finances

Maintenance matters by Nina Mensing (Divorce mediator and counsellor)

What is maintenance and how it is calculated:

All children have a right to be financially supported by both parents. Maintenance is something that has to be negotiated and agreed on in every divorce, or separation, when there are children involved. Contrary to popular belief, maintenance is not a 50/50 split between the parents. It is a little more complicated than that in order to ensure fairness, and above all, to ensure that the child/ren get the necessary support until they are old enough to support themselves. These days maintenance for children is termed maintenance, and if in certain cases there is maintenance paid over to an ex, that is termed ‘spousal maintenance’. This article will cover maintenance, so specifically for any children involved.

Maintenance should be paid up until a child is self-supporting, within reason. Once a child turns 18 they are deemed an adult, and have to claim maintenance themselves, as their parents cannot claim for them from each other. A step-parent is not required by law to contribute towards a child. If a parent is unable to contribute, then a claim can be made against the grandparents.

A very important point to remember is that maintenance and contact are entirely separate issues. Maintenance is not only granted and paid when there is equal access to the child, and similarly children cannot be kept away from their other parent if maintenance is not being paid. Maintenance matters need to be kept between the parents, and not affect the child’s right to see both parents.

There are many parents who work out what their expenses are, what they can afford, and then come to an agreement as to who pays what. This is entirely feasible and if parents can come to an agreement in this way, all the better. Maintenance is included in a divorce decree, but if one is not divorcing, it is advisable to take the maintenance agreement to court in order to make it a court order. If a parent stops paying maintenance, one only has recourse to apply for arrears if the agreement was made a court order.

If parents find it difficult to come to an agreement, one can calculate maintenance in the following way, either with each other, or with the help of a mediator or attorney:

Calculate the expenses of both households, according to how much time the child spends at each house. Include indirect costs such as rental/bond, electricity, internet access and others. For indirect costs such as rental, it is worked out on a 1 part per child, 2 parts per adult equation. There will also be direct costs for the child such as education, medical aid, activities, clothing and suchlike.  Once the child’s costs have been calculated, the parents then work out a percentage-based contribution that each will make, according to their separate incomes. In laymans terms, if one parent earns twice as much as the other parent, then they will pay twice as much towards the child’s expenses.

Maintenance is easy enough to work out if both parents earn a stable income, and their expenses are separate. It can become complicated when parents have various businesses and interests, earn on commission, and have very different expenses. The help of a third party may be necessary in order to help calculate what would be necessary and fair for the child. One can claim interim maintenance via the Rule 43 whilst the divorce is being finalized, if assets have not been sold yet and settlement has not been paid out. Often once settlement has gone through then it becomes easier to calculate, as finances between the parents are separate. If a parent moves to another city or another country, it is important to include the cost of travel into the calculations.

In the next article I will explain how to apply for a maintenance order, how maintenance can be paid, and important points to include in a maintenance order.

 For support and help on maintenance matters join the Facebook group Child Maintenance Difficulties in South Africa

Nina can be contacted at 082 458 8044 or http://www.familymattersmediation.co.za

Comments

  1. Mandy Solomon

    Maintenance court is an absolute nightmare, you have to take off work, stand around for hours and often your ruling depends on. a judge who might have had a bad day! Most of us battle along because we can’t afford the time off or a decent attorney!

Leave a Comment