Raising a child is one of the toughest undertakings – it takes a lot of time, nurturing and love to ensure they get a steady foundation in life, one that will set them up for a bright future. Of course, another crucial point in raising a child is understanding and taking on the financial aspect. So while parents need to provide love and care, they also need to play their part in paying the bills. We unpack what the law says about paying child maintenance in South Africa.

What is maintenance, and who has the duty to pay maintenance?

The law, specifically the Children’s Act 38 of 2005, states that parents, whether in a relationship or not, must make necessary financial contributions to the care, upbringing and development of their children. It also specifies that both parents have a duty to maintain each child. Typically, a divorce agreement or maintenance order from the court will stipulate the cash amount a parent needs to pay to the parent who has primary care of the child.

It’s important to note here that the duty to pay child maintenance also applies if the child was adopted or born out of wedlock. This legal duty also extends to legal guardians, and biological grandparents (yes, grandparents can be asked to pay child maintenance if the parents cannot afford to pay). Maintenance payments should continue until a child is self-supporting (this doesn’t necessarily mean when the child legally becomes an adult at 18 years of age).

What does the maintenance amount cover or go towards?

To put it simply, it goes towards the child’s general well-being and development. Setting up a child so that they have a bright future ahead of them is a goal for most parents, and that shouldn’t change simply because parents are no longer in a relationship or weren’t in one, to begin with.

In addition to a monthly a cash amount that is paid to the parent with primary care rights – to help cover shelter, food, clothing etc., contributions must also be made to educational costs (tuition fees, textbooks, uniforms, school outings, stationery etc.); medical expenses (doctor’s fees,  hospital bills, psychiatric sessions etc.); and tertiary education (tuition fees, accommodation and travel expenses etc.). With regards to the latter, even though the child is likely over 18, it doesn’t mean they are self-supporting. It’s also very common for students to get some kind of part-time job to help with expenses, but this also doesn’t legally mean they are self-supporting. However, because of the child’s income, a request can be made for the maintenance amount to be reduced.

Legal note: a child over the age of 18 may have to claim maintenance from the non-primary care parent personally.

How is the maintenance order determined? What will the court take into consideration?

While it is the legal duty of both parents to support the child financially, the exact contribution will be proportionate to what each individual earns. This means the contribution won’t necessarily be “equal”, but it will be fair. And to help determine what is appropriate, a court of law will determine the reasonable maintenance needs of the child and weigh it against the individual parent’s means and income.

Can the amount be reduced or increased at any point?

Contributions aren’t set in stone until the child becomes self-supporting. The needs of the child are bound to change over time, and the financial situations of the parents might also evolve (for better or worse). Either way, a new application must then be made to the Maintenance Court to possibly change the terms and conditions of the maintenance order.

What’s more, a parent who is injured and cannot work for some time or is retrenched and in between jobs can also approach the Court for a temporary suspension or reduction of payments.

Do not ever just default on payments, as there are serious legal consequences (more on this below).

Can a maintenance order be disputed?

Yes, a parent does have the right to challenge a maintenance order.  To get the legal ball rolling a Notice of Intention to Appeal must be handed to the clerk of the Maintenance Court in the province in which the order was initially issued. Of course, the other parent must be made aware of this, and they must receive a notice within 20 days of notifying the clerk.

Do note: Filing an appeal does not automatically suspend payments as per the maintenance order being disputed. Again, defaulting could result in a run-in with the law.

Defaulters, beware! What you should never skip maintenance payments

Raising a child is no easy task; they need a consistent and robust support system. Not only does a parent who skips maintenance payments place an additional burden on the other parent, but they also jeopardise the well-being of their child.

Defaulting on maintenance payments is a criminal offence in South Africa. In 2018, amendments to the Maintenance Amendment Act came into effect.  Defaulters will now be blacklisted on credit listings and tracked by maintenance officers, who are allowed to use cell phone service providers to find the culprits.  Habitual defaulters could face a three-year prison sentence or a hefty fine. What’s more, they do not have to appear in court for the court to impose the court order.

The kids must be alright!

So whether parents are dealing with a messy split, an amicable separation or just a  co-parenting set-up, it  should never take its toll on the innocent parties here: the children. Putting personal differences aside and adhering to maintenance orders are crucial for the children’s present and future!

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