Concerns regarding child maintenance in divorce and post-divorce proceedings
Many parents are left with unanswered questions pertaining to the maintenance of their children during divorce proceedings or thereafter. The purpose of this article is to provide parents with guidelines as to when they need to pay maintenance for their children, and the amount to be paid.
In South Africa, maintenance and the duty to support a child extends to accommodation, food, clothes, medical and dental attention and other necessities of life, such as education. Parents and children have a reciprocal duty to support each other, and in terms of South African common law, both parents must each support their children proportionally, in accordance with their financial means. Section 18 of the Children’s Act of 2005 also provides a parent with the responsibility to maintain their child. Questions which frequently arise when the topic of child maintenance is at play, are ‘until when do parents need to maintain their children?’, and ‘what amounts do they need to pay?’.
As mentioned earlier, both parents must contribute to their children’s maintenance – each in accordance with their respective financial means. It is against public policy to agree that a parent will contribute all their monthly earnings towards their child’s maintenance – as well as agreeing that a parent will not contribute towards a child’s maintenance at all. In divorce proceedings, a divorce Court will not grant an order for divorce until the Court is satisfied that provisions made for the maintenance of children are in their best interest.
A parent’s duty to pay maintenance for a child does not cease when a child reaches a certain age, but only when a child becomes self-supporting. This may be even after a child attended a tertiary institution or started their own career – unless otherwise agreed by the parties. The child (as a major) may then approach the Maintenance Court to claim maintenance from both their parents if needed. The living standard of the parties will be used as a measure when determining the amount of contribution that each parent should make.
The amount of maintenance payable by a parent is determined by the standard of living of the household, the child’s needs, and the ability of the parent to contribute towards the maintenance required. Parents can either agree that certain expenses of a child be paid directly by a party to a third party (such as a school), or that a cash amount is paid to the parent in whose primary care the child is. When a cash amount is paid, a formula is used to determine the amount that needs to be paid, considering the child’s needs and the ability of the parent to pay that need. It is also important to note that the fact that the child visits the other parent from time to time, does not affect the fact that maintenance needs to be paid.
Seeing as contributing towards a child’s maintenance is required by law, a parent in dispute with another parent regarding a child’s maintenance should approach an expert attorney to assist in determining a fair and reasonable amount of maintenance to be paid in respect of a child.
Article by Natasha Truyens
Senior Associate at Barnard Incorporated Attorneys
Mobile: 060 891 9917