In terms of the Children’s Act, every child has the right to be maintained by his/ her parent. The amount payable in maintenance is directly dependant on the earning capacity of the parents and the needs of the child. Our courts examine the monthly income and expenditure of the parents, in making a final decision as to the amount that should be paid in maintenance.
At the inception of divorce proceedings, the parties often agree on the maintenance amount payable in respect of their children.
Provisions in respect of maintenance are then incorporated into a settlement agreement entered into between the parties and may read as follows:-
1.1 MAINTENANCE FOR THE CHILDREN
1.2 BASIC MAINTENANCE
1.2.1. JOE SOAP shall pay maintenance to JANE SOAP in respect of the children in the amount of R3000.00 (THREE THOUSAND RAND), per month, per child, payable on or before the 1st day of the month following the date of signature of this agreement and thereafter on or before the 1st day of each and every succeeding month, until such time as the children have reached the age of majority or become financially independent.
1.2.2 The maintenance referred to above shall be increased on an annual basis in accordance with the Consumer Price Index, the first of such increases to be effected within one year from the date of divorce and thereafter on the corresponding day and month of the succeeding year.
1.3 MEDICAL EXPENSES
1.3.1 The children born of the marriage are to be retained on the medical aid scheme of JOE SOAP.
1.3.2 In the event of the medical expenses not being covered by the medical aid benefits afforded to JOE SOAP, particularly relating to dental, orthodontic, surgical and hospital fees, including prescription accounts, such shortfall shall be borne by JOE SOAP.
1.4 SCHOOLING EXPENSES
JOE SOAP shall be responsible for the payment of school fees of the children, including school uniforms, stationery and text books.
1.5 PAYMENT OF MAINTENANCE
The maintenance as described hereinabove shall be paid into the banking account of JANE DOE, the details of which are as follows:- NAME OF ACCOUNT : NAME OF BANK : ACC NUMBER : BRANCH :
WHAT HAPPENS IF THE PARTIES CANNOT AGREE ON MAINTENANCE
Should parties not reach consensus as to the amount payable in maintenance, the issue of maintenance may then be referred to the Maintenance Court (Our Attorneys can assist you in Durban, Pinetown and Johannesburg courts). The appointed maintenance officer will then mediate and examine the income and expenditure of both parents.On finalisation of the enquiry, a maintenance order is made for the payment, per month, of a specified amount by the parent.
Should the parties, despite the intervention of a maintenance officer still remain in disagreement as to the amount payable, the matter then proceeds to a maintenance trial. A Magistrate will then hear evidence on the affordability of both parties and the needs of the child and make an order accordingly.
HOW SHOULD MAINTENANCE BE PAID
Maintenance should be paid either into the banking account of the claimant or into court itself, with the claimant collecting same on a monthly basis. Payment may also be effected by the implementation of a garnishee order, in terms of which the employer of the person who was ordered to pay the maintenance, deducts the amount so ordered and pays same into the banking account of the claimant parent.
DEFAULTING ON A MAINTENANCE ORDER
The failure to comply with a maintenance order (which is an order of court) is a criminal offence and the defaulting party may be liable to criminal prosecution which may include imprisonment. The defaulting party may also run the risk of the issuing of a Warrant of Execution against his/ her moveable property which has a resultant effect of his/ her assets being sold and the proceeds thereof awarded to the other parent/ the person making the maintenance claim.
CALCULATION OF MAINTENANCE
Parents are often curious as to the formula the courts adopt when determining the maintenance that should be paid by a parent.
This is best explained with an example:- If the children’s combined expenses amount to R20 000 per month, maintenance is calculated as follows:-
|Total monthly expenses of children||= 10 000|
|Father’s net Income||= 20 000|
|Mothers net Income||= 10 000|
|Total net income of father & mother||= 30 000|
|Father’s contribution||= father’s net income|
|Total net income||= 20 000|
30 000 = 66.67% Father’s contribution towards maintenance of children = 66.67% of children’s expenses = R6667.00
Mother’s Contribution towards maintenance is calculated as follows:
|Nett Income of Mother||= 10 000|
|Total Nett Income||= 30 000|
=0.33% of children’s expenses
Aside from “custody” and maintenance in respect of minor children, another important question posed by many clients is whether or not they would be entitled to a claim for maintenance from their spouse.
Claims for spousal maintenance are dependent on a number of factors and when making a decision, courts take the following into consideration:-
- Was the other spouse the sole breadwinner in the marriage? ,
- Did the claimant spouse become accustomed to a certain standard of living that s/he would be deprived of on termination of marriage?;
- The duration of the marriage;
- Age of the parties and
- The educational qualifications of the parties.
Recently, a young client, a B. COMM graduate who was employed but earned a lower salary than that of her spouse and who was married for a period of six months, enquired whether she would be successful in a maintenance claim against her husband.
The answer is that she would be highly unlikely to succeed in such a claim as she was married for a relatively short period of time. She would not have become accustomed to a certain lifestyle afforded by her husband and further, she was sufficiently educated and could supplement her income quite easily.
The answer above would obviously differ in the case of a client who had been married for many years, was unemployed or earned substantially less than her spouse and became accustomed to a certain standard of living that she would be deprived of on divorce.
Often, the parties agree that one party would pay maintenance to the other or retain his/ her spouse on his / her medical aid for a period of one or two years post-divorce, allowing the claimant spouse time to find her feet financially.
It is also possible that a party may maintain the other until the remarriage of the other party.
Changing an existing Maintenance Order
The rules of our courts provide that a court may “vary it’s decision in the event of a material change taking place in the circumstances of either party or the child, or the contribution towards the costs proving to be inadequate”
A maintenance officer may change the terms of an existing maintenance order and the change is dependant on both the changed circumstances and more importantly the needs of the child.
A parent’s personal circumstances may have changed in that s/he may have been dismissed from employment, s/he may have experienced either an increase or decrease in salary or perhaps remarried, causing him/ her to maintain two families. The duty to maintain the former family should never but prejudiced but the sad reality is that practically it does become increasingly difficult for a parent to maintain two families.
A parent, who is unable to pay maintenance as a result of the loss of income due to him/ her, MUST immediately inform the maintenance officer of the change in circumstances in order that s/he obtains the necessary relief for a reasonable period of time.
Parties to divorce proceedings do not readily and easily agree on maintenance. Consensus on maintenance may follow many months after the inception of divorce proceedings. During settlement negotiations, the children must continue to be maintained by their parents.
In terms of the Rules of Court, a party to divorce proceedings, may approach the Courts before the divorce is finalised ie. at the inception, during the course of divorce proceeding and sometimes even before summons has been issued, for an interim order that deals with maintenance, access and custody pending the finalisation of divorce.
The party making such application, may also seek a contribution towards his/ her legal costs in respect of the divorce litigation.
Parties are often unaware of their monthly expenditure in respect of their children and it is important that a diligent record of the children’s expenses is kept during this time.
Our Attorneys in Durban, Pinetown and Johannesburg thrive on ensuring our clients are justly and fairly maintained.