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Vaidah Mashangwa
ALL parents have an obligation to support and look after their children whether the parents are married or not. This also goes further in cases of divorce or separation. It is the duty of the parent who has custody of the child or children to apply for maintenance on behalf of the child. A claim for maintenance can also be done by the grandparents, aunts or whoever is looking after the child.
Maintenance is paid for children up to the age of 18 years but can be extended to cases where the child in still at school, university or if the child has special needs such as mental or physical challenges. Quite a number of fathers run away from their spouses when they give birth to children who are challenged in any way. It is the right of the mother to apply for maintenance for such children.
At times when it comes to maintenance some men usually give unnecessary excuses even if they are aware they were responsible for the pregnancy. In this case, evidence must be sought. A father can prove that he is not the father if a DNA test reveals that he is not the father or if his blood and that of the child prove different.
Apart from that, a father may prove that he is not the father of the child if he has medical evidence that he is impotent and cannot have sexual intercourse at any given time. Lastly, he can be exempted if he proves that during the time the partner fell pregnant he was in prison or out of the country.
This is also important as some women simply sleep with different men at any given time and once they fall pregnant, they choose someone because of his economic base. There are also quite a number of men who try to evade payment of maintenance when the children are actually theirs.
A maintenance claim is better when a child is born within a marriage except in rare incidents when the husband makes an appeal on grounds of infidelity. Where couples are not in a marriage union, the mother claiming the maintenance has to show that indeed the man concerned is the father of the child. At times men then insist on paternity tests if they are not quite sure that the children are really theirs.
While some men adhere to the requirements of the maintenance order others do not necessarily pay their fee in time or at times they completely ignore the court order. As such there are three ways to ensure that the maintenance is paid.
Firstly, it must be understood that the person who fails to adhere to the maintenance order commits a crime liable to one year imprisonment. After the sentence he is supposed to pay back all the arrears as well as future payments.
Secondly, if the person is not complying with the maintenance order, the applicant should go back to the court and complete the forms for a garnishee order/direction. In this case the respondent’s employers will be directed by the court to deduct the relevant amount from his or her salary and forward it to the court. If the person has left work, the money will be deducted from his pension or terminal benefits.
The employer ought to comply to the regulations set by the court and failure to do so is a crime. It must be noted that the applicant does not receive the money directly from the court but must open a bank account into which all deposits will be made.
Lastly, the court can enforce payment of the maintenance by directing a messenger of court to seize and sell the property of the respondent at a public auction to recover the amount that is overdue. The applicant goes to the court to get this warrant. This usually applies to respondents who are self employed and unemployed.
The applicant or respondent is allowed to go back to court to ask for an increase or decrease in the amount payable. This can apply in instances where the respondent was not employed at the time the maintenance order was granted but is now employed or where a child now needs more in terms of his or her upkeep, say university fees or otherwise.
Another example is where the child was at primary school and is now at secondary school and so on. A decrease might be made after loss of employment on the part of the respondent. Issues pertaining to inflation and increase in the cost of living can be grounds of such variations.
An applicant or respondent is free to make an appeal to a higher court if they are not satisfied with the judgment of a maintenance court. An appeal is made where the man feels that he is not the father of the child or when he feels that the amount payable is very high. An applicant can also make an appeal when he or she feels that the amount payable is very little. During the time of the appeal the respondent continues to pay the amount stipulated by the first court.
The termination of a maintenance order is enforced when a child dies or is adopted. And when he turns eighteen or marries and becomes self-supporting. Both the respondent and the applicant can apply for a discharge and termination of a maintenance order. The two parties can also agree to terminate the maintenance order.
When couples divorce, a maintenance court order can be part and parcel of the divorce process. There are quite a number of issues that the court looks at before passing the maintenance order such as age, mental and physical ability of the mother, father and children, their future earnings, future needs, pension benefits and the basic standard of living of the family among other issues. Maintenance for a wife or husband is terminated when a husband or wife dies or remarries.
A maintenance court is solely for issues to deal with maintenance and nothing else. It is not there to solve individual differences between couples. Parents have to ensure that children are well looked after each according to his or her means.
It is unfortunate that most women or applicants are unable to access courts to claim maintenance due to lack of resources and distances to the nearest court. Some fail to meet bank requirements in order to open accounts. At times it becomes difficult to claim maintenance from a person who is self-employed or is in the informal sector as what he or she earns is not easily determined.
Lastly but not least, for most parents in the diaspora it might be difficult to enforce payment of the maintenance due to distance. Applicants should make use of the maintenance courts near their places of residence for the benefit of the children.
Vaidah Mashangwa is Provincial Development Officer, Ministry of Women Affairs, Gender and Community Development. She can be contacted on 0772111592 or email: [email protected].
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