Top tips and tricks from a Senior Family Law Advocate on claiming maintenance for a five-year-old child in Brakpan.

Child Maintenance is the right of the child, and not that of the parent. It is also not a privilege granted to parents who must pay it. It is their duty to pay child maintenance and support their children. Once the child is self-supporting (being able to care for him or herself), the obligation falls away. This can happen when the child is 18, 20, or even 30. It all depends on the circumstances of the case.

Claiming child maintenance for your child in Brakpan

Whether you claim child maintenance in Brakpan, or any other city in South Africa, the procedures would be the same. There are however two (2) courts that can deal with child maintenance matters. That is a divorce court, in a divorce matter, and a Child Maintenance Court. For this article, we will focus on claiming maintenance in a Maintenance Court matter in Brakpan.

The maintenance scenario – Brakpan South Africa

In this article, we will deal with the following fictitious scenario, in a child maintenance matter:

1. The Child is seven years old and attends school in Brakpan
2. The child is cared for by the mother who works in Brakpan
3. The mother works and earns a Salary of R 10 000
4. The father sees the child every second weekend. He also lives and works in Brakpan
5. The child’s monthly expenses are R 6000 – 00 which includes food, clothing, accommodation, education, travel etc.
6. The father earns a reasonable salary and can afford the R 20 000 – 00 per month
7. The mother claims R 4 000 – 00 maintenance as the father earns double her salary

What is the first step the mother must take in claiming child maintenance?

The first thing the mother must do is work out exactly what the child costs by item. She breaks down the minor child’s living expenses, starting from rent or accommodation to groceries to school fees etc. Once she has done that, she would need to determine what exactly does the minor child cost per month, seeing that she will be asking the father to contribute towards that. As best as possible, she needs to collect proof of expenses. This can be in the form of receipts.

How does she start the legal process?

The mother now needs to approach the maintenance court in the area where she lives or works to lodge a complaint for child maintenance. If she lives or works in Brakpan, it would be the maintenance court in Brakpan. She will complete a Form A wherein she will provide all the expenses for her and the minor child. She would also have to stipulate her income. Once she completed the form and submitted it to the maintenance court, she must then follow the next step.

What do you do while waiting for the maintenance court date?

While you wait to be informed of the court date by the Maintenance Court of Brakpan, and up until the actual first court date, you need to ensure that you keep a record of all income and expenses for you and the child. This is very important as the court allocates maintenance based on recent income and expenses.

What happens at the first court appearance at the Brakpan Maintenance Court?

Once you have been notified of the maintenance court date by the Brakpan Maintenance Court, you need to ensure that you attend it. On that day, both you and the father of the child would appear before a maintenance officer. The maintenance officer would go through both your income and expenses as well as that of the father. If all the relevant information is not before the maintenance court, then the matter may be postponed in order for the parties to submit it.

The maintenance officer will try to settle the matter and have the parents come to an agreement regarding the amount of child maintenance to be paid. If they cannot come to an agreement regarding the child maintenance to be paid, the matter would have to proceed to a formal hearing or trial before a Magistrate.

How does the Maintenance Court hearing or trial work in Brakpan?

Essentially, the maintenance court is called upon to make a fair ruling regarding what is a fair amount of child support that needs to be paid. For that to happen, the parents would have to give evidence in that regard. The mother would present to the court what the child costs, what she contributes and what she requires the other parent to pay. The Father would have a right to question the mother and to present evidence as to why he cannot afford the amount requested or why he feels it is an unfair amount. The mother can they also question him.

At the end of the day, the Brakpan Maintenance Court would be able to properly determine what is a fair and adequate amount of child maintenance to pay after being presented will all relevant information. The Brakpan Maintenance Court should play an active role in determining what is a fair amount of child maintenance the father should pay.

The above child maintenance application principles should apply to the following provinces and cities:

Eastern Cape:

Alice, Butterworth, East London, Graaff-Reinet, Grahamstown, King William’s Town, Mthatha

Port Elizabeth, Queenstown, Uitenhage, Zwelitsha

Free State:

Bethlehem. Bloemfontein, Jagersfontein, Kroonstad, Odendaalsrus, Parys, Phuthaditjhaba, Sasolburg, Virginia, Welkom

Gauteng:

Benoni, Boksburg, Brakpan, Carletonville, Germiston, Johannesburg, Krugersdorp, Pretoria, Randburg, Randfontein, Roodepoort, Soweto, Springs, Vanderbijlpark, Vereeniging

KwaZulu-Natal:

Durban, Empangeni, Ladysmith, Newcastle, Pietermaritzburg, Pinetown, Ulundi, Umlazi

Limpopo:

Giyani, Lebowakgomo, Musina, Phalaborwa, Polokwane, Seshego, Sibasa, Thabazimbi

Mpumalanga:

Emalahleni, Nelspruit, Secunda, North West, Klerksdorp, Mahikeng, Mmabatho, Potchefstroom, Rustenburg, Northern Cape, Kimberley, Kuruman, Port Nolloth

Western Cape:

Bellville, Brakpan, Constantia, George, Hopefield, Oudtshoorn, Paarl, Simon’s Town, Stellenbosch, Swellendam, Worcester

 

 

 

What is a marriage out of community of property?

In South Africa, a Marriage out of community of property is a legal arrangement that allows a married couple to keep their financial assets and liabilities separate from each other. This means that each spouse has full ownership and control over their own property and finances, and they are not automatically responsible for each other’s debts and financial obligations. They have to enter into an antenuptial contract.  In the event of a divorce or the death of one spouse, the assets and debts of each spouse are usually distributed according to the terms of an ante-nuptial contract. There are typically two main types of marital property regimes when it comes to marriage out of community of property:

1. Marriage out of community of property with accrual: In this type of arrangement, the couple’s financial affairs are separate during the marriage, but they agree that if the marriage ends (either through divorce or death), the growth or increase in the value of their respective assets during the marriage will be shared equally. This means that any assets or wealth acquired before the marriage remains separate, but the increase in value of these assets during the marriage is subject to sharing.
2. Marriage out of community of property without accrual: In this arrangement, the financial separation between spouses is strict. Each spouse’s assets and debts are entirely their own, and there is no sharing of assets or growth in assets during the marriage. In the event of divorce or death, each spouse retains what they brought into the marriage, and any assets acquired during the marriage are not subject to sharing.

It’s important to note that the specific laws and regulations governing marriage property regimes vary from one country to another. Some jurisdictions might have default rules regarding property division upon divorce or death, and couples may have the option to enter into prenuptial agreements or other legal arrangements to customize their property rights based on their preferences. Marriage out of community of property is often chosen by individuals who want to maintain separate financial identities and protect their individual assets, especially if they have significant wealth or assets before entering the marriage. However, it’s important for couples to understand the legal implications of their chosen property regime and to consult with legal professionals to ensure that their rights and intentions are properly documented and protected. We service clients in all cities: Rustenburg Kimberley East London Nelspruit Polokwane Pietermaritzburg Bloemfontein Port Elizabeth Pretoria Durban Johannesburg

Divorce Lawyers – Make sure your Attorney or Advocate is on your side

Divorce Lawyer – Divorces need not be difficult. With a large number of marriages ending up in divorce; surely the process should be simple. When a marriage has broken down irretrievably, life needs to go on. It is senseless to make up for your unsuccessful marriage, by trying to have a successful divorce. If there are children involved, there is even more reason not to fight. And if there are no children involved, the only outstanding issues would be property. But if you were married out of Community of Property, there is no need to fight at all. This is where a good divorce lawyer comes in.

Family Law Questions and Answers

Should you not find what you are looking for, feel free to post your questions on our blog, by clicking on the following links:

Divorces – Questions and Answers

Child Custody – Questions and Answers

Child Maintenance – Question and Answers

Domestic Violence – Questions and Answers

You are welcome to call us on 021 424 3487 / 0870735800

For other legal and business services, feel free to visit:

Business SA or Private Legal.

This article does not deal with the procedural aspects of a divorce. Other articles on this website deal with that. The aim of this article is for you to search and find a good divorce lawyer, attorney, or advocate that has your best interests at heard. In other words, not there to make a small fortune off you, at the expense of your well being and that of your family. Below you would find a consent paper, with reasonable terms, that can be customised accordingly.

How should divorce lawyers deal with divorce matters?

EXAMPLE OF A CONSENT PAPER

1. PERSONAL MAINTENANCE
   • Each Party hereby waives his or her claim to personal maintenance, past, present and future from the other Party, if any;
2. PARENTAL RESPONSIBILITIES AND RIGHTS
   • The Parties are to remain co-holders of parental responsibilities and rights in respect of the minor children in terms of the Children’s Act, 38 of 2005 (“the Children’s Act”) as follows:
     • The Parties are to remain co-holders of guardianship over the minor children as provided for in Section 18(2(c), 18(3), 18(4) and 18(5) of the Children’s Act; and
     • The Parties are to remain co-holders of parental responsibilities and rights of care and contact in respect of the minor children as provided for in Section 18(2)(a) and (b) of the Children’s Act.
   • The Parties’ rights of care and contact shall be implemented as follows:
     • The minor children shall reside primarily with Plaintiff who shall be their primary care-giver; and
     • Defendant shall have reasonable contact with the minor children as follows unless agreed to otherwise between the Parties:
       • Every alternative weekend, commencing from Friday 15:00 until 17:00 on the Sunday;
       • Every Tuesday preceding his weekend of contact from 17:00 to 20:00; and
       • Every Thursday succeeding his weekend of contact from 17:00 to 20:00.
     • School Holidays
       • Equal sharing of long and short school holidays, in that the minor children shall reside one half with Plaintiff and the other with Defendant which shall alternate each year.
     • Special Days Contact
     • The Plaintiff and/or the Defendant, as the case may be, shall further have contact with the minor children on the following days for 3 (three) hours notwithstanding in whose care the minor children are in on those days:
       • Christmas Day;
       • The minor children’s birthday;
       • Father’s Day and Mother’s Day; and
       • The Parties’ birthday.
     • The Parties shall have telephonic contact with the minor children on a regular basis whilst the minor children are in the other’s care;
     • Notwithstanding the above, the Parties shall have reasonable contact with the minor children at all times, provided that any additional contact shall be arranged telephonically and shall only take place by prior arrangement and consensus between the Parties; and
     • The Parties shall respect each other’s privacy and shall not enter each other’s homes at any time without prior invitation, whether for the purpose of fetching or returning the minor children or any other reason whatsoever.
   • JOINT DECISION MAKING
     • The Parties shall make joint decisions about the following aspects of the minor children’s life:
       • Major decisions about the minor children’s schooling and tertiary education;
       • Major decisions about the minor children’s physical care, mental health care and medical care;
       • Major decisions about the minor children’s religious and spiritual upbringing;
       • Decisions about the minor children’s residence both within and outside the Cape Peninsula;
       • Decisions which are likely to significantly change the minor children’s living conditions or to have an adverse effect on their well-being; and
       • Decisions which affect the minor children’s everyday care and daily routine shall be made by the party in whose care the minor children are in at the relevant time.

3. FACILITATION
   • A facilitator shall be appointed by the parties jointly to facilitate and assist in resolving disputes between the parties relating to the minor children;
   • These disputes shall include contact disputes should one party feel that contact should be increased or decreased, or varied for either party;
   • In the event of the facilitator being unable to continue as facilitator, then he/she shall appoint a facilitator in his/her place, alternatively, or should the parties be unable to agree on the appointment of a facilitator or replacement facilitator, such facilitator or replacement facilitator as the case may be shall be appointed by the chairperson for the time being of FAMAC (Western Cape);
   • In the event of the parties being unable to reach agreement in respect of a dispute, with the assistance of the facilitator, then the facilitator shall be entitled to issue a directive in respect of such dispute which shall be valid of full legal force and effect and binding upon the parties until a court of competent jurisdiction Orders differently;
   • The facilitator shall be entitled in his/her sole discretion to appoint such other person as may be necessary in order to make a decision in respect of the issue in dispute, including the right to co-opt a facilitator or the assistance of an appropriate expert if he/she deems it appropriate or necessary; and
   • The cost of sessions with the facilitator and the services of the expert shall be shared equally between the parties unless otherwise directed by the facilitator. Each Party shall, however, be liable for the facilitator’s costs incurred attendant upon such party’s written and telephonic communications with the facilitator.
4. CHILD MAINTENANCE
   • Defendant shall pay an amount of R XXX – 00 (XXX Rand) per month per child, in respect of child maintenance;
   • The aforementioned amounts are payable on or before the 1st day of each and every succeeding month from the date of the Divorce. The said sum shall be paid into such bank account as Plaintiff may nominate from time to time;
   • The child maintenance payable shall increase annually on the 1st day of January each year, in accordance with the rise that has taken place in the preceding 12 (Twelve) months in the Consumer Price Index (CPI) for the Republic of South Africa, as determined by the Director of Statistics or its equivalent for persons in the middle-income group;
   • Plaintiff shall retain Alyssa Skye Abrahams, on her current medical aid scheme, or a similar scheme with similar benefits;
   • Defendant shall retain Joel Malcolm Abrahams, on his current medical aid scheme, or similar scheme with similar benefits;
   • Both Parties would be responsible, in equal shares in respect of the minor children for all reasonable medical, psychological, physiotherapy, dental, ophthalmic, pharmaceutical, hospitalization and prescribed medication costs, incurred, and not covered by the latter medical aid schemes.
   • If the minor children display aptitudes and qualify for tertiary education, then both Parties shall be responsible in equal shares for all the costs associated with such tertiary education, which shall include, but not limited to, tuition, textbooks, transport, and boarding if necessary. In this regard, if one Party paid for an educational expense in full, he or she shall accordingly be reimbursed with half the expense within 7 (seven) days of being showed proof of such expense.
5. THE JOINT ESTATE OF THE PARTIES SHALL BE DIVIDED AS FOLLOWS:
   • Defendant’s Investment Policy
     • XXX
   • MOTOR VEHICLES
     • XXX

6. BALANCE OF THE JOINT ESTATE
   • The balance of the Joint Estate shall equally be divided between the Parties.
7. OBLIGATIONS BINDING ON ESTATE
   • The obligations in terms of this Consent Paper shall be binding on the parties’ respective estates, heirs, administrators and/or assigns.
8. FULL AND FINAL SETTLEMENT
   • This Agreement is a full and final settlement of all outstanding differences between them, and save as herein provided, neither party shall enjoy any personal claim against the other.
9. COSTS
   • Each party shall pay their own legal costs associated with the divorce.