‘Lying-in expenses’ in the maintenance courts

December 1st, 2022

Many mothers are oblivious to the term ‘lying-in expenses’ and unbeknown to them, fail to claim these expenses when applying for child maintenance for the first time. ‘Lying-in expenses’ are the reasonable costs incurred by the mother during her pregnancy, at the time of the child’s birth and immediately thereafter. Primarily, these are reasonable costs for, inter alia, obstetrician’s appointments, hospitalisation, prescribed medication, and the necessities required for the baby immediately after birth. Although, there is no numerus clausus of the items that may be included as lying-in expenses, it is imperative that the mother document and/or keep receipts of all expenditure during this period, to produce her documentary evidence in support of such claim.

Section 16(1)(a)(ii) of the Maintenance Act 99 of 1998 (as amended) provides as follows:

‘(1) After consideration of the evidence adduced at the enquiry, the maintenance court may –

(a) in the case where no maintenance order is in force –

(ii) make an order against such person, if such other person is a child, for the payment to the mother of the child, of such sum of money, together with any interest thereon, as that mother is in the opinion of the maintenance court entitled to recover from such person in respect of expenses incurred by the mother in connection with the birth of the child and of expenditure incurred by the mother in connection with the maintenance of the child from the date of the child’s birth to the date of the enquiry.’

The mother is, therefore, entitled to claim lying-in expenses for maintenance from the date of birth of the child until the day the maintenance enquiry has been concluded, either informally in terms of a s 6 investigation with the Maintenance Officer, or alternatively during a formal enquiry in terms of s 10 in the Maintenance Court. Section 15(2) of the Maintenance Act provides that:

‘(2) The duty extends to such support as a child reasonably requires for his or her proper living and upbringing, and includes the provision of food, clothing, accommodation, medical care and education.’

Section 15(3) of the Maintenance Act provides:

‘(b) Any amount so determined shall be such amount as the maintenance court may consider fair in all the circumstances of the case.’

It is important to note that these expenses are apportioned between the parties according to their respective means, as provided in terms of s 15(3)(a)(ii) of the Maintenance Act. ‘Means’ have been widely discussed by our courts, and is not considered to be confined to the form of ‘income’ only, as clarified in the case of Kroon v Kroon [1986] 1 All SA 423 (E); 1986 (4) SA 616 (E) at 624 ‘means of support’ includes ‘property that can be used to produce income’. This broader definition of ‘means’ is further noted in the South African Law Reform Commission (SALRC) Discussion Paper 157 ‘Project 100b Review of The Maintenance Act 99 of 1998’, May 2022, under ch 4 and is well received, where maintenance orders are to include payment in kind, either by way of supplying specified goods, which may be livestock, or providing a service or services. The implementation of these alternative forms of payments in respect of maintenance, would provide much relief to the mothers whose claims are ordinarily protracted due to fathers being unemployed.

In instances where a settlement has been reached, the claims are generally concluded between the parties on a Consent and Maintenance Order (J214E) agreement, duly signed by both parties with the assistance of the Maintenance Officer, alternatively on the conclusion of a formal enquiry before the Presiding Officer where a s 16 order is considered or granted.

It is common knowledge that women are disadvantaged by having to take days off from work to submit maintenance application forms and attend court proceedings, yet are denied s 11(1) subsistence and travel allowance by maintenance courts all over South Africa, while the National Strategic Plan on Gender-Based Violence and Femicide – in particular – pillar five in clause 5.4 envisages: ‘Strengthened child maintenance and related support systems to address the economic vulnerability of women.’

Challenges associated with a claim for ‘lying-in expenses’

The Application for Maintenance Order form (J101) makes no provision for the inclusion of lying-in expenses and, is therefore, merely inferred by the Maintenance Officer and/or Presiding Officer when assessing and determining the maintenance claim, which may be disregarded if not brought to the attention of the said official. It should henceforth be incumbent on all maintenance staff to address this claim with mothers, when assisting them in the completion of the J101 form. Section 28(2) of the Constitution provides that: ‘A child’s best interests are of paramount importance in every matter concerning the child.’ This stance is echoed in s 9 of the Children’s Act 38 of 2005 where specific attention should be given to matters related to the care, protection, and well-being of a child, ensuring that the standard that the child’s best interests is of paramount importance, is always applied. As, officers of the court, it is our shared responsibility to promote and protect the rights of children.

Lying-in expenses may only be claimed once, namely, prior to any order for maintenance being made in favour of the mother. In the event that maintenance orders have been granted, either by way of a divorce decree or maintenance order, without the consideration of lying-in expenses, the opportunity to claim lying-in expenses, has consequently, been lost. It is unfortunate that no condonation process or reasonable excuse for late submission of lying-in expenses is provided in the maintenance legislation or the subsequent SALRC Discussion Paper 157, nor the Maintenance Amendment Bill B17 of 2002, as these costs are indubitably incurred during pregnancy and after birth by all mothers, irrespective of whether it was paid by relatives and/or friends of the mother.

It is, therefore, eagerly anticipated that every amendment considered or effected to maintenance legislation, essentially promote and protect the rights of children and that government’s commitment to empower women in the maintenance courts, be achieved.

Roxanne Jansen LLB (UWC) is an admitted legal practitioner and a Maintenance Officer at the Bellville Maintenance Court in the Western Cape. 

This article was first published in De Rebus in 2022 (Dec) DR 8.