What Is Child Maintenance?
Child maintenance refers to the financial support required to meet a child's reasonable needs. The precise expenses will differ from one family to another depending on the child's age, circumstances, standard of living and particular needs.
Food & Clothing
Groceries, clothing, toiletries and other ordinary day-to-day necessities may form part of the child's expenses.
Housing
An appropriate portion of accommodation and household expenses may be relevant when determining the child's needs.
School Expenses
School fees, uniforms, stationery, textbooks, transport and appropriate educational expenses may need to be considered.
Medical Costs
Medical aid, medical expenses, medication, dental care and other reasonable healthcare costs may form part of maintenance.
Travel Costs
Reasonable transport expenses associated with the child's daily life, education and other needs may be relevant.
Other Reasonable Expenses
The child's age, activities, educational requirements and individual circumstances may give rise to additional expenses.
Who Must Pay Child Maintenance?
The duty to maintain a child rests on both parents. The fact that a child primarily lives with one parent does not mean that the other parent alone bears the entire financial responsibility.
Each parent's contribution must be considered in light of that parent's means and the child's reasonable needs.
The obligation is not automatically divided 50/50. The parents' respective financial means are relevant, which means that one parent may appropriately be required to carry a greater proportion of the child's financial needs.
How Is Child Maintenance Calculated?
There is no universal monthly amount and no single percentage of salary that applies to every maintenance matter.
A proper maintenance calculation generally requires a realistic assessment of the child's reasonable monthly expenses together with evidence concerning the financial position of the parents.
Calculate the Child's Reasonable Needs
Prepare a realistic schedule of the child's ordinary and recurring expenses, together with appropriate supporting documents where available.
Establish Each Parent's Means
Income, expenditure, assets, liabilities and other relevant financial obligations may need to be considered.
Consider the Parents' Respective Contributions
The parents' financial circumstances are compared to determine an appropriate contribution towards the child's reasonable needs.
Consider Direct Expenses
Payments made directly towards medical aid, school fees or other expenses may also be relevant when the overall maintenance arrangement is considered.
Is Maintenance Simply Based on Income?
Income is important, but maintenance is not calculated merely by comparing two salaries and selecting a percentage.
The child's reasonable needs must first be established. The financial means and obligations of the parents are then relevant to determining how those needs should be funded.
Statements such as "the father must pay half" or "maintenance is a fixed percentage of salary" can be misleading. Maintenance is determined according to the facts and financial circumstances of the particular family.
What Documents Are Important?
Maintenance proceedings are evidence-based. A proper financial picture is considerably more useful than simply telling the court what each party says they earn or spend.
Proof of Earnings
Payslips, employment information and other evidence of income may be required.
Bank Statements
Bank statements may assist in establishing income, expenditure and the parties' actual financial circumstances.
Monthly Budget
A detailed schedule of the child's expenses should be prepared as accurately as possible.
Supporting Accounts
School accounts, medical expenses and other supporting documents can help substantiate the child's needs.
How Do You Apply for Child Maintenance?
Maintenance matters are dealt with through the maintenance court. The maintenance officer assists with the maintenance process and an enquiry can be conducted into the relevant financial circumstances.
Start the Maintenance Application
The applicant approaches the appropriate maintenance court and completes the prescribed documentation for the maintenance claim.
Provide Financial Information
Relevant documentation concerning income, expenses and the child's needs should be supplied to support the application.
Maintenance Enquiry
The financial circumstances of the parties may be investigated and the matter may proceed through the maintenance enquiry process.
Agreement or Hearing
If an appropriate amount is agreed, it can be made an order of court. Where agreement cannot be reached, the court may hear evidence and determine the maintenance payable.
Maintenance Order
Once granted, the maintenance order regulates the payment obligations and must be complied with unless it is subsequently varied or discharged by a competent court.
What If a Parent Says They Cannot Afford Maintenance?
A parent's financial means are relevant, but an allegation of financial difficulty does not automatically determine the outcome. The maintenance court can consider evidence concerning income, expenses, obligations and the broader financial circumstances.
Where a parent's circumstances genuinely change, the appropriate response may be to approach the maintenance court for a variation rather than simply reducing or stopping payments unilaterally.
A maintenance order remains binding until it is lawfully changed or discharged. If your circumstances have materially changed, seek a variation of the order rather than deciding on your own what you will pay.
Can a Maintenance Order Be Increased or Decreased?
Yes. Maintenance arrangements may need to change because neither a child's needs nor a parent's financial circumstances necessarily remain the same forever.
An application may be made for the existing maintenance order to be varied where the circumstances justify it.
Expenses Have Increased
Schooling, healthcare or other reasonable expenses may increase as the child grows.
Financial Circumstances Changed
A material change in a parent's income may be relevant to whether the existing contribution remains appropriate.
Job Loss or Reduced Income
Genuine changes in employment or earnings may justify approaching the court to reconsider an existing order.
New Educational Costs
Changing educational circumstances may materially alter the child's reasonable monthly expenses.
What Happens If Maintenance Is Not Paid?
A maintenance order is not merely an informal agreement or optional monthly contribution. Failure to comply can lead to enforcement proceedings.
Depending on the circumstances and applicable requirements, enforcement mechanisms can include execution against property, attachment of debts or emoluments and other remedies provided by the Maintenance Act.
Emoluments Attachment
Appropriate proceedings may result in amounts being deducted from remuneration in satisfaction of maintenance obligations.
Execution Against Assets
The legislation provides civil enforcement mechanisms that can, where appropriate, be directed against property.
Attachment of Debts
Certain debts owing to a maintenance debtor may also be capable of attachment through the statutory enforcement process.
Failure to Comply
Failure to make a payment in accordance with a maintenance order can also have criminal consequences where the statutory requirements for the offence are established.
If maintenance is not being paid in accordance with an existing court order, obtain advice about enforcement rather than allowing substantial arrears to accumulate. A maintenance order is legally enforceable.
Can Contact Be Refused Because Maintenance Is Not Paid?
Maintenance and contact are separate legal issues. A dispute over unpaid maintenance should therefore not ordinarily be treated as a licence to disregard existing contact arrangements.
Similarly, a parent cannot treat financial support as payment in exchange for access to the child.
If maintenance is unpaid, use the appropriate maintenance enforcement mechanisms. If there is a genuine dispute about contact or the child's welfare, address that through the appropriate family-law process. The child should not become leverage in a financial dispute between parents.
Does Maintenance Automatically End at 18?
A parent's duty of support is not necessarily determined solely by the child's eighteenth birthday. The legal position may depend on whether the child remains unable to support themselves and on the terms and circumstances surrounding the maintenance obligation.
This can become particularly relevant where a child continues with tertiary education or remains financially dependent after reaching majority.
Where an existing maintenance order is in place, obtain advice before simply stopping payment when a child turns 18. The wording of the order and the child's circumstances should be considered.
When Can Legal Assistance Help?
Although a person may approach the maintenance court without an attorney, maintenance disputes can become complicated where income is disputed, financial disclosure is incomplete, substantial expenses are involved or an existing order is not being followed.
New Maintenance Claims
Assistance can be provided with preparing the claim, financial schedules and supporting documentation.
Disputed Contributions
Legal advice can assist where the parents disagree about the child's expenses or their respective financial contributions.
Existing Orders
An existing order may need to be reconsidered where there has been a material change in circumstances.
Maintenance Is Not Being Paid
Appropriate enforcement remedies can be considered where a parent fails to comply with an existing maintenance order.
The Bottom Line
Child maintenance is a shared parental responsibility. The amount payable depends on the child's reasonable needs and the financial means and circumstances of the parents.
A maintenance order should reflect a realistic financial picture. Once granted, it must be complied with unless it is subsequently varied or discharged through the appropriate legal process.
Maintenance proceedings should ultimately ensure that the child's reasonable financial needs are met in a manner that fairly reflects the responsibilities and means of both parents.
Child Maintenance Matters
Danel Campbell Attorneys assists with child maintenance applications, maintenance disputes, variation applications and the enforcement of existing maintenance orders.
Explore Family Law Services →This article provides general information about child maintenance in South Africa and does not constitute legal advice. Maintenance obligations, calculations, enforcement remedies and applications for variation depend on the facts of the particular matter, the terms of any existing court order and the applicable law.