Child Maintenance

According to the Children’s Act 38 of 2005, both parents must maintain their children according to their respective financial means. The duty to maintain your children exists irrespective of how the child was conceived (in other words before marriage, during the marriage or even if the child was legally adopted). The duty to support includes a contribution to a child’s proper living and upbringing. It includes the provision of food, clothing, accommodation, medical care, and education.
 
The reasonable contribution which each parent has to make will depend on the need of the child. It takes the living standard of the family that the child is used to which the child has become accustomed to. into consideration.
 
Maintenance amounts or responsibilities will be included in your divorce settlement or specified in the decree of divorce. If parents weren’t married to one another but are still obliged to pay maintenance, it will be stipulated either in a parenting plan or in a maintenance court order.
 
The parents’ duty to maintain their children exists irrespective of whether a maintenance order is in place. The mere fact that a maintenance order isn’t in place doesn’t release a parent from his or her responsibility and responsibility to maintain his or her child.

What factors are taken into account when a maintenance order is made?

A maintenance officer (employed by the Maintenance Court) will calculate the reasonable maintenance needs for the particular child. Thereafter the maintenance officer will determine the financial ability of each parent and the court will make an order pertaining to a reasonable maintenance contribution for each party. The court will take into account the fact that each parent has the legal obligation to contribute towards the maintenance of the child.

Until when must a parent pay maintenance?

A parent will retain the duty to pay maintenance towards the child until the child passes away, is adopted or becomes self-supporting. It is important to note that the responsibility to maintain a child, rests on both parents of the child. In the event where a child reaches the age of 18 (which in our law is seen as the age of majority), such a child may still require maintenance contributions from his or her parents because that child may not yet be self-supporting.

The court will however still require that the child provide it with sufficient proof of the child’s needs for maintenance. In the event where one of the parents passes away, the child can lodge a claim against the estate of the deceased parent as the deceased parent’s estate will be liable for the maintenance of the child.

Who must pay maintenance for a child?

Both parents have an inherent obligation to maintain their child. Our law also makes provision for the event where neither one of the parents is in the position to maintain their child. The duty to maintain their child, if not adhered to by one of the parents, will be passed on to the grandparents of the child.When the child does not have grandparents, who can maintain the child, the court can also make an order against one of the siblings of the child to contribute towards the maintenance of the child. When an order, including an order for maintenance, must be made regarding any aspect relating to a child, the court will always consider what is in the child’s best interest.

Maintenance and other parental responsibilities and rights

Section 18 of the Children’s Act 38 of 2005 makes provision for 4 (four) parental responsibilities and rights of which maintaining one’s child, is but one. The remaining responsibilities and rights are to care for a child, to retain guardianship over a child and to have contact with a child.

It is important to note that these parental responsibilities and rights act independently from one another. A parent is, by law, obliged to maintain his or her child, irrespective of whether the parent has any contact with the child. The child is entitled to have contact with a parent (in the event that it is in the child’s best interest to have such contact) and the contact cannot be unreasonably withheld, even in the event of the parent not paying child maintenance as and when that parent is required to.

All children are to be maintained equally – if a parent has children from a previous relationship or marriage, maintenance in respect of a child may not be withheld or reduced by that parent because of his or her obligation towards his or her children from another relationship.

The child’s best interest is always paramount when it comes to decisions which may directly or indirectly affect a child.

Amount of Child Maintenance Payable

The amount of maintenance payable towards a child will be determined by taking into account the reasonable monthly needs of the child as well as the applicable parent’s financial means. The child’s reasonable monthly needs will consist of direct expenses relating to the child (for example school fees, extra-mural activities, etc.) as well as a portion of the shared household expenses (such as DSTV, water and electricity, etc.).
As the child grows older, his or her reasonable monthly needs may change. It can also happen that a parent who is obliged to contribute towards a child’s maintenance, cannot do so any more due to unforeseen circumstances. The Maintenance Act allows any person seeking an adjustment to an existing maintenance order, to approach the maintenance court and request either one of the following:

  • Amend an existing order;
  • Decrease a current order;
  • Make a new maintenance order;
  • Set aside an existing maintenance order.

Application of Reduced Maintenance

Sometimes, due to unforeseen circumstances such as the loss of a job, a parent may not be in the position to pay the amount of monthly maintenance previously ordered.

In such instances, a parent may apply to the maintenance court for a reduction in the amount of maintenance payable towards the child. Such an order, however, will be subject to a financial enquiry to determine whether the parent truly cannot afford to pay the maintenance amount previously ordered. The court will also take into consideration the child’s financial needs, as well as the other parent’s means and circumstances when making such an order.

What to do if someone doesn’t pay maintenance?

When a parent fails to comply with a court order wherein that parent is ordered to pay maintenance, the person seeking compliance with the order may apply to the maintenance court (where the child is resident) for any of the following relief:

  • An order for the attachment of emolument (garnishee order against the defaulting parent’s salary);
  • An order for the attachment of debt;
  • Authorisation for a warrant of execution.

In order to make use of the above remedies, the party approaching the court must ensure that the court has the required jurisdiction to assist that party. The correct court to approach is the court in whose jurisdiction the child is resident. It can, therefore, transpire that the court having the required jurisdiction is not the same court which granted the maintenance order in the first instance. If an aggrieved party approaches a court which does not have jurisdiction to assist that party, the matter will not be considered by that court.

Furthermore, failure to comply with a maintenance order is a criminal offence and a defaulting parent can be fined or imprisoned for up to 1 year (or both) if convicted. If a defaulting parent can truly not afford to pay maintenance, that parent will have to convince the court that he or she could not pay maintenance due to a lack of funds or income. The often-used excuse of “I lost my job”, will simply not suffice as the defaulting party will have to convince the court that his or her failure to pay maintenance, was not due to his or her own conduct and that the defaulting party is actively attempting to seek alternative methods to contribute towards his or her maintenance obligations.

Maintenance Queries

Our office has the expertise to assist you with regards to any maintenance query you may have. In the event where you want to enforce a maintenance order or when you are served with an application for a maintenance order, you can immediately contact our offices to ensure that you receive the best possible assistance right away.

E-mail us at divorce@barnardinc.co.za or phone us on 0861 088 088 for our terms of service.

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