ABC Guide to Applying for Child Support/Child Maintenance in Cape Town (and South Africa)

The procedures for instituting a complaint for child maintenance are regulated by the Maintenance Act 99 of 1998. Below is a simple “ABC” guide to help you get started in claiming maintenance for yourself, your children, or dependents. This guide was created to encourage individuals to seek the maintenance they need. Please remember that the Maintenance Court is available to assist you with any legal queries you may have. This guide would apply whether you live in Cape Town, or anywhere in South Africa. Before outlining the steps for claiming maintenance in Cape Town (or anywhere in South Africa), I will first address the following question:

Question: From whom can maintenance be claimed?

Answer:Maintenance can be claimed from individuals who have a legal obligation to provide it. For example, children can claim maintenance from their parents, and a wife can claim it from her husband, and vice versa. Since children are minors, their parent or guardian assists them in the maintenance process; however, it is ultimately the child who is making the claim. This guide applies to all senarios.

What are the basic steps to follow when claiming child maintenance in Cape Town (or anywhere in South Africa)

Step 1: Gather Income and Expenses

1. Collect all proof of income, such as pay slips. If you are self-employed, obtain documentation that verifies your monthly earnings. If you are unemployed, that’s acceptable as well. 2. Compile a list of all monthly expenses for yourself and your children. This should include rent, groceries, clothing, entertainment, etc. This information will be essential when completing the maintenance application form in Step 2. 3. Gather details about the individual from whom you are requesting maintenance, including their home and work addresses, as well as their identity number.

Step 2: Visit the Maintenance Court

1. Go to the Maintenance Court closest to your location and obtain the “Application for Maintenance Order Form,” commonly referred to as “Form A.” If you live or work in the Cape Town CBD, then then go to the Cape Town Maintenance Court. 2. Use the information collected in Step 1 to fill out the form. The form is an affidavit, so you will need to swear to the accuracy of the information and sign it. Be honest in your disclosures, as providing incorrect information may lead to cross-examination in court, which can work against you. 3. If you need assistance in completing the form, the maintenance officers will be available to help you. After filling out the Application for Maintenance Order Form, return it to the maintenance officer for processing. If the officer can provide you with a reference or case number immediately, be sure to request it. 4. The Maintenance Court will send you and the individual you are claiming maintenance from a notice or subpoena to appear at the Maintenance Court for an inquiry with the maintenance officer. Make sure to mark the date on your calendar right away and arrange your work commitments and childcare as soon as possible. Missing the date may result in delays of several months in rescheduling your hearing.

Get Your Documents in Order – Step 3

From the moment you leave the office of the maintenance officer and even from the time you decide to claim maintenance, it’s crucial to keep all receipts for any items purchased for yourself and your child. Whether it’s diapers, toys, or any other necessities, treat those receipts as if they are gold. This is important because you will need to prove to the court that you genuinely spend money on your child, and having the receipts will serve as evidence.

Notification from the Maintenance Court

You will soon receive a notification from the Maintenance Court regarding a date to return for an inquiry. You may be informed by mail, email or through a subpoena. On that date, both you and the individual from whom you are claiming maintenance must appear. If you plan to have a legal representative, let them know the date as soon as possible, so they can be available to assist you in court. In the notice to appear for the maintenance inquiry, you will be required to bring proof of all expenses and income for both yourself and your child. This is why it’s essential to keep all evidence of expenditures in a secure place.

**Hint:** If possible, bring both the original documents and photocopies. The originals can be taken home afterward, while the copies will remain in the court file.

 

The Maintenance Inquiry – Step 4

This step involves the maintenance inquiry where you and the party from whom you are claiming maintenance will meet with a maintenance officer. The officer will speak with each party and review the documents provided. Both parties will have the opportunity to explain why maintenance is needed and why the requested amount may be unaffordable. The maintenance officer will try to resolve the matter on the spot to avoid a court trial. If an agreement can be reached, that amount can be formalized as a court order. If an agreement cannot be reached, the case may be referred to trial, depending on the court’s procedures. Remember, if you are a father or a person currently paying maintenance or child support, you can apply for a reduction. Conversely, if you need an increase in maintenance or child support, you can also make that application.

Sharing is Caring

This article and others on this website are written by Adv. Muhammad Abduroaf to assist individuals with various family law-related issues. If you find our articles, resources, or posts helpful, consider sharing them on social media.  
Posted on by Telelaw

ABC Guide to Applying for Child Support/Child Maintenance in Cape Town (and South Africa)

The procedures for instituting a complaint for child maintenance are regulated by the Maintenance Act 99 of 1998. Below is a simple “ABC” guide to help you get started in claiming maintenance for yourself, your children, or dependents. This guide was created to encourage individuals to seek the maintenance they need. Please remember that the Maintenance Court is available to assist you with any legal queries you may have. This guide would apply whether you live in Cape Town, or anywhere in South Africa.

Before outlining the steps for claiming maintenance in Cape Town (or anywhere in South Africa), I will first address the following question:

Question: From whom can maintenance be claimed?

Answer:Maintenance can be claimed from individuals who have a legal obligation to provide it. For example, children can claim maintenance from their parents, and a wife can claim it from her husband, and vice versa. Since children are minors, their parent or guardian assists them in the maintenance process; however, it is ultimately the child who is making the claim. This guide applies to all senarios.

What are the basic steps to follow when claiming child maintenance in Cape Town (or anywhere in South Africa)

Step 1: Gather Income and Expenses

1. Collect all proof of income, such as pay slips. If you are self-employed, obtain documentation that verifies your monthly earnings. If you are unemployed, that’s acceptable as well.
2. Compile a list of all monthly expenses for yourself and your children. This should include rent, groceries, clothing, entertainment, etc. This information will be essential when completing the maintenance application form in Step 2.
3. Gather details about the individual from whom you are requesting maintenance, including their home and work addresses, as well as their identity number.

Step 2: Visit the Maintenance Court

1. Go to the Maintenance Court closest to your location and obtain the “Application for Maintenance Order Form,” commonly referred to as “Form A.” If you live or work in the Cape Town CBD, then then go to the Cape Town Maintenance Court.
2. Use the information collected in Step 1 to fill out the form. The form is an affidavit, so you will need to swear to the accuracy of the information and sign it. Be honest in your disclosures, as providing incorrect information may lead to cross-examination in court, which can work against you.
3. If you need assistance in completing the form, the maintenance officers will be available to help you. After filling out the Application for Maintenance Order Form, return it to the maintenance officer for processing. If the officer can provide you with a reference or case number immediately, be sure to request it.
4. The Maintenance Court will send you and the individual you are claiming maintenance from a notice or subpoena to appear at the Maintenance Court for an inquiry with the maintenance officer. Make sure to mark the date on your calendar right away and arrange your work commitments and childcare as soon as possible. Missing the date may result in delays of several months in rescheduling your hearing.

Get Your Documents in Order – Step 3

From the moment you leave the office of the maintenance officer and even from the time you decide to claim maintenance, it’s crucial to keep all receipts for any items purchased for yourself and your child. Whether it’s diapers, toys, or any other necessities, treat those receipts as if they are gold. This is important because you will need to prove to the court that you genuinely spend money on your child, and having the receipts will serve as evidence.

Notification from the Maintenance Court

You will soon receive a notification from the Maintenance Court regarding a date to return for an inquiry. You may be informed by mail, email or through a subpoena. On that date, both you and the individual from whom you are claiming maintenance must appear. If you plan to have a legal representative, let them know the date as soon as possible, so they can be available to assist you in court.

In the notice to appear for the maintenance inquiry, you will be required to bring proof of all expenses and income for both yourself and your child. This is why it’s essential to keep all evidence of expenditures in a secure place.

**Hint:** If possible, bring both the original documents and photocopies. The originals can be taken home afterward, while the copies will remain in the court file.

 

The Maintenance Inquiry – Step 4

This step involves the maintenance inquiry where you and the party from whom you are claiming maintenance will meet with a maintenance officer. The officer will speak with each party and review the documents provided. Both parties will have the opportunity to explain why maintenance is needed and why the requested amount may be unaffordable.

The maintenance officer will try to resolve the matter on the spot to avoid a court trial. If an agreement can be reached, that amount can be formalized as a court order. If an agreement cannot be reached, the case may be referred to trial, depending on the court’s procedures.

Remember, if you are a father or a person currently paying maintenance or child support, you can apply for a reduction. Conversely, if you need an increase in maintenance or child support, you can also make that application.

Sharing is Caring

This article and others on this website are written by Adv. Muhammad Abduroaf to assist individuals with various family law-related issues. If you find our articles, resources, or posts helpful, consider sharing them on social media.

 

Related Post

Updated: 16 April 2020

New regulations have been issued on 16 April 2020. Click on the link below: The material change is that you do not have to have a court order or a parental responsibilities and rights agreement or parenting plan, registered with the family advocate. Possession of a birth certificate or certified copy of a birth certificate is now also allowed.

Let’s talk Constitutionally – What about the parents whom the Minister of Social Development excluded from moving their children during the South African National Lockdown – Is this new law fair? Does it not discriminate between children and parents?

Written by Advocate Muhammad Abduroaf It is day 15 of the National Lockdown in South Africa. Our President last night announced that the lockdown would extend for a further two weeks. Lockdown, for now, would extend until the end of April 2020. What does this mean for parents who want to have contact with their children during the lockdown period? Can they collect or visit their children during the extended lockdown period? Let us unpack the legal situation.

Moving of children during the National Lockdown Period

When the lockdown was announced, there was uncertainty as to whether parents may move children during this period. We are referring to parents and children living in separate homes. After the lockdown commenced, a directive was then issued stating that children may not be moved between homes. This brought certainty to the issue, however, had far-reaching consequences. The directive said that the child should remain with the parent he or she is at, at the start of the lockdown period.

The current regulations on the movement of children between parents

On Tuesday 07 April 2020, the Minister of Social Development, Ms Lindiwe Zulu, MP, made changes to the regulations regarding the movement of children during the lockdown period. It is now possible for certain children to be moved between parents during the lockdown period. The regulations apply to the following parents only:
  1. There are arrangements in place for the children to move for one parent to another in terms of a court order; or
  2. A parental responsibilities and rights agreement or parenting plan registered with the office of the Family Advocate; and
  3. In the household to which the child is to move, there is no person who is known to have come into contact with, or is reasonably suspected to have come into contact with, a person known to have contracted, or reasonably suspected to have contracted, COVID-19;
  4. The parent or caregiver transporting the child concerned must have in his or her possession, the court order or the latter agreement, or a certified copy thereof.

Are these new regulations potentially unconstitutional?

Any law that discriminates against a class of people unjustifiably is unconstitutional. The class of people this new regulation discriminates against are one or more of the following parents:
  • Parents who are not divorced, but separated;
  • Never enforced their parental responsibilities and rights by obtaining a court order;
  • Parents who do not have any co-parenting issues;
  • Unmarried parents who did not see the need to approach the Court for a Court Order;
  • Parents who did not see the need to register a parenting plan or responsibilities and rights agreement with the Office of the Family Advocate; and
  • Parents who could not afford to obtain a court order or register a parenting plan or responsibilities and rights agreement with the Office of the Family Advocate; and
  • So on.

Infringement of the right to equality of the aforementioned parents and children

Section 9 of our Constitution (Act 108 of 1996) states the following: (1) Everyone is equal before the law and has the right to equal protection and benefit of the law. (2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken. (3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. (4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination. (5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair. Parents and minor children are not being treated equally. Only parents and children who are part of court orders and a parenting plan or responsibilities and rights agreement with the Office of the Family Advocate are taken care of by the Minister. Not the rest of the South African population. This infringement of constitutional rights cannot be justified. Let us unpack it.

Infringement of the right to human dignity

Concerning human dignity, section 10 of our Consitution states, “Everyone has inherent dignity and the right to have their dignity respected and protected.” I am sure, that all parents who do not have a court order or a parenting plan or responsibilities and rights agreement with the Office of the Family Advocate feel that their dignity has been violated. This is so as the government now allows another parent who has the latter documents to move their children. There is further no logical justification to preference some parents over others. Or to put it differently some children over others.

What can parents do who do not have a court order or a parenting plan or responsibilities and rights agreement with the Office of the Family Advocate?

It seems that the only recourse for parents who do not have a court order or a parenting plan or responsibilities and rights agreement registered with the Office of the Family Advocate has two options:
  • Approach the court urgently for a court order;
  • Approach the office of the family advocate to register a parenting plan or responsibilities and rights agreement.
Whether or not the court would be of adequate assistance during the lockdown and entertain your application, depends on many factors. However, in our view, if there is sufficient urgency, and as we are dealing with the best interests of children, the application would properly be dealt with. Concerning approaching the office of the family advocate to register a parenting plan or responsibilities and rights agreement; this could come with its challenges. But not necessarily so for all cases. Contacting their offices beforehand would be advised. Written by Advocate Muhammad Abduroaf (LL.B LL.M) – Advocate of the High Court of South Africa Advocate Muhammad Abduroaf is a member of the Legal Practice Council of South Africa     No equality and dignity for parents without Court Order and Registered Plans and Agreements 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        
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