Child maintenance by Nicki Macartney (Attorney and mediator)

The Million dollar question everyone wants to know is what a fair amount of maintenance is to pay. We get questions like these on social media every day. The truth is there is no easy answer to that question, so let’s explain the dynamics of Maintenance in order for you to have a better understanding of how it works.

Section 15(1) of the Maintenance Act deals with parents’ duty to support their children.

Maintenance can legally be defined as a “duty to support”. This “duty to support” is a wide concept which embraces inter alia the provision of food, housing, clothing, medical care and education.

In order to establish maintenance payable it is first necessary to determine the reasonable needs of the children on a monthly basis. Although there are no clear cut rules for calculating the children’s share of shared expenses, in practice a starting point would be to allocate one part per child and two parts to a grown up. Each case is however judged on its own merits should the matter proceed to trial. The presiding officer will  take the following into consideration when determining the child’s share of the shared household expenses:

  • age of the children
  • how many people are in the household
  • living and social status of the parents etc.

There are three prerequisites for a duty of support to exist:

  • a relationship
  • a need on the part of the person requiring maintenance
  • adequate resources on the part of the person who is called upon to provide support

As mentioned above the circumstances of each matter will be taken into account, therefore if a parent is only able to support up to a certain level and the child’s needs exceed that level, then the said parent is under no obligation to extend his duty of support beyond what they are capable of.

Similarly if a parent is genuinely unable to work and support his/her child for example because of health reasons, then such parent is not obligated to support the child.

A  parent can however not evade their duty to support by simply giving up their job for whatever reason. It was also interestingly found in Mgumane v Setemane that a “parent cannot fail to recognise the full potential of their earning capacity to the detriment of their children who require support”.

The parental duty of support further also only comes to an end when the child becomes self-supporting but could revive should the child cease to be self-supporting for reasons such as ill health or disability. It is however important to point out that a major is not supported on the same lavish scale as a minor.

When one thinks of the Maintenance Court process it is enough to fill anyone’s being with trepidation as it is known to be a time consuming, traumatic and tedious process to go through. A quick and cheaper alternative would be to MEDIATE your MAINTENANCE AGREEMENT with the assistance of a Mediator. No days taken off work to sit at court, no waiting periods and a lot less frustration. The benefits are that you will be able to have a court order in place much sooner than going via the Maintenance Court yourself and also that you control the process as opposed to the court making an order on your behalf. One or two mediation sessions may be all that is needed and then once you and your ex have agreed on an amount the agreement can be made an order of court and such an order can be adjusted from time to time as your circumstances change. A simple application to decrease, increase or setting aside of the maintenance order may be made at your local Magistrate’s Court.

 

For more info kindly get in touch with us : nicki@divorce-mediation.co.za www.divorce-mediation.co.za 082 938 9429 Nicki Macartney ( Family and Divorce mediator in Randburg)

 

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