SOUTH AFRICA Law and Practice Contributed by: Beverley Clark, Jana van Breda, Elmarie Erasmus and Lauren Christie, Clarks Attorneys
states that a decree of divorce shall not be granted unless the court is satisfied that provision was made for the welfare of any minor or dependent child of the marriage. Child Maintenance Child maintenance refers to a child’s direct and indi ‑ rect reasonable monthly expenses. Section 15 (2) of the Maintenance Act 99 of 1998 states that maintenance extends to “such support as a child reasonably requires for [their] proper living and upbringing, and includes the provision of food, cloth ‑ ing, accommodation, medical care and education”. Calculating child maintenance Every parent has a responsibility to contribute to the maintenance of the child. Child maintenance is calcu ‑ lated pro rata according to the parents’ means. There is no set formula for child maintenance in South Afri ‑ ca, unlike in many other jurisdictions, with each case being dealt with on its own merits. The first step is to quantify the child’s reasonable monthly expenses, considering both direct expenses (educational costs, extra-murals and the child’s medi ‑ cal aid portion, etc) and indirect expenses (day-to- day living expenses, accommodation, etc). Indirect expenses are generally apportioned according to the principle of two parts per adult, one part per child, but there are instances where expenses are split equally between the parent(s) and the child. There is often a dispute as to the reasonability of expenses. The second step is to determine the parents’ respec ‑ tive means, which includes a party’s income and their net asset base. Thereafter, the child’s monthly mainte ‑ nance requirements will be apportioned between the parents’ pro rata, according to their means. Agreement on child maintenance Parties can agree directly between themselves on the child maintenance payable, or with the assistance and intervention of their respective legal representatives, or they can enter into mediation with the aim of ami ‑ cably resolving this aspect. If they are unable to reach agreement, the matter can be decided by a court.
Once the parties have reached an agreement, they will enter into a comprehensive settlement agreement, to be made an order of court, dealing with all aspects of their divorce, or they can enter into a parenting plan as envisaged in Section 33 of the Children’s Act. This parenting plan can either be registered with the Family Advocate’s Office or it can be made an order of court. Court orders in relation to child maintenance The court (ie, the High Court, regional court or mainte ‑ nance court) can make orders in relation to child main ‑ tenance upon the application of either party or upon the application of a major dependent child against a parent. Child Application for Financial Provision A parent will claim maintenance on behalf of a minor child (a person under the age of 18 years). Once a child has attained the age of majority (ie, 18 years of age), the major dependent child may approach the court for a maintenance order for financial support until such time as they are self-supporting. However, a parent has the right (locus standi) to bring a claim on behalf of a major dependent child still living with them. 3.3 Other Matters Major Decisions and the Court’s Power Section 30 (2) of the Children’s Act allows co-holders of parental responsibilities and rights in respect of a child to act without the consent of the other co-hold ‑ er when exercising their parental responsibilities and rights, except where they are precluded from doing so in terms of the Children’s Act, another law or a court order. Section 18 (3)(c) of the Children’s Act specifies that the following decisions must be made jointly between all persons having guardianship: • consent to the child’s marriage; • consent to the child’s adoption; • consent to the child’s removal from South Africa (be it temporary or permanent); • consent to the child’s application for a passport; and • consent to the alienation or encumbrance of any immovable property owned by the child.
221 CHAMBERS.COM
Powered by FlippingBook