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:
  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.
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:
  1. Food (breakfast, lunch and supper)
  2. Accommodation (rent)
  3. Electricity, water and gas
  4. Basic clothing
  5. Basic educational expenses
  6. 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      
Posted on by Telelaw

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:

  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.

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:

  1. Food (breakfast, lunch and supper)
  2. Accommodation (rent)
  3. Electricity, water and gas
  4. Basic clothing
  5. Basic educational expenses
  6. 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

 

 

 

Related Post

Relocation and repatriation of minor children during the South African National lockdown. Is it possible if there is no consent from the other parent?

Many parents before the lockdown had the intention to relocate to another country. It goes without saying that whatever plans they had to relocate at the start of the lockdown, was placed on hold. Having passed day 100 of the national lockdown, things have since changed.  Domestic travel has been allowed under certain circumstances and many people have been repatriated to their home countries. International travel, other than that for repatriation is allowed under certain circumstances. We advise those parents who wish to leave South Africa to consult the relevant regulations and the laws applicable to the country you wish to travel when deciding to leave South Africa.

The high unemployment rate in South Africa due to the National Lockdown

Then there is the issue of unemployment. The South African economy is not in good shape, and many businesses have closed due to the lockdown and COVID-19.  Many people lost their jobs and various forms of income due to the pandemic. Not being able to work, means not being able to pay for accommodation, food, clothing and school fees, to mention a few. Those people who lost their jobs may wish to seek employment and other economic opportunities abroad. For such parents, relocation may be the best option for them and the child concerned. If repatriation is possible, this option may be better.

Gaudian consent is required for the repatriation or relocation of minor children

But what about those parents who may relocate with their minor children, but does not have the consent of the other parent. What can that parent do under those circumstances? As the law stands, both parents who have parental responsibilities and rights of guardianship must consent for the removal of the minor child from South Africa. A mother naturally has guardianship rights over her child. Father’s, on the other hand, would have full guardianship rights over the child if he was married to the mother or if he materially formed part of the child’s life. If he was just part of the conception of the child, and never married the mother, then he would not have any guardianship rights.

If no consent is obtained, then the Court should be approached

If a parent, wishes to relocate overseas, or repatriate with a minor child, and the other parent does not want to consent thereto, then the Court must be approached for the necessary consent. At the end of the day, the court would decide and look at what is in the child’s best interests. Considering the COVID-19 pandemic, this factor would now also be considered. The court would have to consider the state of the pandemic in South Africa, as well as the country to which the parent wishes to relocate, with a range of the usual factors.

Legal Articles on the relocation of minor children

Have a look at the following articles on the issue of relocation of minor children. Passport Application of a Minor Child and Consent – Department of Home Affairs Consent for a minor child for relocation and passport application Frequently asked questions regarding relocation and consent when it comes to minor children I want to relocate with my minor child. what do I need to know with regard to the law? 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

Most family law matters come with heightened emotions and stress. It, however, does not always have to be that way. Staying focused and rational is important to get the best results.

Many legal practitioners will tell you, the one aspect of family law, that differentiates it from other branches of law, is the emotions that come with it. It would often happen that a client breaks down, or sheds a tear in your office. This is understandable, as family law issues have a lot of history behind it. Even simpler family law legal matters, for example, the terms of an antenuptial contract, can stir emotion.

Types of family law matters that cause heightened emotions and anxiety

Before we delve into this topic, let us first bring things into perspective. These are some of the family law matters we are referring to:
  • Divorces (Contested or Undefended);
  • Domestic Violence matters;
  • Child maintenance disputes; and
  • Child custody disputes.
The actual list is more extensive. You may even want to consider including last wills and testaments and winding up of deceased estates. As can be seen from the types of matters mentioned, there are always children involved or personal relationships. Some of these relationships have lasted for decades. We often see people who were married for more than 30 years, getting divorced. And in other cases, the relationship, albeit personal, could have been for a very short while, but still, elicit a lot of emotions. For example, a domestic violence family legal matter.

The personal nature of family matters makes it harder to deal with

One of the challenges for a legal practitioner is to try to convince the client that he or she should trust the law, and not focus too much on the other party. For example, in a divorce matter, where a spouse has been abused. The abused spouse would sometimes agree to sign away everything just to get divorced speedily. This is not only unfair but could lead to many issues in the future. This situation must be avoided at all costs.

Intimidation in abusive relationships

Then we have the challenge in a domestic violence matter. A party who has been abused would agree on withdrawing an application for a protection order, even though it is dangerous to do so. Or there is the situation where a party would agree that a protection order is issued against them due to being intimidated either by the other party, or his or her lawyer. This they do not do because of having committed domestic violence, but just to get the matter over and done with. The consequence of that is the applying party would have an interdict and a warrant of arrest against you which may be abused.

Intimidation in child maintenance or alimony cases

We cannot count the number of times we have been told that the reason why a parent does not want to approach the maintenance court, is due to being told by the other parent that he or she will get much less than what they are receiving. This is emotional abuse and not in the child’s best interest. One reason for believing the abuser is due to the relationship the parties had. The abuser was controlling and abusive during the relationship, and the victim has been brainwashed into believing everything the abuser says.

What people must understand in family legal matters?

Although it is understandable for someone to be anxious when dealing with family law related matters, it is important to note that issues need to be dealt with properly. If your spouse was abusive during your relationship, that does not mean it has to continue after your relationship ended. There are laws in place to protect people from abuse and violence. For example, the Domestic Violence Act. If you make use of the law, you would have a better chance of getting the legal results you want. Go to the Police if necessary.

Final words to people who are intimidated by, or is afraid of the other party

Although it is easier said than done, we implore people not to be bullied when it comes to family law matters. This includes being intimidated by the other party, or his or her lawyer. If you have rights; enforce them. Believe in yourself and your cause and others will learn to respect it. Many cases are won by unrepresented litigants who were up against a team of lawyers. Moreover, no one has the right to belittle you or deny you of your rights. Take a stand and fight for what is right. 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