By David Thomson, 25 March 2019
In light of this, it’s imperative that single parents are familiar with their rights, especially regarding maintenance payments. David Thomson, Senior Legal Adviser for Sanlam Trust, answers some key questions:
Single parents have all the obligations that parents in partnerships have, which apply until the child is 18. These obligations, as stated in the Children’s Act of 2005, include meeting 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 the custody of her child, the right to expect cooperation and respect from the child, the right to any income that the child might make, and the right to take legal action against anyone found guilty of unlawfully injuring or ending the life of the child.
The new Children’s Amendment Bill of 2018, seeks to clarify under which circumstances the unmarried father may be entitled to the same parental rights as the mother – and many 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 wellbeing of the child.
As both parents have equal obligations, both are responsible for supporting their child and this includes paying school fees, welfare, maintenance and taking care of any medical expenses. To avoid any 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 is agreed upon should be in the best interests of the child.
Normally, when couples get divorced, they get their lawyers to draw up an agreement which sets out exactly who is 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.
Should one of the parents die, the surviving parent becomes the sole natural guardian and takes full responsibility for the child. This parent can claim against the deceased parent’s estate for child maintenance, but nothing for themselves. However, they will have a claim against the deceased parent’s retirement fund, if the surviving parent was dependent on the deceased for their living expenses. If there’s no will in place, the deceased parent's money and assets will automatically be inherited by their children.
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 court and provide the particulars of the defaulting parent, who can then be summoned to appear at the maintenance court to explain why they have not met their obligations. Thereafter, a demand for maintenance payment can be made.
Though a child support order will remain in effect, it is generally plausible 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.
A parent can contact an attorney for support, however this may come at a hefty cost. Alternative options include approaching a legal aid clerk or a family law clinic at a university for assistance. 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.
According to South African law, whoever’s left with the responsibility of a child has the right to claim against the other partner’s parents.
A will is very important if you have children. Children cannot possess property, assets or any money and if both parents die, any assets left for them will end up in the Guardian 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.
Wills also avoid confusion and competition amongst relatives, since a will appoints an executor to manage the estate and may also nominate a tutor (guardian) to take care of the minor children.
Assets meant for the children may be left in a testamentary trust that is managed professionally through an attorney or a trust company like Sanlam Trust. This will safeguard the child’s future and address issues such as who the child will be living with, who is going to take care of the funds and when will be the appropriate age to remit all the monies to the child. And best of all, wills are easy and affordable to put in place and the trust conditions are seamlessly entered into the will.
Whether you’re married or not, raising a child is expensive; even more difficult on one income. There are great benefits to engaging a trusted financial planner for guidance through the process. The more a parent learns about protecting themselves and setting a practical financial plan in place, the better prepared they’ll become.