Jane was divorced in 2014 when her son Jack was 13 years old. As part of her divorce settlement (divorce order), provision was made for the payment of child maintenance to Jane by her ex-husband, Tom. The terms of the settlement agreement were made in an order of the court and Tom made regular payments once per month to Jane as per the order.
In January this year, Jack turned 18. Tom began defecting on his regular payments to Jane, arguing that, because Jack had reached the age of majority and therefore was no longer a “child”, he was not required to pay “child” maintenance. Jack had just begun his first year at university and the bills were piling up. Without the maintenance contribution, Jane began to struggle. Does Jane have a claim against Tom? And if so, what?
Child Maintenance in South Africa
In terms of Section 18 of the South African Children’s Act, a person (parent) has parental responsibilities and rights in respect their child, which includes the responsibility to contribute towards the maintenance of their child pro rata their respective means. A parent claiming child maintenance may claim the reasonable expenses incurred in respect of that child, including the educational and schooling expenses, medical care, food, accommodation and clothing expenses.
The courts have made it clear that both parents have a joint duty to maintain their children proportionally according to their respective means. When deciding on an award of maintenance, the court official will consider all the relevant factors including the family’s standard of living, their income and their cost of living, to ascertain the children’s reasonable needs on a monthly basis. Generally, the court will determine what the overall household expenditure is and allocate one-part per child and two-parts per adult. When assessing the reasonableness of the maintenance award, the court will look to the respective means of the parties in order to apportion the maintenance award proportionally between each parent. Once a maintenance order is made, the parent paying the maintenance is bound by the order until the order is varied or set aside by another court.
Failure to Pay Child Maintenance in South Africa
We advised Jane that unlike in the United Kingdom, in South Africa, Tom’s duty to support Jack did not cease when he reached the age of majority (18 years). Tom’s duty to contribute towards Jack’s reasonable maintenance needs would only cease should Jack become sufficiently self-supporting.
We considered the wording of Jane’s divorce order to determine if there was a time frame in which Tom was required to make payments. Their divorce order states that Tom would be liable to make payments to Jane until Jack reached the “age of majority or was sufficiently self-supporting.” Whilst Jack did turn 18, he was most definitely not sufficiently self-supporting. When interpreting the latter, the court will always do so on a case-by-case basis.
And even if Jack had been both 18 and sufficiently self-supporting, it is not for Tom to unilaterally change the terms of the parties’ divorce order because, in his view, Jack is 18 and thus no longer a child. If Tom felt that the order is no longer applicable to him, he would have to apply to the court to have the order set aside (or varied) by way of an application proving that setting aside the order was warranted. Tom did not do this, and he has now, unfortunately, attracted some serious consequences for himself.
We advised Jane, that because Tom was in breach of the divorce order, Jane would be able to apply to the maintenance court in which she is resident to:
- issue a warrant of execution against Tom’s movable property to satisfy the arrear maintenance;
- apply for an order for the attachment of emoluments against Tom’s salary to recover the arrear maintenance due or apply for a garnishee order to recover the arrear maintenance due;
- apply for an order for the attachment of the maintenance debt (attach funds in Tom’s bank account); or
- launch an application for contempt of court (threat of jail time).
What Tom did not know, is that failure to pay maintenance in South Africa is a criminal offence. In the eyes of the law, Tom is in contempt of court and can be fined or imprisoned for up to one year for failing to comply with the court’s maintenance order.
At the end of the day, jail is not a fun place. So, do not end up like Tom.
If you are unsure about your current maintenance obligations, we advise contacting our Matrimonial Law Department to discuss the implications of any court orders that may apply to or against you.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)