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.