When it comes to maintenance, the law is fairly straightforward. It is in the application of the law that difficulties lie. One of the basic principles of child maintenance is that the extent of the obligation is based on the standard of living, income, and means of the person/s obliged to pay. The obligation does not rest solely on the father; it rests on both parents, according to their respective means. The fact that the father can adequately support the child on his own does not mean that the mother can avoid contributing. In fact, it would be contrary to public policy and invalid to insert a clause into a divorce settlement agreement stating that only one parent needs to maintain the child.
Once a child has reached the age of 18, a parent cannot claim maintenance on their behalf. The child must institute an action in his/her personal capacity. The fact that a child is visiting a parent temporarily does not entitle that parent to suspend or reduce his/her maintenance during that period unless a court order contains a specific provision to the effect that this may happen.
A parent’s duty of support towards his/her child is not affected in any way by remarriage and a step-parent is also under no obligation to support a stepchild. Similarly, a child from a first marriage does not have priority over a child from a second marriage when it comes to maintenance obligations. The refusal to allow a parent contact does not entitle that parent to stop paying maintenance.
When the maintenance court makes an order regarding maintenance, such an order is not fixed forever. If circumstances change, an application for an increase or reduction in maintenance can be made.
In order to fulfill their obligations to support their child, parents must use both of their incomes and, if necessary, their capital. This means that if a father/mother has no income but has assets, he/she will not be able to avoid paying maintenance. A court may order that the assets be sold to satisfy the obligation to pay maintenance. This also prevents a parent from evading his/her duty to pay maintenance by giving up work and becoming, for example, a full-time student.
The ordinary rules relating to parents’ duty to support also apply in respect of children born out of wedlock.
Although women and men are equally entitled to seek maintenance awards, in practice, for historical reasons, the majority of cases at present involving maintenance are brought by women. For this reason, the discussion that follows usually alludes to the woman as the one seeking maintenance. One day in the future, you will find that it could just as equally be the ex-husband seeking maintenance from his ex-wife. Neither spouse is automatically entitled to spousal maintenance on divorce. Our law favours the ‘clean break’ principle, which basically means that after a divorce the parties should become economically independent of each other as soon as possible. The court, however, does have the discretionary power to award spousal maintenance if necessary.
During a marriage, each spouse owes to the other a reciprocal duty of support, provided that the person claiming such support is actually in need of it and that the other spouse can actually provide it. This support includes accommodation, clothing, food, medical services, and other necessities, and is balanced by the couple’s social status, their means of income, and the cost of living. The duty to support each other is the responsibility of both spouses and means that if, for example, a woman does not have the financial means to support herself, her husband has a legal obligation to support her, and vice versa.
This reciprocal duty of support comes to an end on termination of the marriage, whether by death or divorce. However, in divorce situations, the Divorce Act 70 of 1979 makes provision for court orders relating to maintenance. Similarly, when a spouse dies, the surviving spouse can claim maintenance against the spouse’s deceased estate in terms of the Maintenance of Surviving Spouses Act 27 of 1990. The executor of the estate has a duty to pay the maintenance.
Neither spouse has a statutory right to maintenance. The language in the Divorce Act is clearly discretionary and the ex-spouse seeking an award for maintenance has no right as such. The discretionary power of the court to make a maintenance award includes the power to make no award at all. As mentioned, our law favours the ‘clean break’ principle, which basically means that after a divorce the parties should become economically independent of each other as soon as possible.