MAINTENANCE IN DIVORCE
During the dissolution of a marriage on part may be awarded maintenance for themselves as well as their children. There are two types of maintenances that exist; child and spousal maintenance. The law is very tricky when it comes to maintenance as it is based on the obligation to maintain a standard of living as well as income levels. Maintenance will also depend on whether you are married in community of property our out of community of property.
When it comes to child support people often mistake that the simple fact a father can adequately provide for their child does not mean that the mother need not contribute, it is against public policy for a divorce settlement to put the burden of maintenance on one parent. Maintenance contracts are not fixed and can be changed or reduced depending on the current financial situation.
If either parent is not liquid enough to make payments but have wealth in assets the court may order that the parent will need to dissolve those assets to make their maintenance payments.
In the circumstance of spousal maintenance neither spouse is entitled to maintenance support, the law in South Africa favours having a clean break and both parties to become economically independent of each other as fast as possible, however, the courts do have the power to award maintenance if they feel it necessary.
“The court has discretionary power to award maintenance if they deem it necessary in the duty of support”
Spousal maintenance is not something you can run away from, the court will take the following factors into account when deciding if one party is entitled to alimony:
- Existing and future earnings
- Financial obligations
- Age of the parties
- Length of the marriage
- Parties current standard of living
Children are often the ones hurt most by divorce but by ensuring your child is well taken care of is essential, children are entitled to a reasonable amount of maintenance including clothing, medical care, education and recreation. A childs standard of living must be kept to reasonable levels, reasonable will depend on the family’s previous standard of living. It is the duty of both parents to maintain the child according to their means. In cases where the father is in a stronger financial position does not mean that the childs mother has no liability, the duty falls on both parents.
Not paying maintenance that has been prescribed by the court is considered a crimanl offence and the person in question can be fined, imprisoned or both for up to 1 year. If either spouse is unable to pay maintenance they must show satisfactory evidence to the courts that they could not pay due to lack of income. When a spouse fails to comply with a maintenance mandate they have 10 days to rectify it before it is taken further and a warrant of exection or a garnishee order is presented.
In order for maintenance to first be applicable you need to determine the reasoonable needs of your child on a monthly basis, however, keep in mind that maintenance cannot only be measured in monetary value. Maintenance may need to be adjusted depending on parents income status as well as the every changing needs of children, one party may approach the court in order to amend the settlement. There is no cut in stone rule to determine child maintenance, the example on the left is taking a family household where there is a parent and 3 children in the household.