How much maintenance? – Best interests of the child

How much maintenance? – Best interests of the child
06 Aug 2020

Introduction

To our Courts, a child’s best interests are the overriding concern in all matters affecting the child. This is the sentiment echoed by the Family Advocate in the directions issued on 8 May 2020. The parents of a minor child bear the duty to support jointly, and the respective shares of such duty are apportioned between such parents within their respective means.[1] It is important to note that the duty to support a child depends on the circumstances of each case.

The Maintenance Act and the concept of reasonableness

Section 15(2) of the Maintenance Act 99 of 1998 as amended (hereinafter referred to as the “Act”), stipulates the following:

“(2) The duty extends to such support as a child reasonably requires for his or her proper living and upbringing, and includes the provision of food, clothing, accommodation, medical care and education.”

The method of calculation here is not set in stone, and South-African courts look at various aspects to establish the scope of maintenance. These aspects involve the social status of the person liable to pay maintenance, the standard of living, the health of the minor child and age, the means of the parties and last but not least, the person in whose care the minor child is in, contributes towards the support of the child. These factors are some of the aspects considered by our courts in determining the scope of maintenance i.e. whether the amount of maintenance is reasonable.

Reasonable Needs of the minor child

The parents of the child incur the duty to maintain jointly, and the respective shares of such duty is apportioned between such parents within their respective means.[2] It is important to remember that the amount claimed for maintenance must be in accordance with the reasonable needs of a minor child. The starting point would be to assess the reasonable expenses in respect of the minor child and then to apportion such expenses to the parents’ respective means. The parent who has primary care usually have to incur expenses which are tantamount to the parent having primary care. Financial means are established by assessing the income and expenses and where certain expenses are not necessary. The parent who does not have primary care is ordinarily required to pay a cash contribution for maintenance as well as to provide his/her proportionate share as indicated in section 15(2) above.

Calculation of Maintenance

As indicated above, parents of the child incur the duty to maintain jointly. The duty is apportioned between such parents within their respective means. In practice, the gross-income of the respective parents are divided by the joint gross-income and then multiplied with an amount equal to the reasonable needs of the minor child. The figure will provide an estimate on the reasonable needs of the child, and the amount of maintenance apportioned to each parent without taking into cognizance the financial means of the person liable to pay maintenance, i.e. by deducting the necessary expenses. Whether certain expenses are necessary will be determined by an informal or formal enquiry where there is difficulty in establishing this.

Conclusion

The above serves to provide a basic overview of what an applicant needs to consider when questioning the amount paid for maintenance towards a minor child and how to do a simple calculation.

1] Section 15(3)(a)(i)-(ii) of the Act
[2] Section 15(3)(a)(i)-(ii) of the Act

See also:

(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)
Hamlet Heneke
Hamlet Heneke

Hamlet Heneke completed his degree in 2015 and then embarked on his legal journey by working at a labour practice in Wellington where he gained useful knowledge in labour law....

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