Maintenance - Legal Assistance Centre

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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
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