The issue of maintenance is a contentious one, and while the law protects children, some parents feel they are paying too much for too long.
We've asked legal experts for advice on these tricky topics, to help families through tough times. Also, send us your tricky questions, and we could publish an answer. Anonymous contributions are welcome.
Attorney Deborah Di Siena of Di Siena Attorneys clearly explains here when a parent is able to finally stop paying maintenance.
The law provides that a parent’s duty to maintain a child shall terminate when the child becomes self-supporting, is adopted or dies while they were still a dependant.
A lifelong duty
Where a child suffers from an illness or disability, the parent has a lifelong duty to support the child, unless the child becomes self-supporting.
Furthermore, when a major child stops being self-supporting, due to an illness or disability, the duty of maintenance may be re-instituted.
Maintenance does not stop at 18
Most people believe that maintenance stops when a child becomes a major. This is wrong in law.
A parents’ duty to support their child does not terminate when the child becomes a major, when the child turns 18 years old, but only when they become self supporting.
Death of the parent does not terminate maintenance
The duty to support will not terminate on the death of the parent responsible for maintaining the child. In the event that a parent passes away, the child will have a claim against the deceased parent’s estate.
The child’s claim will have preference over heirs, however, it will not take preference over creditors.
If the child’s inheritance is enough to maintain the child, the child will not be allowed to claim maintenance from the deceased parent’s estate, in addition to his inheritance.
A warrant of execution
If a parent stops paying maintenance, the other parent or the major child (as the case may be) may apply to the Maintenance Court for a warrant of execution for their assets (movable or immovable) to be attached and sold at an auction to satisfy the debt.
You can also apply for a garnishee order to be granted – this is where the employer of the defaulter is ordered to make payment of the maintenance directly from the defaulter’s salary.
Another option is to lodge a criminal complaint against the defaulting parent, should they fail to comply with a maintenance order. The penalty is jail time, not exceeding three years or a fine, or both. The court may request for the defaulting parent to be blacklisted.
In order not to be prosecuted, the defaulting parent must be able to prove that they could not pay maintenance, due to a lack of income or employment.
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