South Africa’s divorce and maintenance rules you should know about

Parents are often left in the dark regarding questions about the maintenance of their children during divorce proceedings and after, says Natasha Truyens, senior associate at Barnard Incorporated Attorneys.

In South Africa, maintenance and the duty to support a child extends to accommodation, food, clothes, medical and dental attention and other necessities of life, such as education, she said.

“Parents and children have a reciprocal duty to support each other, and in terms of South African common law, both parents must each support their children proportionally, in accordance with their financial means. Section 18 of the Children’s Act of 2005 also gives a parent the responsibility to maintain their child.”

Truyens said that some of the following questions are the most frequently asked when the topic of child maintenance is at play:

How much must be paid?

“Both parents must contribute to their children’s maintenance – each in accordance with their respective financial means.”

It is against public policy to agree that a parent will contribute all their monthly earnings towards their child’s maintenance – as well as agreeing that a parent will not contribute towards a child’s maintenance at all.

In divorce proceedings, a court will not grant an order for divorce until the Court is satisfied that provisions made for the maintenance of children are in their best interest, said Truyens.

When do you have to pay?

A parent’s duty to pay maintenance for a child does not cease when a child reaches a certain age but only when a child becomes self-supporting.

This may be even after a child attended a tertiary institution or started their career – unless otherwise agreed by the parties, said Truyens.

“The child (as a major) may then approach the Maintenance Court to claim maintenance from both their parents if needed. The living standard of the parties will be used as a measure when determining the amount of contribution each parent should make.”

Truyens said the amount of maintenance payable by a parent is determined by the standard of living of the household, the child’s needs, and the ability of the parent to contribute towards the maintenance required.

“Parents can either agree that certain expenses of a child be paid directly by a party to a third party (such as a school) or that a cash amount is paid to the parent in whose primary care the child is.”

Truyens said that when a cash amount is paid, a formula is used to determine the amount that needs to be paid, considering:

• The child’s needs, and,
• The ability of the parent to pay that need.

“It is also important to note that the fact that the child visits the other parent from time to time does not affect the fact that maintenance needs to be paid.”

Seeing as contributing to a child’s maintenance is required by law and a parent involved in such a dispute should approach an expert attorney to assist, said Truyens.

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