Maintenance And The Duty To Support
1. Duty to Support:
Parent’s Reciprocal Duty to Support
It is trite that parenthood automatically gives rise to the parental duty to support children. This Common Law duty becomes applicable to both parents at the birth of the child/ren, which has been duly incorporated in Section 15(3)(a) of the Maintenance Act 99 of 1998 (the Act).
The Court will consider the following when determining the amount of maintenance to be paid:
a) The duty of supporting a child is an obligation which the parents have incurred jointly;
b) The parents’ respective shares of such obligation are apportioned between them according their respective means; and
c) That the duty exists, irrespective of whether a child is born in or out of wedlock or is born of a first or subsequent marriage. 1
As acknowledged in Section 15(3)(a) of the Act, a parent’s duty to support arises and subsists until the child becomes self-supporting irrespective of the child’s attainment of the age of majority. It is important to note that majority is not the determining factor here. The fact that a child is working does not mean he/she is necessarily self-supporting. 2 The above mentioned duty can be reduced in accordance with the family’s standard of living and will revive when the child ceases to be self-supporting. The duty of support towards a major is usually not as lavish as the scale of a minor.
1 Section 15(3)(a) of the Maintenance Act 99 of 1998.
In B v B it was held that the dependent “child” must be in indigent circumstances in the sense that he/she is in need of a contribution towards his/her maintenance. This contribution is then confined to necessaries.
According to Voet, the duty to support ceases when the person to be maintained is guilty of ingratitude of a degree which would justify disinheritance. 3
2. Right to Maintenance:
2.1 Child’s right to maintenance:
One of the basic principles of child maintenance is that the obligation of both parents is based on their standard of living, income and respective means. It would be contrary to public policy and invalid to insert a clause in a divorce settlement agreement stating that only one parent is obliged to maintain their child/ren. 4 Once a child reaches the age of majority he/ she must institute a claim for maintenance from his/her parents in his/her personal capacity.
A parent’s duty to support his/her child is not affected in any way by a remarriage and a step-parent is under no obligation to maintain the child, unless he/she legally adopts the said child.
Refusal to allow a parent contact with a child does not entitle that parent to stop paying maintenance and the fact that a child visits a parent temporarily does not entitle that parent to suspend payment of maintenance for that period.
As previously stated, various factors determine the amount maintenance payable by a parent, however when an order for maintenance is made, such an order is not set in stone as circumstances can change and an application can be brought to Court to either reduce or increase the amount of maintenance.
3 Van Zyl Handbook of the South African Law of Maintenance
The obligation to support a child does not cease when a parent dies, but will instead lie against the estate of the deceased parent. 5 However in the event that the deceased’s estate is insufficient to cover the support, such support will be extended to the child’s maternal and paternal grandparents.
3. Reciprocal duty to support and maintenance towards a spouse:
The South African Law supports the clean break principle, which means that after a divorce the parties should become economically independent as soon as possible. It is important to note that spousal maintenance is not a statutory right and the court does have the discretionary power to award or refuse maintenance.
During a marriage, the duty of support rests on each spouse, provided that the person claiming such support is in actual need and the other spouse can actually provide it. This support includes necessities such as accommodation, clothing, food, medical aid which is balanced by the parties’ social status, their means of income and cost of living. 6 This duty is vice versa in that either spouse has a legal obligation to support the other due to a lack of financial means.
This reciprocal duty ends at the termination of the marriage, whether by death or divorce. However, the Divorce Act 70 of 1979 provides a court with the discretionary power to make an order in terms of spousal maintenance.
In terms of the Maintenance of Surviving Spouses Act 27 of 1990, a surviving spouse can claim maintenance against the spouse’s deceased estate and the executor of the estate has a duty to pay maintenance.
5 Lloyd v Menzies, NO and others 1956 (2) SA 97 (N)