A legal duty to maintain exists between people who are married to each other. This maintenance duty also exists between people who are biologically related to each other, for instance between parents and their children. If any person who has such a maintenance duty fails or refuses to maintain, a court may be approached for a maintenance order.
In practice maintenance orders are given by either a maintenance court or a divorce court.
Maintenance Courts
In terms of section 3 of the Maintenance Act [Act 99 of 1998] all Magistrate’s Courts in the Republic are designated as Maintenance Courts. Any person who is in need of maintenance by another can apply at a Maintenance Court in the district where they are residing for a maintenance order.
Divorce Courts
Divorce Courts have the right in terms of the common law as well as the provisions of the Divorce Act [Act 70 of 1979] to grant maintenance orders in respect of children [section 6] as well as spouses [section 7(2)]. Divorce Courts are also entitled to grant interim maintenance orders in pending divorce actions.
The duty to maintain children
The parents of children have a duty to maintain their children. This duty is not an equal duty. Parents are legally required to maintain their children in accordance with their means. If both parents have exactly the same income their duty would more than likely be an equal duty whilst in a situation where the one parent earns much more than the other, the parent with the larger income will have to contribute more than the one with the lower income.
How much maintenance should be paid ?
Before answering this question it is important to note that a maintenance order is granted by either a magistrate or judge who after considering all the relevant factors comes up with what he/she considers just in the circumstances. If the same set of facts are presented to ten different magistrates or judges one will in all likelihood end up with ten different maintenance orders. That being said most of them would probably not be too far apart.
In calculating what would be reasonable maintenance there are in general three factors to consider, namely:-
The parents income
As stated before both parents need to contribute towards the maintenance of their children. In determining the extent of the contribution both parents’ income are taken into account. The principal is that both of them have to make a pro rata contribution according to their respective incomes. This can be explained by the following example
Father’s nett Income R18’500.00 per month
Mother’s nett income R7’500.00 per month
Joint income R26’000.00 per month
Father’s contribution = R18’500.00 ÷ R26’000.00 x 100
= 71.15%
Mother’s Cotribution = R7’500.00 ÷ R26’000.00 x 100
= 28.85%
The child’s maintenance requirement
The child’s monthly maintenance requirement needs to be established. Some expenses are directly related to the child and occur monthly like for instance school fees. Other expenses although directly related to the child only occur for time to time, for instance the buying of clothes. These expenses should be estimated for a full year and then divided by twelve to get a monthly figure. More difficult however are expenses that can be attributed to a whole household, for instance rental, electricity consumption and groceries. A good starting point would be to divide these expenses by the number of people in the household.
The Reasonableness of the amount claimed
The person applying for maintenance would normally prepare a list of expenses indicating what the total monthly maintenance of the child is. A magistrate or judge would before deciding on the amount of the maintenance take into account the reasonableness of the listed expenses. It is important to note that what might be considered as reasonable for one family would not be seen as reasonable for another.
The Maintenance Courts established in terms of the Maintenance Act was setup in such a manner that members of the public can be assisted without the assistance of an attorney. Each maintenance court has one or more maintenance officers, whose job it is to assist members of the public in applying for a maintenance order. They are normally also involved in facilitating a conversation between the parties so as to assist them in reaching an agreement about the maintenance payable.
In many cases, the maintenance officer is unable to get the parties to reach such an agreement. If that is the case it might be time to start thinking about getting an attorney involved. The problem in settling many maintenance matters is due to a big difference in what the parties think the order will be and what will in fact be ordered. A father might have heard that one of his work colleagues is paying R500.00 per month and think that there is therefore no basis for his ex-wife claiming maintenance of R3’000.00 per month. The factual backgrounds between him and his work colleague will in all likelihood differ in various respects making this argument baseless. If the ex-wife “lawyered up” the father might very well do so as well. The advantage of this will be that he would then have an attorney who would be able to explain and convince him that his idea of paying maintenance of R500.00 per month is not realistic.
Our attorneys can assist clients with all the different types of maintenance applications. Our first consultation is always free. During this consultation we will explain all of the above in detail and also work out the whole legal strategy in bringing a maintenance application on behalf of our client. The legal fees involved are also discussed and insofar as a once off payment is not possible a payment plan is discussed and agreed with our clients.