domestic violence, protection order, restraining order, legal rights, Cape Town
I cannot afford to pay child maintenance during the Lockdown. What can I do? The other parent of my child has not paid any maintenance since before the lockdown. What should I do?
We are now on day 19 of the National Lockdown. Many expected the lockdown to endure for only 21 days. However, it is now set for 35 days. Unless you are an essential worker, or a business providing essential services, you may not go out to work or earn a living. You may, however, work from home making use of email, telephone calls, and video calls. However, the vast majority of workers in South Africa do not work from a computer or have the ability to earn money from being online. This applies to restaurants, retail stores and suppliers, the building and maintenance industry, and so on. The list is extensive. 
For those who are lucky to be employed, some will only receive half their salary and some none. No work, no pay. This is a sad reality of the national lockdown. Many people will be left without jobs and unable to pay their expenses. We can only hope and pray that the COVID-19, coronavirus pandemic comes to an end as soon as possible. South Africans can then work together in building our nation back to where it was and beyond.Regulations regarding the movement of children during the lockdown
Concerning the issue of a parent’s inability to pay child maintenance during the lockdown, let us first outline the current regulations regarding the movement of children during this period. This would place this article in perspective. Children may only be moved between homes under the following circumstances:- There are arrangements in place for the children to move for one parent to another in terms of a court order; or
- A parental responsibilities and rights agreement or parenting plan registered with the office of the Family Advocate; and
- 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;
- 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.
To view the regulations, click here. TAKE NOTE! There is NO Child Maintenance Payment Holiday during the National Lockdown Period!
On 07 April 2020, an article was published entitled: TAKE NOTE! There is NO Child Maintenance Payment Holiday during the National Lockdown Period! This article still stands. We received many queries and comments from parents who cannot afford to pay child maintenance during the lockdown, and parents who have not received any child maintenance prior. Let us deal with this issue.A parent’s duty to pay child maintenance
Whether or not there is a maintenance order in place, a parent has the duty to maintain his or her child. This duty does not stem from a court order, but by operation of law. A parent, therefore, cannot opt-out from paying child support. The only exception could be if the child, although he or she is a minor, is very wealthy, and does not require any form of child maintenance. This latter scenario is however rare.What are the social welfare consequences of not paying child support?
The very basic purpose of paying child support is to feed, clothe and give the child shelter. If a child has two (2) parents, then both of them have a legal obligation to maintain that child. If one parent pays child support, the other parent would use that money to supplement the expenses of the child. Therefore, the money would be used to pay for any of the following basic needs during the lockdown period:- Food (breakfast, lunch and supper)
- Accommodation (rent)
- Electricity, water and gas
- Basic clothing
- Basic educational expenses
- Personal hygiene and medical expenses
Now let’s say both parents are not earning any money during the lockdown period. The parent caring for the child is trying his or her utmost best to feed the child with what little money there is. If the parent who is supposed to pay child support does not pay his or her portion, what would happen? It would mean that the child would not have food to eat during the lockdown period. This is not in the child’s best interest. A parent should, therefore, try his or her utmost to avoid this situation from happening by paying child support. What if a parent really cannot afford to pay child maintenance during the lockdown period?
It is theoretically possible that a parent, who receives no income during the lockdown period, cannot afford to pay all the child maintenance he or she is obliged to pay. This category of parent would be one who owns no assets of value to sell, is not eligible to take out a loan from someone, and himself or herself is destitute. In other words, there is no money or assets at all. Should the mother lay a complaint for non-compliance with the Maintenance order, or for paying child support, he or she should prove that he or she was truly destitute and could not pay any child support, albeit a small amount.For what may a parent approach the maintenance court during the lockdown?
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 Therefore, if a parent is not paying child support in terms of a court order, approach the maintenance court to enforce it, even during the lockdown. If you do not have a maintenance order, and not receiving maintenance, approach the maintenance court during the lockdown and ensure you have all the information mentioned in the regulations above. We, therefore, urge parents to pay their child support during the lockdown period. This is so even though you never saw your child during the entire lockdown period. Make a loan, sell some goods, or do whatever you can to ensure your child has food to eat during the lockdown and beyond. 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
How to get urgent Access to your Children without the services of a Lawyer (Attorney or Advocate)
Are you a father or mother of a child and the other parent refuses you access/contact to that child? If that is the case, you have a right to relief from the Court for Urgent Access. A couple would bring a child into this world. Whilst the relationship is ongoing, they can see eye to eye on what is best for the child and both parties form a productive part of the child’s life. Even if the couple is not living together, the father would see the child regularly and bond with the child as is needed. However, once the relationship has severed, it often happens that the parties cannot see eye to eye on what is best for the child regarding regular contact by the father. The mother would either blatantly refuse the father access or would place strict measures on when and how the father can see the child. Should the mother refuse access or prescribe access to the child, which is not in the child’s best interest, the father, in this case, would have grounds to urgently approach the Court for relief. Court procedure is very complicated. It is therefore strongly advised that you approach an attorney with knowledge and experience with these urgent applications. Furthermore, the attorney should have an advocate at hand to move the Application with or without opposition at Court. However, if you wish to do it yourself, read further should you wish to make the Application in the High Court.The Procedure
Your application is urgent and therefore it is done on affidavit and not orally in Court. You may, however, be called to give oral evidence if the Judge so wishes. This is to clarify certain issues. However, this can mostly be avoided if your papers are properly drafted. You should firstly draft a document called a Notice of Motion and a founding affidavit. I shall explain these documents next. Although reference below may be made to an attorney or advocate, you may attend to the process yourself. Lastly, for the sake of simplicity, the term contact and access is used, as opposed to care and contact.Notice of Motion
In this document, you state exactly what you want the Judge to grant you. It is similar to the prayers in a summons. Of course, you want the Judge to grant you urgent access to your child. You are making the application urgently and sidestepping some rules of Court regarding time periods and procedure. The first thing you should, therefore, ask the Court is to condone non-compliance with its Rules. You will then ask the Court what relief you want, usually in the form of an interim order to be finalised later. Usually, you will ask for a rule nisi. An example of the prayers in an urgent access application in the High Court are as follows:- Condoning the Applicant’s non-compliance with forms and service and time periods provided in the Uniform Rules of this Honourable Court and permitting this Application to be entertained as a matter of urgency in terms of Rule 6(12) of the Rules of Court;
- That a Rule Nisi be issued, calling upon the Respondent to appear before Court on ____________________ 2026 at 10:00, in order to show cause why an Interim Order should not be confirmed in the following terms:-
- That the Applicant shall have unsupervised contact to the minor child as follows:
- Every alternative weekend commencing from Friday 18:00 to Sunday at 18:00.
- That the provisions above shall operate as an Interim Order, with immediate effect, pending the return date of the Rule Nisi;
This document is signed by your attorney, or by you if, you are acting in person.
Founding Affidavit
In your Founding Affidavit, you provide relevant information under oath. Here you would provide details of you, the mother and the child. You would also need to provide information on a few or more of the following matters:- Background information about your relationship with the mother of the child;
- Past access to the child;
- Past involvement in the child’s life;
- When access to the child seized/lessened and the circumstances surrounding it;
- Past maintenance or attempts to maintain the child;
- Why the application is urgent and substantive redress in due course would not be afforded to you; and
- Any other relevant information.
Issue and Service of the Application
Once the Notice of Motion and Founding Affidavit is in order, your attorney would make the necessary copies. Thereafter he would have the application issued at Court. A case number would be provided. If possible, you would have the application served on the mother of the child timeously. The Office of the Family Advocate should also be served. Here you may make use of the office of the Sheriff or your attorney would serve the papers on the mother.Opposition
If the mother of the child opposes the relief sort after being served with the Application, she should file an opposing affidavit to which you would have to reply. The parties would then have to argue the matter before the Judge.Urgent Hearing at the High Court
If your matter has been set down on the Motion Court Roll, the Judge would have already read over the papers filed. You would then wait for your matter to be called up. Should your matter is to be heard before the Urgent Judge on duty that day, you or your Advocate would have to take the file to the Judge beforehand to read. If the mother or her Advocate is present at Court, and the parties cannot settle the matter, they would then have to argue the matter before the Judge. If, however, the mother after having been duly served does not appear at court, then the process is a bit faster.After the judge decided on the matter, the following might happen:
- The Judge would grant the urgent access requested;
- Grant you urgent access but not on the terms as requested;
- Refuse to grant you any relief without a family advocate report;
- Dismiss your application for lack of merits and/or urgency.
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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
- That the Applicant shall have unsupervised contact to the minor child as follows:
- Every alternative weekend commencing from Friday 18:00 to Sunday at 18:00.