HOW TO APPLY FOR SPOUSAL MAINTENANCE?

Maintenance is the obligation to provide another person, for example a minor, with housing, food, clothing, education and medical care, or with the means that are necessary for providing the person with these essentials. This legal duty to maintain is called ‘the duty to maintain’ or ‘the duty to support.

The duty to maintain is based on blood relationship, adoption, or the fact that the parties are married to each other.

An application for maintenance can be made against a defendant (person who must pay maintenance) at any Maintenance Court (“court”) in the district where the complainant (person who applies for maintenance) or the child, on whose behalf maintenance is claimed, resides or works.

The parents, guardians and/or caregivers of a child can apply for maintenance on behalf of such a child.

What should a person take to court when applying for maintenance?

  1. Identity document of the complainant.
  2. Complainant’s contact details, such as telephone numbers and home and work addresses.
  3. If maintenance for a child is claimed, the birth certificate of that child.
  4. If maintenance for the spouse is claimed, the marriage certificate or divorce order where maintenance order was granted.
  5. A full list of expenses and any proof of same, such as receipts.
  6. The complainant’s payslip and proof of any other income.
  7. As much detail as possible regarding the defendant, such as telephone numbers, home and work addresses, list of known income and expenses, and so on.

What happens after the application has been made?

  1. The maintenance officer will inform the defendant of the application and will hold an informal enquiry with the complainant and defendant being present.
  2. The defendant must take any proof of his/her income and expenses to the informal enquiry.
  3. The purpose of the informal enquiry is to assist the complainant and the defendant in reaching a settlement.
  4. If a settlement is reached, an agreement will be entered into between the complainant and the defendant, which will be made an order of court.
  5. If a settlement cannot be reached, the maintenance officer will place the matter before court for a formal enquiry to be held.
  6. The court will consider the facts and evidence of the claim and decide, by way of a maintenance order, whether maintenance should be payable and the amount of such maintenance.
  7. The complainant and the defendant must both be present at the informal and formal enquiry, and will be allowed to have legal representation.
  8. If the defendant fails to appear at the formal enquiry in court, an order may be given in his/her absence.
  9. It will not be necessary for the complainant and/or defendant to appear in court if they consent in writing to the maintenance order being granted.

References:

  • Justice.co.za
  • Legalwise.co.za

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

CHILD MAINTENANCE AND FREEDOM OF TESTATION

Is a testator entitled to disinherit a child and if so, will the child have a claim for maintenance against the estate?

What is freedom of testation?

Freedom of testation is the liberty of a testator to choose how to bequeath his/her estate, and govern how their property is transmitted after his/her death. The law of succession then, is at least in part concerned with the preservation of a testator’s wishes, even if it additionally serves a social function related to the family and economic structures of society. In principle, South Africa propagates total freedom of testation.

The general approach in South African law is that agreements or clauses which attempt to limit freedom of testation are not enforceable. Furthermore, once the testator’s wishes have been established, a court is ordinarily bound to give effect to these wishes.

Are their restrictions?

However, freedom of testation has never been unfettered. Both the common law and statutes, such as the Maintenance of Surviving Spouses Act 27 of 1990, impose restrictions on the testator. Bequests which are manifestly illegal or contra bonos mores (against good morals) will be regarded as invalid. Spouses and children may also be disinherited in terms of the will but they may still have a legitimate claim for maintenance against a testator’s estate which cannot be disregarded.

Disinheritance

There is a presumption against disinheritance, and courts will usually prefer a softer construction of a testator’s will in this respect. This is based on an assumption that a parent is not likely to disinherit a child. However, it is important to note that if it is explicit or clear in a testator’s will that a child is disinherited, then this will not constitute an impermissible exercise of freedom of testation; rather, a testator is given the liberty to lawfully do so.

South Africa gives fairly broad freedom to testators. Testators can generally dispose of their estates as they desire, subject only to certain restrictions mentioned above. Testators are also not required to give reasons for their decisions in this regard, and are not accountable to their families for testamentary choices.

Parental duty and maintenance

The parental duty to maintain children will pass to the estate upon death, as confirmed in Carelse v Estate De Vries (1906). The minor child’s claim for maintenance is endorsed as settled law and a common law restriction on freedom of testation.

It should be noted that the child’s claim for maintenance and education is not to be confused with a legitimate portion as it does not entitle a minor to a set portion of the estate or, put differently, does not presumptively limit the testator’s ability to divide her estate as she or he desires. As such a testator could potentially disinherit a child without this impacting the common law claim the child will have against the estate.

Conclusion

Currently, South African law provides for the surviving spouse to exercise a claim for maintenance against the deceased’s estate. The parental (and spousal) duty does not merely extinguish upon death. The provision of maintenance for children gives effect to children’s rights as provided for by the Constitution, and affording this maintenance claim to protect dependants is wholly justifiable. This does not however entail that children should be entitled to a legitimate portion or forced heirship generally, as this would constitute an overly extensive constriction on freedom of testation.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)