Posted by: Mom | 2009-02-25

To sue or not to sue

Hi all, i really need advice on this matter. I' m happily married for 6years now and have a 14 year old from a previous relationship. The biological father of my child never paid maintenance since childbirth. I struggled on my own to raise my child, until i married my now husband. I have a good relationship with my child' s father, as i always wanted them to have a good relationship as well, i just never asked him for money..ever. He' s still such a very immature little boy of nearly 40years old, and i always hoped for my child to one day realise when he can figurure that out by himself, without me badmouthing his father...which my son did eventually through his words and deeds. He' s now married and has 2 kids. My problem is, hubby and me r now struggling finacially, because i lost my job last year. I phoned this man, asking him to only pay my child' s schoolfees which is R700, i' ll deal with the other stuff he needs myself . Trust me, if there was another way, i wouldnt have asked him that. Him and his wife now has a problem with the amount of money, eventhough i gave him all the school' s detail' s, and asked him if i could arrange a debit order for the amount because i know he would not follow through in paying the amout each month, they even phoned the school to make sure if that really is the amoutn i' m paying per month, because the think i' m asking the money for myself. Should i just let it go and work out something else or what is my options here? Both him and his wife r working, and i even suggested that he paid the schoolfees just untill i find another job. What breaks my hear is that he can see this child of his, whenever he wants to, and i' ve never had a problem with that, the thing is that this child doesnt want to see him anymore, and said that he only has one father and that' s his stepdad. My husband also was very angry at me at first for asking him for payment, but understands that didnt know what else to do. Why does it feel so wrong to ask this man for money? i dont really want to put my child and husband, nor his children and wife through a court case by suing him for maintenance, but what r my rights regarding this matter? Thank you, and all advice would be highly appreciated.

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Our expert says:
Expert ImageCyberShrink

Surely you ought to go to the Maintenance Court at your local Magistrate's Court, and ask the Court to consider what amount of maintenance would be appropriate, including but not limited to school fees. The court must decide what the CHILD needs, and would want documentation from you of the costs of schooling, food, hosing, whatever ( include all of this, so that at least his payments could add up to enough to cover the schooling costs ) ; and they would want to see eidence of your income and his. Then the court would decide how much he ought to pay, and he would have to pay it, as he would be in contempt of court if he didn't.
This has nothing to do with whether the child does or does not want to see or visit him --- its the child's privilege to decide that, and he may not withhold maintenance if the child doesn't want to see him. He has all along had a DUTY, legal and moral, to pay for the upkeep of the boy, so don't feel guilty and don't hesitate to go to the Court. It should not be an ordeal unless he insists on making it one.
Bob's girlfriend seems to have it right. Good luck

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Our users say:
Posted by: Visitor | 2009-02-26

Hi Mom,

You can go through past posts on the divorce support forum where this is detailed.

First, your husband and his wife' s income is not considered during the maintenance proceeding. The quote above by Bob' s G/f has pertanancy on people who are supported by their parents and or family where a mother can then claim maintenance from the grandparents. The law see the family' s responsibility to provide for the child.

The child' s right to be maintained is seperate from the parent' s right to have access to the child. It is completely seperate and the one has nothing to do with the other. That is why if a parent have no means to support a child the court will suspend maintenance until that parent are able to provide. Nothing happens with regard the parents access to the child because the one is not dependent on the other. The father cannot say that he will not pay because be does not see the child. The maintenance court will tell him to go and apply for custody though the high court or come to anagreement with the mother.

The normal age accepted in court for a child to decide the access their parents have to them is 12. The legal age up until a child is entitled to maintenance is 18. The maintenance court can however on request from the reciding parent change it to state untill self maintained.

When you go to maintenance court remember proof of all expenses and this include rent, electricity, food, school fees, clothing, medical, extra murial act, stransport. You are allowed to claim up to a third of the father' s salary.

Your child has the right to be maintained by both parents. Now excercise that right.

Reply to Visitor
Posted by: Bob' s G/f | 2009-02-26

The law states:

WHOMEVER PROVIDES FOR THE PARENT NEEDS TO PROVIDE FOR THE CHILD - so they will ask your husbands payslip etc.

Reply to Bob&#39 s G/f
Posted by: Mom | 2009-02-25

Thank u so much Doc and B' sG/F. one last question though, since i' m not working, do i need proof(evidence) of my husband' s salary to provide the Maintenance Court, as he earns slightly above an average salary(R10000), but currently, his income exceeds our expenses(due to me not working), and now i' m not talking about expensive luxuries, because little luxuries we could afford when i had a job as well.

Reply to Mom
Posted by: Bob' s G/f | 2009-02-25

There will be no " court case"  as you are not see' ing a lawyer you are going to go to the maintenance court and that' s free of charge - the only problem is that you are a number, you have to sit and wait your turn, come back and back again etc - it does take a lot of time and even when you do have an order and he does not pay you will have to apply for an Emoluments attachment order for his wages/salary to be attached and to be paid to the court monthly - where you will have to go and collect it unless these days they pay it over to your account.

you have time now - so step one is to go to the maintenance court with as much documentation as you can (birth certificate anything you have that can help etc)

as long as you realize that there are thousands of people sitting there, so it' s not going to happen fast especially if he disputes that he is the father. He can look like who he wants to or his parents, friends and himself can say what they like if he disputes it you have to prove it, and there is a huge back logg on these tests unless you have it done and you pay for it privately.

Now, girl once it' s done then you have an ORDER OF THE COURT and he has to pay - remember this child might want to study one day so all this will have to be taken into account - also it' s about time he paid for medical etc...take him to the cleaners!

Have you thought of putting your thoughts in writing ? And having it delivered to him by hand? Stating (not threatening) that you have absolute NO CHOICE but to take this matter to the maintenance court as you need his support? Dont mention amounts coz just now he only pays that and says you agreed to this?

Give him a date and your banking details and say he needs to pay what he sees as fit and on receipt you will let him know if you agree - should you not have anything by the 7th of March you will then go to the court and sorry, that i have to do this but you leave me with no choice.

Good luck

Reply to Bob&#39 s G/f
Posted by: Mom | 2009-02-25

Many thanx for the replies. " Bob' s girlfriend,"  i' ll follow ur advice, the child is his without a doubt, as he was the only 1 i slept with be4 i got married, and my child looks axactly like him, even himself and his parents admitted that. How much does such a court case cost? As i' m not working at the moment, and also in that case, would the court take my husband' s salary in consideration or how does it work? As i stated, i dont want to take advantage of him by asking for anything more than schoolfees(like in Mmmmm' s case above) I just think i' t' s been my financial responsibility as well as his, and would it be a problem in court that i have a problem with him paying maintenance only now?Because I never asked or begged but talked to him on several occations about how much i struggle when my son was only a baby, but he never did something about it, so i cut my losses and struggled to raise my child on my own, and i never confronted him about it again.but now i lost my job and the schoolfees is also much more expensive then the previous years, as he' s in high school now.

Reply to Mom
Posted by: Bob' s girlfriend | 2009-02-25

You don' t need to sue. You need to start a scrapbook sticking in each and every expense concerning the child. You also need to go to the maintenance court in your area and they will give you the necessary forms to complete etc. as well as a list of all expenses, things you won' t believe - even cell phone costs etc.

Then there will be a court date for you and him etc.

He can play for time by saying he' s not the father and demanding paternaty tests (costs about R1500 - which you will have to pay for if he refuses to pay - because if " someone"  does not pay then it wont be done) but eventually it will all come out and he' ll have to pay.

They take in consideration what you earn and what he earns and what the needs are.

You cannot claim for " back-pay"  - the only time you can claim for that is when you had a court order on divorce stating he has to pay x-amount per month and then he never did.

At the age of 14 this child can refuse to go to the father and no-one can force him to go. So there is no need to let him go if he does not want to. But let it be his decision.

Can you not apply to the school for a special grant etc? explaining the situation?

I hope this helps

You need to go to maintenance court and get things going, bugger the relationship with the dad, the only reason the relationship has been good is because you' ve been nice and he does not have to pay - no wonder!

Reply to Bob&#39 s girlfriend
Posted by: Mmmmmm | 2009-02-25

BTW, forgot to mention, the ex is a housewife. No need to work.

Reply to Mmmmmm
Posted by: Mmmmmm | 2009-02-25

So different to MY experience. My ex didn' t hesitate to ask for R10000(Yesy - 10 thousand) maintanance + medical aid + med expenses not covered by aid when my daughter wanted to have an 18th birthday party!
Guess what? I coughed up of course. Not the whole amount thankfully, but 5000 + Med + expenses.

You are exactly the opposite. Dont let your child suffer.

Reply to Mmmmmm
Posted by: J | 2009-02-25

I say " TO SUE"  if he doesn' t want to pay up of his own accord. Your child is entitled to maintenance. You' ve done more than enough raising his child for him.

Reply to J

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