'Can my brother's ex sue me for their child's maintenance?'

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When is enough, enough?
When is enough, enough?

Issues around maintenance, and who is liable to pay, crop up in many co-parenting relationships. Parent24 receives a number of maintenance questions each week, and we try to answer them.

This aunt wrote to us, concerned that her niece's mother is going to come knocking for a handout.  

Good afternoon, 

My brother has a child from a previous relationship and pays maintenance, the mother of the child said the child wants more.

And in that, wants to sue my mother, a state pensioner, my sister, or me for maintenance.

Is this allowed? Please help!

A worried aunt

Co-parenting with an ex can be tricky to navigate, especially when it comes to money and paying child maintenance in South Africa, and raising a child is expensive.

It can be tempting then to reach out to those related to a non-paying parent, to ask for - or legally demand - assistance.

But who can actually be expected to contribute, by law? And when asking nicely doesn't work, how to get them to pay up? 

Parent24 chatted to Advocate Kaiel Grobler of LAW FOR ALL to find out more about who is responsible for child maintenance.

"The law says that both parents have a legal responsibility (regardless of their relationship status) to contribute financially towards their child's upbringing, care and development," Grobler told us.  

Caring for children is a massive undertaking and the money needed is mostly to help cover the cost of housing, food, clothing, education and medical expenses. 

Fair and proportionate 

But, to get to the specifics of this reader's question, Grobler started with the maintenance amount the father is already paying.

He explains that the aunt hasn't mentioned whether he contributes financially based on an informal agreement with the child's mother or in terms of a court order.

This is important, because if the child's mother has approached the Maintenance Court before, the court would have considered the father's financial circumstances to decide a fair and proportionate amount to pay.

Grobler says if we suppose the father is paying the full maintenance amount as ordered by the court then he is on the right side of the law and fulfils his maintenance obligations.

Also see: How much maintenance money must a parent pay? 

A request for an increase

"Keep in mind that his child's mother can approach the court to apply for an increase as the child's needs change and costs increase," he warns. 

South Africans' financial situations have been hit hard by the lockdown, with many receiving pay cuts or losing their income altogether, and if a parent has been affected or cannot keep up with the payments, they can approach the court to apply for a reduction.

"Many parents do not know this and inadvertently default on maintenance payments, which is a criminal offence," Grobler explains. 

"Anyone who consistently dodges maintenance payments could face being blacklisted and tracked by maintenance officers, who are legally allowed to use mobile service providers to find defaulters. Of course, a significant fine or jail time is also on the cards for habitual defaulters," he adds. 

The law is clear 

Then, on the issue of claiming maintenance from members of the father's family, Grobler says the law is clear about who is responsible if a parent cannot fulfil their obligations.

"If your brother cannot pay maintenance, the responsibility will fall on your parent (the child's biological grandparents), a legal guardian or adoptive parents," he says.

Also see: Who is eligible to pay child maintenance?

So it would seem that in this instance, the child's mother is legally allowed to request assistance from the child's paternal grandparents, but only if the father is unable to pay maintenance at all. 

Other relatives cannot legally be held to be responsible, so this reader need not be concerned about being made to assist.

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