In South Africa, the well-being and financial support of children is a top priority in family law. Child maintenance refers to the financial support provided by parents to their children and it is a legal obligation for all parents. In this article, we'll provide a comprehensive guide to child maintenance and family law in South Africa, including legal requirements and best practices for ensuring the financial support of children.

Child maintenance is an important aspect of divorce and separation in South Africa. In South Africa, child maintenance is governed by the Children's Act of 2005, which sets out the legal framework for child support.

Child Maintenance - What Is It?

Child maintenance is the financial support provided by a parent to their child or children. This support is intended to cover the child's basic needs, such as food, clothing and shelter. Child maintenance is a legal obligation for all parents, regardless of whether they are married or not.

Both parents have a duty to maintain and support the financial needs of their child according to their respective means. The duty exists irrespective of whether the child is adopted, born in or out of wedlock or born of the first or a subsequent marriage. All parents, whether married or not, living together, separated or divorced and parents of adopted children, are required to support the financial needs of their children.

If the child’s parents are unable to contribute to maintenance towards the minor child, the biological grandparents may need to pay maintenance.

How Much Child Maintenance Do I Have to Pay?

A parent will be required to pay towards a child’s reasonable maintenance needs and what is ‘reasonable’ will depend on the family’s standard of living, their income and the cost of living.

Child maintenance can be agreed upon by the parents themselves or ordered by the court. If the parents are unable to agree on the amount of child maintenance, they can approach the maintenance court for an order. The maintenance court has the power to make orders for the payment of maintenance, including regular payments or a lump sum. When determining the amount of child maintenance, the court will consider several factors, including the income and financial resources of both parents, the needs of the child, and the standard of living of the child before the separation. The court may also take into account any additional expenses, such as medical expenses, school fees, and extracurricular activities.

It's important to note that child maintenance payments are not tax-deductible and are not considered as income for the parent receiving the payments. Also, child maintenance payments are not intended to cover all of the child's expenses, but rather to contribute to their overall well-being.

Child Maintenance may include expenses which cover a child’s:

• basic needs (e.g. a place to stay, food, clothing);

• medical expenses;

• educational expenses;

• tertiary educational costs;

• entertainment.

What Happens If You Fail to Pay Maintenance?

Not paying maintenance is a criminal offence. If a parent fails to pay maintenance, the other parent can apply to Court for child maintenance and when making a maintenance order for a child, the Court will take into account:

• the reasonable maintenance needs of the child;

• that both parents jointly have a duty to support the child; and

• that the parents’ respective shares of their obligation are apportioned between them according to their means or ability.

The Court has the power to:

• order a deduction from a parent’s salary or their savings/investment account for the outstanding maintenance money (i.e. this is called an emolument attachment order);

• order that a parent’s property is auctioned so as to collect the outstanding money by way of a Warrant of Execution;

• an order for the attachment of debt.

An order of maintenance made by the Court is binding and that means that the child maintenance payment may not be withheld. The Courts view a failure, refusal or neglect to pay maintenance in a very serious light and a non-paying parent can be fined or imprisoned for up to 1 year, or both.

What is a Child Maintenance Order?

A maintenance order is an order made by a competent Maintenance Court to pay child maintenance.

A decree of divorce also constitutes a maintenance order if provision for child maintenance to be paid is contain in such degree.

How Long Do I Have To Pay Maintenance For?

The duty to pay child maintenance continues regardless of the child’s age and continues until the child is self-supporting, adopted or dead.

Once the child reaches the age of 18 years, the onus is on the child to prove how much maintenance he or she needs. A child that is self-supporting cannot claim maintenance from his/her parents. The duty to support a child ends at the child’s death but not at the parent’s death. In the event of the parent’s death, the child may lodge a claim for maintenance against the deceased parent’s estate.

Can Grandparents be Forced to Pay Maintenance?

Grandparents should be aware that a maintenance order can be granted against them where their own child, who is a parent is not financially able to support their minor child. In such circumstances, the duty to support the minor child may fall on the grandparents.

If the grandparents are not financially able to support their grandchild, then the great-grandparents in the ascending order (prior to considering any other relatives).

Which Grandparents are Liable for Maintenance?

Where both parents are unable to provide support, the paternal and maternal grandparents will be jointly responsible for a minor child’s maintenance.

The contribution of the biological maternal and paternal grandparents will be determined pro-rata to their respective incomes.

Requirements to Hold a Grandparent Liable?

The minor child’s grandparents will be obliged to pay maintenance where, inter alia:

• the parents of the minor child are themselves minors

• the parent(s) can prove that they are unable to support the child financially

• the grandparents stand in loco parentis, which means “in the place of a parent”

• one of the parents cannot be found, but that the grandparents (related to the absent parent) can be located

• the estate of a deceased parent is inadequate to contribute to the child’s support

Barter McKellar’s family law attorneys specialise in South African child maintenance law. Our maintenance lawyers have assisted many grandparents and parents with family law matters. If you would like to schedule a consultation to speak to one of our specialist child maintenance lawyers, contact our offices which are based in Linden, Randburg, Johannesburg today.