MAINTENANCE: THE BASICS AND WHY YOU SHOULD CHOOSE MEDIATION
The Duty of Support
The requirement to pay maintenance is determined by the duty of support that exists between certain family members. The duty of support stems from the legal obligations that family members have towards each other and is based on whether there is a need to be supported, and whether the person who is obliged to support has adequate resources.
Between Whom does the Duty of Support Exist?
There is a duty of support between:-
- parents and their children;
- grandparents and grandchildren;
- brothers and sisters and half-brothers and half-sisters.
Maintenance must always be sought from the nearer relative first and more stringent criteria are applied when maintenance is claimed by grandparents and parents.
There is no duty of support:-
- Between a person and their mother-in-law, father-in-law, brother-in-law or sister-in-law;
- Between step-children and step-parents or step-brothers and step-sisters;
- Between aunts and uncles and nieces and nephews;
- owed to other people’s children. There is no duty on a father to maintain a child if he is not the biological father, even if he paid maintenance for a long period of time, in the belief that the child was his.
The Duty of Support in Respect of Children
Both parents have a duty to support their child. This refers to biological and adopted children, as well as children born out of wedlock. The parents’ duty of support in respect of their child is not terminated by their divorce, re-marriage, or the fact that a parent does not have care or guardianship of the child.
The duty of support extends to that which a child reasonably requires for his or her proper living and upbringing, and includes the provision of food, clothing, accommodation, medical care and education.
How is the Amount of Maintenance to be Paid Calculated?
The primary considerations when determining what maintenance is needed, are the child’s needs and the parents’ ability to pay. The child’s needs are to be established first, and then what each parent is to pay is calculated proportionately according to the parents’ means.
When considering what to award as maintenance, a court will consider what amount is reasonable and fair, taking into account the child’s circumstances, such as the standard of living of the parents, the child’s health and the child’s aptitude in regard to education.
When Does the Duty of Support in Respect of Children Cease?
Generally, the duty of support ceases when a child becomes self-supporting.
Where maintenance is sought for a major child (over the age of 18) who is not yet self-supporting, the child must bring an application for maintenance and show that they have a need for maintenance.
If the parent in whose care the child is refuses to allow the other parent to see the child, this does not absolve the other parent from paying maintenance for the child.
What if the parent who ought to pay maintenance doesn’t have enough money?
Parents are presumed to be capable of supporting their children, until they can prove otherwise.
Where a parent claims that they are unable to pay due to being unemployed, they will be required to show their genuine attempts at gaining employment.
If a parent’s income is insufficient to pay maintenance for the child, it may be necessary to liquidate assets to apply towards the child’s maintenance.
The Duty of Support Between Spouses
The party that applies for spousal maintenance must show a need for it and the other party must be able to provide it.
There are three kinds of spousal maintenance, namely:-
- Rehabilitative Maintenance. Where a younger or middle-aged spouse has stayed at home to look after the children and has not worked for some time, rehabilitative maintenance may be paid while they undergo training to enable them to find employment.
- Permanent maintenance. A person who is too old to find employment and who was supported by their spouse throughout the marriage, may be awarded permanent or lifelong maintenance.
- Token maintenance. This is when a minimal amount of maintenance is granted, as there is no reason to grant maintenance at the time of making an order, but the court foresees that it may become necessary in the future. By awarding token maintenance the amount may be increased in the future.
In terms of Section 7(2) of the Divorce Act, the following factors will be taken into account when determining spousal maintenance:-
- The existing and prospective means of the parties;
- The respective earning capacities of the parties;
- The financial needs and obligations of the parties;
- The age of each party;
- The duration of the marriage;
- The standard of living of the parties;
- The conduct of each party in relation to the breakdown of the marriage;
- Any order in terms of section 7(3) of the Divorce Act (a redistribution order);
- Any other factor.
The Maintenance Court Process
When applying to court to claim maintenance, a person must attend at the Maintenance Court that has jurisdiction, to bring an application for payment of maintenance. This is done by completing the necessary form with the assistance of the maintenance officer and attaching all relevant documentation to support the claim.
The maintenance court with jurisdiction over a matter is the court in the area in which:-
- the child is resident;
- where the person in whose care the child is resides or where the person in whose care the child is, is employed or carries on business.
The maintenance officer is required to investigate the matter and either call the parties to an informal enquiry, or to a formal enquiry. An informal enquiry is held when the maintenance officer believes that the matter is capable of settlement and he will try to mediate an agreed Maintenance Order.
If the matter is not capable of settlement, the maintenance officer will refer the matter to a formal enquiry.
What happens if the party who has been ordered to pay maintenance fails to pay?
If there is an existing court order and the person who was required to pay breaches the order by not paying, there are civil and criminal remedies available to recover the arrear maintenance.
In terms of civil procedure, a person is able to apply for:-
- A warrant of execution against property;
- An Emoluments attachment order to attach a debtor’s salary;
- Attachment of debt (the money is attached while it is still in the hand of the third party who owes the debt)
In terms of criminal procedure, a criminal charge may be brought against the debtor and if they are found guilty, they are liable to a fine or to imprisonment for a period not exceeding a year, or to imprisonment without the option of a fine.
Civil procedure is the preferred option as the criminal process involves a court hearing which can be very slow. Furthermore, prosecutors have many criminal cases to deal with on a daily basis, and do not prioritise maintenance matters.
Why You Should Mediate Your Maintenance Dispute
There is an enormous backlog of maintenance cases in our courts and maintenance officers are overwhelmed by new cases each day. Accordingly, it can take many days of waiting in court just to meet with the maintenance officer.
A formal maintenance enquiry is akin to a mini-trial and it is recommended to have legal representation for these proceedings. There is a lot of preparation required for a maintenance enquiry, as all financial documents must be exchanged between the parties and subpoenas must be prepared and served where one party does not want to deliver their documents. When all documents have been exchanged, maintenance bundles must be put together, witnesses may need to be called and all the evidence must be presented to the presiding magistrate. Because of all the preparation required, a maintenance enquiry is extremely costly. Furthermore, there are often postponements on one or more occasions for various reasons, meaning it can take years for the matter to be resolved.
Often the money spent on legal fees to resolve a maintenance case far exceeds the amount of maintenance being claimed.
If both parties are willing to attend mediation, the mediator will sit with both parties to help them reach agreement based on principles that ensure an outcome that is fair and equitable to both parties. This means that the parties can avoid the waiting time in court, and also the expense of an enquiry.
The majority of maintenance cases submitted to mediation are settled. Once the parties have reached agreement in mediation, all that is required is the completion of a form, which the parties take to the Maintenance Court to be endorsed, and it then becomes a Court Order.
There are, accordingly, substantially reduced costs associated with mediating maintenance issues, and the matter can be resolved very quickly.
Parties who dispute the amount of maintenance to be paid have the opportunity to show why they hold this view, in a confidential environment with an impartial mediator, while avoiding a drawn out and costly court battle, and the possibility of civil or criminal prosecution.
When it comes to family law related disputes, parties think that they have to start the process by each approaching an attorney and embarking on litigation, which can quickly become acrimonious and costly. There is nothing to lose by starting the process with mediation and seeing if the cost and emotional turmoil associated with drawn out court proceedings can be avoided. In mediation you remain in control of the outcome of your dispute, and you can find a resolution that suits you, rather than taking a chance with a Judge or Magistrate who may not find in your favour.