Minor children are amongst the most vulnerable in our society as they are essentially incapable of caring for themselves. Because of this, the law, specifically the Children’s Act 38 of 2005, holds the parents of minor children responsible for the care and development of the child in the form of maintenance. With regards to minors, maintenance is defined as the parent's obligation to ensure that their child’s basic needs are met. This includes adequate housing, enough food, clothing, education, and access to medical care when needed. This is also referred to as the “duty to support” and it applies to the biological parents of the child whether they are married, unmarried, divorced or separated. The duty to maintain also rests with adoptive parents, legal guardians, and even with the biological grandparents if the parents lack the means to provide adequate care.
What Happens When Parents Separate?
If the parents of a minor choose to become separated, the obligation to support their child still rests with both parents. One party will typically be granted primary care of the child and a divorce agreement, or maintenance order from the court, will specify the amount of money that the other party will need to pay to the primary caregiver on a monthly basis. If the matter is referred to the court, it will determine the maintenance needs of the child, and each parent will be required to contribute towards these needs.
The financial contribution mandated from each parent will be proportional to the income of that individual. This means that the parties will most likely not be paying an equal amount towards the upbringing of the child, but an equitable amount in the eyes of the court. Both parents have to provide proof of their income and expenses to the court, which it will then use to draft the maintenance order.
What If a Parent Defaults on a Payment?
Failure to contribute to the maintenance of your child is a criminal offence in South Africa. When a maintenance order is in place and parties continually default on payments, they could face a fine and even imprisonment if this is not rectified. The Maintenance Amendment Act 9 of 2015 in particular is focused on increased regulations regarding maintenance contributions and the prosecution of those individuals who fail to comply with the law.
Can a Maintenance Order be Amended?
Parents are obligated to care for their children until they are considered self-supporting, and not necessarily only until they turn 18. Once the child is able to care for themselves independently, the duty to maintain comes to an end. As they grow up, the needs of a minor child will inevitably change, and with this, the amount of money needed to support the child will most likely increase. Similarly, the income of the parents could increase or decrease throughout the child’s life, influencing the amount that they are able to contribute towards the care of the child.
If an individual wants to amend the maintenance order, they will have to make a new application to the Maintenance Court, and the court will decide whether or not to allow the amendment based on the evidence it receives.
Separation can be a stressful matter that weighs heavily on your mind and it becomes even more complicated when children are involved. Having legal representation to support you throughout this time could truly prove to be invaluable. Cawood Attorneys has a wealth of experience with separation and divorce. Contact us today to speak to one of our dedicated team members and find out how we can help you. You can also visit our website for more information on any of the services we offer.