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How to calculate your Child’s Maintenance

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How to calculate your Child’s Maintenance

The Duty to Maintain

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.

How to Calculate Child Maintenance

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.

How much Child Maintenance is payable?

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.

Maintenance Contribution Formula:

Parent’s Gross Income

The Combined Income of Both Parents

x

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

The generally accepted formula applied by the courts to calculate child maintenance 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

x

R8 000

1

=
R6 000

Therefore, Parent 2 must pay R6 000 per month in child support.

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.

Minor Children should be maintained by:

  • their parents, either married, living together, separated, divorced,
    genetic or adoptive; or, sometimes –
  • their grandparents, irrespective of whether the Minor Children’s parents
    were married to each other.
  • should neither the parents nor grandparents be able to provide support; then the duty will pass to the brothers and sisters.

There are three conditions involved in the claiming of support:

  • Establish a duty to support.
  • The people on whose behalf the relief is claimed are unable to maintain themselves.
  • The person from whom maintenance is claimed can afford the maintenance that is claimed.

To determine the reasonableness will depend on the standard of living of the family.

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.

Orders made by the Court could include an Order for:

  • contribution from the father towards payment of laying-in expenses and maintenance from the date of the child’s birth up to the date upon which the Maintenance Order is granted.
  • medical expenses to be paid, or the child to be registered as a dependent on a Medical Aid of one of the Parties.
  • arrear or backdated Child Maintenance.

When the Court makes an Order of Maintenance, it is binding. This means that you may not withhold the payment of maintenance if the other Parent:

  • becomes remarried.
  • becomes involved in another relationship.
  • prevents you from seeing the Minor Children; or
  • has more Minor Children at a later stage.

To Apply for Child Maintenance

  • Visit the Magistrate’s Court that has jurisdiction over your residential area.
  • Obtain, complete, and submit Form A: The Application for a maintenance order.
  • In addition to Form A, you will also need to submit proof of your monthly income and expenditure, for example, receipts for food purchases, school uniforms, schoolbooks, pharmaceutical items, electricity and rent bill payments.

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 then has two choices: they can 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:

  • At the local Magistrate’s Office or any other government office designated for this purpose.
  • Into the bank or building society account designated by the person concerned.
  • Directly to the person who is entitled to the money.
  • Through an order that directs the employer of the person who is liable for paying maintenance to deduct the maintenance payment directly from the employee’s salary, under the new Maintenance Act, 1998.

To apply to change the court order with regards to the maintenance amount:

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.

How to apply to change the maintenance amount:
The person who receives the maintenance:

  • Must apply at the Magistrate’s Court that is situated in the area where the person who pays the maintenance lives.
  • Must complete the correct application form and submit it to the Maintenance Officer with a list of their income and expenses.

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:

  • obtain a warrant of execution.
  • an order for the attachment of emoluments (the so-called garnishee order); or
  • an order for the attachment of debt.

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.

If the Maintenance Court granted the Maintenance Order

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 who 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.

What to do if the Maintenance Order was granted after the Divorce?

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.

Child Maintenance is payable until the child is:

  • self-supporting.
  • adopted, or
  • dead.

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.

General Information regarding Child Maintenance

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 not happy with a Maintenance Order, you have the right to appeal the Court order to the High Court that has 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.

Conclusion:

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, it will assist you in determining what a reasonable amount of child maintenance will be.

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