How much maintenance?
What’s fair, how is it calculated, and who decides?
By Tracey Hawthorne
‘You want me to pay how much?!’
Article originally in Parent24
This is often the outraged response of a non-custodial parent when he or she goes from ‘married with children’ to ‘divorced and paying maintenance’. The issue of child maintenance – basically, the obligation of parents to provide their offspring with financial support for food, housing, education, healthcare and the like – is almost always a thorny one, the usual scenario being that the custodial parent feels he or she is receiving too little and the non-custodial parent feels he or she is paying too much.
Since, in South Africa, the vast majority of primary care-givers are mothers, let’s assume this for the purposes of this article (although obviously all this info applies equally to fathers who are the primary care-givers).
What sum of maintenance is payable and when is usually thrashed out at the time of a divorce, when ‘primary care’ and ‘primary residence’ of the child or children is also decided.
Deciding how much maintenance should be paid is, theoretically, simple. A court will look at the reasonable financial needs of the children involved, bearing in mind the family’s pre-divorce standard of living; then, each parent must provide for the children according to his or her means (what he or she earns and spends) on a pro-rata (proportional) basis. This is not, however, so easy to put into practice.
It’s obviously vital to have an accurate idea of what each parent earns and spends monthly, and here is often where the trouble starts. ‘Four thousand rand a month for groceries?!’ the outraged father might say – and if the mother is properly prepared, she will have her till slips going back several months to prove that this is in fact what she does fork out for food and household items, so that both parents can accurately calculate their respective contributions to the child or children’s share of the monthly household grocery bill.
The other major expense that has to be taken into account is rent or bond; although this isn’t a fixed rule, the court will usually allocate one part of this ‘common expense’ to a child and two parts to a parent (ie, if the mother’s monthly bond repayments are R6 000, R4 000 will be considered her ‘share’ and R2 000 the child’s; if there are two children this ratio will be R3 000:R3 000, and so on).
Income and expenses
It’s not unlikely that the father will already be hyperventilating by this stage, but the show isn’t over yet: the Magistrate’s Court provides an income-and-expenses form that has to be filled in, and it doesn’t miss a thing – pocket money, savings, clothing, entertainment, pets, petrol, insurance … in other words, everything that money may be spent on during the course of a normal month is included. These expenses are listed separately for the parents and the children (so that the custodial parent’s expenses aren’t ever confused with the children’s) and backup documentation is required.
And here, perhaps, is the rub: once you’ve worked out what it actually costs to clothe, feed and house a child for a month, the sum can look fairly staggering. The reason is simple: whereas before the family was living in one household, now the non-custodial parent is contributing to two. This is something that is often overlooked by maintenance-amazed fathers, who assume they can continue shelling out the same amount as when they were married. Simply put: they can’t.
And we haven’t even started on medical and education expenses yet. In South Africa, it’s not uncommon for fathers to opt to pay these expenses separately from their monthly maintenance. This is often because, in the former case, education expenses are fairly fixed, at least over the course of a year; and, in the latter, the children may be maintained on his medical aid.
Either parent can apply to the Magistrate’s Court for a variation in the order at any time – but only if circumstances change, as attorney Kobus Rossouw of Cape law firm Gustav W Cook points out. It’s usually requested by the father if he, for instance, loses his job or remarries; and, in the mother’s case, where a child may need special care (occupational therapy, say) or where the father gets a promotion and more pay but neglects to increase his maintenance payments (sad but often true).
Strictly speaking, where a father remarries and then has to support a ‘second’ family, this financial obligation shouldn’t impact negatively on his ‘first’ family.
‘Parties cannot use self-created reduced circumstances to reduce their maintenance obligations,’ explains attorney Peter J Brits. ‘Thus, for instance, a father cannot put forward the needs of his second wife as a reason for reducing the maintenance payable in respect of the children of his first wife.’ The reality is, however, that in cases like these, both families usually end up, by necessity, living modest lifestyles.
Footnote: The Divorce Act 70 of 1979 (with amendments), the Maintenance Act 99 of 1998 (with amendments) and the Children’s Act 38 of 2005 (with recent amendments) regulate the payment of maintenance.
Editor's note: The author has added a few extra clarifying notes (in red), and the story has again been double-checked by a lawyer. It must be noted that a story like this can only ever provide the most basic background, and each case needs proper attention by qualified people in order to be decided fairly.
Do you find the maintenance laws easy to understand?