Month: November 2022

7 THINGS YOU NEED TO UNDERSTAND ABOUT CHILD SUPPORT (MAINTENANCE).

By Nsi J. Pabalinga 0 Comments

7 THINGS YOU NEED TO UNDERSTAND ABOUT CHILD SUPPORT (MAINTENANCE).

A child is the most vulnerable member of any society; as such the law places a duty on parents to support their child. Payment of maintenance is intended to provide for the needs of the child at a reasonable and affordable cost. The key words here being reasonable and affordable.
Maintenance court rarely has lawyers appearing on behalf of parties and often because most cannot afford an attorney so this might help most people be better prepared when they file a case or appear in court in response to a summons.

This duty of support is not affected in any way by the marriage of either parent and the expenses paid must be for the direct benefit of the child. That being said, let’s begin.

1.PATERNITY

The duty to pay maintenance lasts for at least 21 years in normal cases. It is therefore important that whoever doubts their paternity of the child must make arrangements as soon as possible to have a paternity test done. The cost of a paternity (DNA) test is far less than the cost of paying maintenance over 21 years. Demanding one is not unreasonable especially if the costs are paid by you. It might cost you your relationship though.

For those who learn at a later stage that the child is not yours, confirm the same through DNA tests unless you have no issues with continuation support out of the love and strong bond you have with the child.

Overall, no man should ever stand before court and claim that a child is not his without evidence to support his claim especially in response to a woman`s claim that the child is his. Once you admit to having been in a relationship the mother of the child, denying paternity with no proof sounds more like you are trying to run away from your responsibility.

2. ON FILING YOUR CLAIM FOR MAINTENANCE

Whenever you find yourself compelled to file a claim for maintenance, be clear on how much you are claiming and why. A wise complainant provides a breakdown of figures showing how much each item costs (food, hair, transport etc) in order to justify the total demanded. Remember, to keep in mind reasonable and affordable costs.

The court will determine the appropriate amount of maintenance by striving to balance the needs of the child and the means of the parent. For example it would be unreasonable to demand that someone pay P500.00 when they earn P800.00 per month! Each case depends on its circumstances so there is no standard amount.

One may claim P2, 000.00 and another P500.00 and the court may grant each demand based on their circumstances and the lifestyle that the child may be accustomed to. No two people or cases are the same.
The fact that the parent has a net salary of P20, 000.00 does not mean the complainant is entitled to demand P5, 000.00 when the needs of the child amount to P1, 000.00. Justify your claim.

3.APPEARING IN COURT FOR MAINTENANCE CLAIM

It goes without saying that in most cases, it is the fathers who are summoned to court for failure to pay child support. Mothers too are summoned in some instances. The real issue that must be addressed is not whether you are able to pay but how much you can afford to pay.
Most people make the mistake of thinking they can defend the claim by saying they are unemployed. Remember, this issue concerns an innocent child so failure to pay maintenance places an unfair burden on the other parent.

The child does not stop having needs because a parent does not have the resources. Each parent must contribute something and the truth is even with the high unemployment rate, some things cannot be sacrificed and the welfare of a child is one of them.

4.WHAT TO BRING WHEN YOU APPEAR AT COURT

If you are employed, take your recent payslip with you. Be prepared to explain what your monthly expenses are if asked by the court. This helps the court strike a balance between your means and the needs of the child. If you turn up empty handed, you risk seeming like you do not take welfare of your child seriously.

If you have summoned to court for one child and yet you consider the amount to be too high for that one child maybe because you have more children whom you support as well then take copies of their birth certificates with you. It is important to be sincere before court and to submit anything that might support your claim. Words alone may not be enough.

If your claim is that you have been paying child support all along then consider making electronic payments in future to create a paper trail. It may be the only thing that helps you defend the claim. If you do not have any documentary proof (bank statements) then you can only say you paid and hope the court is persuaded by your words.

5. VARIATION OF MAINTENANCE ORDER

Variation simply means to change (more or less). A party may apply for variation of maintenance order due to change of circumstances. The change might be influenced by;The needs of the child
The change of employment status of the other parent.

The court may allow someone to pay P200.00 monthly as maintenance due to the fact that they had been unemployed at the time. If he later finds himself gainfully employed again, the other party can apply for the amount to be raised (varied).

As a child grows up, their needs also increase so unless parties can mutually agree to raise maintenance then the complainant can apply for variation at court.

6. PITFALLS TO AVOID

The problem is that most parents do not support their children even when they are able such that by the time they fall on hard times and get sued they have arrears that date back to when they had the finances and resources to contribute.

If you appear not to take the welfare of your child seriously or understate your income or appear dishonest by giving self contradictory statements, the court is most likely to believe the other party’s version of events as narrated by them.

Whenever you are summoned to court for a child who is a few years older, you are expected to have reorganized your finances to accommodate that child. In other words, you cannot continue to over commit yourself financially (e.g by taking on loans) then later using them as an excuse for failing to support. Your voluntary financial commitments must never affect what`s due to the child.

7. THE HUMAN ELEMENT

Every judicial officer faces the massive task of having to be impartial (equal treatment of rivals). Cases involving children sometimes can momentarily affect the courts ability to be neutral because these are issues that strike a chord. A wise man should keep that in mind when responding to questions in court. Speak up, make eye contact and be clear about your intentions for your child. Body language and attitude says a lot too. If you cannot pay what has been demanded then offer something not nothing.

For those who do not have custody of the child you are entitled to reasonable access and visitation rights on alternate weekends, school holidays and public holidays. Reasonable her means you make arrangements with the other parent well on time; not to call them at midnight demanding to see your child.

At the same time, it would not be fair to expect one parent to pay maintenance and yet fail to grant them access and visitation rights. If that happens then the parent without custody can apply for custody and the roles will be reversed.

That being said, share for the benefit of your siblings, friends and loved ones who need to understand this.On the eve of Father’s Day. We wish you a fulfilling one!

https://www.youtube.com/watch?v=SWVvDgwAx6o&t=35s

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BEFORE YOU MARRY AND SIGN FORM A or B

By Nsi J. Pabalinga 1 Comment

The institution of marriage is considered sacred and our laws strive to protect it as much as possible. Our laws also allow each person to decide the most suitable way to manage their assets. Most people prefer community of property because of Faith based convictions and some simply because it’s a choice that gives them peace to share with their life partners. In a country where step parenting is significantly common it cannot be denied that matrimonial property forms the subject of many disputes concerning inheritance and divorce settlements which can stretch for years at times. In a country where the divorce rate is very high, and where people take financial risks in a personal capacity, there is no doubt that the choice to marry in or out of community of property demands level-headed thinking not an emotional analysis. While it is a general belief that a marriage in community of property is proof of true love, perhaps it is time to put the two choices under a legal microscope and allow each person can draw their own conclusion on what might work for them.

Legal Consequences of marriage in community of property:

1. The most common reason in support of marriage in community would appear to be centered on the “two becoming one” in every sense possible. Ideally, this is the best choice for people who only have children born in the marriage because what they work hard for and accomplish, they bestow on their heirs/children without reservations.

2. Like the phrase suggests, when people marry it is not just two people joining to become one unit, they unite assets and liabilities (debts) for richer and for poorer (as vows go). In other words, the house you own can be attached and sold to settle your spouse`s debts even if the debt dates back to before the marriage because what is his is yours and vice-versa.

3. For those who are self-employed (running under a business name, street vendor or hawkers license), every time you take a financial risk you put the matrimonial property at risk too because creditors are legally entitled to attach personal assets for the settlement of a debt. Only individuals who run their business in the form of companies are able to separate business and family property in the event of a lawsuit related to their business risks. This is because in law, a company is a “person” too; we call it a juristic person. It can sue or be sued on its own.

4. Community of property means financial commitments (loans) and the sale of property (land) cannot be done without the consent of the other spouse. For spouses who may not be on speaking terms on or are on a self imposed marital separation, your hands are tied until the other parent gives their consent.

5. If you have a child who was born from a previous relationship (whether a previous marriage or just a relationship), plan to secure that child`s inheritance because it is usually the stepchild or child born outside the marriage who suffers most when matters of inheritance arise. If you cannot donate property to them (either because you do not have any at the time or you are already married so it is not possible), consider creating a savings account for them. It offers future financial security at least. In fact, if you have more than one child outside the marriage then marriage in COP is a luxury you simply can’t afford. Kids born outside marriage usually have no one speaking for them or pushing their interests ahead because half the time they wind up in a dispute with your spouse over inheritance.

Legal Consequences of Marriage out of Community of Property:

A marriage out of community of property can best be described as killing 2 birds with one stone. This is because; in truth nothing is ever black and white in a marriage relationship. Some projects are bound to be jointly done by a couple and such joint projects are usually treated as community of property assets. To put it more simply, even in a marriage out of COP, there are some assets or properties that will be treated a joint property.

1. When you marry out of COP, any property you owned before the marriage remains exclusively yours. Any property exclusively acquired during the marriage is also yours alone too. However, if you bought it, built it or invested in it together then its joint property.

2. Here you can take financial risks without risking your spouse`s assets. For those financial risk takers who absolutely trust their spouses, you can register some assets in the names of your spouse to keep family assets secure while you risk losing the ones in your names in the event your risk does not pay off.

3. You have the freedom to control who inherits what under this system. Inheritance can be conditional, for example, you can stipulate (in your will) that whatever your child inherits should never form part of their matrimonial property in the event the child gets married, nothing wrong with that condition. This ensures that valuable/sentimental family assets are not lost to their spouse in the event of a divorce.

4. Overall, marriage out of COP is the only way to enjoy the best of both worlds. A couple can begin on a blank page at the time of the marriage because property owned before the marriage remains exclusively owned and controlled. If a couple wants to build something together during the marriage that too is fine because it is then considered as a shared possession. In conclusion, this post is not meant to discourage one property regime in favor of the other but it is meant to help you make an informed decision prior to getting married.

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5 FATAL MISTAKES PEOPLE MAKE WHEN THEY ARE SERVED WITH COURT DOCUMENTS.

By Nsi J. Pabalinga 1 Comment

5 FATAL MISTAKES PEOPLE MAKE WHEN THEY ARE SERVED WITH COURT DOCUMENTS.

There`s never a good day or time to be sued. Legal issues cannot be ignored or avoided. We each have to face our problems or deal with the consequences. No one willingly chooses to be a party to a lawsuit especially when they could have solved their dispute without going to court. However, sometimes court process may be the only way to get justice. Whether you are the party suing or being sued, the expectations are the same but more often it is the party being sued who suffers the most because they try to avoid facing issues head-on and make mistakes that cost them more. This post only covers 5 things people do when they are served with court documents, that is, they;

 1. REFUSE TO ACCEPT SERVICE OF LEGAL DOCUMENTS 

Whenever you are served with court documents be it Writ of summons, affidavits, applications or whatever document of a legal nature, to refuse to accept those documents is to lend yourself in deep trouble. A case does not go away simply because you refused to receive documents; it can only get worse from there. The same applies to those who receive phone calls from legal messengers and employ every delaying tactic possible to avoid meeting with them. The sooner you accept service the better prepared you will be. Please note that accepting service does not mean you admit guilt or fault, it is simply the responsible thing do. Failure to accept service forces the other party to serve you by publishing that document on a national newspaper! You do not want that.

2. IGNORE THE SUMMONS/OTHER COURT DOCUMENTS

As soon as you have been served, note that you are on a timer, at most you have 21 days within which to respond, utilize that time and consult an attorney. Each document is different, so be sure to confirm the number of days on each one so that you know how much time you have to respond. Ignoring a summons/court document means you sit on your right to defend yourself.  This can only mean the next time you hear from the court is when the Deputy Sheriff comes to attach your goods and by then it is usually too late.

3. RESPOND TOO LATE

When you get stood up on a date, you expect whoever stood you up to have a very good explanation for it. No one likes having their time wasted. It`s the same with court process. Do not wait until your court given time has run out before you try to respond if you could have done it sooner. To respond too late is to try and reverse the decision that has been made. In most cases you will have to pay money into court as security (assurance) that you are not just wasting the court`s time. Most people get stuck here, raising funds.

4. FAIL TO SHOW UP AT COURT

A party to a lawsuit should know and inform the opposing party of their upcoming day in court. If you fail to show up, you risk a judgment being passed against you. It is called a judgment in default of appearance. It does not matter whether it is a debt collection, divorce or any civil claim for damages, do not fail to show up, there is always something you can say for yourself.

5. TRY TO EXPLAIN TO THE OTHER PARTY`S ATTORNEY

Every attorney has an obligation to uphold the best interests of his/her client. You are not his/client. Consult a different attorney and have them assist you to respond appropriately. Trying to explain your version of the story to the opposite party` attorney is a complete waste of time, do not do it unless you are there to admit fault and to negotiate a settlement to avoid going to court unnecessarily. Share for awareness. Someone you know needs to understand this. Our next article will be on WHY PEOPLE LOSE CASES AGAINST THE GOVERNMENT.

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WHY PEOPLE LOSE CASES?

By Nsi J. Pabalinga 3 Comments

The legal profession runs on specific timelines, after all, it is the business of selling time. The State is often a party in civil and criminal matters. Therefore in order to guard against continuous lawsuits, there are some laws that exist to ensure that neither the state nor private citizens find themselves entangled in cases based on very old incidents. This is because public officers are always moving from employer to employer, department to department and in the process records are lost, potential witnesses become unavailable and with time facts are forgotten so even their evidence may be compromised. The simplest reason may well be that no one should have something hanging over their heads for too long, be it the state or a private citizen, closure is important.

 

The time bars geared at protecting state as well as the private citizen can either be referred to as STATUTORY LIMITATIONS or EXCTINCTIVE PRESCRIPTION depending on the context. Big words but both phrases loosely translated mean “you are out of time”. Note that the time limits apply both ways, to the Suing party and the party being sued.

 

 Anyone dealing with the government understands that getting results can stretch over months or years! By the time you decide to take action, it is often too late. Even if you have a strong case, it will not matter. Your time is up, cut your losses and move on.

 

Different state entities have differing statutory limitations. This article will help you appreciate the time limits that apply on some of them.

LOCAL AUTHORITIES

 This includes Land Boards and the City Council. You are entitled to sue them within 2 years from the moment your right to claim arises. If you wait longer than that, your claim will be dismissed! There is no hope for you after that. If you know you waited too long the smart thing to do is to keep following them up at their offices for as long as it takes to get your dues. I repeat, there is no point in suing after the lapse of 2 years. 

 

BOTSWANA UNIFIED REVENUE SERVICES

There are 3 time bars under this one; 

A suit for recovery of taxes and duties should be made within 15 years, either by you or against you. If you have been charged with a customs offence, the BURS should sue you within 5 years or their right to sue expires. Your claim against the Commissioner General or a customs officer under the Customs Act lapses after 1 year.

 

MOTOR VEHICLE ACCIDENT FUND

Your right to claim expires 3 years after the vehicle accident. Keep your eye on the clock whenever your claim is not addressed on time.

 

GOVERNMENT LOANS 

If the government loaned you some money, usually for tertiary education or for post graduate studies, they have a right to sue for repayment before the lapse of 15 years. For example, people who benefited from government sponsorship and graduated over 15 years ago can no longer be sued for repayment of their loans. The state waited too long to sue them.

 

DIRECTOR OF PUBLIC PROSECTUTIONS

All criminal offences have an expiry date except for a charge of murder. If the state fails to prosecute within 20 years, it loses the right to bring an action against you. The above statutory limitations are absolute; there are no exceptions at all. The prescriptive time limits discussed below are general rules and for every general rule, there is an exception. The exceptions will not be covered in this article.

 

TIME LIMITS BETWEEN LITIGANTS SALE OF DEFECTIVE GOODS

You have 1 year to sue or be sued for this type of claim. 

 

VERBAL CONTRACTS, RENT, GOODS SUPPLIED 

You have 3 years to sue or be sued under these civil wrongs. WRITTEN CONTRACTS EXCEPT MORTGAGE BONDS Your right to sue or be sued under a written contract expires after 6 years The list goes on but the foregoing are the most common reasons why people take each other to court. That being said, bear these issues in mind and you will avoid losing cases over minor (avoidable) technicalities.

 

ON A SIDE NOTE… 

All court judgments are valid and enforceable for a period of 30 years. In particular, judgements for payment of money or for specific performance remain valid for that long. In other words, if you win a case against someone, even if you wait 10 years to pursue payment, it is still valid. This may be helpful for someone whose debtor has fallen on hard times at the time of judgment; you can still bide your time until their circumstances improve for the better then claim your payment. The right to sue or be sued over a mortgage bond expires after 30 years.

 

 

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