Legal expert explains what to do when you can no longer afford child maintenance

accreditation
0:00
play article
Subscribers can listen to this article
"Maintenance is a joint obligation of both parents regardless of if their child was born out of wedlock or if one parent did not want the child to be born." Photo by Brett Jordan on Unsplash
"Maintenance is a joint obligation of both parents regardless of if their child was born out of wedlock or if one parent did not want the child to be born." Photo by Brett Jordan on Unsplash

The monthly payment of maintenance is a headache for many families, as some parents struggle to meet their obligations in the midst of the pandemic, job losses and other stressors. Many readers email us asking for advice regarding child maintenance and we offer legal insight where possible.

A father wrote to us to say that while he has been able to pay a total of R17 500 per month towards his child's monthly expenses, the lockdown happened negatively affected his business. He can no longer afford the same amount and wants to know what he can do to bring down the costs. 

He wrote to explain his situation in detail, and we asked a Family Law specialist for advice. Read his mail here:

"Hi,

My child is 6 and starting Grade 1. The child was born out of wedlock, and I was against the birth. The mother expects unreasonable maintenance.

I pay:

  • School - R8250/ month
  • Maintenance - R5000/ month
  • Hospital plan - R2000/ month
  • Medical savings - R2000/ month

Business is tough due to Covid-19, and she does not understand. I am 55, and my pension is suffering. Where do I stand with the above to get matters reduced?

Thank you,

A struggling father"

The duty to maintain 

News24 sought advice and guidance from Durban-based attorney Atisha Ghela, who specialises in family law.

"Maintenance is a joint obligation of both parents regardless if their child was born out of wedlock or if one parent did not want the child to be born," Ghela told us.

"The general provision is that a child is entitled to reasonable maintenance to provide for their daily living expenses. The duty to maintain is based on blood relationship, adoption or when parties are married to each other," she added.

"Reasonable maintenance refers to necessary expenses including food, clothing, housing, and paying for proper education. A parent's right to contact the child is different and is entirely separate from maintaining. So the mere fact that the father was against the child's birth bears no merit. He bears the duty to maintain," said Ghela.

Read: Father says weekends with his child are too much for him to afford

Both parents' income 

"Maintenance in South Africa is based on the needs vs means test. Even if the minor child's needs are reasonable expenses, it is possible that the other parent does not have the means to pay and therefore cannot afford to pay," Ghela told us.

"Our courts consider both parents' income and expenses jointly when a contribution to maintenance is needed. A parent cannot and will not be expected to pay more than what they need to live reasonably," added the legal expert.

"Suppose a party can no longer afford to pay their agreed amounts or luxuries they once provided for the minor child as maintenance. In that case, they can approach the Maintenance Court in their area for a variation of an existing maintenance obligation, or they can apply afresh for an order to be made on the amounts they can afford," she said.

"One can request that the amount paid for maintenance be varied, i.e. increased or decreased, either because it has become insufficient or because one can no longer afford to pay the amount currently. One will need to submit a complete statement of income and expenditure and a statement explaining the reasons for the application to the maintenance officer appointed," she added.

Also see: When can a parent finally stop paying maintenance?

Chatback:

Share your stories and questions with us via email at chatback@parent24.com. Anonymous contributions are welcome.

Don't miss a story!

For a weekly wrap of our latest parenting news and advice sign up to our free Friday Parent24 newsletter.

Follow us, and chat, on Facebook and Twitter.

We live in a world where facts and fiction get blurred
In times of uncertainty you need journalism you can trust. For 14 free days, you can have access to a world of in-depth analyses, investigative journalism, top opinions and a range of features. Journalism strengthens democracy. Invest in the future today. Thereafter you will be billed R75 per month. You can cancel anytime and if you cancel within 14 days you won't be billed. 
Subscribe to News24