There is NO Child Maintenance Payment Holiday during the National Lockdown Period! If the other parent is refusing to pay child support during the National Lockdown period – what can you do?

  South Africa is now in a state of National Lockdown. As things stand at present, children are not to be moved between homes during this period. This is to limit the spread of COVID-19 / Coronavirus. A lot has been written on the topic of moving children during the lockdown period by co-holders of parental responsibilities and rights. Have a look at a few of these articles written by Our Lawyer on this topic:

Update: 07 April 2020

NEW LOCKDOWN REGULATIONS REGARDING THE MOVEMENT OF CHILDREN – CERTAIN PARENTS MAY MOVE CHILDREN DURING THE NATIONAL LOCKDOWN PERIOD (7 April 2020) For those who do not have much time to read further, there is no child maintenance payment holiday during the lockdown period!

Parents and lawyers should focus on what is best for the child

We at Our Lawyer (Pty) Ltd, when working with children matters, always focus on what is best for the child, and not necessarily the parents, or even our client who pays us for our services. Children are a vulnerable sector of our society, and their interests should be vehemently protected. They are our future and the leaders of tomorrow. Who knows, out of your home could emerge the next Olympic star, or State President one day. The best interest of the child principle applies to all situations – not only during the lockdown but other periods as well. It disappoints us when parents do not want to pay adequate child support towards their children in these trying times.

Complaints from parents where the other parent does not want to pay child maintenance during the lockdown period

We have received queries from parents where the other parent is not paying child support during the National Lockdown period. This for good reason concerns us.  We felt it necessary to write an article on this issue. Does the national lockdown afford parents with a child maintenance payment holiday? The same as offered by some loan banks that allows you to miss the occasional monthly payments. Some banks are offering it to their customers due to the national lockdown. Now let’s get into it.

What is child maintenance usually for?

Each family is different, and therefore each child’s needs vary. What would be necessary maintenance for a child of 8, would not be necessary for a child of 13. The same applies to children of the same ages living in different homes. The usual maintenance provisions would include any of the following:
  • Groceries, Water and Electricity, Laundry
  • Telephone, Internet, airtime
  • Domestic Worker, Garden Services
  • Clothing, shoes
  • Transport costs, vehicle maintenance, repairs
  • Medical aid and medical expenses not covered by the medical aid
  • Holidays, Entertainment, Recreation, DSTV, Netflix
  • Reading material (books, newspaper etc)
  • Pets food, litter, Vet
  • School projects, assignments
  • School fees, Summer and winter uniforms, shoes
  • Extra-Mural (incl. clothes), stationery, textbooks, sports equipment (incl. clothing)
For some families, many other items would be included. An in others, only half the items above would be applicable.

Child maintenance payment scenarios

There are usually two (2) scenarios where child maintenance gets paid:
  1. The first scenario applies where there is a maintenance order in place. This could have been made by the maintenance court, or the divorce court when the parties divorced. Should a maintenance court have made the order, it would usually mean there was a complaint about non-payment or paying too little. This is not always the case. Either way, the court making the maintenance order would have had to be satisfied that the order is in the child’s best interest.
  2. Then there is the second scenario where there is no maintenance order in place. The parents were never divorced and neither party took the other to the maintenance court. The parties pay maintenance based on an agreement they have, or the paying parent just pays as he or she feels. In the scenario, no court determined whether the amount being paid is fair or not.

Is Non-compliance with a Maintenance Order allowed?

When the maintenance order was made, various factors where considered. Included in those was the fact that the child has a holiday. Therefore, under ordinary circumstances, a parent cannot say they do not want to pay child maintenance during the December holiday, because the child is with them during the entire period. If the court order says that child maintenance is R X a month, that includes school holidays as well.  There is, therefore, no payment holiday when it comes to child maintenance where a court order is in place. And if there is no order in place, payments must continue.

Can parents agree to relax the maintenance order during the National Lockdown period despite the Maintenance Order being in place?

It must be noted that children usually cost much more during the holidays as opposed to when they are at school. They eat more and also want to go out more. The latter may not apply during the lockdown period. More electricity is used, as well as water. School fees and medical aid must still be paid. Furthermore, caregivers may not have any income during this period. However, if the parents come to an agreement for less maintenance to be paid during a specific month, and for it to be repaid the following month, that is in order. This could be because the paying parent is not working during the lockdown. However, unless the paying parent really cannot afford to pay the ordered maintenance, we do not advise that any relaxation of the maintenance provisions are made.

What to do when there is no maintenance order in place?

If there is no maintenance order in place, one would assume that the parents have a cordial agreement when it comes to their child’s expenses. The primary caregiver did not see it as necessary to approach the court for a maintenance order to be in place. On the other hand, a parent may decide not to proceed with seeking a maintenance order because he or she is afraid they may get much less than what is being paid. Then there is a further scenario, where a parent does not want to proceed with a child maintenance claim, as he or she does not want the other parent to be in the child’s life. There are many other reasons as well. Nonetheless, if a parent has a maintenance agreement in place, that agreement must be fulfilled. The same principles with relaxing the agreement as outlined above would apply here as well. This would be in the child’s best interests. Now we shall deal with what a parent can do if the maintenance obligations are not adhered to during the lockdown period, either in terms of a court order, or agreement.

Noncompliance with maintenance orders and non-payment

There are certain directives in place during the lockdown period for the maintenance courts. If you are not receiving maintenance, and there is no order in place, you may make a first time application to the maintenance court. If there is a maintenance order in place, but it is not being adhered to, then you may approach the maintenance court for its enforcement.

The relevant regulations in respect of the maintenance court during the lockdown period

In terms of direction 8(b)(i) and (ii)issued in the Regulations (No. R418) issued on 28 March 2029 in the Government Gazette (No.43167), the Maintenance Court may deal with maintenance matters during the lockdown as follows:
  • First time applications for maintenance will only be dealt with if complete information is supplied in respect of required names, surname, telephone or cellular phone number, employment or business address, banking details of the Respondent; and
  • Application in respect of enforcement of maintenance orders
We, therefore, cannot stress it enough, for those who want to know whether there can be a payment holiday, our answer is no. All maintenance obligations must be adhered to. The maintenance courts are still in operation, and defaulters would be dealt with accordingly.   We are certain that you found the above article useful and interesting. Please consider sharing it on the share buttons below. They include Facebook, Twitter, LinkedIn, WhatsApp, Gmail and more. Someone may find it useful as well. Should you require business advice or services, feel free to click on these links: Business SA | Private Legal | Envirolaws    
Posted on by Telelaw

There is NO Child Maintenance Payment Holiday during the National Lockdown Period! If the other parent is refusing to pay child support during the National Lockdown period – what can you do?

 

South Africa is now in a state of National Lockdown. As things stand at present, children are not to be moved between homes during this period. This is to limit the spread of COVID-19 / Coronavirus. A lot has been written on the topic of moving children during the lockdown period by co-holders of parental responsibilities and rights. Have a look at a few of these articles written by Our Lawyer on this topic:

Update: 07 April 2020

NEW LOCKDOWN REGULATIONS REGARDING THE MOVEMENT OF CHILDREN – CERTAIN PARENTS MAY MOVE CHILDREN DURING THE NATIONAL LOCKDOWN PERIOD (7 April 2020)

For those who do not have much time to read further, there is no child maintenance payment holiday during the lockdown period!

Parents and lawyers should focus on what is best for the child

We at Our Lawyer (Pty) Ltd, when working with children matters, always focus on what is best for the child, and not necessarily the parents, or even our client who pays us for our services. Children are a vulnerable sector of our society, and their interests should be vehemently protected. They are our future and the leaders of tomorrow. Who knows, out of your home could emerge the next Olympic star, or State President one day.

The best interest of the child principle applies to all situations – not only during the lockdown but other periods as well. It disappoints us when parents do not want to pay adequate child support towards their children in these trying times.

Complaints from parents where the other parent does not want to pay child maintenance during the lockdown period

We have received queries from parents where the other parent is not paying child support during the National Lockdown period. This for good reason concerns us.  We felt it necessary to write an article on this issue. Does the national lockdown afford parents with a child maintenance payment holiday? The same as offered by some loan banks that allows you to miss the occasional monthly payments. Some banks are offering it to their customers due to the national lockdown. Now let’s get into it.

What is child maintenance usually for?

Each family is different, and therefore each child’s needs vary. What would be necessary maintenance for a child of 8, would not be necessary for a child of 13. The same applies to children of the same ages living in different homes. The usual maintenance provisions would include any of the following:

  • Groceries, Water and Electricity, Laundry
  • Telephone, Internet, airtime
  • Domestic Worker, Garden Services
  • Clothing, shoes
  • Transport costs, vehicle maintenance, repairs
  • Medical aid and medical expenses not covered by the medical aid
  • Holidays, Entertainment, Recreation, DSTV, Netflix
  • Reading material (books, newspaper etc)
  • Pets food, litter, Vet
  • School projects, assignments
  • School fees, Summer and winter uniforms, shoes
  • Extra-Mural (incl. clothes), stationery, textbooks, sports equipment (incl. clothing)

For some families, many other items would be included. An in others, only half the items above would be applicable.

Child maintenance payment scenarios

There are usually two (2) scenarios where child maintenance gets paid:

  1. The first scenario applies where there is a maintenance order in place. This could have been made by the maintenance court, or the divorce court when the parties divorced. Should a maintenance court have made the order, it would usually mean there was a complaint about non-payment or paying too little. This is not always the case. Either way, the court making the maintenance order would have had to be satisfied that the order is in the child’s best interest.
  2. Then there is the second scenario where there is no maintenance order in place. The parents were never divorced and neither party took the other to the maintenance court. The parties pay maintenance based on an agreement they have, or the paying parent just pays as he or she feels. In the scenario, no court determined whether the amount being paid is fair or not.

Is Non-compliance with a Maintenance Order allowed?

When the maintenance order was made, various factors where considered. Included in those was the fact that the child has a holiday. Therefore, under ordinary circumstances, a parent cannot say they do not want to pay child maintenance during the December holiday, because the child is with them during the entire period. If the court order says that child maintenance is R X a month, that includes school holidays as well.  There is, therefore, no payment holiday when it comes to child maintenance where a court order is in place. And if there is no order in place, payments must continue.

Can parents agree to relax the maintenance order during the National Lockdown period despite the Maintenance Order being in place?

It must be noted that children usually cost much more during the holidays as opposed to when they are at school. They eat more and also want to go out more. The latter may not apply during the lockdown period. More electricity is used, as well as water. School fees and medical aid must still be paid.

Furthermore, caregivers may not have any income during this period. However, if the parents come to an agreement for less maintenance to be paid during a specific month, and for it to be repaid the following month, that is in order. This could be because the paying parent is not working during the lockdown. However, unless the paying parent really cannot afford to pay the ordered maintenance, we do not advise that any relaxation of the maintenance provisions are made.

What to do when there is no maintenance order in place?

If there is no maintenance order in place, one would assume that the parents have a cordial agreement when it comes to their child’s expenses. The primary caregiver did not see it as necessary to approach the court for a maintenance order to be in place. On the other hand, a parent may decide not to proceed with seeking a maintenance order because he or she is afraid they may get much less than what is being paid. Then there is a further scenario, where a parent does not want to proceed with a child maintenance claim, as he or she does not want the other parent to be in the child’s life. There are many other reasons as well.

Nonetheless, if a parent has a maintenance agreement in place, that agreement must be fulfilled. The same principles with relaxing the agreement as outlined above would apply here as well. This would be in the child’s best interests. Now we shall deal with what a parent can do if the maintenance obligations are not adhered to during the lockdown period, either in terms of a court order, or agreement.

Noncompliance with maintenance orders and non-payment

There are certain directives in place during the lockdown period for the maintenance courts. If you are not receiving maintenance, and there is no order in place, you may make a first time application to the maintenance court. If there is a maintenance order in place, but it is not being adhered to, then you may approach the maintenance court for its enforcement.

The relevant regulations in respect of the maintenance court during the lockdown period

In terms of direction 8(b)(i) and (ii)issued in the Regulations (No. R418) issued on 28 March 2029 in the Government Gazette (No.43167), the Maintenance Court may deal with maintenance matters during the lockdown as follows:

  • First time applications for maintenance will only be dealt with if complete information is supplied in respect of required names, surname, telephone or cellular phone number, employment or business address, banking details of the Respondent; and
  • Application in respect of enforcement of maintenance orders

We, therefore, cannot stress it enough, for those who want to know whether there can be a payment holiday, our answer is no. All maintenance obligations must be adhered to. The maintenance courts are still in operation, and defaulters would be dealt with accordingly.

 

We are certain that you found the above article useful and interesting. Please consider sharing it on the share buttons below. They include Facebook, Twitter, LinkedIn, WhatsApp, Gmail and more. Someone may find it useful as well.

Should you require business advice or services, feel free to click on these links:

Business SA | Private Legal | Envirolaws

 

 

Related Post

FREE DIY ONLINE TOOLS TO GET URGENT CONTACT TO YOUR CHILD DURING THE SCHOOL HOLIDAYS

The end of year holiday season is upon us. This is the time for families to come together and re-establish family bonds. It is also the time of year where many parents who are separated, or not living together, fight over aspects of contact to their children. Often times, a parent would be refused contact to his or her child for no good reason. This is not in the child’s best interests. We believe that children have a right to spend quality time with both his or her parents irrespective of what type of relationship the parents have amongst themselves. This way of thinking aids the minor child’s emotional and psychological development. With regard to how much quality time should a parent receive; this depends on the facts of the case. However, the deciding factor is what is in the child’s best interests. This is what we shall look at next.

The Child’s best interests – Holidays or not

All parents need to conduct themselves in a manner conducive to the child’s best interests. In other words, they need to put their personal issues aside with the other parent and focus on what is best for the child. What often happens, is that one parent tries to punish the other parent by making use of the child. Therefore, they would prefer to alienate a parent from their child and refuse him or her any contact during the holiday season and other times. Often time children are left with a grandparent, aunt or non-relative to care for them whilst the other parent is busy during the holiday season. The child is the one that loses out in the long run. His or her development would be prejudiced, which could lead to serious mental and psychological developmental issues in the future. A child required both parents to bring him or her into the world. And in the same manner, a child requires both parents to live a complete and meaningful life. Having said this, if you are being unreasonably refused contact to your child, and feel that it is not in the best interests of the child, read further, and find out what you can do.

What can you do if you are being refused contact to your child in the Holidays?

We don’t believe in resorting to litigation the moment a dispute regarding child care and contact arises. In other words, going to court at the first sign of trouble, or unreasonableness on the part of the other parent, is not always the best thing to do. Litigation is expensive, time consuming and may not result in the best solution for the parents and the child. Furthermore, you may have to expose the child to being assessed by third parties, which could lead to the child having to make certain choices regarding his or her parents.

Parenting Plans

Sometimes, other professional people should be approached for assistance. Here we are referring to mediators, social workers or psychologists. Parents can meet with these suitably qualified people and try to mediate a parenting plan. A parenting Plan is an agreement between parents outlining their parental responsibilities and rights of care, contact and maintenance in relation to their child. It may include other relevant aspects as well. As the law currently stands, unless it is a matter of urgency, before approaching a court, parents must first try to enter into a parenting plan. If trying to agree to a parenting plan does not get you anywhere, then some legal intervention is needed. This is where you want a court to look into what is in the child’s best interests. A lot has been written on the topic of urgent contact on this website. Here are a few links on the law regarding child contact and Court Applications.
  1. The Law Regarding Children – The Children’s Act 38 of 2005
  2. How do I get full custody over my child?
  3. Parental Child Abuse in Custody Cases
  4. Relocate with minor child. Parent Refusing Consent for a Passport
  5. Father being refused contact to his child! What are his rights as a Father?
  6. Father’s Parental Responsibilities and Rights to his Child
  7. Urgent Access to your Children without a Lawyer
  8. Parenting Plans and the Law
  9. What happens in a custody dispute where one parent is mentally ill?
  1. How to win your child custody and access court case – Tips and Tricks

Free DIY online form

What follows is a form which you can complete online, where after you would receive and email with the basic information required to get you started with an urgent court Application for holiday contact. Of course, you need to insert all additional relevant information. Once you received the email, you are on your way in making your Application to Court. For the purposes of this tool, we presume that you reside in the Western Cape, and will make use of the Western Cape High Court for the Application. You also need to obtain the Free DIY Urgent Child Contact Toolkit for mothers and Fathers. This is dealt with next.

Free DIY Toolkit

Download the Free DIY Urgent Child Contact Toolkit for mothers and Fathers found on this website. This would greatly assist you as an extra tool. The toolkit relates to an Urgent Child Contact Application in the Western Cape High Court which would be of assistance in making an urgent application and completing the form below.

Free Online Child Contact Application Form

Kindly complete the online form below. Once you completed the form, and submitted it, you would obtain an email with a Draft Notice of Motion and Founding Affidavit. You can then use those documents, together with those documents received in the Free DIY Urgent Child Contact Toolkit for mothers and Fathers  and prepare your Application. We advise that you consult with a legal Practitioner to assist you in the application should you decide to take it to Court. Best of luck. [ninja_form id=47] This and other articles and posts found on this website are written by Adv. Muhammad Abduroaf to assist people with various family law related issues they may have. If you find any of our articles, free resources and posts interesting, or possibly useful to others, please like and share it on Social Media by clicking on the icons below. For more interesting articles and information on Family Law, view our articles and Q&A page. If you have a family law related legal issue and you want someone to answer or reply to it, feel free to post it on our Family Law Blog. Therefore, kindly like and share. Should you require any other legal services and advice, not related to family law, visit Private Legal.
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What happens on on your business meeting with us?

You will meet with the friendly, approachable legal expert and have a face to face chat about the nature of your business, what it entails and the legal requirements. Luckily, the legal expert on board has ears of experience, making him fit to offer you expert, legal advice and guidance for your business. Would you like to consult with the legal expert for expert legal advice regarding your business? Call our law offices on 021 424 3487 for an online appointment to be made for you. Fortunately our law offices boasts a very straight forward online process in which the potential client will receive an automated email their side stating all the relevant details for the consultation. The email will highlight:
  • Name (of potential client)
  • Surname (of potential client)
  • Email Address
  • Home Address
  • Contact details
  • Date and time of consultation
  • Nature of legal matter
  • Payment methods are highlighted and terms and conditions
Call our offices on 021 424 3487, for an online appointment to be made for you today!

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We offer the following business legal services that could be f help for your business:
  • Business Legal Support
  • Business Legislation Compliance
  • Drafting of Business Contacts
  • Drafting Employment Contacts
  • Business Legal Training
  • Private and Non Profit Company Registrations
  • Credit Profiles
  • Business Trusts Registration
Would you like to consult with the legal expert for expert legal advice regarding your business? Call our law offices on 021 424 3487 for an online appointment to be made for you.

Business Legal Training

Our family and business legal consultancy prides itself for having the legal expertise in both family and business law – this is what sets us aside from the rest. The legal expert advises the following when it comes to business and legal training:
“All businesses are required to comply with legislation. Furthermore, certain laws would be specific to your business. It is therefore important that you and your staff understands, and complies with the various legislative and other measures in place in relation to your business. For example, the Consumer Protection Act, 2008 (Act No. 68 of 2008) and the National Credit Act, 2005 (Act No. 34 of 2005) pays an integral role in commerce in South Africa. Each business and individual should be familiar with the Consumer Protection Act, 2008 (Act No. 68 of 2008) and the National Credit Act, 2005 (Act No. 34 of 2005) to ensure a sustainable commercial existence. Therefore, if your business supplies goods and provides services, then the Consumer Protection Act would find application. If you are in the business of providing credit, then the National Credit Act would apply.We have to knowledge and expertise to train your staff on the law applicable to your business. Speak to us today about how we can provide legal training for you business.”
Find out more on the importance of the legal and business services we offer and feel free to call our offices on 021 424 3487, for an online appointment today!

Family legal services

We take the well-being of our clients very seriously and always try to prepare the best argument in court. When it comes to professional legal drafting, we strive at providing well thought out, cleverly composed legal documents that best reflects what you require. In doing so, we have also made free, expert legal advice articles easily accessible on our website. These are: Feel free to call our law offices on 021 424 3487 today, for an online appointment for a professional legal consultation today! The creators of this website had made free, expert legal advice easily accessible for your convenience. For more on your legal options and ideas for your divorce, see the following links:
  1. How to Change your Matrimonial Property Regime
  2. Do your own Unopposed Divorce. No lawyers needed and its Free.
  3. Parental Rights of Divorced Muslim parents after a Talaq or Faskh
  4. Free Online Divorce Assistance Form – DIY Cape Town South Africa
comprising of:
  1. Divorce guide
The free divorce starter toolkit provides you with the necessary tools to attend to the unopposed divorce on your own. The tools include a template Summons, Particulars of Claim and a Notice of Set-Down. Should you wish to have a one on one legal consultation with legal expert himself, then do feel free to call our law offices on 021 424 3486 for an online appointment today.  
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