Maintenance – What is it and how does it work in South Africa?

Maintenance in and under South African law is a complicated area which can cause a lot of confusion and uncertainty. There are a lot of factors that need to be looked at and taken into consideration when it comes to talking about and determining maintenance. However, before going any further with this article, it is important to understand what maintenance is

Maintenance in South Africa is money that is claimed from one parent by the other, to help cover the day to day needs and costs of the child, once the relationship between the parents has come to an end. It is important to note here, that under South African law, there is no spousal maintenance that can be claimed, so the maintenance that will be discussed in this article is child maintenance.

Both biological parents of the child (whether they were married or not) are legally obliged to pay maintenance for the child on a pro rata basis according to how much they earn. There is a very specific formula and calculation that is used to determine how much maintenance is to be paid by each parent, on a monthly basis, for the child.

The obligation to pay maintenance remains, and each parent will still have to pay maintenance for the child, even if the other parent remarries, is involved in another relationship, or later has more children.

The duty to pay maintenance continues regardless of the child’s age and endures until the child is self – supporting, adopted, or has passed away. However, once the child reaches the age of 18, the onus is on the child to prove how much maintenance they require.

A question that then arises is, what happens if costs for the child increase and the money received is not enough to cover the day to day needs of the child? Or what if one of the parent’s financial position/ circumstances change? In order to vary the amount of maintenance received and paid per month, the parent claiming more or less maintenance will have to approach the Court and obtain a Court Order in this regard. However, a Court will only vary maintenance if good cause is shown to vary the amount of maintenance paid and received per month.

A common misconception is that one parent will state that they will cover, for example, the educational costs of the child and the medical costs of the child, and then believe that their maintenance duties are discharged. This is not the case. The duty to maintain your child relates to each and every need of the child, that must be covered on a monthly basis. You do not get to decide what you want to pay maintenance for and what you don’t.

A maintenance agreement once settled and finalized can be and is made an Order of Court. Should one party default on maintenance payments, they will be in breach of a Court Order which is a criminal offense and will be penalized with imprisonment and/or a fine. If one party is unable to afford maintenance payments, as stated above, they would have to approach the Court to vary maintenance payments made and received.

For any further advice and information on maintenance, contact JFY Attorneys today! If you need a keen lawyer, give JFY Attorneys a call. With our economical rates, no task is too small.