Maintenance: Who is legally liable to maintain who?

According to South Africa law, particularly the common law, both parents (whether in a relationship or not) are obligated to financially support their children. 

While this article will only discuss the maintenance of children, it is also important to note that other parties may be legally liable to pay maintenance. In some instances, grandparents are legally liable to maintain their grandchildren if their children, that is to say the grandchildren’s parents, are unable to maintain the grandchildren. Again, this is only if the grandparents are financially able to maintain their grandchildren. 

Husbands and wives are also legally liable to maintain each other whilst they are married and, if the divorce court makes an order for spousal maintenance then there will also be a legal obligation to maintain an ex-spouse after the divorce. 

Lastly, children may be liable to maintain their parents. This is only if the parents can prove that they are in need of maintenance and that the child or children are in a position to meet this need. 

While children are minors, under 18 years old, the duty of support extends to all their reasonable necessities. What is reasonable depends on the children, their parents’ circumstances and their financial resources. 

A child’s maintenance needs can be divided into three areas: 

Education costs. This is primarily made up of, but not limited to: 

nursery school / pre-school fees / School fees / tertiary education; 

School books and stationery; 

School uniforms; 

School outings; and 

Extra-mural costs including equipment and tours. 

Medical costs. This is primarily made up of, but not limited to: 

The costs of a Medical aid; and 

The reasonable and necessary medical costs not covered by the medical. 

Living costs: This is primarily made up of, but not limited to: 

Accommodation; 

Water and Electricity; 

Food; 

Toiletries; 

Clothing; 

Transport; 

Entertainment; 

Insurances; 

Etc… 

When those children become majors, over 18 years old, their parents still have a duty to support them if they are unable to support themselves, however, they may only be entitled to claim necessities. 

How is maintenance calculated and how is maintenance to be paid? 

• • Step 1 is to determine the children’s maintenance needs; 
• • Step 2 is to apportion the children’s maintenance needs pro-rata between parents, based on each of their incomes or financial capabilities. 

• • Step 3 is to determine if the parent who is liable to pay maintenance is financially able to afford their relevant pro-rata share and if not, how much they can afford to pay. 

Where and when do you get maintenance orders? 

• • If you and the child’s other parent are married and getting divorced, then the divorce court will deal with the issue of maintenance as part of the divorce. In this instance the Parties can either reach an agreement and have same incorporated into the divorce order, or if the Parties are unable to reach an agreement, have the Court adjudicate same. 
• • If you and the child’s other parent are not married or already divorced then you need to approach the maintenance court. All Magistrate’s Courts in South Africa are also maintenance courts and the one within whose jurisdiction the child resides is the one who has jurisdiction to assist you. In this instance, the Maintenance Court will do an enquiry and investigate the maintenance needs of the Children and the Parents’ abilities. The Court may then assist to formalise an agreement between the parties or, refer the matter for a trial if no agreement is possible. 

• • You can approach a maintenance court any time that you need a maintenance order or to change an existing maintenance order. In fact, if necessary, you can even approach the maintenance court when you find out that you are pregnant. 

If you require any further assistance in this regard, please email mouchanev@alanjoseatt.co.za