Child maintenance (as opposed to spousal maintenance) involves the ongoing obligation to make periodic payments to sustain a child or children (often after a divorce action, but parents are by law liable to pay maintenance even if the parents were never married. ). Child maintenance payment amounts are decided on by South African courts and take into account the monthly earnings of both parents.
In South Africa maintenance is paid according to the Maintenance Act, and it involves obtaining a maintenance order from the court and then discharging it. There may also be orders for the increase or reduction of child maintenance.
Can you claim maintenance from your ex husband for the children if the children are living with him?
A client came to see me recently who had been divorced ten years ago. It was an acrimonious divorce, and she had been awarded custody of the two children. Subsequent to the divorce, both her and her ex- husband had remarried.
Three years ago her husband had launched an appIication to the high court in terms of the new Children’s Act for co-guardianship (joint custody), with primary residence of the two children with him. At the time of the divorce, joint custody was not really an option, but now with the new Children’s Act, he was well within his rights to apply for joint custody.
My client instructed me that after both her and her ex husband had spent over R500 000 each in legal fees, she eventually ran out of money, and primary residence of the children was awarded to her ex- husband. My client and her husband lived a two hour drive from each other.
The children came to see my client every second weekend. My client was only a school teacher,earning approximately R7000 a month, while her ex- husband was in the mining industry and earning over R100 000 per month.
The divorce was so acrimonious, that even after the divorce my client had applied for an interdict against her ex- husband and his new wife. She could not even afford the petrol costs to go and fetch her children every second weekend. She was really struggling financially to pay the bills.
She had to see the children every second school holiday also, and this was even more expensive.She asked me whether she could claim maintenance from her ex- husband, even though the children were not staying with her permanently. I found this to be a most unusual query. Normally maintenance is only payable by the other spouse when the children are with their ex-spouse for the majority of the time.
I advised my client that unfortunately she would probably not succeed in her maintenance action, as the children were not staying with her full time. In this particular case, she also had university qualifications and was a qualified teacher, even though she did not earn much. Her new husband was also a rich farmer, who had even fitted the bills for her legal fees in the last court application.
Maintenance in our law depends on different kinds of variables. My client was only 37 years old in this case, and a court would in all probability have decided that she was more than capable of working, and finding alternative suitable employment if necessary.
In certain instances my client may have succeeded in claiming maintenance from her ex- husband. But in this particular case I do not think that it would have been in her best interest to even try claiming maintenance.
This article was written by Cape Town attorney, Peter M Baker