Do you live in South Africa? Are you planning or are you in the process of a divorce? Do you know what our law says about maintenance?
Do you know that you can apply for an Interim Maintenance Order while you are waiting for your divorce to be finalized to help with your expenses?
• Encompasses accommodation, food, clothes, medical and dental expenses and other necessities of life on a scale that is in line with the social position, lifestyle and financial resources of the parties. The scope of maintenance is always determined according to the standard of living of the parties concerned. In other words, you should be able to maintain the lifestyle you were accustomed to while you were married – you should not be worse off or better off.
• A child is entitled to reasonable maintenance to provide for his/her needs as in first bullet point above as well as in education and training and, where applicable, even recreation (sports, hobbies etc).
• In the assessment of maintenance for children their needs and the parent’s ability to pay are the primary factors to be considered, but the most important factor is always in the best interests of the child.
• Payments cannot be made directly to the child – it has to be done via the parent who has custody of the child.
• A father who has re-married must adjust his own standard of living rather than allow his children to be prejudiced i.e. he cannot get married again to “spite” his ex-wife or children.
• The Divorce Act provides for maintenance orders as well as to the division of the assets of a marriage. The court will decide how long the Maintenance Order will be in force – for a set period of time or until the death or re-marriage of the party who is to receive the maintenance.
• The means of support includes property that could be used to produce income.
• Duration of the marriage – if the marriage was of short duration, it should not be difficult for both spouses to pick up the threads of their previous lifestyles and means of support. However, if they have been married for a long time, it may be extremely difficult for the wife to become self-supporting because of her age, possible lack of job skills and experience
WORD OF WARNING:
Before accepting your final Maintenance Order, please ensure provision is made for future earnings on your side. Think about the risk of losing your job (at your age) and the risk involved in getting another job and the risk of getting another job that will pay enough money for you to support your children.
In other words, if you are already struggling on your existing salary. What happens if you lose your job tomorrow? Do you have the necessary skills to get another better paying job? What is the risk of you getting another job at the same salary you are earning now? What is the risk of you never finding employment again due to your age? Your Lawyer must make allowances for all this BEFORE YOU SIGN THE FINAL MAINTENANCE ORDER.
You said he can keep his pension and you can keep yours – don’t be too hasty to say this. Think about your retirement years. How are you going to survive on your pension alone until you die?
DO NOT ONLY THINK OF TODAY – YOU COULD LOSE YOUR JOB, YOU COULD BE FORCED TO STOP WORKING BECAUSE YOU OR ONE OF YOUR CHILDREN BECOMES ILL OR DISABLED ETC.
• In terms of the Maintenance Act, an order for a lump sum payment of maintenance is possible.
• Rule 43 of the High Court rules provides an inexpensive and speedy remedy where the following are sought:
– Maintenance (pending the Divorce suite) i.e while the Divorce is pending
– A contribution towards costs of a pending matrimonial action
This will require the Applicant to deliver a Sworn Affidavit setting out what is claimed and the grounds for the claim (in your case, you don’t earn enough to cover all the expenses on your existing salary). Use the same form you used to apply for Maintenance to guide you as to how this Affidavit must be structured to strengthen your case.
Grounds for payment – must be based on fact. You cannot thumb suck. Provide copies of receipts/invoices etc if you have them to solidify your case. The objective of these proceedings is to be as inexpensive and as speedy as possible so provide as much information up front as possible so you don’t waste the Court’s time.
The Court will broadly speaking apply the principles relating to the NEED of the parties or of the child (children) concerned, means of the parties and their obligations to support the children or each other. The emphasis falls on a just and speedy decision.
• An Applicant is entitled to reasonable Interim Maintenance but not to luxuries.
• The fees which the Advocate and Attorney may charge are limited by the court rule. Where there is an existing Maintenance Order made by the Maintenance Court an application for Interim Maintenance cannot be brought to the High Court under rule 43.
• Interim Maintenance Orders in the Maintenance Court – A Maintenance Court can grant an Interim Order for maintenance pending a divorce and it can also replace or discharge an Interim Order it has made, or replace or discharge a High Court Order for Interim Maintenance.
Maintenance for children over 18
In terms of our law, a child becomes an adult these days at the age of 18. A lot of people believe that in fact that is when an obligation for maintenance ends.
The Maintenance Act itself does not comment on the duration of this responsibility to support a child and in the circumstances, the answer is found in our common law which provides that a parent has a duty to support the child, until the child becomes self-supporting. This was also confirmed in the 1999 case of Bursey v Bursey & Another in the Appellate Division. A child cannot be self-supporting, if for example, the child is still studying or if for example, the child is handicapped and cannot look after him/herself.
In terms of the new Children’s Act, maintenance is payable until the age of 18 years. Before the new Children’s Act came into effect, maintenance was payable by the parent in respect of the minor child until the minor child was 21 years of age or self-supporting, whichever event should occur first.
Section 305 (4) of the Children’s Act 38 of 2005 provides that “A person who is legally liable to maintain a child is guilty of an offence if that person, while able to do so, fails to provide the child with adequate food, clothing, lodging and medical assistance”. Section 305 (6) provides that a person can be sentenced to imprisonment of 10 years and provides “a person convicted of an offence in terms of subsection (1), (2), (3), (4) or (5) is liable to a fine or to imprisonment for a period not exceeding ten years, or to both a fine and such imprisonment”.