Maintenance - Legal Assistance Centre

THE MAINTENANCE ACT 9 OF 2003

© Based on a template produced by the Gender Research and Advocacy Project of the Legal Assistance Centre The Legal Assistance Centre takes no responsibility for any changes made to the template.

The presentation focuses on child maintenance. The Maintenance Act also provides for maintenance that a married couple should provide, maintenance a child may need to provide for a parent and maintenance for a person with disabilities. For more information read the LAC Guide to the Maintenance Act

Namibian Constitution Children have the right from birth to a name, the right to acquire a nationality and, subject to legislation enacted in the best interests of children, as far as possible the right to know and be cared for by their parents Article 15(1)

What is maintenance? • Maintenance is money or goods that a person has a legal duty to provide for the basic living expenses of his or her dependants

• It is meant to help children. It puts their needs first, and helps overcome any arguments the parents might have

What are living expenses? • Living expenses include rent, water, electricity, food, clothes, transport, medical expenses and school fees

Brainstorm

What expenses will be considered for maintenance?

Possible answers • • • • • • •

Rent Water & electricity Food, clothing, toiletries Transport Childcare services Medical expenses Educational costs

Calculations

What might be a realistic average cost to care for a 12-year-old child per month?

Who is responsible to pay maintenance? • Both parents of a child have a legal duty to maintain their child

• It is the primary responsibility of the parents to maintain the child

Who should receive maintenance? ALL CHILDREN – Whether born inside or outside of marriage – Whether the first or the last child – Whether born to different mothers

– Regardless of customary law

• The Maintenance Act is: GENDER NEUTRAL

• However in practice most claims are made by women

Duty of support • If the parents cannot pay maintenance, other relatives may have a duty of support – If the child’s parents are dead, the grandparents have a duty to support their grandchildren

– Brothers & sisters may also have a duty to support a relative, as appropriate

• A duty of support does NOT apply to people related by marriage e.g. step-parents, mother-in-law

Conditions for a maintenance order 1.

The defendant must be legally liable

2.

The defendant must be able to contribute

3.

The defendant is failing to provide reasonable maintenance

Payments in kind ….can be included in a maintenance order – A taxi driver could take his children to school each day – A fisherman could give fish to the family – Crops could be given during harvest time

Maintenance contributions • Although both parents are jointly responsible, this does not mean they must both pay the same • The amount of money they must pay will depend on how much money and property they each have, and how much money they each earn • The payment of maintenance must come before anything else except for payments parents make to support themselves

Maintenance and pregnancy • A maintenance order can include pregnancy-related expenses • A claim for pregnancy or birth-related expenses should usually be made before the child’s 1st birthday

Brainstorm

What type of expenses might a pregnant woman incur?

Possible answers • Fresh fruit, vegetables, milk • Maternity clothes • Medical expenses

Who can claim maintenance? • A parent

• The primary caretaker • Any person who is worried about the child – such as a relative, social worker, doctor. • The child

Paternity disputes • If the father disputes paternity, a test can be ordered • The costs may be paid by one or both parties, or by the court

How to claim maintenance

Terminology • Beneficiary – The person who benefits from the maintenance order

• Complainant – The person who applies for a maintenance order

• Defendant – The person being requested to pay maintenance

How to claim maintenance 1. Go the Magistrate’s Court – –

– –

The clerk of the court will help you to fill in the forms. No need for an appointment. You should take information about yourself, your child, how much you earn and how much it costs to care for your child. The entire process should be private and you do not need a lawyer. The maintenance officer has a duty to investigate your claim

Investigation • The maintenance officer should investigate the case • The court will contact the defendant – The defendant is usually asked to attend a meeting with the complainant and the clerk. – The defendant can agree to pay the amount being requested

Meeting with the maintenance officer • Both parties may be asked to attend an informal meeting • Most cases are settled at this meeting. If the parents cannot reach and agreement, a magistrate will have to decide the case

Enquiry by the magistrate • If the magistrate has to decide the case, both parents will have to come back on another day • If the defendant does not come to court, the magistrate can issue a maintenance order anyway • The defendant can complain about the order later, but he or she must start paying maintenance right away

Factors considered for the order - child • Financial, educational & developmental needs of the child • Age of the child

• Manner in which being educated or trained • Any special needs • Direct & indirect costs of childcare

Factors considered for the order – parent • The lifestyle, income & earning capacity of all parties • Property & resources of all parties • Responsibilities & financial needs of all parties

What does a maintenance order say? • The amount to be paid • The date the payment must start to be made

• The time period between payments • Where & how the payment should be made

Duration of a maintenance order • A maintenance order generally ends when a child is able to look after him/herself • This is usually when the child reaches 18 • A maintenance order will end if: – – – –

The child dies The child is adopted The parents divorce (a new order is made) The child marries

• The maintenance order may end earlier or later if: – a child leaves school before age 18 and gets a job – a child is disabled or for some other reason cannot earn enough money to pay for basic needs – a child goes to university in which case the maintenance payments can continue until the child is 21

Claiming maintenance from someone in another country • You can still claim maintenance if the defendant is living in South Africa

• The Namibian and South African courts will work together on the case • Maintenance can sometimes be claimed from people living in other countries as well

Changing an order • Big changes will require an enquiry • Small changes can be made with the maintenance officer – Must inform court of change of address – Must inform court if change employment

What if maintenance is not paid? • If you do not receive maintenance payment 10 days after it should have been paid you should contact the Clerk of the Court

• The court can take the money : – – – –

Directly from the defendant’s wages Order property to be sold Transfer a debt payment Transfer payment of a pension or annuity

Criminal behaviour • • • • • •

If you lie to the magistrate or maintenance officer If you unnecessarily delay the process If you threaten or intimidate If you ignore a maintenance order Misuse of maintenance money If you work for the court and leak information about the case Failure to obey a maintenance order can result in a fine of up to N$4000 or imprisonment for 12 months

Maintenance from the estate of a deceased • Maintenance claims from the estate of a deceased parents are permitted – Contact the executor – Problems will be dealt with by the Master of the High Court

Conclusion • All children have a right to maintenance • Maintenance payments are meant to help provide for the basic needs of a child • The steps to obtain maintenance are simple • There are options if maintenance is not paid