Clients who are single parents need to know their rights regarding maintenance payments. According to the Mbalo Brief by Stats SA, most South African children are raised in single-parent families. With the rising cost of living and education, caring for a child is likely to weigh heavily on the shoulders of a single parent.
As an intermediary you need to have a good understanding of your client’s rights and responsibilities. David Thomson, Senior Legal Adviser for Sanlam Trust, answers some key questions your client may ask you.
Do single and married parents have the same rights?
The Children’s Act of 2005 states that single parents have all the obligations that parents in partnerships have, which apply until the child is 18. These obligations include the child’s entitlement to the equal care and support of both parents. These responsibilities can, however, be excluded by the court if a parent is found to be unfit, abusive or damaging to the child.
In line with these, a single mother has the right to:
- Custody of her child
- Expect cooperation and respect from the child
- Any income that the child might make
- Take legal action against anyone found guilty of unlawfully injuring or ending the life of the child.
The Children’s Amendment Bill of 2018 seeks to clarify under what circumstances an unmarried father may be entitled to the same parental rights as the mother, as well as other issues. Parliament will introduce the Bill for possible ratification this year.
Both parents bear equal responsibility for the child under the law. These responsibilities include supporting and contributing to the overall well-being of the child.
What issues are faced by different types of single parents?
As both parents have equal obligations, both are responsible for supporting their child. This includes paying school fees, supporting their welfare, maintenance, and taking care of any medical expenses. To avoid misunderstandings or conflict further down the line, parents – whether living together or not – are encouraged to put an agreement in writing covering arrangements regarding their children. Whatever they agreed should be in the best interests of the child.
Normally, when couples get divorced, they have their lawyers draw up an agreement that sets out exactly who’s going to pay for what. Very often, this extends beyond the child reaching the age of 18. Commonly, both parties commit to paying maintenance and school fees until the child is self-supporting. It’s highly advisable that parents consult lawyers and financial advisers to ensure a fair arrangement, with maintenance payments that increase in line with inflation, for example. The settlement agreement should be made an Order of Court.
Death – single parents and/or divorced parents
Should one parent die, the surviving parent becomes the sole natural guardian, taking full responsibility for the child. This parent can claim against the deceased parent’s estate for child maintenance, but not for themselves. However, they will have a claim against the deceased parent’s retirement fund if the surviving parent depended on the deceased for their living expenses. If there’s no will in place, the deceased parent’s children will automatically inherit their money and assets.
What if a parent won’t pay maintenance?
Failure to pay maintenance is a criminal offence that could result in a fine or imprisonment.
A parent would need to approach the maintenance officer at the local Magistrate’s Court and provide the particulars of the defaulting parent. They are then summoned to appear at the Maintenance Court to explain why they’ve not met their obligations. Thereafter, a demand for maintenance payment can be made.
Though a child support order will remain in effect, it’s common for parents who are unemployed to default on payment without legal consequence. But if a parent lies about their income, the courts could subpoena their employer to court and request payroll documentation for examination. If, at a later stage, the defaulting parent acquires assets or receives an income, a summons could still be issued against them for the maintenance in arrears.
If a defaulting parent dies, the other parent can put in a claim against their estate.
Who should a single parent contact when dealing with maintenance issues?
A parent can contact an attorney for support. However, this may be costly. Alternatives include seeking assistance from a legal aid clerk or a family law clinic at a university. On the other hand, if you’re reasonably in charge of your own affairs, you can probably issue the process yourself through the Maintenance Court, as a lawyer isn’t a requirement.
Could paternal/maternal grandparents be held accountable for maintenance?
According to South African law, whoever is left with the responsibility of a child has the right to claim against the other partner’s parents.
When should you put a will in place?
A will is crucial if you have children. Children can’t possess property, assets or any money, and if both parents die, any assets left for them will end up in the Guardian’s Fund, under administration of the Master of the High Court until the child turns 18. Caretakers in this case are not given easy access to these funds, and can only withdraw a limited amount of money, which puts them in a difficult financial situation and impacts the child’s upbringing negatively.
A professionally drafted will helps eliminate confusion and competition among relatives, since it appoints an executor to manage the estate. You may also nominate a tutor (guardian) to take care of minor children.
Assets meant for the children may be left in a testamentary trust managed professionally through an attorney or a trust company, such as Sanlam Trust. This will safeguard the child’s future and address issues such as who they’ll live with, who will take care of the funds, and the appropriate age for the child to receive control over the money. Wills are easy and affordable to put in place and the trust conditions are seamlessly entered into the will.
Whether married or not, raising a child is expensive; even more so on one income. There are great benefits to engaging a trusted financial planner who can guide you through the process. The more a parent learns about protecting themselves and setting a practical financial plan in place, the better prepared they’ll be to cope.