Maintenance, and who is expected to pay what, can be a complicated issue. Parent24 has gathered professional legal advice for those who find themselves with questions about their situation.
Here, this reader asks if she can claim outstanding maintenance after her father passed away many years ago. We asked a local legal expert to advise...
"My father died in a car crash nine years ago. I was still a minor at that time, so he was paying child maintenance for me until his death.
My father had three children with his wife, and his wife is saying that my father didn't leave any money for me, that he left money only for her and her three kids in case of loss of income.
Please, I need advice to find the truth. Can I claim my child maintenance money, that should have been paid until I was aged 20?"
Linda Matshoza, a legal executive at South African legal firm LAW FOR ALL tells Parent24 that when a parent passes away, the obligation to claim loss of income or maintenance from their estate falls on whomever is the surviving parent/guardian.
The general rule in law
"Thus, at the time of the reader's father's death, it would have been prudent for her then guardian to make any enquiries in respect of a maintenance claim against her father's estate," Matshoza says.
She explains how the general rule in law is that 'the person who alleges must prove' and in this instance, the person who alleges must claim.
"If there was no claim made at the time of her father's passing, then there was no obligation on the surviving spouse to seek out any other dependents."
When a person passes away whilst they were paying maintenance in terms of an order, the obligation is on the guardian or surviving parent of the minor child to make a claim against the deceased estate.
"Unfortunately, it does not seem like this was done in the reader's case," Matshoza says.
The Road Accident Fund
As her father passed due to a motor vehicle accident the reader would have a claim against the Road Accident Fund.
Also, as she was a minor at the time of accident, prescription will only run from the time she reached majority at age 18.
Matshoza explains further that if the third party is a minor person the claim needs to be lodged within three years after the date of majority of the minor to avoid prescription.
"If more than three years have passed since she reached the age of 18, then it will also mean that any claim the reader may have would have prescribed by now," she says.
Matshoza concludes that it will in addition, be difficult to claim from the surviving spouse due to the fact that, as mentioned above, the obligation falls on the person alleging to make a claim.
Do you have a legal question you need help with? Share your questions via email at email@example.com and we may speak to a legal professional on your behalf. Anonymous contributions are welcome.
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