The aspect of maintenance is regulated and governed by the Maintenance Act 99 of 1998.
It has been promulgated that the provisions of the Maintenance Act shall apply in respect of the legal duty of any person to maintain any other person irrespective of the nature of the relationship between those persons giving rise to that duty.1
In dealing with the issue of maintenance the following aspects need to be discussed:
(i) Child maintenance.
(ii) Who has the duty to pay maintenance?
(iii) What will the Court take into account when making a maintenance order?
(i) CHILD MAINTENANCE:
In order to claim for child maintenance you must first determine the reasonable needs of the child on a monthly basis.
A child is entitled to reasonable maintenance to provide for clothing, housing, dental and medical care, education as well as provision for food.
Monthly cash payments are usually paid to the parent who has the primary care of the child(ren). The payments are made in advance on or before a certain day of every month into an account nominated by the parent with primary care.
The maintenance payable normally increases annually on the anniversary date of the first maintenance order.
If the child is 18 years and not self-supporting, maintenance should be paid into the child’s bank account.
When a Court makes an order in respect of the maintenance of a child, it will take into account:
(a) The reasonable maintenance needs of the child.
(b) That both parents jointly have a duty to support the child.
(c) That the parents’ respective shares of their obligation are apportioned between them according to their means or ability.
(ii) WHO HAS THE DUTY TO PAY MAINTENANCE?
All parents whether married or not, living together separated or divorced and parents of adopted children are required to support the financial needs of their children.
In the event the child’s parents are unable and/or cannot pay the biological grandparents may need to pay maintenance; otherwise any person who is responsible to raise the child, a legal guardian, adoptive parents and grandparents of the child.
The parents are required to pay maintenance until a child is self-supporting.
The duty to support vests on all parents as indicated above and they have the responsibility to ensure that their children have access to basic necessities.
(iii) WHAT WILL THE 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:
(a) The reasonable maintenance needs of the child as indicated above.
(b) That both parents jointly have a duty to support the child.
(c) That the parents respective shares of their obligation are appointed between them according to their means or ability.
Only once the child’s reasonable monthly needs have been determined will one be able to establish the contribution that each parent is required to make to meet those needs.
Maintenance cannot be measured in monetary terms alone. Usually the parent who cares for the child on a daily basis indirectly contributes towards maintenance because of the time they spend together. Notwithstanding this both parents still have a financial obligation to pay maintenance in accordance with their means, income and expenditure.
Maintenance may need to be adjusted depending on the changing needs of the child or the financial position of the parents.
Once the need for a change in maintenance arises, whether filing a new application or seeking to vary an existing Court order, the applicant can request the Maintenance Court to:
(a) Set aside an existing maintenance order.
(b) Make a new maintenance order.
(c) Decrease the current order.
(d) Amend the current order.
(e) Change an existing order.
Either of the parents can apply to the Magistrate’s Court where the child(ren) resides for a variation of the current maintenance order.
Reference list:
- Maintenance Act 99 of 1998