The legal community is reporting a significant increase in maintenance queries since the lockdown commenced on March 26. However, advocate Muhammad Abduroaf, of legal advice consultancy Our Lawyer, says parents cannot unilaterally decide to reduce maintenance, and getting a court to revise your maintenance order may not be possible until after the lockdown.
While many are experiencing financial difficulty, the parents who claim that they cannot pay maintenance any longer will have to prove to the court that they had no income, were unable to access any loans, had no assets to sell and were destitute themselves, Abduroaf says.
He warns that someone whose income has been reduced but has two properties and several cars, would be expected to sell those assets to meet their maintenance obligation before claiming an inability to pay.
Felicity Guest, head of support group Child Maintenance Difficulties SA (CMDSA), says although family courts have been deemed an essential service, each region determines how their courts will function. “People are having different experiences. In certain regions, cases have been heard while in other regions they are not allowed past the entrance security,” she says.
Abduroaf explains that at all courts currently, you must submit your proposal in writing and the judge decides if it is urgent enough to be heard during lockdown. “Even when cases are being heard, it is being done virtually in most cases,” he says.
Guest says many women in her support group were already not getting maintenance or dealing with arrears before the lockdown. “Those that were getting maintenance pre-lockdown are now finding the lockdown is being used as a reason to reduce or totally cut maintenance,” she says.
The two most common scenarios are as follows:
• One parent is receiving a reduced salary under lockdown: Kristy Giva Knill, director and head of the family law department at McLoughlin Clark Attorneys, says you cannot unilaterally reduce your maintenance payment. Justice and correctional services minister Ronald Lamola said that during the lockdown period, only the following matters would be heard:
First time applications for maintenance: These will only be allowed if the complete information is supplied, namely, a copy of divorce order if applicable, full identify documents of parents and child’s unabridged birth certificate, financial statements for both parents, and a breakdown of maintenance costs; and, applications in respect of enforcement of maintenance orders: Knill says this makes it unlikely that parents experiencing financial difficulties can apply for a reduction of existing maintenance obligations.
She advises that once the lockdown period is over, you go to your local maintenance court with the following documentation to apply for a variation of a maintenance order: your identity document; copy of your child’s birth certificate, proof of current maintenance order/consent paper; three months’ bank statements; a letter or e-mail from your employer showing evidence of a reduced salary.
She says the best-case scenario is if you can reach an agreement with your co-parent out of court but adds that a maintenance order remains effective and in force until it is varied by a competent court.
• The child is staying with one parent for the entire lockdown. Knill notes that the maintenance obligations remain the same during lockdown. The parent who is keeping the child during the lockdown cannot claim higher maintenance on that basis.
Complaints regarding maintenance defaults
Abduroaf says you can lodge complaints regarding maintenance defaults during the lockdown. “However, there is no way to know how quickly your case would be heard or when a ruling might be made,” he says.
Knill notes that children’s expenses continue as before with the only reductions being things such as petrol and transport costs.
“School fees, food, rental, medical aid instalments all still have to be paid. The parent whose income has decreased should explore all other options before reducing their children’s maintenance payments. For example, they should investigate whether they qualify for a three-month ‘payment holiday’ on their car repayments or home loan, before they contemplate reducing maintenance,” she says.
Arrear maintenance claims after lockdown
When the courts reopen you will be able to claim for arrear maintenance.
Abduroaf advises that you keep records of amounts not paid and dates, so that you can lodge arrear maintenance claims after the lockdown has ended.
“Remember that maintenance does not just take your income into account, but also looks at your assets,” he says.