Maintenance

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Maintenace and Financial Support

Are you a recently divorced stay at home spouse?

Worried that you may not be able to support your child on your own?

Separating from a partner can have a big impact on your finances, especially if you relied on their income during your relationship.

If your marriage or civil partnership ends, you may ask for financial support from your ex- partner as soon as you separate. This is known as “spousal maintenance”, in addition to any child maintenance they might have to pay.

Let’s elaborate on the two types further:

Maintenance

SPOUSAL MAINTENANCE

  • Usually paid on a monthly basis which continues either for a defined period or remainder of parties’ life.
  • Ends if the recipient remarries or if either party dies. It may be varied or dismissed by courts on a change in circumstances.

CHILD MAINTENANCE

As parents both retain parental responsibility for their child. A child is entitled to reasonable maintenance to provide for:

  • Clothing
  • Housing
  • Dental & Medical Care
  • Education & Training
  • Where applicable recreation

The duty exists irrespective of whether the child is adopted, born in or out of wedlock or born of the first subsequent marriage.

The duty to pay spousal maintenance post-divorce is found in Section 7 of the Divorce Act, 70 of 1979. This duty arises in two ways:

Section 7(1) of the Act: provides that the court, when granting a decree of divorce, may in accordance with the written agreement between the parties, make an order with regard to the payment of maintenance by one spouse to the other. This is usually in the case where a settlement agreement is entered into between the parties prior to finalisation of the divorce.

In terms of Section 7 (2) of the Act and in the absence of a written agreement (settlement agreement): the court may make an order which it finds just in respect of the payment of maintenance by the one spouse to the other by taking various factors into account. The court is required to consider the factors referred to in section 7(2) in order to decide, firstly whether maintenance is to be paid at all and, if so, the amount to be paid and the period for which maintenance is to be paid.

These factors include:

  1. The existing or prospective means of the parties
  2. The respective earning capacities of the parties
  3. The age of each party
  4. The duration of the marriage
  5. The parties’ standard of living during the marriage
  6. The conduct of the parties in so far as it may be relevant to the breakdown of the marriage. This normally increases annually.

In essence maintenance for a child will include:

1.Medical Expenses: Parents are entitled to pay for any medical related expenses on behalf of the child.

2.Educational Costs/Tertiary educational costs: Normally include pre-school + after care fees, additional tuition fees as well as any extra- curricular school and sporting activities.

3.Monthly cash payments: Divorce agreement or maintenance order will stipulate how much each parent pays on a monthly basis. This normally increases annually.

How To Calcuate Child Maintenance?

NB!! NOT PAYING MAINTENANCE IS A CRIMINAL OFFENCE AND RESPONDENT CAN BE FINED OR IMPRISONED FOR 1 YEAR OR BOTH. TO ESCAPE PUNISHMENT RESPONDENT MUST PROVE TO THE COURT THAT HE/SHE COULD NOT PAY MAINTENANCE DUE TO LACK OF MONEY OR INCOME.