Section 18 of the Children’s Act 38 of 2005 stipulates that parental responsibilities and rights in respect of a child include contributing to the maintenance of the child.  Both parents incur a duty to support their child proportionally according to their respective means and exists irrespective of adoption, the parents’ marital status or the child being born of a first or subsequent marriage.  This duty therefore rests on both parents even if one is more financially capable – it does not dismiss the other parent’s liability.  A child is entitled to reasonable maintenance to provide for clothing, housing, food, dental and medical care, education, and training and, where applicable, recreation.  The question of reasonableness is dependent on the family’s standard of living, cost of living as well as income of the respective parties. 

The Maintenance Act 99 of 1998 deals with the laws relation to Maintenance. You may apply to the divorce court for a court order for maintenance or you may apply to the Maintenance Court in the area where the child is resident. The Maintenance Court has the authority to grant a first-time maintenance order, an order for the variation (amendment) of a maintenance order, or an order in respect of arrear maintenance.  The other parent, who is the Respondent in the matter, will be subpoenaed to appear for a maintenance enquiry at the Magistrate’s Court. If you are uncertain as to the location of the other parent, a maintenance investigator can trace them and determine their financial capabilities.   The Maintenance Officer (Public Prosecutor) acts on behalf of the State and attempts a mediation between the parties at the first appearance at Court. A maintenance order can be obtained by consent during these proceedings.

The matter will be referred to a Magistrate for a formal enquiry if no resolution is reached on the maintenance issues.  Each party must furnish evidence to the Court regarding their respective financial position. You will have documents such as proof of income and expenditure e.g. pay slips, bank statements, receipts and statements all within 6 months. After hearing the evidence, the Magistrate makes a ruling which amounts to a court order. 

A divorce agreement or maintenance order stipulates the amount payable monthly to the parent with primary care of the child and it is advisable for the agreement or court order to reflect a clause that maintenance is to increase annually by the percentage change in the Consumer Price Index.  

You may not withhold your maintenance payments despite your view of the other parent’s behavior as it does not affect your child’s right to maintenance.  Thus, you are still required to pay maintenance where the other parent denies you contact with your child, enters a new relationship, remarries, or has more children.  The duty to pay maintenance and the right of contact are two separate matters.  Applications can be made for the maintenance order to be amended, increased, or reduced subject to a financial investigation, or appealed by giving notice to the clerk of the maintenance court but without suspending current maintenance. 

Where it is within their means, parents are obliged to pay the reasonable costs of the child’s tertiary education.  Although 18 years is the age of majority in South Africa, the duty of support endures until the child become self-supporting and can therefore continue regardless of their age.  Once reaching 18 years of age, the child must claim maintenance directly from the parent in the child’s own name by proving the amount of maintenance needed.  Continued but reduced maintenance may become necessary where the child is working but not self-supporting as major children are not maintained as extensively as minors.  The interpretation of self-sufficiency is in the court’s discretion and dealt with on a case-by-case basis. 

The duty to support a child ends at the child’s death but not at the parent’s death and the child may therefore lodge a maintenance claim against the deceased estate of the parent.  The claim enjoys preference over heirs but not creditors and only exists if the child is unable support themself.  A child that is self- supporting cannot claim maintenance from their parents.

Where neither parent can maintain the child, the duty passes to the maternal and paternal grandparents.  If one parent does not pay maintenance, the parent with primary care may lodge an application against the grandparents. Where the parents and grandparents cannot maintain the indigent child, the duty passes to the child’s siblings (including half-siblings) according to their respective means.  Our law does not oblige a stepparent to maintain their step-child.

Where the parent fails to comply with the terms of the maintenance order and it remains unsatisfied for a period of 10 days, you may apply to the maintenance court to issue a warrant of execution, an emolument attachment order, a garnishee order or the attachment of debt.   Failure to pay maintenance as stipulated is a criminal offence and you may face imprisonment not exceeding three years and/or a fine.  The Maintenance Officer may also have the defaulter blacklisted. 

Every case may differ, and you are encouraged to seek professional legal advice on your matter.

If you have decided to get a divorce, the correct procedure needs to be followed and a number of factors need to be addressed.  These include the division of property and, if applicable, acting in the best interests of your children with regard to custody, access and maintenance. 

A marriage can only be dissolved by order of the court.  A divorce will be granted where one of the parties believes that there has been an irretrievable breakdown of the marriage relationship and there is no reasonable prospect of restoring it.  This means that a marriage can be dissolved even if your spouse does not want to get divorced.

A divorce action is instituted by issuing summons which is then served personally on your spouse by the sheriff of the court.  You can get divorced either in the Regional Court or the High Court having jurisdiction.   A court will have jurisdiction in a divorce if one or both parties are domiciled or ordinarily resident within the area of jurisdiction of the court on the date on which the action is instituted. 

An unopposed divorce entails the parties agreeing on the terms of the divorce and consequently signing a settlement agreement. The plaintiff appears in court and a comprehensive settlement agreement and parenting plan (endorsed beforehand by the Office of the Family Advocate) may made an order of the court.  This is a faster and more cost-effective avenue compared to an opposed divorce which may proceed to trial.

The division of property upon the dissolution of marriage is determined by the applicable marital regime. There are three marital regimes in South Africa:

1. Marriage in community of Property;

2. Marriage out of community of property without accrual; and

3. Marriage out of community of property with accrual.

The parties must enter into an antenuptial contract prior to the date of their marriage. If the parties did not enter into antenuptial contract, the default legal position is that civil marriages and civil unions are in community of property.  This means that everything you own before and after marriage forms part of a joint estate and this is inclusive of both assets and liabilities.

Before the court will grant a divorce, parents may agree on care and contact of the minor children.  A decision will also need to be made on when, where and how the other parent will have contact/ access to the children. If there is any dispute regarding the care and contact of minor children, the parties will have to attend an enquiry at the Office of the Family Advocate. The Office of the Family Advocate is a state body who may give written recommendations to the Court as to what is in the best interests of minor children.

Both parents have a duty to support the children according to their respective means.  The court can issue a maintenance order which requires maintenance to be paid for the children but whether spousal maintenance and support is required depends on the circumstances. 

If there is a dispute in respect of any aspect of the divorce, a mediation is advisable.  An independent and qualified third party is appointed as Mediator to attempt resolve disputes and to facilitate a settlement agreement prior to obtaining a divorce.  The mediation process is without prejudice and the settlement agreement and parenting plan is then attached to the summons and the divorce process can commence.  Every aspect of divorce can be mediated and mediation can also be agreed to after legal action has been instituted.  Mediation saves costs and reduces the burden on the court and the new Rule 41A of the High Court prescribes that parties must attempt mediation before proceeding to litigation.  Mediation can be terminated at any stage by either party or by the Mediator if the process is no longer productive or conducive to reaching settlement.

If the parties do not enter into an agreement, the matter will go to trial and the Court will grant an appropriate order after hearing the evidence of both parties. The trial process is costly and could take up to 2 – 3 years to finalise.

Kindly note that the above is merely a summary of the current legal position and you should seek the advice of a legal practitioner prior to instituting divorce proceedings as each case may differ.

Should you have any enquiries please do not hesitate to contact us.