Maintenance Issue 2

Maintenance Issue 2

Maintenance of children after divorce

Although the duty of support of minor children which falls on both parents continues after divorce, it does not follow that the custodian parent in each case is entitled to claim a monetary contribution from the non-custodian parent or that because there is a duty there must be an award against the non-custodian parent.

In the case of Zimelka v Zimelka a custodian father applied to the maintenance court for a variation of the divorce order, in terms of which the non-custodian mother had not been required to contribute to the children’s maintenance.

The maintenance court found that the custodian father had a substantial income but held that the fact that he did not need any contribution from the mother was irrelevant.

On appeal it was held that whether the father required any contribution was indeed relevant and that he had not proved that he did.

Another factor which the maintenance court had overlooked was that because the children spent about two and a half to three months with the mother she was already making a substantial contribution to their maintenance.

For the above reasons, no good cause for a variation had been made out.

A child is entitled to reasonable maintenance to provide for housing, clothing, medical and dental and health care, as well as education and training and, where applicable, recreation.

What is reasonable depends upon the circumstances such as;

·         The position of the family;

·         The child’s health; and

·         In terms of  education and training:

o   The child’s aptitude;

o   And how well the child has done in his or her studies.

The standard of living, taken together with factors such as aptitude and interest, for example, determines whether expenses for recreation, non-vocational training and vocational training at secondary and tertiary level will be awarded.

In Du Toit v Du Toit Kotze J refused to make a special order, in addition to the order for payment of maintenance, for a child’s medical expenses.

He stated that he would make that type of order only in particular circumstances, and that the effect of additional orders in respect of medical expenses and school fees, for example, might be to make the total amount payable unrealistically large.

The upshot would simply be that the person liable to pay would end up in the maintenance court when he failed to comply with the order.

If major illnesses struck the person to be maintained, the custodian parent could and should apply for an increase in maintenance.

There are off course other courts that disagreed with this verdict.

The paramount factor of course is that at all times the “best interest of the child” must be considered.

Court Cases

B v B 1997 (4) SA 1018 (SE)

Although the duty of support persists into the child’s majority, its nature changes and it is then confined to necessaries, “in other words the child must be in indigent circumstances in the sense that he or she is in need of a contribution towards his or her maintenance”.

Bank v Sussman 1968 (2) SA 15 (O)

Support of a child out of parents’ estate.  Both parents must support, proportionately according to their means.  Where the estate has not yet been wound up, a certain sum from the capital should be set aside so that, with accruing interest, it can be used to discharge the estate’s indebtedness to the child or children.  If the estate has been wound up, however, the condictio indebiti is the appropriate action to bring against the heir, but it is necessary to prove the amount of overpayment of the heir.  As far as the amount of maintenance to be awarded is concerned, each case will be considered on its merits, but it seems that the court will look at the standard of living to which the children had been accustomed before their parent’s death.

Bannatyne v Bannatyne 2003 (2) SA 359 (SCA)

In matters affecting children the best interests of the children are paramount and in every matter concerning the paramountcy of the interests of children the Constitutional Court has jurisdiction.

The use of contempt proceedings is an appropriate relief for the enforcement of a claim for maintenance for children.  Good and sufficient reasons should exist for a High Court to enforce the judgement of another court, however.  What constitute good and sufficient reasons would depend on the facts of each case.

While the obligation to ensure that all children are properly cared for is one that the Constitution imposes in the first instance on their parents, there is an obligation on the state to create the necessary environment for parents to do so.

After marriage breakdown, it is almost always the mother who becomes the custodial parent and caregiver.  This places a financial burden on her while placing her at a disadvantage in seeking employment.  Maintenance payments are essential to relieve this financial burden.  Such disparities undermine the achievement of gender equality, a founding value of the Constitution.  Fatalistic acceptance of the insufficiencies of the maintenance system compounds the denial of the rights of women and children. 

Courts should be alive to recalcitrant maintenance defaulters who use legal processes to sidestep their obligations towards their children.  The respondent appeared to have utilised the system to stall his maintenance obligations through the machinery of the Act. 

Well, this is all for now.  If you have any short questions in terms of these aforementioned issues, do not hesitate to post them.  Longer questions will be dealt with in the form of official legal opinions and will be charged for. 

Separation - Maintenance

Maintenance Issue 1

To commence our journey through this very sensitive topic let’s start with a defining introduction to this field:

In our law the terms “support”, “maintenance” and ‘alimony” are used interchangeable, although the term “alimony” is used less frequently in South Africa.

The duty of support extends to:

·         Accommodation;

·         Food;

·         Clothes;

·         Medical and dental attention; and

·         Other necessities of life on a scale in line with:

o   The social position;

o   Lifestyle; and

o   Financial resources of the parties involved.

While food, clothing and shelter are always mentioned in any discussion of maintenance, the concept embraces much more than these necessities.

The maintenance of children also includes education, and must always be approached in a responsible and sensible manner despite the separation emotions in play.

Today the scope of maintenance is always determined according to the standard of living of the parties concerned.  In these issues we will however observe in case precedent that when people separate living standards logical lowers for both parties or at least one of the party’s.

In the following issues we will be looking at the following type of separations:

·         Marries couples;

·         Living together couples including same sex relationships; and

·         Indigenous / customary marriages.

In all issues there will be two to three court cases mentioned irrelevant of the topic under discussion to stimulate the curiosity of the reader on what is transpiring in our courts in terms of these events. 

Court Cases

Administrator, Natal v Edouard ( a very well known case in its field)

Where a child is born after a doctor has failed to sterilize the child’s mother, the doctor’s employers should pay maintenance – which of course in this case happens.

Ally v Dinath

The parties have lived together in an Islamic relationship for about fifteen years, had tacitly or by implication entered into a universal partnership and accumulated a joint estate and the aim of the partnership was to create a joint household and to accumulate a joint estate for the benefit of both parties.  The court referred to the firmly established principle that any contract can be brought about by conduct and, in respect of the making of a profit, the allegation of the objective of the accumulation of an appreciating joint estate was found to be sufficient, at least for purposes of pleading.   

Although was only for the purposes of pleading it did pave the way for what was to come – somebody was going to be up for some kind of maintenance.  This case already occurred in 1984.

Amod v Multilateral Motor Vehicle Accident

The insistence that the duty of support flowed only from a marriage solemnised and recognised by one faith, to the exclusion of others was an untenable basis for the determination of the boni mores (best interest) of society.  It was inconsistent with the new ethos of tolerance, pluralism and religious freedom in the community.

This important shift in the identifiable boni mores of the community must also manifest itself in a corresponding evolution in the relevant parameters of application in this area.

What the defendant had to show was;

·         A duty of support;

·         That the duty arose from a solemn marriage in accordance with the tenets of a recognised and accepted faith; and

·         That the duty deserved recognition and protection for the purposes of the defendant’s action.

And there we have the painful evolution that started in 1984 and found friendly harbour in 1999 in our courts.

I think we will apply the brakes at this stage so that you can ponder the concepts that will start evolving in your mind already after this introduction on maintenance in South African law.