Unpacking spousal maintenance

Spouses owe each other a duty of support and this may continue after divorce. It can be defined in one of two ways: Ongoing Spousal Maintenance or Rehabilitative Spousal Maintenance.

Rehabilitative Spousal Maintenance

This is for a short period of time (typically around 6 months) to enable the spouse in need to find employment.

Ongoing Spousal Maintenance

This is maintenance until the spouse’s (the one who needs the financial support) death, remarriage or cohabitation.  The award of this type of spousal maintenance depends on a number of factors:

• Spouse’s age
• Duration of marriage
• Employment prospects (skills)
• Ability to work (health)
• Any other relevant factor

What does the award of spousal maintenance again depend on?

NEED vs ABILITY TO PAY

Need is determined by looking at the expenses of the spouse in need, taking into account any income.  There is only a “need” if the spouse is unable to cover his/her own expenses in their entirety.

The ability to pay is calculated by determining if the other spouse has the financial ability to assist, and to what extent.

Co-holders of parental responsibilities and rights

The Act defines “parental responsibilities and rights” as being either “full” or “specific”. Parental responsibilities and rights include

• the care of the child,
• contact with the child,
• being a guardian of the child, and
• the paying of maintenance.

A parent may hold all these rights and responsibilities or some of them. The Children’s Act promotes joint parenting.

Care

This right belongs to both parents (married and in some instances, unmarried).Care relates to:

• where the children reside – defined as either “primary” if they stay for most of the time with one parent, or “shared” if they reside equally with both parents; and to
• joint decision-making regarding the children, e.g.: education, medical and dental, religion, emotional and psychological wellbeing and association (who the child spends time with).

GUARDIANSHIP

Both married parents, and unmarried parents (in certain circumstances) are joint guardians and this continues after divorce or separation. It is only in exceptional circumstances that a court will remove a parent’s guardianship.

As guardians, parents sign indemnities and other documents on behalf of their children.

There are, however, circumstances where both guardians need to asset a minor child:

• Application for a passport
• Consent to marry while still a minor
• The adoption of the child
• The removal of the child from South Africa by either parent or by a third party
• The purchase or sale of immovable property (land)

CONTACT

This issue should be dealt with on a case by case basis, always taking into account the child’s views and wishes, as well as the child’s sporting, social, scholastic and religious commitments.

Contact is the child’s right!

Maintenance of children

The financial support of children is the legal and moral duty of both parents, regardless of whether or not they were ever married. Such a duty of support is based on the following:

• A relationship between the child and the parent
• The need of the child to receive financial support
• The ability of the parent to pay
• The best interests of the child

What is Maintenance For?

Every child has the right to reasonable maintenance to provide:

• housing
• clothing
• medical, dental and health care
• education
• food

How long do you have to pay maintenance?

This duty of support usually ends when the child becomes self-supporting which may or may not be at the time when the child reaches 18. For as long as the child needs financial support, the parent is obliged to pay maintenance.

Two principles of maintenance

#1: Pro-Rata

The parties are to contribute to the expenses of their children according to their means. For example, if mom earns R5,000 and dad earns R10,000 then the total combined income is R15,000. Therefore, Mom earns 33% of the combined income (5000/15000*100 = 33%) and dad 67%.

#2: Need vs. Ability to Pay

If the child’s expenses are R3000, then based on the example above, the mom is to pay 33% of R3000, which is R1000. Dad is to pay 67% which is R2000.

The question is then asked whether mom and dad can afford their pro-rata share once their own reasonable expenses have been paid. If not, cuts have to be made to the budget for all the parties to try and make it fit.

This financial aspect should be revisited on an annual basis to ensure that the pro-rata share is fair and that both parties are able to pay their contribution.