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Child Maintenance Calculations in Shared Residency Cases

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Child Maintenance Calculations in Shared Residency Cases

Rule 43 Application in Divorce: Maintenance, Child Custody, and Financial Support

Child Maintenance Calculations in Shared Residency Cases

Shared residency arrangements, in which children alternate living with each parent for equal periods, have become increasingly common in modern family dynamics.

In these types of agreements, both parents continue to be fully part of their children’s lives.

Divorce and separation are already difficult for a child to handle. Ensuring that the child still sees both their parents eases them into the situation a bit more.

This is why ensuring fair maintenance calculations is paramount to upholding the child’s well-being.

Fair maintenance agreements will ensure that both parents share the responsibility of caring for all the child’s needs.

This article delves into the key considerations and legal principles involved in determining child maintenance in shared residency scenarios.

Important terms when dealing with shared residency cases are custodial and non-custodial parent.

The custodial parent is the parent with whom the child resides primarily, while the non-custodial parent is the parent who is the secondary caregiver.

Key Considerations

Why is the Net salary used when calculating shared residency instead of the Gross salary?

Net salary is typically used over gross salary in maintenance calculations due to its reflective nature of the actual income available for supporting the child.

While gross salary provides a starting point for assessing a parent’s income, net salary offers a more realistic and practical basis for child maintenance calculations.

By considering the actual income available to the parent, child maintenance orders can be tailored to meet the child’s needs while considering the financial circumstances of both parents.

What is proportionate share, and how does it affect the maintenance agreement?

Proportionate share is where each parent’s net income is assessed to determine their proportionate share of the combined income, ensuring a fair contribution based on financial capacity.

It is the section of their salary that they will contribute towards the child.

The process is relatively straightforward. The net income of both parents will be added together, and then each parent’s income is expressed as a percentage of the total combined income.

The proportionate share of the combined income is then used to allocate the expenses adding to the child’s needs.

It would be unfair not to use proportionate share; otherwise, one parent could have to contribute way more than they are able to. Proportionate share ensures that parents contribute to their children what they can afford.

Children tend to have many needs, and when maintenance is calculated, all these needs must be considered.

Housing, food, clothing, transportation, medical aid, and school fees are merely a few considerations to take.

Direct Costs and Shared Expenses

Direct costs are those incurred while the child is staying with the parent.  They may include groceries, clothing, transportation, and more.

The parent with who the child does not stay during that period, may contribute to these costs in the form of maintenance.

Shared expenses must be contributed to by both parents, regardless of who the child stays with primarily.

Medical bills, school fees and extracurricular activities are some of the examples that will fall under shared costs.

These are the costs that will be shared by the parents based on each parent’s income or the Court order.

The sharing of these costs will depend on the percentage income of each parent.

It would be unfair to expect the parents to divide the costs 50/50, as they may not always earn the same salary.

That is why the amount that the parents contribute are based off of the percentage of salary.

When handling these costs, it is important that the parents constantly communicate with one another, and that they both have the best interests of the child at heart.

Legislation That Regulates Maintenance.

The Maintenance Act 99 of 1988 is a very important Act regarding maintenance. It provides for the establishment, enforcement, and variation of maintenance orders.

It also regulates the patterns related to child maintenance along with other dependents.

Why Is This Act So Important When Dealing with Child Maintenance?

The Maintenance Act provides for the establishment of maintenance orders, which are court orders requiring a person (usually a parent) to provide financial support for their child or dependent.

Maintenance orders can be obtained through various means, including court proceedings, maintenance court applications, or voluntary agreements between parties.

But that’s not all that the Act does. It also creates the responsibility to maintain.

The Act stipulates that parents have a legal duty to maintain their children, regardless of whether they are married, divorced, or separated.

Both parents are equally responsible for their children’s financial support, which continues until the child reaches the age of majority or becomes self-sufficient.

Thus, there are legal obligations and parameters for child maintenance set out in this Act.

When maintenance calculations are made, the Court considers various factors to ensure that fairness and equity occur.

Some of these main factors will be the income of both parents, the best interests of the child, the standard of living, and all the expenses relating to the child.

The Courts also allow for variation in orders, and no order is set in stone; it may be amended as needed and as the facts dictate.

The Court does not set specific guidelines for Maintenance orders, but the child’s best interest is always considered and a top priority.

These orders must also always be put together in a way that is fair and equitable.

Case Law Analysis:

Children’s Act 38 of 2005: While primarily focused on the broader rights and welfare of children, this Act also contains provisions related to parental responsibilities and rights, which intersect with maintenance obligations.

Divorce Act 70 of 1979: In cases of divorce, this Act governs the financial arrangements between the parents, including child maintenance. The court considers the needs of the children and the financial abilities of the parents when making orders.

Recognition of Customary Marriages Act 120 of 1998: This Act ensures that children born from customary marriages have the same rights to maintenance as those born from civil marriages.

P v P (6743/2019) [2019] ZAWCHC 174; [2020] 2 All SA 587 (WCC):

This landmark case underscores the importance of accurate financial disclosures and procedural fairness in maintenance calculations.

A mother is the custodial parent of her children. The custodial parent is the parent with whom the children reside primarily.

The father raised that the mother was neglecting the children, and therefore, he applied for care of the children. The father wanted to relocate to Alaska and take the children with him.

The Court held that the boy should go with his father, and the two remaining children, the girls, should remain with their mother.

The Court held that this could be in the best interest of the son, as the time away from his mother could possibly be good for their relationship.

Although it could be traumatic for the siblings to be separated by the Court, the Judge held that the two girls would have their mother and each other’s support.

This was another reason why maintaining contact with the boy’s mother was so important – to give him a broader support system.

Support systems are there to ensure that the children and their needs are taken care of, thus enforcing that the child’s welfare is the main aim.

Other Relevant Cases:

Jooste v Botha 2000 (2) BCLR 187 (T):

Emphasises the significance of both financial and emotional support in child maintenance determinations.

Here the child was the Plaintiff and instituted a case against his father. The child felt that his father had not given him the proper love and attention that a parent ought to do, and therefore the child suffered loss in terms of emotional distress and loss of amenities in life.

The Court held that it would be impossible to afford this claim, as love and attention cannot be created where none exist.

Soller NO v Greenberg & Another [2004] JOL 12124 (W):

Highlights the paramount consideration of the child’s welfare in custody and maintenance disputes.

Here, a 15-year-old child sought a variation of a custody order.

A legal representative was appointed, and the representative’s sole job was to uphold the child’s interests. The representative had to argue and present the child’s wishes and desires.

The above cases, although each maintaining their own important stance, deal with how important the child’s well-being is.

Once again emphasising just how important the well-being of the child is regarded during maintenance and shared residency agreements.

Practical Application

First: determine both parents’ net income. This is the income after all the deductions have been made.

Second: add together both parents’ net income to determine the combined net income available to support the child.

Third: calculate the percentage of each parent’s share by dividing their net income by the total of the combined income and multiplying that figure by 100.

Fourth: determine each parent’s direct costs for when the child will be residing with that parent.

Fifth: do the same for the shared expenses.

Lastly: Calculate the maintenance contribution for each parent based on their percentage share and allocate it towards shared expenses or direct costs during their residency period.

Practical Example:

Parent 1’s net income: R 25 000,00

Parent 2’s net income: R 40 000,00

Combined net income: R 65 000,00

Shared expense per month: R 15 000,00

Parent 1’s percentage income: R 25 000,00 / R 65 000,00 x 100 = 38,46%

Parent 2’s percentage income: R40 000,00 / R65 000,00 x 100 = 61,54%

R 15 000,00 x 38, 46% = R5 769,00

R15 000,00 X 61,54% = R9 231,00

This means that Parent 2 will be responsible for a higher percentage of shared costs than Parent 1 due to their higher income.

Conclusion

Ensuring fairness and accuracy in maintenance calculations is imperative to serve the best interests of the child. By adhering to legal principles, assessing needs comprehensively, and learning from relevant case law, we can navigate shared residency cases with diligence and equity.

In summary, child maintenance calculations in shared residency cases require a nuanced approach, considering the child’s needs, parental capacities, and legal frameworks to achieve fairness and uphold the child’s welfare.

It is important that the actual value of one’s salary is taken into account so that the Court can properly and effectively ensure that the child’s interests are always considered.

The Maintenance Act should always be consulted when shared residency agreements are established. This will ensure that the child’s and the parent’s financial needs are considered. 

Communication is very important if the parents want to ensure that shared residency agreements go smoothly.

Maintenance arrangements can provide the necessary financial support to promote the child’s well-being and development by adhering to legal principles, considering the child’s needs, and fostering cooperation between parents.

Read More:

Parental Rights and Responsibilities, and Guardianship

EB (Born S) v ER (Born B) N.O. v and Others v KG v Minister of Home Affairs and Others

Understanding the Children’s Court System in South Africa

Failure to pay maintenance: Revisiting the remedies in the Maintenance Act

Maintenance Act 99 Of 1998

Jooste v Botha 2000 (2) BCLR 187 (T)

 

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