: Maintenance

Maintenance

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How to calculate maintenance?

A maintenance enquiry is a 2 staged approach.

Firstly, the reasonable need of the child must be determined and thereafter the affordability of each parents is taken in to consideration.

You need to allocate the child’s share of the household expenses separately from the adult’s expenses on the prescribed document which is submitted to the Maintenance Court.
The parents liability to contribute is based proportionately on their available income (means).

To determine the needs, the following formula is applicable:

(parent’s gross income) X (child’s needs)
(total gross income of both parents) 1
= R0.00 (parent’s contribution)

Maintenance will need to be reviewed regularly, depending on the changing needs of the child or the financial position of the parents.

Maintenance is capable of variation and does not remain fixed permanently.

Changing circumstances such as a rise in the cost of living and other factors can necessitate that a variation is required of the existing maintenance order. A maintenance court can make the following orders -

• set aside an existing maintenance order;
• make a new maintenance order;
• decrease a current order;
• amend a current order; or
• change an existing order.

Either parent can apply to the Magistrate’s Court where the children reside for a variation of the current maintenance order, but only if there is a material change in their circumstances.

An example will be if the father becomes disabled / retrenched or remarries; and, in the mother’s case, where a child’s needs have changed – specific educational needs or sporting requirements.
The law is clear that a man cannot “feather a second nest” to the prejudice of the first. If a father remarries and then has to support a "second" family, this financial obligation may not impact negatively on his "first" family. A father may not claim that the needs of his second wife is a reason to reduce maintenance in respect of the children of his first wife.

Child Maintenance

A child is entitled to reasonable maintenance to provide for clothing, housing, dental and medical care, education and training, and, entertainment as well as other necessities of life in line with their social position, lifestyle and financial ability of both parents.

Parents and children have a reciprocal duty to support each other.

Both parents have a duty to maintain the child proportionately, that means pro rata according to their respective incomes. A parent’s duty to support his child arises out of operation of law. What is ‘reasonable’ will depend on circumstances of each particular child and the family, and factors to be considered are the family’s standard of living, the child’s health, the parent’s income and the cost of living.

Monthly cash payments

The parent who has the child in their care is entitled to receive a cash payment of maintenance on a monthly basis from the other parent to be allocated to a portion of the child’s accommodation expense, groceries, toiletries, clothing, electricity, water, fuel, transport, haircuts, entertainment, pocket money, etc. The Divorce Order or maintenance order is the source document which will state which parent must pay a cash component each month. Maintenance is paid in advance each month. Maintenance is not paid in arrears. The cash component of maintenance generally increases annually on the anniversary date of the divorce order or first maintenance order by the percentage change in the headline inflation rate (also known as the headline Consumer Price Index), as notified by Statistics SA (or its equivalent) in respect of South Africa for the preceding 12 months.

Medical expenses

Both parents are liable pro rata according to their means for any reasonable and necessary medical expenses incurred in respect of the child which would include - medical, dental, surgical, hospital, orthodontic and ophthalmological treatment needed by the child, as well as any sums payable to a physiotherapist, occupational therapist, speech therapist, practitioner of holistic medicine, psychiatrist/psychologist and chiropractor. Parents must also cover the cost of any medications ( prescribed or over the counter) and the provision, where necessary, of spectacles and/or contact lenses. This can include retaining the child on the parent’s medical scheme, and pay the monthly premium (and escalations thereon). The parents can agree to share these expenses in equal shares.

Educational costs

Educational costs normally include, but are not limited to, all pre-school and aftercare fees, school fees, additional tuition fees, school outings, camps, school lunches, extra-curricular school and sport activities, all extramural activities in which the child participates, including club fees and sport tours (and the travel and accommodation expenses related thereto), school books, stationery, uniforms and any equipment (including computers) needed by the child at or relating to school.

Tertiary educational costs

Tertiary education costs

Tertiary education is not a right - where it is within the parents’ means, parents are obliged to pay all or part of the reasonable costs of the child’s tertiary education, for as long as the child shows due diligence and aptitude and continues to make satisfactory progress. Such costs can include university fees and/or fees for any institution of higher learning attended by the child, accommodation and travel/transport expenses, and any books and equipment required. The duty of support only comes to an end when the child becomes self-supporting. Although 18 is the age of majority, the duty to support can continue after this age, but the child must then claim maintenance directly from the non-resident parent. The fact that a child is working does not necessarily mean that he/she is self-supporting and continued but reduced maintenance may be necessary.

If you have other maintenance related questions, why not follow the link FAQ and find answers to popular questions.

Child and Spousal Maintenance

Child Maintenance

Once a child has reached the age of 18 which is the legal age of majority in South African law, a parent cannot claim maintenance on behalf of a child. The child would have to institute action in his/her personal capacity against that parent in the Maintenance Court having jurisdiction in the area where the child is resident.

You cannot refuse to allow a parent contact because a parent has stopped paying maintenance.

When maintenance court makes an order regarding maintenance, such an order is never a permanent order, it can be varied as circumstances change over time. You would need to bring an application for an increase or reduction in maintenance in the Maintenance Court.

Parents must use both of their incomes and, if necessary, their capital to pay maintenance. This means that if a father/mother has no income but has assets, he/she will not be able to avoid paying maintenance. He / She would have to sell his / her assets to pay maintenance. This would prevent a parent from evading his/her duty to pay maintenance by giving up their job and becoming a student.

Spousal Maintenance

The cases at present involving maintenance required by spouses are brought by women. This would also apply to the ex-husband seeking maintenance from his ex-wife. Neither spouse is automatically entitled to spousal maintenance on divorce.

South African law favours the ‘clean break’ principle, and our courts encourage that post- divorce the parties must strive to become economically independent of each other as soon as possible. The court has a discretion to award spousal maintenance.

The duty of support

During a marriage, each spouse owes to the other a reciprocal duty of support. This duty of support would be based on need of that spouse and that the other spouse’s ability to meet that need financially. This duty of support would include accommodation, clothing, food, medical services and other necessities, and a factor to consider is the parties’ social standing, their income at their disposal and the cost of living. The duty to support each other is the responsibility of both spouses and means that if, for example, a woman does not have the financial means to support herself, her husband has a legal obligation to support her, and vice versa.
This reciprocal duty of support comes to an end on death or divorce. The Divorce Act 70 of 1979 allows for court orders relating spousal maintenance. Similarly, when a spouse dies, the surviving spouse can claim maintenance against the spouse’s deceased estate in terms of the Maintenance of Surviving Spouses Act 27 of 1990.

Spousal Maintenance is not a right

Neither spouse has a statutory right to maintenance. The Divorce Act makes it discretionary. The court has a discretion to make a maintenance award which includes the power to make no maintenance award.