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South African law does not prescribe a fixed mathematical formula for calculating child maintenance. The calculation below is a practical guideline used to estimate a possible contribution. The maintenance court considers each matter on its own facts, including the child’s reasonable needs, each parent’s respective means and what is fair in all the circumstances.
The duty of maintenance, i.e., providing someone (minor children) with housing, clothing, food, medical care and education, or other necessary fundamentals of life is a legal duty – also known as ‘the duty to maintain.
Child maintenance refers to the legal duty of parents to financially support their child based on the child’s reasonable needs and each parent’s financial means.
In South Africa, the Maintenance Court assesses the child’s needs and divides the responsibility between parents according to their respective incomes.
To assess how much child maintenance is payable, you must consider the reasonable needs of the minor child as a percentage of each Parent’s income divided proportionately to meet the children’s needs. Allocate one part per child and allocate two parts per adult living in the same household.
If you decide to proceed with a claim for Child Maintenance, you need to do your homework. Similarly, if you oppose an application for an increase in Child Maintenance, you need to prepare appropriately.
Prepare a spreadsheet detailing all your income and expenses. This sheet must include all income, such as your salary, bonuses, and income from investments.
When you investigate your expenses, consider all your expenses and not only the higher amounts as expenses add up fast.
Make sure that you also know the details of the other Party – the respondent. The Maintenance Investigator can assist you with this process. You can also arrange for subpoenas to be issued on people to shed light on the respondents income and expenses.
Once you have all this information, you will be able to determine the child’s reasonable needs, taking into consideration the standard of living.
Also, be aware that if your standard of living is not as high as that of the Respondent, you cannot insist on having an income to match their lifestyle.
Generally, the Courts will allocate one part of the household expenses per child and two parts per adult.
After the determination of the needs of the child, the income of the parents is used to determine the amount of Child Maintenance that needs to be paid.
Please note: This is a practical calculation guideline, not a fixed statutory formula.
What constitutes reasonable support when assessing the upbringing of minor children?
When making this assessment, you should consider that the necessities include food, clothing, housing, and payment for a proper education.
Both parents must contribute towards child maintenance according to their means.
Parent’s Gross Income
The Combined Income of Both parents
The Child’s Needs
1
Herewith is a simplified example of how you can calculate the child maintenance requirements:
| Expenses | Total Monthly Amount – Rands | Parent 1 (2 Parts of Expenses) | Child 1 (1 Parts of Expenses) | Child 2 (1 Parts of Expenses) |
|---|---|---|---|---|
| Bond | 10 000 | 5 000 | 2 500 | 2 500 |
| Groceries | 4 000 | 2 000 | 1 000 | 1 000 |
| Vehicle | 2 000 | 1 000 | 500 | 500 |
| Total | 16 000 | 8 000 | 4 000 | 4 000 |
A commonly used method to estimate a fair contribution is as follows:
Parent 1 income = R10 000
Parent 2 income = R30 000
Minor children’s Needs = R8 000
Therefore, by applying the Maintenance Contribution Formula:
R30 000
R40 000
R8 000
1
Therefore, parent 2 must pay R6 000 per month in child support.
The Maintenance Court considers each case based on its specific facts and circumstances. This formula is a general guideline and may not be applied identically in every matter.
It is essential to remember that only reasonable monthly expenses will be taken into consideration by the courts.
The Parent that asks for child maintenance, i.e., the primary caregiver, also contributes indirectly because of their time together.
To determine the reasonableness will depend on the family’s standard of living.
Say the child has always attended an expensive Private School, and the parents get divorced. The Maintenance Court will likely grant an order that the child can still attend the Private School if the school fees and other school-related costs are within the means of the Parent (s).
Child Maintenance Orders can take on different forms and usually include the following or a mix of them:
Cash Components
That the Non-Primary Parent will make a monthly cash amount contribution to the Primary Parent.
Education and School Payments
Child Maintenance Payments may include the cost of attendance or the cost relating to attendance and various other aspects such as aftercare, lunch, outings, books, stationery, uniforms, and sports activities.
Medical Expenses
Medical Care is a vital Child Maintenance Expense, and the duty to pay Child Maintenance may include the cost of Medical Aid.
The Maintenance Court may make orders that include:
Once the Maintenance Court grants a Maintenance Order, it is legally binding. This means that a parent may not stop or withhold maintenance payments simply because the other parent:
The following events should then take place after you lodged your maintenance application:
The Court will then set a date on which you and the respondent (the person from whom you are claiming the maintenance) must be present.
When you have lodged your Application, the Court may appoint an Investigator to examine your claim and all the circumstances thereof.
Immediately upon the Application being launched, the Court will serve a Maintenance Subpoena on the respondent to appear at Court on the specific date.
Upon receipt of the Summons, the respondent has two choices: either agree to pay the maintenance or contest the matter in Court.
The first part of the enquiry is known as the section 6 enquiry. The actual hearing in front of the Magistrate is known as a section 10 enquiry.
If the respondent agrees to pay the maintenance, a Magistrate will review the relevant documentation and make an order.
If the respondent decides not to consent to the issue of such an order, then both the Plaintiff and the respondent must appear in Court, where evidence from both parties and their witnesses, if any, will be heard.
Once the Court finds the respondent liable for maintenance, it will make an order for maintenance to be paid.
Further, the Court will determine when and how the respondent must make the maintenance payments.
The Court can order that the maintenance money be paid in one of the following ways:
If the person who receives the maintenance finds it insufficient, they can request that the maintenance paid to be increased.
If the person paying the maintenance finds that, through changed circumstances, they can no longer afford to pay, they can also request to have the amount of maintenance decreased.
The person who receives the maintenance:
The person who pays the maintenance but cannot afford the amount:
Must apply at the Magistrate’s Office in the area where the maintenance recipient lives and request that the order be amended to a lesser amount.
Must complete the correct application form and submit it to the Maintenance Officer.
Must take a list of the income and expenses and submit it to the Maintenance Officer with a written explanation stating the reasons for the Application.
After that, you will follow the same process as when a claim for maintenance is first instituted.
Failure to pay maintenance according to the divorce order means that the Applicant may:
Lodge a Complaint is the other Parent failed to pay child maintenance – Maintenance Court.
An enquiry in the Maintenance Court area in which your spouse resides could be instituted by the Maintenance Officer appointed to investigate your complaint.
The Maintenance Officer will require your spouse to appear before a Magistrate.
After considering the evidence, the Court could grant a garnishee order requiring your spouse’s employer to deduct the maintenance amount from his salary – depending upon the Court’s findings.
You can claim against their property, goods, emoluments (any monies that may be due to them) or any debts that are due to them.
This must be authorised by the Maintenance Court which will issue a warrant of execution to attach goods, emoluments, or debts.
When applying for the authorisation for a Warrant of Execution, such Application must be submitted together with a copy of the Maintenance Order and a statement under oath and bearing the amount to be paid by the person against whom the order was made.
All these forms are available at the Maintenance Court.
Make an application to the High Court that issued the decree requesting that it issues a Warrant of Execution against your spouse: Maintenance Court may also issue the Writ. You will need your Attorney to help you in this regard.
Request your Attorney to obtain a garnishee order against your spouse’s salary if he is employed.
Not paying maintenance in terms of a court order is a criminal offence.
A spouse who does not make a payment following a Court or Maintenance Order may be guilty of an offence.
It means that they are liable on conviction to a fine or imprisonment or imprisonment without a fine. This depends on their ability to prove that their failure to pay the maintenance was through a lack of funds.
You can lay a criminal charge against your spouse if he fails to adhere to the terms of the Decree of Divorce or any order made by a Maintenance Court.
Although your spouse could then be arrested, this does not automatically mean that you will receive payment for the defaulted maintenance.
However, if your spouse is arrested and immediately pays all the arrears, it is quite probable that the State will drop the charges.
When the child becomes a major, i.e., turn 18 years old, they must prove their needs. The duty to support the child carries on even after the death of a parent, and the child may lodge a claim against the deceased Parent’s estate.
It is essential to be aware that a parent cannot withhold child maintenance because the other Parent denies contact with the child, becomes remarried, or has other children.
Child Maintenance and contact with a child are two entirely separate matters.
If there is a change in the personal circumstances, either Parent may approach the Maintenance Court to ask for an amendment of the Child Maintenance, i.e., an increase or a decrease.
Further, parents cannot by agreement between them change an existing Maintenance Order without the Court’s specific consent and a change in the original Maintenance Order.
If the parents of Legal Guardians agree to what Child Maintenance is payable, their agreement can be made an order of court.
If you are unhappy with a Maintenance Order, you have the right to appeal the court order to the High Court with jurisdiction.
Appeals are time-sensitive, and if you want to proceed with an Appeal, you need to file your Notice of Intention to Appeal within 20 days of the order being made.
Should a maintenance officer fail to track down the person against whom the complaint is lodged, the Court may order cell phone service providers to hand over any information about that person.
This order will only be granted if the Court is satisfied that you raised all efforts to track down the person in question.
The Court may issue interim maintenance orders if an enquiry is postponed. The courts will aim to conclude maintenance enquiries as quickly as possible and with as few postponements as possible.
The Courts will aim to secure witnesses through subpoenas to present factual evidence of the person’s financial position against which the complaint has been made.
Any person who fails to notify the Court of residential and employment changes may be found guilty and may face jail time not exceeding a year or a fine.
Maintenance applications can be served via electronic email instead of only in person by the Sheriff of the Court, the Maintenance Investigator, or the Police.
Claiming child maintenance or paying a fair amount of child maintenance can be a frustrating and challenging objective to achieve.
Using the Maintenance Contribution Formula, as explained above, will assist you in determining what a reasonable amount of child maintenance will be.
If you are dealing with a child maintenance matter, understanding the maintenance court process and documentation requirements may assist you in preparing for the relevant legal procedures.
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