Child Maintenance:

When a child lives primarily with one parent, the other parent is responsible for making payments to assist in the child’s care. This being said, both parents have a legal duty to support their child according to their respective means, irrespective of whether the child is adopted, or born in or out of marriage.

Every child is entitled to reasonable maintenance for clothing, accommodation, education, medical care and recreation. ‘Reasonable’ maintenance is determined by the family’s standard of living and various other factors.

In order to claim maintenance, you will first need to determine the reasonable needs of the child. Generally, the child’s share of the common household expenses is determined by allocating one-part per child living in the household and two-parts per adult living in the household. For example, where there is one parent and three children living in the household, each child will be allocated 20% of all common household expenses and the parent 40%.

Once the child’s reasonable monthly maintenance needs have been established, the contribution of each parent towards the child’s reasonable maintenance needs can be established. The formula used in practice to determine each parent’s contribution is as follows:

A maintenance application may only be brought in the Maintenance Court in the area in which the child in respect of whom maintenance is sought, resides.

There are different types of maintenance applications, which include:

  1. Application for maintenance

If you are a single parent and the other parent does not pay maintenance or does not pay sufficient maintenance towards the maintenance needs of your child and there is no existing maintenance Order for the other parent to pay maintenance, you may bring an application for maintenance in the Maintenance Court on the prescribed form.

  1. Application for an increase in maintenance

If there is an existing maintenance Order against the other parent (whether the Order was previously obtained in the Maintenance Court or when you and your ex-spouse got divorced), but the maintenance is not sufficient to meet the maintenance needs of your child, you may bring an application for an increase in maintenance in the Maintenance Court on the prescribed form.

  1. Application for a decrease in maintenance

If there is an existing maintenance Order against you and the amount you are paying to the other parent exceeds your monthly income in that you can no longer afford to pay the maintenance in accordance with the maintenance Order, or there has been a change in the circumstances of either parent which has had an effect on either parent’s financial situation, you may apply to the Maintenance Court for a decrease in maintenance on the prescribed form. In order for an application for a decrease in maintenance to be entertained, the parent applying for such decrease will be required to show that there has been a change in circumstances, in that there would need to be a change in either parent’s financial situation.

  1. Application for discharge of maintenance Order

If there is an existing maintenance Order against you and you can no longer afford to pay the maintenance in accordance with the maintenance Order at all (for example, you have lost your job, or your income has been reduced to such an extent that you cannot afford to pay maintenance), you may apply to the Maintenance Court for a discharge of the current maintenance Order on the prescribed form.

Maintenance is also dealt with extensively in divorce matters and will be included in a settlement agreement entered into between the parties, should the parties end up settling. Should the parties not settle the divorce, the divorce court will be requested to make an Order regarding maintenance once all evidence has been heard at the trial.

At Van Heerdens Attorneys, we can help make sure your children get the financial support they are entitled to.

Spousal Maintenance:

Spousal maintenance may be awarded if one spouse lacks sufficient property and income to meet his/her reasonable needs.  Many factors go into a spousal maintenance determination including duration of the marriage, age of the parties, the standard of living established during the marriage, and the time needed for a spouse to get the skills necessary to find employment.

In respect of spousal maintenance, when the court makes a maintenance order, the following factors are considered:

  • Existing or prospective means of each of the parties
  • Each party’s earning capacity
  • Financial needs and obligations of the parties
  • Ages of the parties
  • Duration of the marriage
  • Standard of living before divorce
  • The conduct of the parties in so far as it may be relevant to the breakdown of the marriage
  • Any other factor the court deems should be taken into account.

The duty to pay spousal maintenance is contained in Section 7 of the Divorce Act. This duty can arise in one of two ways:

  1. Section 7(1) provides that the court, when granting a decree of divorce, may in accordance with a written agreement between the parties, make an order with regard to the payment of maintenance by one spouse to the other. In this case, a settlement agreement is entered into between the parties prior to finalisation of the divorce.
  1. Section 7(2) provides that, in the absence of a written agreement (settlement agreement) the court may make an order which it finds just in respect of the payment of maintenance by one spouse to the other by taking into account the various factors listed above. The court is required to decide, firstly whether maintenance is to be paid at all and, if so, the amount to be paid and, lastly the period for which maintenance is to be paid.

It is important to note that there is no automatic right to spousal maintenance on divorce. A party who claims spousal maintenance must prove that he or she is entitled to maintenance. The word “may” is used in the Act, which is a clear indication that awarding post-divorce spousal maintenance is purely in the discretion of the court.

If you have a matter which you would like to discuss, we would like to hear from you. Please contact us via telephone or email. Alternatively, please feel free to schedule an appointment.

Do you have a matter which you would like to discuss?

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