In South Africa, each and every child is entitled to basic necessities such as food, clothing, housing, education and health care. A parent holds a legal responsibility to provide for the maintenance needs of their child. Unfortunately, not all parents uphold this obligation, and as such, the child maintenance system is aimed at ensuring that all parents remain responsible and liable for the financial needs of their children.
What is child maintenance?
A minor child’s biological parents, including adoptive parents, have the responsibility and legal obligation to maintain their children. The purpose of child maintenance is to cover the daily and monthly needs of the minor child. Child maintenance is the payment of money regularly towards the financial needs of a child.
Ordinarily, if the child primarily resides with one parent, the other parent is required to pay maintenance to the primary caregiver of the child or directly to relevant service providers. This, however, is not always the case. Who is liable for maintenance, who payments should be made to, the amount of maintenance payable, and how said maintenance should be paid is usually determined based on the unique facts and circumstances of each matter.
Who is liable for maintenance?
Both parents, including adoptive parents, have an obligation to meet the financial needs of their minor child. Parents of a child are liable for maintenance irrespective of whether the parents are/were married, cohabiting, living apart, divorced or separated. The relationship between the parents is irrelevant in determining whether there is an obligation to pay maintenance for the minor child.
Additionally, should one or both parents be unable to afford monthly maintenance of their minor child, a maintenance claim can be issued against the child’s maternal or paternal grandparents, however, only if the grandparents are in a financial position to maintain their grandchild, and the biological parent is unable to.
How is maintenance calculated?
The daily and monthly living costs of a child, such as food, clothing, housing (including water, electricity, rental, and household items), medical care, entertainment and education, are taken into consideration when determining the amount of maintenance payable by one or both parents.
As mentioned above, the maintenance payable in respect of a child is determined by the particular facts and circumstances that are unique to each matter. The maintenance payable by a parent in one matter is different from the maintenance payable by a parent in another matter. The court will look at the needs of the child, as well as the ability of the parents to afford child maintenance.
The court will often look at the respective earnings of each parent in determining how much maintenance should be payable by each parent. More often than not, the court will consider the income of each respective parent and will then use the same to obtain a percentage of the child’s expenses that each parent is liable to pay. For example, if parent A earns R50 000.00 per month, and parent B earns R25 000.00 per month, parent A would be liable for approximately 66.66% of the expenses, while parent B would be liable for 33.33% thereof.
Additionally, the court will also apportion the expenses of a child based on their living environment. For example, if more than one adult resides in a home with the child when determining maintenance payable in respect of the household expenses, the court will generally apportion the expense as two parts to each adult and one part to each child. The portion of the child is then used in the maintenance calculations.
The amount of maintenance payable is determined by the court after a financial enquiry is made into the financial means of both parents and their ability to afford the maintenance. Parents are required to disclose their income, expenses, assets and liabilities prior to a financial enquiry being held.
Naturally, a court cannot order a parent to pay more than they can afford. The court will instead order said parent to pay maintenance within their affordability. If a parent receives no income at all, the court will consider whether they have sizable assets that can be utilised towards the maintenance of a minor child. That being said, a parent should do all in their power to obtain employment in order to give effect to their maintenance obligations of their minor child.
Parents are liable for the maintenance of a child until the child is self-supporting. Self-supporting is not defined by a certain age but rather a consideration as to whether the child can financially support themselves without the assistance of their parents.
What happens if a parent/guardian fails to pay maintenance?
Parents who violate a maintenance order may be held accountable in a number of ways, which include but are not limited to contempt of court proceedings, civil proceedings, and/or criminal proceedings. Not only is a parent liable to continue paying maintenance in terms of an order, they also remain liable for arrear maintenance that was not previously paid in accordance with the order.
The court may also attach the salary, banking accounts, savings accounts or assets of the defaulting parent. Alternatively, a warrant of arrest could also be issued.
Family Law services from Pagel Schulenburg
We understand how difficult it can be to navigate family-related legal matters on your own. Our family law department has extensive experience in dealing with these matters effectively, efficiently and with sensitivity. We pride ourselves in providing exceptional legal advice and support in all areas relating to family law. Our breadth and depth of experience ensure an effective approach to your difficulties. Our team can provide the necessary expertise to help you with all your family-related legal affairs. If you require assistance with maintenance related matters, or matters relating to parental responsibilities and rights, please contact our team – info@pagelinc.co.za.
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