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Child maintenance - payable until which age?

In one of my cases the parties had been divorced and had two daughters. The decree of divorce was still drafted with the old terminology. The divorce had gone through ten years ago.

Care & contact | Custody & access

The divorce order still referred to "custody" which in today's terms would be referred to as "care". It also referred to "access", which in today's terminology is referred to as "contact". The lady was awarded "custody" of the children with my client's rights of reasonable "access".

What age does the Divorce Order say?

The court awarded my client in the divorce order to pay R500.00 per month per child by way of payment directly into his ex-wife's bank account. This was ten years ago. In addition to this he had to pay half of the medical expenses of the minor children, as well as half of the school fees. The maintenance was payable until "age 21 or self-supporting" according to the divorce order.

Maintenance Escalation clause

A common kind of clause in a divorce order is the so-called "escalation clause", which states that the maintenance will increase at 10% per annum for example, or according to the consumer price index. In this particular divorce order there was no such "escalation clause".

Application for increase to maintenance

My client's ex-wife had five years after the divorce managed to succeed in getting the maintenance increased to R1500.00 per month per child, plus half of the medical and half of the school fees. She had been forced to bring an application to court for an increase in the maintenance, as there had been no escalation clause in the divorce order.

Children over 18 to launch maintenance applications

Now, ten years after the divorce my client brought an application for discharge of the maintenance order against the older daughter. The daughters were now 19 and 15 years old respectively.

I had advised my client that in terms of the new Children's Act, the age of majority is now 18 and not 21 as it used to be, and that maintenance is only payable to age 18 and not 21. My advice therefore was that if the 19 year old wanted maintenance, she would have to launch the application against both parents.

My client was successful with his application for discharge of the maintenance order. What was quite important here was that the order granted five years after the divorce did not stipulate to what age maintenance should be paid. That order had no doubt replaced the divorce order in respect of the maintenance clauses.

The divorce order had stipulated that maintenance be paid until age 21 or self-supporting, but even though the new order now increased the maintenance to R1500.00 per month per child plus half of the medical expenses and half of the school fees, one had to accept that this was up until age 18. The court in my opinion made the correct decision here.

The new Children's Act must always be looked at by the courts in maintenance matters. In my opinion, when there is a dispute, one must only allow maintenance up until age 18, payable to the ex-spouse on behalf of the child. This is in line with the new Children's Act. If the child is not self-supporting by the age of 18, the remaining duty of the parent is directly towards the child, not via the ex-spouse.

Duty of parents to support their children

Section 15 of South Africa's Maintenance Act sets out the duty of parents to support their children:

"Without derogating from the law relating to the liability of persons to support children who are unable to support themselves, a maintenance order for the maintenance of a child is directed at the enforcement of the common law duty of the child’s parents to support that child, as the duty in question exists at the time of the issue of the maintenance order and is expected to continue.
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.
1. Without derogating from the law relating to the support of children, the maintenance court shall, in determining the amount to be paid as maintenance in respect of a child, take into consideration—
  1. that the duty of supporting a child is an obligation which the parents have incurred jointly;
  2. that the parents’ respective shares of such obligation are apportioned between them according to their respective means; and
  3. that the duty exists, irrespective of whether a child is born in or out of wedlock or is born of a first or subsequent marriage.
2. Any amount so determined shall be such amount as the maintenance court may consider fair in all the circumstances of the case.
As from the commencement of this Act, no provision of any law to the effect that any obligation incurred by a parent in respect of a child of a first marriage shall have priority over any obligation incurred by that parent in respect of any other child shall be of any force and effect."