All parents, either married or no longer in a relationship, have financial obligations towards their children. However, in many cases of separation or divorce, they are unable to find middle ground on how to meet these obligations. Blake Attorneys breaks down the Maintenance law and its implications for parents in South Africa.
What does the law say when it comes to child maintenance in South Africa?
Child maintenance is decided in terms of the South African common law. Maintenance procedure is set out in the Maintenance Act of 1998. In South Africa, more than 30% of children have only one parent and for many women it is extremely difficult to get a Maintenance Order. They have to contend with expensive travel costs (most times repeatedly) to their local Maintenance court to provide additional information. They also face shaming at different levels when they interact with rude maintenance officers.
Maintenance is calculated by taking into account the expenses set out below. The person with whom the children primarily reside is entitled to recover the costs of the child’s portion of the household expenses as well as the child/ren’s direct expenses:
- The Household expenses of rental or bond instalments and lights and water;
- Groceries and Toiletries;
- Domestic helper or aftercare;
- Medical aid or medical expenses or both;
- Educational expenses being school fees plus extramurals;
- Clothing and equipment for school;
- Entertainment, gifts for friends and life insurance or other expenses.
The common law also sets out who has the duty to pay the above-mentioned expenses of the children. These include:
- The Mother and Father of the children whether they were married or unmarried. (Adoptive parents are parents for these purposes)
- The grandparents of both parents if the mother or father are unable to make payment through unemployment or disability or other reasons.
How is child maintenance calculated and how long should it continue?
Before calculating child maintenance, it is important to determine what the reasonable needs of the child are. Next, the earnings of both parents are taken into account to fix an amount they must each pay for maintenance. The basic formula to calculate their contributions is as follows:
{(each Parent’s gross income) (divided by) / (Total gross income of both parents)} * multiplied by {(child’s needs} = R…00.00 (parent’s contribution). This is called a pro rata contribution.
According to the law, the duty to pay maintenance continues until the child is financially self-sufficient irrespective of the age of the child. A court order or maintenance agreement is unchanged when a child turns 18, although it may be paid to the child directly after he or she reaches 18 years of age. If a parent wants to change maintenance after 18, they have to seek a new Court order or risk losing their assets to catch up on maintenance arrears.
Finally, the duty of child maintenance does not end with a parent’s death as the child can claim this amount from the deceased parents’ assets or estate. Such a claim is paid out before a payment to a beneficiary of the deceased parent’s Estate chosen in the Will.
For more information on child maintenance rights in South Africa, contact Blake Attorneys, experts in family law and litigation today!