Maintenance & Parental Rights

‘Maintenance’ is the duty to provide a person with support for certain essentials, including food, housing, clothing, education and/or medical care.

In terms of South African law, this duty is based on blood relationship, adoption, or a marital relationship. In the case of divorce, it may therefore be applicable in the case of children and/or a spouse.

Child Maintenance

Every parent has a legal obligation to maintain their child until such time that the child reaches the age of 18 or becomes self-supporting.

The amount of maintenance payable in the case of divorce is calculated by first determining the actual costs of raising a child – such expenses would includes costs such as rental, food, toiletries, medical, education, clothes, electricity, transport and other such expenses. The total cost is then shared by both parents in proportion to their respective incomes.

For example:

Cost of raising child                 R1,000 per month

Mother’s Income                   R4,000 per month

Father’s Income                      R6,000 per month

The mother’s contribution would be 40% and the father’s contribution would be 60%. Therefore, the mother pays R400 per month and the father pays R600 per month in this scenario.

Spousal Maintenance

In certain divorce matters, one spouse may have a duty to maintain the other spouse. However, such spouse would usually only be entitled to maintenance if can be showed that the other spouse was the bread winner during the marriage and acquainted the other to a certain standard of living (which should be maintained after the divorce).

Other factors such as the age of the parties, their employment, their qualifications, and the duration of the marriage may also be considered.

Parental Rights

When minor children are involved, one of the most important considerations in a divorce is the care of the children.

Prior to enactment of the Children’s Act, parental responsibilities were referred to as “custody and access”. These terms are now referred to as “parenting responsibilities and rights”, which includes the right and the responsibility to care for the children and to maintain contact with them.

Agreements concerning the care of children, and contact arrangements, should be incorporated into a written agreement. In the system, it will be incorporated in the Deed of Settlement.

When entering into the agreement aforesaid, the following considerations must be taken into account:

  • Will the care be granted jointly to both parents, or to one parent only?
  • If sole care is granted, which parent will it be granted to?
  • If joint care is granted, which parent will the children live with?
  • The contact arrangements granted to the parent with whom the children are not living.
  • The amount of maintenance payable for the children, and the contribution by each spouse.

A court will only grant a divorce if it is satisfied that the children’s best interests have been provided for. Although, the parties may agree on how the care and contact of the children will be dealt with, the court ultimately has the sole discretion and will ensure that the children’s best interests are always taken into account.