To our Courts, a child’s best interests are the overriding concern in all matters affecting the child. This is the sentiments echoed by the Family Advocate in the directions issued on 8 May 2020. The parents of a minor child bear the duty to support jointly, and the respective shares of such duty are apportioned between such parents within their respective means. It is important to note that the duty to support a child depends on the circumstances of each case.
The Maintenance Act and the concept of reasonableness
Section 15(2) of the Maintenance Act 99 of 1998 as amended (hereinafter referred to as the “Act”), stipulates the following:
“(2) 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.”
The method of calculation here is not set in stone, and South-African courts look at various aspects to establish the scope of maintenance. These aspects involve the social status of the person liable to pay maintenance, the standard of living, the health of the minor child and age, the means of the parties and last but not least, the person in whose care the minor child is in, contributes towards the support of the child. These factors are some of the aspects considered by our courts in determining the scope of maintenance i.e. whether the amount of maintenance is reasonable.
Reasonable Needs of the minor child
The parents of the child incur the duty to maintain jointly, and the respective shares of such duty is apportioned between such parents within their respective means. It is important to remember that the amount claimed for maintenance must be in accordance with the reasonable needs of a minor child. The starting point would be to assess the reasonable expenses in respect of the minor child and then to apportion such expenses to the parents’ respective means. The parent who has primary care usually have to incur expenses which are tantamount to the parent having primary care. Financial means are established by assessing the income and expenses and where certain expenses are not necessary. The parent who does not have primary care is ordinarily required pay a cash contribution for maintenance as well as provide his/her proportionate share as indicated in section 15(2) above.
Calculation of Maintenance
As indicated above, parents of the child, incur the duty to maintain jointly. The duty is apportioned between such parents within their respective means. In practice, the gross-income of the respective parents are divided by the joint gross-income and then multiplied with an amount equal to the reasonable needs of the minor child. The figure will provide an estimate on the reasonable needs of the child, and the amount of maintenance apportioned to each parent without taking into cognizance the financial means of the person liable to pay maintenance, i.e. by deducting the necessary expenses. Whether certain expenses are necessary will be determined by an informal or formal enquiry where there is difficulty in establishing this.
The above serves to provide a basic overview of what an applicant needs to consider when questioning the amount paid for maintenance towards a minor child and how to do a simple calculation.
Written by Hamlet Heneke, Schoemanlaw Inc.