How can a parent avoid paying maintenance?

The first question that needs to be considered is that of the “reasonable needs” of the minor child on a monthly basis.
The first question that needs to be considered is that of the “reasonable needs” of the minor child on a monthly basis.

There can be no doubt that it costs a substantial amount of money to raise a child

Nevertheless, parents should never try to avoid paying maintenance where they have a duty to do so, and where they have the means to pay maintenance.

Both parents have a duty to maintain children born of their relationship or marriage, and to continue to maintain them until such time as they are self-supporting, have passed away or are adopted, explains attorney Deborah Di Siena of Di Siena Attorneys.

Yet, parents still avoid paying maintenance, so we asked her to explain how exactly a parent can shirk this responsibility. 

According to Di Siena, the following are examples of when you may dispute your duty to pay maintenance:

Disputed paternity

The duty of maintenance begins when the biological father of the child acknowledges that he is the father.

Should the man dispute being the biological father of the child, a blood test may be requested to determine whether the person is the child’s biological father.

Also see: ‘My son doesn’t resemble me’: A confused father asks if his son is really his

There is a presumption in law that when a woman is legally married to a man and a child is born, during the course of the marriage, that her husband is the biological father of the child.

The presumption can be rebutted, if the man is able to prove that he is not the biological father.

Once the father’s paternity has been established, either by acceptance or through a paternity test, the duty on the part of the father to maintain the child commences. 

Step parents

If the person is not the biological father, then there is no duty to support the child.

However, in the case of MB v NB 2010 (3) SA 220 (GSL), a stepfather was ordered to pay school fees for his stepson. The court found that the stepfather had a contractual obligation to pay the school fees.

The court did not have to determine whether the stepfather legally adopted the child.

As it was enough for the court to conclude, as it did, that the stepfather held himself as the child’s father and both the child and his mother relied on this representation.

It is important to mention that the stepfather and the child’s mother decided together which private school to place the child at and as undertook to pay the school fees for the child. 

Also read: "I fell pregnant as the result of adultery. Now the biological father ran away. Do I have a right to take him to court for maintenance?"

Primary residency of the child

There are instances where a parent who is paying maintenance obtains primary residency of the minor child.

That parent is then entitled to apply to the Maintenance Court to adjust their monthly maintenance payment accordingly.

The parent who no longer has primary residency of the minor child, may then have a duty to contribute a greater amount to the child’s maintenance, unless each parent was previously equally liable for the child’s expenses.

Unemployment or incarceration 

Maintenance orders may be suspended or varied if the parent who is obliged to pay maintenance becomes unemployed or is incarcerated, but this does not operate as the default position.

He or she must apply to vary the maintenance order if they are unable to comply with the maintenance order. 

If the parent is unemployed, the other parent may apply to the Department of Social Development for a child-grant, to help support the child.

Also read: Is your family poor, middle class or rich? Take this test and find out

Death of the primary caregiver

Where the primary caregiver or custodian of the child passes away, this may give rise to a maintenance claim against the deceased’s estate, but should the estate be insolvent, the duty of support will cease.

Where the child passes away

Maintenance will terminate, where a dependent child passes away. There will be no duty on the parent paying maintenance to continue doing so, as the reason for paying maintenance no longer exists.

Excessive maintenance

A maintenance claim is based on affordability and reasonableness.

In circumstances where the child’s monthly expenses are high and is beyond a parent’s financial means, certain expenses may be reduced, apportioned or excluded.

For example, often one parent may want the child to take up a costly extra mural activity or want the child to attend a private school, which the other parent cannot afford.

Such expenses may, if they are unreasonable or unaffordable, be reduced or excluded.

For more on maintenance issues, see our series here: #MaintenanceMatters


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