One of the most important rights of the child is the right to be financially provided for by responsible persons. This is an internationally recognized right, whether it is recorded in a legal instrument, such as a Divorce or Maintenance Order, or not. If not recorded in an order, enforcement of this right may be more cumbersome but not impossible.
In South Africa a separated or a divorced parent`s obligation to pay maintenance for a child is usually regulated in terms of a Court Order. This can be a Divorce Order or a Maintenance Court Order. In certain instances, no Maintenance Orders may be in place yet which regulate parents` maintenance obligations for their child or children.
The increased international movement of people in our modern society increases the necessity and the demand for international enforcement of rights and Orders in foreign jurisdictions. This includes family law related Orders and rights, such as the right to maintenance and an Order for payment of maintenance. A careful enquiry must always be undertaken as regards the nature of the particular right and the applicable legal position and legislation, also in the foreign jurisdiction/s where enforcement may be required, to establish the best course of action to gain international enforcement of a particular right or Court Order.
In some instances, it is known that the terms of an Order, will have to be enforced in a foreign jurisdiction at a later stage, even though it is granted by a South African Court. In such a case parties can for instance include an obligation in the Order to cause Mirror Orders to be obtained in the stipulated foreign jurisdiction. This will then assist them with legal recognition and enforceability of their rights, under the South African Order, in that foreign jurisdiction.
If international enforcement of an Order in future was not contemplated and no mirror order provisions are included in the Order, parties may have to look to other procedures that may be available to assist them if they require international enforcement. There are different options. Parties could for instance apply for a variation of the Order provided that the variation sought is possible, appropriate and lawful in the circumstances. Variation of an Order can be obtained by agreement. If, however, there is no agreement about a variation of an Order the party seeking a variation may apply to the relevant Court with jurisdiction for such a variation.
There are also certain international instruments, conventions, procedures and/or laws in force which can assist parties with international enforcement of certain rights that may be regulated in terms of a South African Order and also, in some instances, where no Order is in place yet. A child`s right to maintenance is one such an example.
South Africa ratified the United Nations Convention on the Rights of the Child in 1995 (“The Convention”) and is a state party to the Convention. The Convention contains various provisions that are of importance relating to children generally and also in regard to their right to maintenance.
There are various articles in the Convention which deal with the right of the child to maintenance. In terms of articles 27(3) and 27(4) State parties who have ratified the Convention shall , inter alia, “take appropriate measures to assist parents and others responsible for the child to implement this right” (to maintenance) and “take all appropriate measures to secure the recovery of maintenance for the child from parents or other persons having a financial responsibility for the child, both within the State parties` jurisdiction and abroad. In particular, where the person having financial responsibility for the child lives in a State different from that of the child, State Parties shall promote the accession to international agreements or the conclusion of such agreements as well as making of other appropriate arrangements”.
Together with the Maintenance Act (Act 99 of 1998) and the Children’s Act ( Act 38 of 2005) the Reciprocal Enforcement of Maintenance Orders Act, 80 of 1963 (the REMO Act), as amended from time to time, makes provision for the reciprocal enforcement of Maintenance orders in the Republic of South Africa and in certain proclaimed foreign countries. A list of proclaimed countries is published and updated from time to time and must be consulted. The Acts set out the relevant processes and procedures to be undertaken.
There are of course a number of different ways in which the international movement of the child and / or his or her parents/ responsible persons can affect his or her right and entitlement to maintenance and the potential necessity for international enforcement thereof.
It is interesting to note that in terms of section 8 of the Remo Act the appropriate Court in the Republic can for instance, if there is no maintenance order in existence yet, hold an enquiry for purposes of issuing a provisional maintenance order against a person who resides in a proclaimed country, who may be legally liable to maintain a person residing in the Republic. The Act further makes provision for, inter alia, registration of Maintenance Orders, confirmation of provisional orders, enquiries and transmission of orders to Proclaimed Countries via diplomatic channels
It is in parties` interests to obtain as much information and guidance as possible, in advance, regarding the relevant remedies available to them in terms of the REMO Act and the applicable requirements that are in place to proceed in terms of this Act.