Child Maintenance Saga: How a mother forced the father of her child to pay child maintenance after battling for 5 years

Maintenance Saga: When Jill was 17 years old, she met Jack. He was much older than her, working, and very charming. Jill was in her final year of high school and in love with Jack. One thing led to another, and Jill fell pregnant with his child. When she told Jack the good news, he asked her to have an abortion. She refused. Jack was then out of the picture and nowhere to be found. She did not know where he stayed, nor did she have his work details. All she had was his mobile number. This number was useless as he blocked her. The furthest thing from her mind at the time was the issue of child maintenance.

Parents finding out

Needless to say, things did not go well for Jill. Other than having to keep the fact of her pregnancy from her parents, she also had to deal with morning sickness and weight gain. After the first trimester, her parents knew something was wrong and confronted her. She told them she was pregnant. Things then just got worse. Jill’s parents took her out of school, and she was kept out of the public eye. To them, she disgraced them. What made it even worse was that Jill could not provide much information about the father of her child. Her parents, already struggling to make ends meet, had an additional burden to pay for Jill’s gynaecological visits and medication. The child was born, and Jack was still nowhere to be found. Jill named her baby James.

Realities of life

Life moved on for Jill and her child. Jill’s mother gave up her job to care for the child and Jill had to go to work. With no matric or any special skills, Jill had to get a job in retail, working the late shifts. What she earned was not enough for her and the child’s expenses. Her parents were complaining and putting pressure on her to find the father of the child to help support him. This was not the life her parents, nor she, envisaged for her.

The Shock – He was married

Jill called around, spoke to some people and found out where the father lived. It turned out, that Jack was married, since before he met Jill and has three children with his wife. When she met with Jack, he wanted nothing to do with her and said that it is not his child. He also told her that should she take him to the maintenance court, he will deny paternity. This left her despondent and she did not know what to do. He did not even want to meet the child. Jill could not leave it at that. She had to find a way to get Jack to support his child. It is unfair that he supports his other 3 children and gives nothing towards James. She finally found out what Jack did for a living. He was a self-employed graphic designer, working from home. Nonetheless, she wanted him to pay. She, however, did not know what to do.

The Maintenance Court

Two years passed and things were not getting better financially. Jill’s mother was getting old, and her father was soon to retire. With inflation, she earned about the same as she did when she first started working. Jill then spoke to some people who advised her to approach the maintenance court for assistance and advise. She then went to the Maintenance Court. She completed the Application Form and provided all relevant information. This included the home address of Jack. She then waited. Three months later, she received a letter in the post advising her of the date she needs to appear in court for the maintenance enquiry. The Court date was a month later. She then appeared at Court, and Jack was not there. The maintenance officer had no proof that Jack knew about the court date, so she had to issue a subpoena. Jill was told to leave and that she would be notified of the next date in due course. James just turned 3.

The Blood tests

Four months later, Jill, this time received a subpoena to appear in the same maintenance court. This time, she had to appear two weeks later as they took some time to get the subpoena to her. When she entered the court, she saw Jack walking with a lady wearing a suit and holding a briefcase. He did not even greet her. Jill waited outside the maintenance officer’s office and when her name was called, she entered the office where she saw Jack and his lawyer sitting. She was the same lady she saw him walking with earlier. Before Jill could say anything, the maintenance officer told Jill that Jack is disputing paternity and that she would have to go for a blood test with the child. Obviously, if Jack is not the father of James, then Jill has no right to make the application. Everything had to be kept on hold until the results were confirmed.

The paternity outcome

The first time Jack met his son James was when the blood samples were taken. Jack still wanted nothing to do with him. When they appeared back at the maintenance court 3 months later, the results were announced. Jack was 99.99999 percent the father of James. Neither Jack nor Jill was surprised with the results. But Jack’s lawyer was. She then withdrew as his lawyer. She could not represent a client who was dishonest to her. The matter, therefore, had to be postponed for legal representation. The Maintenance Court Delays Three months later, Jack and Jill again appeared before the maintenance officer. This time, Jack came with his wife. She, however, had to sit outside the office when the maintenance enquiry took place. Jack said he could not afford a lawyer and neither could Jill. When asked to produce his income and expenses, he said he did not have any. He also said that all monies he gets paid go into his banking account. But for the past 6 (six) months, he did not earn any money. The case was then postponed for Jack to bring copies of the last 6-months bank statements and for the maintenance investigator to look into the matter. The matter was then postponed for another 3 months. James was turning 4.

The paternal grandparents

When the parties appeared before the maintenance officer, Jack provided his bank statements. It depicted that he did not earn anything for the past 3 months. The maintenance investigator also could not find anything of value to show that James had money. Jill knew that Jack was lying about his income, but because he got paid in cash, there was no proof of the fact. It was then decided that they will call in the paternal grandparents to contribute towards James’s maintenance. This made Jack very nervous as his parents did not know that he had a son. Nonetheless, they were subpoenaed to Court. The matter was then again postponed for 3 months.

The maintenance settlement

When the parents of James and his grandparents appeared at the Maintenance Court, they were distraught. Never would they have thought they would ever have to visit a Court. What made it worse was that they were there because their son did not want to pay child support for his child. Embarrassed with the situation, Jack agreed to pay child support to James, on condition that his parents are kept out of the settlement. Jill agreed, and a maintenance order was granted.

Moral of the story

Never give up on claiming child maintenance for your child. Even if it takes you almost 5 years.

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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 share it on Social Media. Should you require any other legal services and advice, not related to family law, visit Private Legal. Purchase a Consultation with us from our Online Shop, by clicking here.

View some of our other Child Maintenance Articles below

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Posted on 11 February 2025 by Telelaw

Child Maintenance Saga: How a mother forced the father of her child to pay child maintenance after battling for 5 years

Parents finding out

Realities of life

The Shock – He was married

Jill could not leave it at that. She had to find a way to get Jack to support his child. It is unfair that he supports his other 3 children and gives nothing towards James. She finally found out what Jack did for a living. He was a self-employed graphic designer, working from home. Nonetheless, she wanted him to pay. She, however, did not know what to do.

The Maintenance Court

The Blood tests

The paternity outcome

The Maintenance Court Delays

Three months later, Jack and Jill again appeared before the maintenance officer. This time, Jack came with his wife. She, however, had to sit outside the office when the maintenance enquiry took place. Jack said he could not afford a lawyer and neither could Jill. When asked to produce his income and expenses, he said he did not have any. He also said that all monies he gets paid go into his banking account. But for the past 6 (six) months, he did not earn any money. The case was then postponed for Jack to bring copies of the last 6-months bank statements and for the maintenance investigator to look into the matter. The matter was then postponed for another 3 months. James was turning 4.

The paternal grandparents

The maintenance settlement

Moral of the story

Never give up on claiming child maintenance for your child. Even if it takes you almost 5 years.

Sharing is Caring

Should you require any other legal services and advice, not related to family law, visit Private Legal.

Purchase a Consultation with us from our Online Shop, by clicking here.

View some of our other Child Maintenance Articles below

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Changing your matrimonial property regime from in community of property to out of community of property

Are you married? Do you know what is your matrimonial property regime?

To register your Antenuptial Contact, Click here. Are you married in Community of Property? Do you want to change your matrimonial property regime to Out of Community of Property? Did you not know that a marriage Out of Community of Property was possible when getting married? There is legal relief for you and your spouse.

In Community of Property

All civil marriages are automatically In Community of Property. This means that there is one estate shared between wife and husband. Therefore, if anyone of the spouses incurs a debt, that debt belongs to both of them.

Out of Community of Property

The other option is to get married Out of Community of Property. This means that there are two separate estates and each party is responsible for his or her own debt. For some people, this would be a better option, especially if you are a business person.

Accrual system

The usual process to be married Out of Community of Property is to enter into an antenuptial contract before the marriage. The contract will have clauses in it stating:

That there shall be no community of property;
That there shall be no community of profit or loss; and
That the accrual system provided for in Chapter 1 of the Matrimonial Property Act, no 88 of 1984 is expressly excluded from the marriage.

However, if you did not do so, there is a way of changing your matrimonial property regime from In Community of Property to Out of Community of Property. For this, you need the consent of the High Court in your Jurisdiction. Here you will make use of section 21 of the Matrimonial Property Act 88 of 1984.

Getting the High Court’s Consent to change your matrimonial property regime to Out of Community of Property

Once you and your spouse have decided to change your matrimonial property regime to Out of Community of Property, you would need to approach the High Court in your area for consent. If you know the law, legal process, Court rules, and procedure, you and your spouse can do it on your own. If you cannot do it on your own, an attorney would be able to do it for you. This the attorney may attend to with or without the assistance of an Advocate.

Drafting a post-nuptial contract

What they do is draft a post-nuptial contract for you which would outline what matrimonial property regime you want and also how the joint estate should be divided.

Application to the High Court for consent to change your matrimonial property regime to Out of Community of Property

Then they draft a Notice of Motion (notifying the Court what you want) and Founding Affidavit (your affidavit outlining your case etc.). Your case must satisfy the Court that:

There are sound reasons for the proposed change of the matrimonial property regime;
There has been sufficient notice to creditors regarding the proposed change; and
No other person will be prejudiced by the proposed change.

If, however, you cannot make a case for the above, your application may be unsuccessful.

Costs involved in changing your matrimonial property regime

As stated, you have to approach the High Court for consent to change your matrimonial property regime. There, therefore, would be the costs of an attorney who may instruct and advocate, and further costs in drafting and registration of the postnuptial contract. Furthermore, there is advertisement cost involved as you would have to give notice in the Government Gazette and in one or two local newspapers. You would further have to serve your application on the Registrar of Deeds and give notice to your creditors via registered mail. The total costs can range from R 25 000 – 00 should your matter be straight forward, to R 30 000 – 00 should it be more complicated.

Complicated applications to change your matrimonial property regime to Out of Community of Property

Complicated would mean the joint estate has many creditors. Furthermore, there may be many assets in the joint estate that needs to be divided, especially if they are not easily describable. The above-mentioned fee is obviously dependent on your application not being opposed by any interested party. One reason for opposing the application could be that the Joint Estate is deeply indebted to a creditor, and she feels that her claim would be prejudiced by the proposed change. Should your application be opposed for any reason, many more hours will be spent fighting for the success of your application which could costs you a small fortune and you may even be ultimately unsuccessful. Therefore, you would need to advise your legal team of all relevant facts before the application is made.

Time estimates to change your matrimonial property regime to Out of Community of Property

The estimated time in preparing your application, your post-nuptial contract and ultimately obtaining consent from the High Court is about 4 weeks. This is also dependent on whether or not the High Court is sitting within 4 weeks after the drafting of your application. If the High Court is in recess, a few extra weeks may apply. The Court may also want a report from the Registrar of Deeds which could cause delays.

Registering the postnuptial contract

Once your application is successful and the High Court, therefore, gave consent, you will usually have 3 (three) months to register the postnuptial contract. So once consent is granted, you need to see a Notary Public before whom you will sign your post-nuptial contract and then have it registered. This, therefore, needs to be done within the three months of obtaining the consent of the High Court.

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Posted on 11 February 2025 by Telelaw

Questions and Answers on Wills – Last Wills and Testaments

Do you have any specific question on you last Will and Testament similar to that below? If yes, feel free to post it below.

How do I write a will for free? Is a handwritten will legal? Are handwritten wills legal in Cape Town? Do you have to go to a lawyer to make a will? Can you just write a will and get it notarized? How do I go about making a will for free? What are the requirements to make a will? What is in a simple will? Is a will valid if it is not notarized? What is a holographic will? What is the average cost of making a will? What are the requirements for a valid will? Do wills have to be dated? Is a handwritten will valid in the South Africa? Can family witness a will? Who can be a witness to a will? What is a will when someone dies? What is a legal will? What is the average cost of a simple will? What is the purpose of having a will? How do you sign a will? Is a notarized document a legal document? How much does it cost to do a will? How much does it cost to have a living will? What can I do as a paralegal? How much does it cost to get a power of attorney? Can you be an executor and a witness to a will? Can a notary be a witness to a will? Can I make changes to my will? Is a will signed by a notary legal? Is a handwritten will valid? Do notaries have to witness signatures? Can a family member be a witness on a legal document? Do you have to change your will when you move house? Can you just write a will and get it notarized? Is a document legal if it is not notarized? Do both parties have to be present to have a document notarized? How do you notarize a document? Can I notarize a document already signed? Can you get something notarized online? Do you have to sign divorce papers in front of a notary? What type of notarization is a power of attorney? What is a proof of execution? What is a subscribing witness to a will? What does it mean to be a credible witness? Can a credible witness be named in a signed document? What is an unreliable witness? What is the problem with eyewitness testimony? Why eyewitness testimony is unreliable? What is eyewitness testimony in psychology? What is eyewitness memory in psychology? Why is an eyewitness account valuable? What is a reconstructed memory? What are the effects of misinformation? Why does the misinformation effect occur? What is a repressed memory? Is a handwritten will valid? Is a notarized document a legal document? Is a handwritten contract legally binding? What do you call a person who can notarize? Can you just write a will and get it notarized? What does a contract need to be valid? Can I change my will at any time? Do you need a lawyer to change your will? How do you write a codicil to a will? Can you change a will if you have power of attorney? Can a family member be a witness to a will? Who can be a witness to a will? How do I write a will for free? Do you need a lawyer to write a will? How do I make a will online for free? What is in a simple will? Do wills have to be dated? What is a will that is oral? What does testimonies? What percent of wrongful convictions based on mistaken eyewitness testimony are common? What is motivated forgetting? Do you have to have a will notarized? What are the requirements to make a will? Why do you forget things? How do you forget something? What are the effects of misinformation? Why does the misinformation effect occur? What is a repressed memory? What is a will when someone dies? What is a legal will? What is the average cost of a simple will? What is the purpose of having a will? Why is it important to have a will? What is a joint will? What is a holographic will? What is a will and a trust? Is a handwritten will legal? What is the average cost of making a will? Are online wills valid? How much does it cost to do a will? How much does it cost to have a living will? Do my wife and I need separate wills? Is a document legal if it is not notarized? Is a notarized document a legal document? Where can I get a document notarized for free? Can you get something notarized online? Do wills have to be dated? What is a will that is oral? Can a notary be a witness to a will? Do you need a lawyer to write a will?

Is it possible for an unmarried father to obtain full custody of a 10-year-old child and not the mother? – A simplified family lawyer’s perspective.

By Advocate Muhammad Abduroaf There is a common misconception that if a child was born out of wedlock; only the mother can be the primary caregiver of the child concerned. This may however generally be the case. However, it is presumed by some that if a mother cared for the child since his or her birth, the father would not be able to be the child’s primary caregiver. In other words, the child would always live with the mother, and never with the father. We do not blame our clients for thinking so. That is the stereotype. As the world changes, so does the law.

The popular scenario regarding single parenting?

We are often approached by fathers who have a child that was born out of wedlock. He and the mother most probably lived together when the child was born. But things did not work out between them. The mother moved out and lived with her parents or on her own. The father would then regularly have contact with the child. The type of contact would be decided by the mother. Now the question is, even if the child is 10 years old; is it possible for the child to be cared for by the father and live with him primarily? The answer to that is yes. This is so, as the law looks at what is best for the child concerned.

Best interests of the child principles when it comes to children

Both the South African Constitution and the Children’s Act, says that the child’s best interests are given priority. In other words, a child’s best interests are of paramount importance in matters relating to him or her. Therefore, for one to assume at the outset, that only mothers are the best primary caregivers, is not only incorrect but potentially dangerous when dealing in children’s matters. The law expects us to look at all factors, not only who historically looked after the child, but also, the possibility of whether the father can better care for the child. Moreover, as the child’s best interests are of paramount importance, deciding as to whether or not to move a child from the primary care of a mother to that of the father should not be done lightly. Therefore, even if the father, 10 years later, can on the face of it care better for the child than the mother, this should not be the deciding factor. One would also need to look at the emotional and psychological impact it would have on the child as well.

What would be an ideal situation where moving the child from the mother to the father would be warranted?

In our view, material comforts are not reason enough to move a child from the primary care of a mother to that of a father. If the father is a wealthy person, and the mother not, he can be ordered to pay more child support towards the minor child’s expenses. However, if the child is of a certain age, and he needs to have certain living conditions, and the father has it, then that would be a possible factor in granting the father primary care. For example, if the child is a gifted swimmer, and 17 years old, and in matric, and needs to train consistently, then it makes sense that the father’s living amenities may be an important factor to justify the movement of the child.

Obvious reasons to have the child primarily cared for by the father or another party

Then there is the obvious reason to move the child from the primary care of the mother to that of the father or another person. This would be because the mother is totally incapable of caring for the minor child. She may have developed a mental illness, be admitted to a drug rehabilitation facility, or neglects the child whilst in her care. In such a case, one would look at the father. If he too has issues, then the child would need to be placed in alternative care. For example, foster care, or with another relative.

Is it possible for an unmarried father to obtain full custody of a 10-year-old child?

From the above, it is clear that it is possible for an unmarried father to obtain full custody of a 10-year-old child. It all depends on the facts of the matter. Whilst mothers may be best to care for the child in his or her early age of development, once should not lose sight of the fact that the father could care better for the child. If he cannot, then the child should remain in the primary care of the mother.