A child is entitled to reasonable maintenance to provide for clothing, housing, dental and medical care, education and training, and, where applicable, recreation.
Both parents have a duty to maintain the child according to their respective means. The duty exists irrespective of whether the child is adopted, born in or out of wedlock, or born of the first or a subsequent marriage. What is ‘reasonable’ will depend on the family’s standard of living, their income and the cost of living. The standard of living usually determines whether expenses for recreation, and secondary- and tertiary-level education will be awarded. In practice, maintenance will include:
Monthly cash payments
A cash portion is usually paid to the parent who has primary care of the child. The divorce agreement or maintenance order will stipulate that one parent must pay to the other a sum of money each month. The payments are made in advance, on or before a certain day of every month, usually by way of a debit order/electronic transfer, into an account nominated by the parent with primary care. The maintenance payable normally 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.
According to their means, parents must pay for any 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 and the provision, where necessary, of spectacles and/or contact lenses. Usually one parent will cover the child, at his/her cost on his/her medical scheme, and pay the monthly subscriptions (and escalations thereon). In circumstances where medical aid does not cover all the expenses or where the parents do not have medical aid, the parents usually pay these expenses in a ratio according to their means.
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
Assuming the child wants a tertiary education, where it is within their 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 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.
Frequently asked questions
What will a court take into account when making a maintenance order?
When a court makes an order in respect of the maintenance of a child, it will take into account:
- the reasonable maintenance needs of the child;
- that both parents jointly have a duty to support the child; and
- that the parents’ respective shares of their obligation are apportioned between them according to their means or ability.
Which parent must support the child?
As stated earlier, both parents must support their child proportionally according to their means. The fact that the father may be in a stronger financial position does not mean that the mother has no liability, even though the father may have adequate means. The duty rests on both parents.
In cases where both parents earn substantial incomes almost on par, and where a child spends an equal amount of time with both parents, as in a shared parenting scenario where the child lives with a different parent every alternate week and spends equal time with each of the parents during holidays, the parent in whose care the child is at that given time will be liable for the child’s financial needs. In such circumstances, parents usually agree that one parent will not pay maintenance to the other, but that they will both make equal contributions towards the child’s school, medical and tertiary expenses.
Can I withhold maintenance payments if I am denied contact to my child?
Your view of the other parent’s behaviour has no effect on your child’s right to maintenance. You still have to pay maintenance, even if the other parent:
- is involved in another relationship;
- does not allow you to see the child; and/or
- later has more children.
Your duty to pay maintenance and your right of contact to your child are two entirely separate matters, and one has no relation to the other. Furthermore, if you have children with someone else, it does not negate your duty to pay maintenance for your child with your ex. However, an application to vary or amend the current maintenance order can be made.
Until when must a parent pay maintenance for his/her child?
The duty to pay maintenance continues regardless of the child’s age, and endures until the child is self-supporting, adopted or dead. Once the child reaches the age of 18 years, the onus is on the child to prove how much maintenance he/she needs. A child that is self-supporting cannot claim maintenance from his/her parents. The duty to support a child ends at the child’s death but not at the parent’s death. In the event of the parent’s death, the child may lodge a claim for maintenance against the deceased parent’s estate.
In many instances, a settlement agreement in a divorce or a maintenance order will stipulate that maintenance be paid until the child reaches a certain age. The order will automatically cease to operate once the child has reached that age, however, if the child is not yet self-supporting, the parent must continue to maintain the child. The maintenance claim must now be made by the child in person (who is now an adult) and not by the custodial parent.
Is there an obligation on grandparents to support a child?
It is accepted in our law that if neither parent can support or maintain the child, the duty passes on to the grandparents, both maternal and paternal. In circumstances where a father/mother does not pay maintenance to his/her child, the parent holding primary care of the child may lodge an application against the paternal/maternal grandparents.
Is there a duty on siblings to support a child?
If neither the child’s parents nor grandparents are in a position to provide support, then that duty will pass to the child’s siblings, according to their respective means. This is on the proviso that the child who claims maintenance is indeed indigent. This duty of support between siblings applies to sisters, brothers, half-sisters and half-brothers.
Is there a duty on step-parents to support a child?
A step-parent is not by law obliged to maintain his/her stepchild. The reason for this is that the duty to support a child rests on a blood relationship and not necessarily on affinity. Generally, as step-parents do not have a legal duty to pay maintenance, a maintenance order cannot be made against them. In a recent case, however, a stepfather was ordered to pay school fees for the son of his wife. The order was made by the judge granting their divorce.
The Maintenance Act states that the court may, at any time, subpoena anybody that can provide relevant information pertaining to the maintenance enquiry, and that could include a step-parent.
Will a child have a maintenance claim when a parent passes away?
The child will have a claim against the deceased parent’s estate. The child’s claim enjoys preference over heirs but not creditors. A child’s claim only exists in so far as he/she is unable to maintain him/herself, so if the child receives an inheritance that is large enough to meet the his/her needs, he/she cannot claim maintenance from the deceased parent’s estate.
Can parties agree to a maintenance order?
A maintenance order may be obtained by consent. This usually happens during the informal enquiry, where the parties consent to an order among themselves or with the input of the maintenance officer. The respondent must consent in writing to the maintenance order and a copy must be handed to the maintenance officer. The respondent does not have to be present at the enquiry, but a copy of the order must be delivered to him/her by a maintenance officer, police officer, sheriff or maintenance investigator. The respondent must acknowledge receipt of the order in writing, and the officer, sheriff or investigator who served the papers must submit a written statement called a return of service showing that a copy of the documents was served on the respondent. The return of service is sufficient proof that the respondent is aware of the terms of the order.
Can the maintenance amount be reduced?
The respondent can apply to the courts for a reduction, but this will be subject to a financial investigation to determine if the applicant really can no longer afford to pay the amount in terms of the order. The other party’s circumstances, which may have changed, will be taken into account.
What if the respondent is unemployed?
If the respondent is unemployed, the magistrate will postpone the enquiry, allowing the respondent to look for work. He/she will need to get employers to sign a form proving that work was sought.
If the respondent is unemployed but has hire-purchase agreements, the magistrate may order that the furniture be attached and sold to pay maintenance. It is up to the complainant to inform the maintenance officer if they know about any such agreements.
If the respondent is unemployed, one may get a child-support grant from the Department of Social Development to help support the child.
Can one appeal against a maintenance order?
If a party is aggrieved about an order that was made by the maintenance court or about the court’s failure to make an order, he/she can appeal the decision to the High Court in the province where the order was made. A notice of the intention to appeal must be given to the clerk of the maintenance court and delivered to the other party within 20 days of the order being made. The magistrate who made the order then has 14 days in which to give a statement to the clerk of the maintenance court, setting out his/her reasons for the order.
If the applicant cannot afford legal representation, they must inform the clerk of the maintenance court who will approach the Director of Public Prosecutions with a copy of the relevant documentation. The Director of Public Prosecutions will then decide whether to assist in the appeal.
It is important to note that any appeal in terms of the Maintenance Act does not suspend the payment of maintenance in accordance with the current maintenance order, unless the appeal is made against the finding that the applicant is legally liable to pay maintenance. If a court changes the original order at appeal, it will stipulate that the revised maintenance, if any, only be paid from the date of the order of appeal.
An appeal cannot be noted against:
an order that was made by consent;
a provisional order relating to the costs of scientific tests regarding paternity; and
an order by default.
What happens if the respondent doesn’t pay?
When the respondent fails to comply with the terms of the order, and the order remains unsatisfied for a period of 10 days, the complainant may apply to the maintenance court where the respondent is resident for:
- authorisation to issue a warrant of execution;
- an order for the attachment of emoluments (garnishee order); or
- an order for the attachment of debt.
Remember, not paying maintenance is a criminal offence and the respondent can be fined or imprisoned for up to 1 year, or both. The maintenance officer may also have the respondent blacklisted. To escape punishment, the respondent must show to the satisfaction of the court that he/she could not pay maintenance due to a lack of money or income.