Who is entitled to maintenance for a child?

Every parent is legally obligated to provide financial support for their child. The child’s rights are protected by the Maintenance Act and the Children’s Act.

There are no set rules for allocating child maintenance. If the parents are unable to reach an agreement, the maintenance court will decide each case on its merits.

Who has to pay maintenance?

Parents bear joint responsibility for the costs of raising their children. This obligation applies regardless of whether the parents were married or not when the child was conceived or adopted.

It is also irrelevant who the child lives with, which could include grandparents or other caregivers.

What happens if there’s a paternity dispute?

If maintenance is sought from someone who denies they are the parent, the maintenance court has the authority to resolve the issue.

PATERNITY NOTE If a father denies paternity but refuses to take a DNA test, it casts doubt on his credibility, which the court will consider when determining paternity and maintenance.

A person will be presumed to be the parent if, at the time of conception:

• That person was married to the parent who conceived; or
• That person and the parent who conceived were having sex with each other.

A father can challenge this presumption by proving that he was sterile or by taking a DNA test.

Must a court issue a maintenance agreement? 

Parents can reach an agreement on how to support a child without going to court. 

HOW TO GET A MAINTENANCE ORDER Maintenance orders are typically obtained when a divorce settlement is reached or, in cases where the parents were not married or in a recognised union, by approaching the maintenance court directly.

However, if one parent stops paying maintenance as agreed, legal remedies will have to be sought and these can take a long time to resolve.

It is preferable, therefore, to have a maintenance order issued by the court because it is easier to enforce.

A maintenance order is a court order, and failure to comply with it means you are breaking the law. Remedies include a warrant of execution, a garnishee order, or an emolument attachment order.

How is maintenance calculated?

Under the Maintenance Act, a child is entitled to:

Shelter;

Food;

Clothing;

Schooling; and

Medical care.

These costs are used as a basis for calculating each parent’s financial responsibility. There is no hard-and-fast rule; each case is evaluated individually to determine the maintenance amount.

The court considers what is in the best interest of the child and the standard of living to which they are accustomed, but also considers the parent’s financial situation.

The court also takes into account the number of people living in the home with the child when calculating general living expenses. Costs are allocated proportionately, generally two parts per adult and one part per child.

A financial inquiry allows the court to understand each parent’s financial situation. The final maintenance amount awarded is based on both the child’s needs and the parent’s ability to pay.

Do parents contribute equally?

The maintenance amount is determined by taking each parent’s respective earnings into account.

Costs may be allocated proportionately, based on how much each parent earns. This means that if one parent earns double what the other does, that parent will be responsible for 66 percent of the child’s expenses.

What about ad hoc expenses?

Many unforeseen or ad hoc expenses are incurred when raising a child, so parents should make allowance for this.

The maintenance order should state that the monthly maintenance paid covers specific expenses, such as food, accommodation, medical scheme contributions, etc.

Everything else needs to be paid separately. This could include medical costs not covered by the medical scheme, school outings, school stationery and clothing. These expenses are divided equally or according to a fixed formula based on the parent’s income.

Also parents should specify how these expenses are to be paid. If one parent makes the payment, they must present an invoice to the other parent for reimbursement.

To prevent future disagreements, it is wise to include a clause in the maintenance order stating that ad hoc expenses as agreed to by both parties can’t be reasonably denied in the future.

What happens if parents remarry?

If a child’s primary caregiver marries, or marries again, maintenance payments remain unaffected.

If the other parent marries or marries again, leading to increased financial obligations, they can approach the court to amend the maintenance order. A parent can also approach the court to amend the order if their circumstances change, such as if the parent is retrenched, disabled or their income is reduced through, for example, a salary cut.

The court will conduct a financial inquiry and determine the financial obligations towards the children and how each parent can contribute.

A parent may not prioritise a new family over children from a previous marriage or relationship. For example, if a father remarries, he can’t favour his new wife over the interests of his children.

Until what age must a parent pay maintenance?

According to the Maintenance Act, it is a parent’s responsibility to support a child until they reach the age of 18 or become self-sufficient, whichever occurs later.

The wording on the maintenance order must be clear, stating until what point maintenance is payable.

Disputes arise because the definition of self-supporting is not always clear. For example, if a child studies at university after school, still lives at home but works part time to generate pocket money, they may not be considered self-supporting.

Once a child turns 18, they are entitled to receive the maintenance in their bank account, even if they are still living at home. This can be problematic if the parent they are living with pays all their living expenses. In addition, if an increase in maintenance is required, the child will have to file the application in court.