribute financially towards the maintenance of his or her child, you are entitled to request financial assistance from that parent’s parents. You would approach the Maintenance Court and follow the same route as detailed above.
The grandparents would be subpoenaed to come to court. Their financial circumstances will be examined in order to determine whether, and to what extent, they are able to contribute financially towards the maintenance of their grandchild.
5. If the other parent dies?
In the unfortunate situation where a parent dies while a child is still dependant, you are entitled to approach the Executor of his or her estate and put in a claim against the estate for maintenance for the child.
If the parent left a will and the will provides adequately for the child then the Executor will simply give effect to the terms of the will. If however the will does not provide adequately for the child, or if the parent does not have a will, you will need to submit a claim to the Executor.
6. How is maintenance calculated?
There is no standard amount of maintenance which a parent has to pay. The amount of maintenance is determined with reference to two variables: firstly, what the child’s monthly costs are and, secondly, what the parents are able to afford to contribute.
In order to determine what the costs of the child are you will need to calculate both the child’s direct and indirect costs. Direct costs refer to costs attributed only to the child, for example school fees, school clothes, nappies and extra-mural activities.
Indirect costs refer to those costs which need to be apportioned between all the people living in the home, such as groceries, rent, electricity, telephone, transport and the like.
Once the total costs for the children are calculated, by adding together their direct and indirect costs, one then looks at the income of each parent, and the costs of the children are then divided between the parents pro rata in proportion to their salaries or income.
7. What if the parent doesn’t pay?
Once a court order is in place, if the parent fails to pay in accordance with the order, he/she will be in contempt of the court order. There are several options that you have when this happens. You can lay a criminal charge against the defaulting parent who will then be subject to criminal prosecution.
If the parent is formally employed you can make application to the Maintenance Court for a garnishee order to be issued. This is an order which will be served on the employer of the parent. The employer will be ordered to deduct from that parent’s monthly salary the maintenance which he/she should be paying, and to pay the funds directly to you.
Alternatively, the Maintenance Court can issue a warrant of execution which authorises the Sheriff of the court to demand the outstanding monies from the defaulting parent. If the funds are not paid over, the Sheriff will make an inventory of all the movable goods at the home of the defaulter and you can then instruct the Sheriff to remove the goods, sell them on auction and pay over to you the funds raised on auction. If the defaulting party owns an immovable property you can also apply to court for permission to sell the immovable property in order to recover the arrear maintenance.
It is evident that the issue of maintenance can be highly contentious. However, with perseverance and the correct legal advice you can ensure that your children are properly cared for.