Take note when paying child maintenance

2018-07-18 06:02
Malefa Mzamo

Malefa Mzamo

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Question:

I am divorced and have been paying maintenance for my ex and my two children for a few years.

My eldest son has now finished school and wants to go to uni­versity.

My ex is insisting that I must contribute to his university studies as part of my maintenance obligations.

Surely now that he is an adult, my responsibility to maintain has stopped?

Answer:

Section 18 of the Children’s Act 38 of 2005 states that the parental responsibilities and rights in respect of a child include the responsibility and the right to contribute to the maintenance of the child.

Maintenance includes the reasonable provision towards a child for clothing, housing, dental and medical care, and education.

Both parents have a duty to maintain the child according to their respective means and the circumstances and needs of the child.

In South Africa, a parent’s duty to support a child does not cease when the child reaches the age of majority (18 years) but usually ceases when the child becomes self-supporting.

A parent’s responsibility and right to apply for maintenance on behalf of a minor child ceases when the child becomes a major, namely 18 years of age.

However, this does not mean that a parent’s duty to maintain the major child now ceases. It means that in this instance, the child is deemed to be old enough to bring an application for maintenance in his or her own name.

It has also been held that the wording of a court order regarding the responsibility of maintenance is the deciding factor as to when the maintenance obligation will lapse.

So, where a maintenance order provides for payment of maintenance until a child reaches a certain age (even beyond majority), such an order will not cease to exist when a child becomes self-supporting and will need to be set aside by way of an application by a parent that is able to prove that the setting aside of the maintenance order is warranted.

If a major child ceases to be self-supporting for reasons such as ill-health or disability, the duty to maintain may be revived.

The interpretation of self-sufficiency is in the courts’ discretion and dealt with on a case-by-case basis.

Major children are not maintained as extensively as minors and the reasonableness of the parent’s duty to maintain such a child is an essential factor which must be considered in these cases.

A minor child’s maintenance is normally paid into the account of the care-giving parent.

This position may change when the minor child reaches majority, as the money can then be paid into the major child’s bank account.

In certain circumstances, the duty to maintain children may include the duty to provide tertiary education. Our courts will consider the parent’s financial circumstances, social status and the child’s academic aptitude and achievements to determine whether there is a duty to provide tertiary education in each case.

A major child who wishes to further his or her studies or has no other form of income must be maintained by both parents, until such a child earns an income and becomes self-supporting – should the parents be in the financial position to do so.

What is clear from our case law is that the wording of a settlement agreement or maintenance order in respect of the duty to maintain a child is of utmost importance in determining what the responsibility, including continued responsibility after the age of majority is reached, is.

We advise that you contact your attorney to discuss your current and continued maintenance obligations in the light of any settlement agreement or court orders that may apply.

– Malefa Mzamo, candidate attorney, Phatshoane Henney Attorneys

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