“I have two children of four and seven years. How can I get the father of the children to pay me support money for them?”

What Does the Law Say?

Both parents have a legal duty to support their children, including children from unmarried fathers. This duty of support ends when the children become independent, for example, when they marry, or when they become self-supporting. One parent can apply to the Maintenance Court for the other parent to pay support for their children. Once there is a court order instructing a parent to pay child support, it is a criminal offence not to pay. The parents have to pay in proportion to their income.
(See: The Duty to Support)

For children up to the age of 17 you can also apply to the Department of Social Development (represented by the South African Social Security Agency SASSA) for a Child Support Grant if they comply with the means test.

(See: Child Support Grant)

There are special Maintenance Courts at every Magistrate’s Court. Maintenance clerks working in these courts help people who want to apply for maintenance and also deal with applications to get more or to pay less maintenance.

What Can You Do?

Check when applications can be made at the Maintenance Court as some Maintenance Offices are only open on certain days of the week. These are the steps you must follow:

• Go to the Maintenance Office at the Maintenance Court in your area. Take with you:
  • the name and address of the father, as well as details of where he works
  • photographs of the father (if available) so that the court can identify him
  • if you were married and are now divorced, a copy of the divorce order
  • proof of your income (like a wage slip)
  • your papers, receipts and accounts, showing all the things you must pay every month. (See: Monthly Expenses)
• The maintenance officer sends a letter, called a summons, to the father asking him to come to the maintenance office on a certain date.
• On the date, you and the father must go to the office. You must try to agree on how much the father must pay for his children.
• The maintenance officer will work out with you all the things you must pay for every month, and how much money you earn and how much money the father earns. Then you can see how much you need from the father.
• It is important to get the court to make an order to do a paternity test if the father denies that he is the father.
• If you agree on how much the father must pay for his children, the maintenance officer will get both of you to sign a paper called an order of court. This states how much, when and where it must be paid.
• If you do not agree, then the officer will say your case must go to the Maintenance Court on a certain date. The court will warn both parties verbally of the date that they must appear in court.
• If the father does not come to court on the date that he was supposed to, and he has been properly informed, you can ask that a default order be made in his absence. Often the court issues a warrant for his arrest instead of giving a default order but it is better for you to get a default order otherwise there is more delay in getting the maintenance.

If the father seems to have disappeared, then the court can order any person who knows where he is to come to the court and tell them where he is. It is the responsibility of the state to trace the father. However this is very difficult and it is a better idea to claim maintenance from the grandparents (this sometimes brings the father out of hiding!).

• At the maintenance enquiry in the court, the magistrate listens to both parties
• and finds out how much their income and expenses are every month.
  (See: Monthly Expenses)
• The magistrate then decides how much the father must pay for his children. The magistrate makes this amount an order of court, in writing. It is called a maintenance order. Then the father must pay that amount every week or month to the maintenance office or into the mother’s bank account.
• The court can also order a stop(debit) order to be put on the person’s account without their consent or make an order that the employer deduct the money from an employee’s salary.
• If the father is out of work, he will not have to pay maintenance straight away. The magistrate will tell him that he has a certain time, say three months, to look for work. He will be given a form to be signed by employers he has approached if they do not give him a job. The enquiry will then be postponed to a future date. Once he has work, an enquiry will be held and the magistrate will make an order. But if the father stays out of work a long time, and doesn’t look hard to find work, the magistrate might send him to jail for not paying support. If the father stays out of work a long time, you can try claiming maintenance from the grandparents as they have a duty of support towards their grandchildren if the parents can’t support the children.