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Raising children is expensive, that's never been in dispute, but issues arise when a parent is doing the job alone, for any number of reasons, and money is tight.
This mom wrote to us to ask about a maintenance claim, and we asked the experts to offer some guidance. Read her letter here:
Hello,
I am wondering, can I apply for maintenance for my little boy, who is 5, from his siblings who are my age?
My partner passed away last year due to Covid; he was a lot older than me. I have not received any assistance from the estate.
Both his half-sisters are over 35 and self-supporting.
Thank you.
Also read: Man ordered to pay over R3 million in maintenance arrears 29 years after divorce
Felicity An Guest, a financial abuse specialist who specialises in child maintenance, describes for us how, in the case of a deceased estate, child maintenance has preference over heirs.
"Maintenance is a preference payment after creditors and SARS, and the mother must make an application for maintenance and future maintenance to the Executor of the late father's estate," she says.
The Masters Office can assist the applicant to lodge the claim against his estate. The remedy under South African law is to render the deceased parent's estate liable for child support (Lloyd v Menzies NO) regardless if the child's parents were married or not, she explains.
Simon Dippenaar of SD Law adds that maintenance is not only the responsibility of a biological parent. Any person who is responsible for raising the child has the duty to maintain the child, including for example a legal guardian, adoptive parent, and grandparents of the child, if the biological parents do not have the means to pay maintenance.
"In this instance," he says, "it follows that, unless the siblings of the child are legal guardians, there is no legal obligation on them to pay maintenance for the child, and such a claim will not be enforced in a court of law."
Since there is no obligation on siblings to pay child maintenance for younger siblings, it would be best for the mother here to discuss her financial situation with the child's half-sisters, given that their father has passed on, and ask for financial assistance.
"If they are willing to assist the mother in any form, this would be helpful, however, if they are unable to or reject her proposal she will have to accept their decision," he clarifies.
Dippenaar suggests also that she claim maintenance from the child's grandparents if they are still alive and have the means.
Guest explains how this works, and says that the mother should make an application at the maintenance court where the child lives. The defendants would have an opportunity in court to present their means or lack thereof to support the child, if an agreement is not reached with the maintenance officer, then it will go before the magistrate, who will make a decision based on the merits and evidence before her or him.
Also see: #MaintenanceMatters: Everything you need to know about child maintenance
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