Written by Talita Erasmus – a practising attorney at Alan José Incorporated.
Who can claim maintenance?
Every child that is not self-supporting has the right to receive maintenance from his/her parents and/or grandparents. The Children’s Act, 38 of 2005, defines the term “child” as a person under the age of 18 years. However, it is not only children under 18 years that have a claim against their parents for maintenance. A person 18 years or older that is not self-sufficient also has a claim for maintenance against his/her parents. There is a difference in that a minor child is entitled to claim maintenance for all their needs whereas a major child may only claim for necessities.
Since a minor child cannot institute or defend proceedings in his/her own name, it is the custodial parent who needs to claim maintenance on the minor child’s behalf, from the non-custodian parent. Once the child becomes an adult (older than 18 years) and should they not be self-sufficient, he/she will have a claim against his parents for maintenance and will have to institute (or defend) such a claim in his/her own name.
Until when can I claim maintenance?
The duty to support only ceases once the child, irrespective of age becomes self-supporting.
What happens when both my parents die while I am not yet self-supporting?
Because the duty to support only ceases once the child or adult becomes self-supporting, the child, or adult in need of maintenance, will have a claim against his/her parents’ estates for maintenance alternatively their grandparents.
What happens when my parents are both unemployed?
If the court has made an order finding that one or both parents are able to pay maintenance for the child, the duty to support extends to the relevant grandparent/s.
How much maintenance can I, or my custodian parent on my behalf, claim?
When it comes to the question of how much maintenance can be claimed there is no hard and fast rule. Each case will depend on its own set of facts, circumstances and merits.
When determining maintenance, the court will firstly look at the reasonable needs of the specific child. This includes expenses such as food, shelter, clothes, transport, school expenses and medical aid to name but a few. Only after the court has established what the reasonable needs of the child are, will it be in a position to determine each parent’s share in contributing to those needs.
Secondly, when determining each parent’s share in contributing to the child’s needs, the court will make an order that each parent supports his/her child proportionally according to his/her means. In other words, should the father earn a large income and the mother the father’s share in contribution will be greater than the mother’s. The fact that the father earns more than the mother does not discharge the mother’s obligation to pay maintenance. Both parents are liable to contribute towards the need of their child/ren
Where do I, or my custodian parent, claim maintenance?
The Maintenance Act, 99 of 1998, determines that every magistrate’s court is a maintenance court. The custodial parent must go to his/her nearest magistrate’s court whom will help him/her to fill out the necessary forms, in order to bring the matter before the court so that an appropriate order can be made.