August | 2017 | Schnetler's

Maintenance is the obligation to provide another person, for example a minor, with housing, food, clothing, education and medical care, or with the means that are necessary for providing the person with these essentials. This legal duty to maintain is called ‘the duty to maintain’ or ‘the duty to support’.

The duty to maintain is based on blood relationship, adoption, or the fact that the parties are married to each other.

An application for maintenance can be made against a defendant (person who must pay maintenance) at any Maintenance Court (“court”) in the district where the complainant (person who applies for maintenance) or the child, on whose behalf maintenance is claimed, resides or works.

The parents, guardians and/or caregivers of a child can apply for maintenance on behalf of such a child.

What should a person take to court when applying for maintenance?

Identity document of the complainant.
Complainant’s contact details, such as telephone numbers and home and work addresses.
If maintenance for a child is claimed, the birth certificate of that child.
If maintenance for the spouse is claimed, the marriage certificate or divorce order where maintenance order was granted.
A full list of expenses and any proof of same, such as receipts.
The complainant’s payslip and proof of any other income.
As much detail as possible regarding the defendant, such as telephone numbers, home and work addresses, list of known income and expenses, and so on.

What happens after the application has been made?

The maintenance officer will inform the defendant of the application and will hold an informal enquiry with the complainant and defendant being present.
The defendant must take any proof of his/her income and expenses to the informal enquiry.
The purpose of the informal enquiry is to assist the complainant and the defendant in reaching a settlement.
If a settlement is reached, an agreement will be entered into between the complainant and the defendant, which will be made an order of court.
If a settlement cannot be reached, the maintenance officer will place the matter before court for a formal enquiry to be held.
The court will consider the facts and evidence of the claim and decide, by way of a maintenance order, whether maintenance should be payable and the amount of such maintenance.
The complainant and the defendant must both be present at the informal and formal enquiry, and will be allowed to have legal representation.
If the defendant fails to appear at the formal enquiry in court, an order may be given in his/her absence.
It will not be necessary for the complainant and/or defendant to appear in court if they consent in writing to the maintenance order being granted.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

References:

Justice.co.za

Legalwise.co.za

Since the promulgation of the Recognition of Customary Marriages Act, 120 of 1998, the position has changed in that customary marriages are now recognised in our law. A marriage that is valid in terms of customary law and was in existence at the time of commencement of the Act, is for all purposes recognised as a marriage in terms of the Act. In the case of a person being in more than one customary marriage, all valid customary marriages entered into before the commencement of the Act, are for all purposes recognised as valid marriages in terms of the Act.

This also means that customary marriages will fall under community of property. For a customary marriage not to fall under community of property, an ante nuptial contract must be in place.

What is a customary marriage?

It is a marriage entered into between a man and a woman, negotiated and celebrated according to the prevailing customary law in their community.
A customary marriage entered into before 15 November 2000 is recognised as a valid marriage, however, it will be regulated in terms of the specific traditions and customs applicable at the time the marriage was entered into.
A customary marriage entered into after 15 November 2000 is recognised as a valid marriage and will receive full legal protection irrespective of whether it is monogamous or polygamous.
A monogamous customary marriage will automatically be in community of property, unless it is stipulated otherwise in an ante nuptial contract.

In a polygamous marriage, the husband must apply to the High Court for permission to enter into such a marriage and provide the court with a written contract stating how the property in the marriages will be regulated (to protect the property interests of both the existing and prospective spouses).

Registering Customary Marriages

Customary marriages must be registered within three months of taking place. This can be done at any office of the Department of Home Affairs or through a designated traditional leader in areas where there are no Home Affairs offices.

The following people should present themselves at either a Home Affairs office or a traditional leader in order to register a customary marriage:

The two spouses (with copies of their valid identity books and a lobola agreement, if available).
At least one witness from the bride’s family.
At least one witness from the groom’s family.
And/or the representative of each of the families.

In the event that the spouses were minors (or one was a minor) at the time of the customary marriage, the parents should also be present when the request to register the marriage is made.

Reference:

https://www.legalwise.co.za/help-yourself/quicklaw-guides/marriages

https://www.westerncape.gov.za/service/customary-marriages

http://www.legalcity.net/Index.cfm?fuseaction=RIGHTS.article&ArticleID=5331587

Schnetler's

Monthly Archives: August 2017

HOW TO APPLY FOR SPOUSAL MAINTENANCE

CUSTOMARY MARRIAGES AND COMMUNITY OF PROPERTY