Maintenance Issue 5

Maintenance Issue 5

Tertiary education

The duty to maintain children in certain circumstances include the duty to provide tertiary education.  Whether this will fall under the head of ‘necessaries’ will depend on, amongst other things, the parent’s financial circumstances and social status and the children’s academic aptitude and achievements.  The fact that children are capable of supporting themselves does not preclude the duty.

Duration of duty to support children

A parent’s duty to support a child does not cease when the child reaches a particular age, but it usually does so when the child becomes self supporting.

Where there is no existing order and maintenance is sought for major children, the onus is on those children to show their need for maintenance and how much is required.

A major is not usually supported on as lavish a scale as a minor.  In B v B 1997 (4) SA 1018 (SE) at 1021 it was stated that 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.

“Indigent” meaning destitute, needy, and poor.

Can a child’s conduct relieve a parent of the duty to support?

Voet 25 3 18 states that the duty ceases when the person to be maintained is guilty of ingratitude of a degree that would justify disinheritance.

  

Court Cases

Beukes v Beukes 1995 (4) SA 429 (O)

Variation of a maintenance order.

At a maintenance enquiry the presiding officer must play an active role to ensure that the necessary evidence is obtained even where the parties are represented.

Where important evidence is lacking, such as, in casu, evidence of the income and financial position of the party having the duty to pay maintenance, the presiding officer must ensure that that evidence is adduced.

A change in the financial position of the applicant in such an application is not required before a variation of the existing maintenance order can be granted.

It appears clearly from the provisions of section 4 of the old Maintenance Act that the maintenance court can substitute or suspend the maintenance order only if there is ‘sufficient cause’.

Sufficient cause does not necessarily means changed circumstances only.

The maintenance officer must be present throughout the enquiry even if the parties are legally represented.

The new Maintenance Act refers to ‘good cause’.  

Maintenance Issue 4

Maintenance Issue 4

Recovery of Contributions

Third persons who have supported children can recover contributions from parents.  A parent cannot set off extraordinary expenditure, for example payment of a child’s medical expenses, or expenditure on education and clothing against liability to pay maintenance in respect of that child.  Maintenance which has been made an order of court must be adhered to and only the court has the power to change such a maintenance order.  A maintenance order that is not followed and paid as per court order can lead to contempt of court as well as to imprisonment.

Measure of support of children

The level at which maintenance is provided is usually determined by the standard of living of the parents and their standing in the community.

However, in calculating how much maintenance a child should receive the approach of first estimating what the liable parent can afford to contribute and then adapting the child’s needs accordingly is incorrect.  It has to do with the child’s needs and then assessing what the liable parent can afford.

In addition to food, clothing and accommodation the provision of the amenities of electricity, water, linen, cutlery and laundering should be taken into account.

In order to fulfil their obligations to support children, parents must use their income and also, if necessary, their capital.

One of the three prerequisites of the duty of support is that there be adequate resources on the part of the person who is called upon to provide support.  One cannot expect the liable person to pay support if he/she cannot find a job or to claim an excessive amount for maintenance if the liable person’s income cannot afford it.  It follows that as long as a parent is genuinely indigent and unable to work, for example for health reasons, he or she is not under an obligation to support children.  Where a parent is able to provide only limited support or a limited contribution to the child’s support and any particular requirement of the child is beyond the parent’s financial means, the parent is not obliged and is under no duty to provide the requirement concerned.

In terms of the second of the three prerequisites, parents need not support a child who does not need maintenance or is self-supporting.  The child may be working or may have income from other sources.  The fact that a child can support himself or herself does not always preclude a duty to provide higher education, however.  Where a child has income but the parent nevertheless maintains the child, the question whether the parent can at a later stage recover the contribution depends on the intention with which it was made, and if it was intended as a donation there can be no recovery of the contribution.

  

Court Cases

Benecke v Benecke 1965 (1) SA 855 (T)

“Good cause” or sufficient reason cannot be defined precisely neither is it desirable or possible to give such a definition.  Particular circumstances of each case must be considered.  If a person liable to pay maintenance has caused the deterioration in his financial circumstances for example by entering into a second marriage, the court will be inclined to be less sympathetic.

Bing and Lauer v Van den Heever 1922 TPD 279

The reciprocal duty of support of spouses is not dependent on the existence of a joint household and continues unless the spouse to be supported is to blame for the fact that there is no longer a joint household.

Boulle v Boulle 1966 (1) SA 446 (D)

In order to fulfil their obligations to support children, parents must use their income and also if necessary their capital.