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Making child’s play of child maintenance

What is maintenance?

In South African law the terms ‘support’, ‘maintenance’ and ‘alimony’ are used interchangeably, although the latter is used less frequently. In South Africa it is the legal duty of both parents, whether married, living together, separated or divorced, including parents who have adopted a child, to support their children. The duty of support extends to accommodation, food, clothes, medical and dental attention and other necessities of life that are in line with the social, lifestyle and financial position of the parents. Thus, the scope of the maintenance is always determined according to the standard of living of the parties concerned. There are cases where one parent is in a greater financial position than the other. This, however, does not mean that the financially weaker parent is not obligated to pay towards maintenance.


How is maintenance calculated?

There is no standard amount of maintenance determined by the courts stipulating the amount of maintenance to be paid by one parent to another. The amount of maintenance is determined by considering:

  • The child’s monthly costs; and
  • The parents’ ability to contribute.

In order to determine what the actual costs of the children are, the children’s direct and indirect costs need to be calculated. Direct costs refer to costs attributed only to the children, for example school fees, school clothes, nappies and extra-mural activities.  Indirect costs refer to costs which need to be apportioned between all the people living in the home, such as groceries, rent, electricity, telephone, transport etc.

Once the total costs for the children are calculated, by adding together their direct and indirect costs, the income of each parent are taken into account, and the costs of the children are then divided pro rata between the parents, proportionate to their salaries or income.


How is maintenance paid?

The court can order maintenance to be paid in one of the following ways:

  • At the local magistrate’s office or any other government office designated for this purpose.
  • Into the bank or building society account designated by the person concerned.
  • Directly to the person who is entitled to the maintenance, or
  • By means of an order that directs the employer of the person who is liable for paying maintenance to deduct the maintenance payment directly from the employee’s salary, in accordance with the 1998 Maintenance Act.

What happens if a parent fails to pay maintenance?

If a court order has been granted, either in a decree of divorce or maintenance court order, and the parent fails to pay in accordance with such an order, they will be in contempt of the court order.

In South Africa there are a multitude of options to your availability when this happens and includes inter alia:

  • To lay a criminal charge against the defaulting parent.  The failure to pay maintenance is a criminal offence which carries the possibility of a year in prison with or without the possibility of a fine;
  • Maintenance Orders can be enforced through attachment of property, emoluments attachment order or the attachment of any debt;
  • If the defaulting parent is gainfully employed, an application can be made to the Maintenance Court for a garnishee order to be issued. The employer of the defaulting parent will be ordered to deduct from that parent’s monthly salary the maintenance which they should be paying and will be instructed to pay the funds directly to you.

If there is currently no court order in place, determining the scope of the maintenance for your children, we can assist you in obtaining the best financial security for your children.


What if I can’t pay my children’s maintenance needs?

Either parent can apply to the Magistrate’s Court for a variation of the court order at any time, but only in the event that the circumstances surrounding the parties have changed, for instance, loss of employment by one of the parties, the needs of the children have substantially changed or if one party opts to remarry. However, where a party remarries and then must support a second family, this financial obligation shouldn’t impact negatively on his first family.

It should however also be noted that parents cannot use self-created reduced circumstances to reduce their maintenance obligations, for instance, a father cannot put forward the needs of his second wife as a reason for reducing the maintenance payable in respect of the children of his first wife.

It is clear that maintenance is a contentious issue, with various factors determining the scope and application of the maintenance to be paid. However, with the correct legal advice and assistance, you can ensure that you and your children are appropriately cared for.


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