Negotiating a maintenance settlement can be a difficult aspect of reaching a divorce agreement.
Child Maintenance Act
Under South African law children have the right to receive financial maintenance. Both parents are required to provide financial support for a child.
Maintenance amounts are not arbitrary. They must be negotiated and finalised according to the Maintenance Act 99 of 1998 and the Children’s Act 38 of 2005. According to legislation, parents are obliged to pay for their children’s upbringing. However, their respective payments depend on how much each parent earns. Therefore, the split may not be 50/50.
Consequently, the amount of maintenance paid to the primary caregiver is a calculation based on the monthly earnings of each parent and the cost of the child’s education, care and upbringing.
Maintenance orders are orders of the court. Therefore failure to meet their obligations is a criminal offence.
In the process of divorce, one parent may experience financial difficulties in supporting a child until the arrangements have been worked out and the divorce is finalised. In this situation, South African divorce law allows a spouse to obtain interim relief and maintenance payments.
Married or not
The duty to maintain a child is not linked to marriage. The Maintenance Act says, “the parents’ respective shares of such obligation are apportioned between them…and…the duty exists, irrespective of whether a child is born in or out of wedlock or is born of a first or subsequent marriage.” In other words, the marital status at the time of birth or at any subsequent time has no impact on the responsibility to financially support one’s child.
However, along with responsibilities go rights. Unmarried fathers may be presented with a bill for maintenance but denied access to their children. Fortunately, unmarried parents have rights too.
Do you need help or advice?
We’re here to help. Simon Dippenaar & Associates Inc. are expert family lawyers and divorce attorneys in Cape Town, we can assist in all aspects of the Maintenance Act. Contact us or call us now on +27 (0) 86 099 5146.