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maintenance

All parents have a legal obligation to maintain their children proportionally to their respective means. This includes fathers of children born out of wedlock. Other family members, for instance grandparents, can under limited circumstances also be ordered by the court to pay maintenance.

Where parents were married, the maintenance amount can be determined by a settlement agreement which is incorporated in the divorce order, or failing agreement between the parents, by the divorce court or maintenance court.

If parents were not married, the maintenance amount can be determined by a parental rights and responsibilities agreement (if any). More often it is determined by the maintenance court once application has been made by the primary caregiver of the child.

A change in circumstances might mean that the set maintenance amount becomes insufficient to maintain the child, or can no longer be afforded by the parent paying the maintenance. In such cases the affected parent can apply to the maintenance court to amend the maintenance order.

The parent having to pay maintenance might also fall into arrears, in which event payment can be enforced by legal procedures.

Pitfalls, misconceptions and mistakes relating to maintenance and arrear maintenance are prevalent. These can be sidestepped by contacting us to advise and guide you appropriately.
Our maintenance services include: -
Applications in terms of the Maintenance Act for amendment (increase or reduction) of existing maintenance orders.
Collection of arrear maintenance by way of a warrant of execution, emoluments attachment order or garnishee order.
Applications in terms of the Maintenance Act for a new maintenance order where one has not previously been granted.
FREQUENTLY ASKED QUESTIONS
What does maintenance include?
Amongst others provision of food, accommodation, clothes, medical expenses and education (including tertiary). Maintenance will however depend on the circumstances of the child and the parents.
Until when is maintenance payable?
The maintenance order or divorce order will determine the date until which maintenance will be payable. It is most commonly until the child turns 18 years of age or completes school or becomes self-supporting, whichever event occurs last. However there is a common law duty on parents to maintain a child who is not self-supporting, irrespective of the child’s age.

The Maintenance Court can enforce this duty once the child requiring maintenance has made application to the court.
What happens when maintenance is not paid in terms of the court order?
Application can be made to the maintenance court for a warrant of execution against assets, or attachment of a part of the defaulter’s salary (emoluments attachment order) or even attachment of a debt which is owing to that person.
Can an interest in a pension fund be attached to pay for arrear maintenance?
Yes, an interest in pension fund can be attached to satisfy arrear maintenance.