06 Feb Maintenance of Children in South Africa
Maintenance of children in South Africa.
In South African law the term ‘maintenance’ refers to the reciprocal duty of support between a parent and children.
This duty of support would extend to the needs of the children, which would include but not be limited to necessities such as accommodation, food, clothes, medical and educational expenses. Although maintenance could be considered to only include the necessities of life, it is also important to note that this is not entirely correct. When making an order in respect of maintenance, our courts also consider the social position, lifestyle and financial resources of the parties and therefore, the concept of ‘necessities’ is given a much wider interpretation when it comes to the support towards children.
There is often a misconception that the maintenance of the children is to be split equally between the parents. This is incorrect, as both parents are liable to support and contribute to the needs of the children proportionately, according to the means of each parent and after considering the reasonable needs of the children. This would then mean that if the financial position one parent is greater than that of the other, the duty of support of that parent would be greater.
Procedure to follow when seeking maintenance:
Should you find yourself in a position where you are the primary care giver of the children and the other parent is not contributing towards maintenance, the first step which you would have to take is to either approach an attorney specialising in maintenance matters or to approach the magistrates court in the area in which your child resides, and ask to see the Maintenance Officer.
The Maintenance Officer would ask that you complete a form and provide necessary supporting documents, which sets out the monthly expenses of yourself and your children. It is very important that this form is completed concisely and honestly, as this form would provide the Maintenance Officer and the court with information as to what the needs of the children are. The form is therefore the basis of your maintenance claim. The Maintenance Officer would then subpoena both parents to a financial enquiry before the Maintenance Officer, and should the parties not be able to come to a suitable settlement, the matter will be referred to court where the magistrate will make a finding as to a reasonable monthly maintenance amount.
Calculating child maintenance:
When completing the form for the Maintenance Officer, you will notice that your expenses and the expenses of the children are listed separately. This is firstly because the point of completing the form is to calculate what the needs of the children are and secondly, to apportion the common expenses between the primary care giver and the children. Since the children also require accommodation, water, electricity and other general household expenses, these expenses are shared between the children and the parent when calculating maintenance.
There is no set rule to determine what the children’s share would be but generally, common expenses in the household is determined by allocating one-part of the expense per child and two-parts per adult or older child. After you have calculated the reasonable expenses of the children, you would be able to determine what a reasonable payment in respect of maintenance is and to what extent each parent is to contribute towards those needs.
Example on how to apportion common household expenses:
If the total spent on groceries on a monthly basis is R 3 000.00 for yourself and two children, each child would then be allocated a grocery expense of R 750.00 and R 1 500.00 would be allocated to you as an adult.
How long is maintenance payable?
Once you have successfully received a maintenance order against the non-paying parent, your next question could be, for how long does this duty of support exist? A common mistake that most parents make is to assume that when the children reach the age of majority, which in our country is 18 years of age, that the duty of support naturally terminates. The problem with this picture is that many times the child is not working or might still be attending school but might have attained majority already. The parent with whom the child resides now has the sole responsibility to contribute towards the needs of the child since legally the child is now a major. Our law therefore recognises that maintenance in respect of a child is payable until the child has attained majority or is self-supporting. Should it be that the child is not financially able to maintain him or herself after turning majority, the child may then bring an application against his/her parents in the child’s personal capacity and could also approach the Maintenance Officer for assistance in this regard.
As the primary care giver, it is imperative that you understand the laws regarding maintenance in South Africa.
Article written by : Crystal Lodewyks (attorney, Kim Armfield & Associates)