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The Divorce Act 70 of 1979, the Maintenance Act 99 of 1998 and the Children’s Act 38 of 2005, all of which have been amended, regulate the payment of maintenance. No matter what the circumstances, the ‘non-custodial” parent still has a duty to support the child. Children have a right to proper parental care, an obligation that the Constitution imposes first and foremost on their parents.
On the breakdown of a marriage or similar relationship it is almost always mothers who become the custodial parent and have to care for the child. Apart from the responsibilities, this places an additional financial burden on them, whilst the ‘non-custodial’ parent has less responsibilities and generally becomes economically enriched. Maintenance payments are therefore essential to relieve the financial burden on the ‘custodial’ parent. Child maintenance lawyers offer advice on the best possible solution for you with regards to how much maintenance money should be paid after a divorce or separation, whether you have custody of the children or not.
The amount of money to be paid for Child maintenance is ultimately decided on by the court, who will take into consideration the monthly earnings and income of both parents. If the parent who the child is living with is unemployed, then the court will make calculations of what that parents time and labour is worth and a maintenance amount will be decided on according to this. By law, a parent is liable to pay maintenance, even if the parents of the child were never married. A court can order a parent to pay maintenance to the primary care giver of the child and this is where a child maintenance lawyer’s advice and assistance can be of great benefit.
The Maintenance Act of 1998 serves to create a fair and just society and takes into consideration the rights of both the child and the parents. Coming to an agreement on the amount of maintenance a parent should pay can become a frustrating, long and difficult task. It may therefore be in the best interest of both parents to seek professional advice, in order to come to a quick and fair decision regarding the amount of maintenance to be paid. Theoretically, maintenance is supposed to be relatively straightforward but is a little more difficult in practice. When deciding how much maintenance should be paid, a court will look at the reasonable financial needs of the child, bearing in mind the family’s pre divorce standard of living, then each parent must provide for the child according to his or her means on a pro-rata basis.
In easy terms, maintenance is calculated as follows – the actual costs of raising a child are split between the parents in proportion to what they earn. Let’s assume that the cost of raising a child is R2,000 per month, the father earns R6,000 and the mother earns R4,000. The father thus pays R1,200 (60% of the monthly expenses) and the mother R800 (40%of the monthly expenses). It is thus vital to have an accurate idea of what each parent earns and spends monthly, and this is generally where the trouble often starts.
Most “non-custodial” parents are shocked at what is spent on groceries and react in astonished disbelief to this particular monthly expense. It is therefore extremely important to be prepared, keep proof of these expenses over several months to prove that what is being claimed is in fact what is actually spent. The other major expense that needs to be taken into consideration is accommodation. This is not a fixed rule, but the court would usually allocate one part of this expense to the child and two parts to the parent, ( of the parent’s monthly accommodation expense is R6,000, R4,000 will be considered the parent’s share and R2,000 the child’s, if there are two children this ratio would be R3,000:R3000 and so on).
At this stage the “non-custodial” parent is usually hyperventilating, but this is not where the claim for child maintenance ends, the Magistrate Court provides an income-and-expense form which has to be completed, and they do not miss a thing – pocket money, savings, clothing, entertainment, pets, petrol, insurance … in other words, everything that money may be spent on during the course of a normal month is included. The parent and child’s expenses are listed separately so that the parent’s expenses are never confused with the child’s, and supporting documentation is required.
This is when the “non-custodial” parent finally realizes how overwhelming the costs are to actually clothe, feed and house a child for a month. The “non-custodial” parent generally assumes that their expenses will remain the same as when they were married and living in one household, but what they often overlook is the fact that they are now contributing to two households. And just when the “non-custodial” parent starts relaxing, thinking that there could impossibly be any further costs, they are faced with medical and educational expenses.
Many parents have problems calculating whether they need to pay school fees when they receive or pay maintenance. The court order should stipulate who pays school fees.
In South Africa, it is not uncommon for “non-custodial” parents to opt to pay these expenses separately from the monthly maintenance payments. This is frequently the case with regards to education expenses as these expenses are fairly fixed over the course of a year. Unless otherwise stipulated, it is usually the responsibility of the custodial parent to pay the school fees from the maintenance. Should the school fees increase in the following year and the custodial parent finds that the money paid to them is insufficient, they should apply for the maintenance order to be updated.
The duration one should pay child maintenance depends on a number of factors including the child’s education. The child is not self-supporting whilst studying as under normal circumstances, they are not earning an income. In South Africa maintenance payments normally cease as soon as children has finished their last year of schooling, be that 16, 18 or in some cases even older. The practice should however be that maintenance payments cease once the child is earning an income and has become self supporting.
Due to the current economic climate, many people are looking for ways to cut costs, and some even think they can save money by cutting their maintenance payments or even stop paying altogether. If you are unable to make full maintenance payments due to a decrease in income, you can apply to the Magistrate Court for a variation in the maintenance order at any time, but only if circumstances change. The aforementioned is usually requested by the father, if for example, he loses his job or remarries and in some cases by the mother, if the child needs special care, or her circumstances change. One should bear in mind that if the non-custodial parent remarries and has to support a second family, this financial obligation should not impact negatively on his/her first family.
When a non-custodial parent remarries, he/she cannot use the excuse of having to support a second spouse as a reason for reducing the maintenance payable in respect of the children of a first marriage.
Failure to pay Maintenance
If the non-custodial parent does not pay maintenance, even though being issued with an order, the court can instruct his/her employer to deduct the monthly amount directly from his/her salary. A parent who refuses to pay any child maintenance risks having their personal possessions seized and sold, the proceeds of which will be paid to the custodial parent. Although the courts are against sending a person to prison for non-payment of maintenance, the offender runs the risk of facing a prison sentence.
The most painful battles are fought in maintenance court, there is no reason that both parties cannot be civil and reasonable concerning the matter, provided that each party resists the urge to inflate their expenses beyond the reasonable. It is important at such times to remember that this is not about you and your spouse, it is about your children.
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