Divorce and school fees
How maintenance relates to paying school fees is a tricky area, education law expert Phillipa Tucker explains.
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Both the mother and father of a child have a legal duty to take care of their son or daughter. If the child has been adopted then these adoptive parents are jointly responsible for this duty. This duty  ”extends to such support as a child reasonably requires for his or her proper living and upbringing, and includes the provision of food, clothing, accommodation, medical care and education.” (Section 15 of the Maintenance Act, 1998 (Act No. 99 of 1998))

School fees are only part of the cost of raising a child and giving them all they need. When a couple divorce, they need to come to an agreement, with the help of the court, so that these costs are fairly shared.

When the child lives with only one parent then that parent can apply for maintenance from the other parent to help them with the financial costs of raising the child. Grandparents can also apply for maintenance from both the mother and father if the child has been left in their care. In South Africa usually mothers apply for maintenance from fathers, so we will use the example of a mother applying to a father for maintenance, but the same law applies.

Often questions of paternity need to be settled by the court before maintenance can be decided on. The court often requires, and sometimes pays for, blood tests from the mother, the father and the child if the father denies that he is the biological parent of the child. Once this dispute is settled a maintenance enquiry can continue.

The mother, who is applying for the maintenance order, should download and complete this form. The responding parent should also complete the asset, income and expenditure sections and provide this to their representative in the court. It will help the judge to make a fair decision. Remember that filling in incorrect information or lying in court is a serious crime and can lead to huge fines and imprisonment!

The court will then decide how much the father has to pay the mother on a monthly basis. Usually this amount goes straight into the mother’s bank account and she is then responsible for the child’s “proper living and upbringing, and includes the provision of food, clothing, accommodation, medical care and education.”

What about school fees?

Many parents have problems calculating whether they need to pay school fees when they receive or pay maintenance. The court order from the maintenance enquiry should stipulate who pays schools fees. Some magistrates decide that fathers should pay school fees, some give the responsibility to mothers and some do not specify.

If a parent is unsure they should carefully read the court maintenance order and see what it says. If it is not otherwise stipulated it is usually the responsibility of the mother to pay the fees from the money paid to her from the father. Because school fees are increasing, many mothers find that the money paid to them is insufficient and should thus ask for the maintenance order to be updated. Fathers whose financial situation changes can also ask the court to review the maintenance order so they can pay more or less depending on the new circumstances. Download this form and follow the process for getting the maintenance amount adjusted.

The South African government website, under services for people/parenting/maintenance has all the information on how to go about applying and adjusting maintenance orders.

Have you had any problems with responsibility for school fees ? How have you resolved this problem amicably?

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