Your child maintenance questions answered

Maintenance is an area of family law which always seems to be problematic. It is a fairly common complaint by women that the fathers of their children do not pay, pay late or pay too little maintenance.

What the law says about maintenance

The law is clear – both parents of children are responsible for the maintenance of their children and failure to maintain a person’s biological child is a criminal offence for which they can be prosecuted.

What maintenance should be paid?

This question has no cut and dried answer. The position is that the children’s needs must be met by the parents in proportion to their earning capacities. This means that it not necessarily a 50/50% split between the parents.

The starting point is the needs of the child

The amount that is needed to keep the child sheltered, clothed, and fed, as well as costs associated with electricity, water, travel costs, entertainment and additional expenses, are all relevant to the enquiry.

Thereafter the respective earning capacities of the parents will be considered and a ratio of their respective amounts determined in light of the needs of the child.

What about school and medical expenses?

These expenses must be considered separately from maintenance and each other. One should view maintenance as a three-pronged approach, in which contributions in respect to maintenance, school and medical expenses must be met by the parties respective to their earnings. As such, it is NOT sufficient for a parent to argue that as school expenses are paid, their maintenance obligations have been discharged.

Can the maintenance amount be varied?

Yes, however this provision cuts both ways. If the amount of maintenance is no longer sufficient, you may apply to your local magistrate’s court for an increase. If you are paying maintenance and can no longer legitimately afford to pay the amount as stipulated by the court, you can apply for a decrease in the magistrate’s court where the party receiving the maintenance lives.

The court will only amend the maintenance amount if ‘sufficient reason’ is shown. It can happen that a party approaches the court for a decrease, and the court, having such discretion, orders an increase in the maintenance payable and visa versa.

As such, ensure that your application is well founded.

When does the obligation to pay maintenance end?

It is untrue that the obligation to pay maintenance ends when the child becomes a major at 18. The obligation only ceases when the child becomes self-supporting. The obligation to support one’s children does not even end in death – where a parent has passed away, the surviving parent is entitled to claim maintenance from the deceased parent’s estate.

Should you have any queries relating to this area of law, it is suggested that you contact an attorney practicing in family law to assist you.

About the author
Andrea Goldman is a Partner at Goldman Schultz Attorneys. For more information contact info@gslaw.co.za or www.gslaw.co.za