Maintenance is the obligation to provide another person, for example a minor, with housing, food, clothing, education and medical care, or with the means that are necessary for providing the person with these essentials. This legal duty to maintain is called ‘the duty to maintain’ or ‘the duty to support’.

The duty to maintain is based on blood relationship, adoption, or the fact that the parties are married to each other.

An application for maintenance can be made against a defendant (person who must pay maintenance) at any Maintenance Court (“court”) in the district where the complainant (person who applies for maintenance) or the child, on whose behalf maintenance is claimed, resides or works.

The parents, guardians and/or caregivers of a child can apply for maintenance on behalf of such a child.

What should a person take to court when applying for maintenance?

• Identity document of the complainant.
• Complainant’s contact details, such as telephone numbers and home and work addresses.
• If maintenance for a child is claimed, the birth certificate of that child.
• If maintenance for the spouse is claimed, the marriage certificate or divorce order where maintenance order was granted.
• A full list of expenses and any proof of same, such as receipts.
• The complainant’s payslip and proof of any other income.
• As much detail as possible regarding the defendant, such as telephone numbers, home and work addresses, list of known income and expenses, and so on.

What happens after the application has been made?

• The maintenance officer will inform the defendant of the application and will hold an informal enquiry with the complainant and defendant being present.
• The defendant must take any proof of his/her income and expenses to the informal enquiry.
• The purpose of the informal enquiry is to assist the complainant and the defendant in reaching a settlement.
• If a settlement is reached, an agreement will be entered into between the complainant and the defendant, which will be made an order of court.
• If a settlement cannot be reached, the maintenance officer will place the matter before court for a formal enquiry to be held.
• The court will consider the facts and evidence of the claim and decide, by way of a maintenance order, whether maintenance should be payable and the amount of such maintenance.
• The complainant and the defendant must both be present at the informal and formal enquiry, and will be allowed to have legal representation.
• If the defendant fails to appear at the formal enquiry in court, an order may be given in his/her absence.
• It will not be necessary for the complainant and/or defendant to appear in court if they consent in writing to the maintenance order being granted.

Reference

• Justice.co.za
• Legalwise.co.za

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)