The South African Maintenance Courts tend to be flooded with applications for maintenance orders against parents who deliberately avoid paying maintenance for their minor children. However, have you ever wondered what happens when a parent of a minor child genuinely cannot afford to pay maintenance?
What does the law state?
This area of law is governed by the Maintenance Act 99 of 1998 as amended which states that parents have the duty to support their minor children. Section 15(3)(ii) specifically highlights that the Maintenance Court shall consider the respective share of each parents’ obligation which is determined by first determining the reasonable needs of the minor child and then to apportion the respective obligation in accordance with the respective means of the parents.[1] If a parent is unemployed and does not receive an income the Maintenance Court may order that assets be attached and sold to pay for the maintenance of the minor child. In the worst-case scenario failure to pay maintenance can also be deemed a criminal offence and may be susceptible to criminal prosecution.
Unable to pay maintenance
If the parent who is liable to pay maintenance in respect of a minor child is unable to pay and does not have any meaningful assets the court may pend proceedings until such time such person is able to. This may result where proceedings are already actioned, that such proceedings be postponed to allow the circumstances of the parent to change.
In Zimelka v Zimelka 1990 (4) SA 303 (W) at 305 it was held by Kirk-Cohen, J as follows:
“The principle is clear. What is more difficult is the application thereof. It does not follow that, because of the principal referred to, the custodian parent in each case is entitled to claim a monetary contribution from the non-custodian parent. If one parent ‘has not the means to make any significant financial contribution…’ to the maintenance of the children, the Court will not order that parent to do so.”
It follows that where there is a duty to pay maintenance does not necessarily mean that a maintenance court will make an order for monetary maintenance. In practice, the court may pend the proceedings until a future date and the parent liable to pay maintenance will have to submit proof to the satisfaction of the Maintenance Court that employment is being applied for on a consistent basis.
Conclusion
What is evident is that the court is not necessarily obliged to award a maintenance order where a parent liable to pay does not have the financial means to do so. However, a parent would have to prove to the court their lack of financial means to provide maintenance. This duty does not cease to exist and becomes actionable the moment the parent secures employment.
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[1] Section 15(3)(ii) of the Act
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