Family and Personal Law
These are the most common questions we have encountered in our practice areas. For your convenience, the questions along with the answer are merely intended for informational assistance. Every person’s problem is unique and deserves individualized attention.
I believe I pay an exorbitant amount of child maintenance and cannot afford to continue paying this. What are my options?
If this is voluntary child maintenance then you can discuss this with the other parent and advise them that as you cannot afford to pay the higher amount you will be reducing the maintenance you are paying. This puts the ball in their court if they want to bring an application or not, and if they accept it then you avoid the cost altogether. If you are paying child maintenance in terms of a parenting plan, but where there is no court order, then the parenting plan may set out what options should be pursued or approach taken to resolve the issue first. If there is a court order in place which requires you to pay a set amount in child maintenance, and this is now unaffordable to you, then you will need to approach the nearest maintenance court in the area in which the child resides to apply for a reduction in the maintenance you are currently paying. You will need to set out on affidavit as to what has changed in your financial circumstances and put up supporting documents to show that you cannot afford to pay the maintenance set out in the court order. This will then follow the ordinary procedure of maintenance court proceedings whereby the court will decide after a formal enquiry is held whether there should be a reduction in the court ordered child maintenance you are paying.
If the child is a minor (younger than 18) then you can bring the application for them on their behalf. You will need to complete the standard maintenance application provided at the court together with a schedule of your income and expenses to set out what child maintenance should be paid.
The maintenance application calls upon the other parent to attend court for an informal enquiry on a specific day and to provide documents setting out what their financial circumstances are. There may be several informal enquiries that take place at maintenance court where the parties make submissions, provide further documents or discuss settlement. The matter is then adjourned to a specific date for a formal enquiry, where a final decision will be made on the maintenance to be paid. Some maintenance courts have a pre-trial date where the issues in dispute are defined and narrowed down before they will adjourn the matter on that day for a formal enquiry.
A formal enquiry works like a trial does in a legal action, in that oral evidence is given by the parties and submissions are made to the presiding officer (magistrate) based on the documents and the evidence given, following which the presiding officer makes a final decision.
If the other parent is not employed and does not appear to be earning an income, you can bring an application against the child’s grandparents (the parents of that unemployed parent) to contribute to the child’s maintenance instead. Note: Grandparents can only be required to pay for what is considered to be necessary expenses for the children (eg. groceries) and so this is far more limited.
A common complaint is that the other person is not covering “their half”. The amount of child maintenance each person is liable to pay is not divided equally between them, but is calculated on a pro-rata (proportionate) share based on your respective incomes. For example: if two parents are liable for child maintenance and one parent earns twice as much income as the other then that parent should contribute twice as much as the other parent (ie. at a ratio of 2:1). If the total monthly maintenance for the child was R18 000.00, then the pro rata share of what the parent earning double should contribute towards maintenance will be a total amount of R12 000.00. The pro rata share of the other parent will be a total amount of R6 000.00.
Courts also take into consideration the other contributions already being made by any person. If one person is paying the school fees for example then this expense by that person needs to be taken into account as this payment saves the other person from an additional monthly expense.
First look at what the average monthly expenditure is which is paid by you, and work out which of these monthly expenses are shared expenses (for the benefit of both you and your children eg. rent, groceries), your expenses (for the benefit of you only) and direct child expenses (for the benefit of the child(ren) only eg. nappies, toys, school fees). You will then need to fill in a schedule of monthly income and expenses under the separate columns for yourself and for each child with the amount of your monthly expenses on this basis. Expenses which are for the benefit of you only or the child only have the total amount filled in under the column for you or the child. Make sure to distinguish the different monthly expenses between each child (eg. nappies only in the column for the child needing those nappies, or the amount of school fees differing between two children based on which grade they are in). Shared expenses between you and the children are calculated on a basis of 2 parts per adult and 1 part per child (eg. ratio of 2:1 for one child, 2:1:1 for two children, 2:1:1:1 for three children etc.). To calculate the individual amounts to fill in under each column: take the monthly expense and divide it by the total for the relevant ratio (eg. 2:1 = 2+1 = 3 whereas 2:1:1 = 2+1+1 = 4), and then multiply that result by each individual ratio amount (ie. multiply by 2 for you as an adult and by 1 for a child).
For example, if rent is R12 000.00 per month and there is:
Note: It is important to keep a separate list of any monthly expenses being paid by the other person or maintenance contributions (eg. if they pay all or part of the school fees, medical expenses etc. or where they are already paying a monetary amount in maintenance) as the total amount of maintenance for each child should take into account what the total monthly expenses for both parties are for that child in calculating their pro rata share so that the amount of monetary maintenance can be determined.
For example, if the monthly expenses for the child which are paid by you are R12 000.00 per month and the other person pays directly educational and medical expenses in an amount of R6 000.00 per month, then the total monthly expense for the child is R18 000.00. If the other person’s income is double what yours is, they would then be liable for a pro rata share of R12 000.00 total in child maintenance. You would be liable for your pro rata share of R6 000.00.
If the other person is to continue to pay the educational and medical expenses of R6 000.00 per month directly (and not to yourself), then a monetary amount of R6 000.00 per month is the total amount that they are liable to pay in maintenance to you to meet the child’s monthly expenses. Note that only contributions which are paid directly and which are not paid directly to you can be used to reduce the amount of monetary maintenance.
Certain expenses are trickier to calculate when they are not regular, such as an annual once-off expense like renewing a TV licence or a constantly changing expense with a wide range from cheap to expensive like medical expenses. Once-off annual expenses are easy, as you only need to take the total amount you are required to pay for the year and divide it by 12 to get the monthly amount. Irregular expenses like medical expenses which are affected by use can be best calculated according to the total expenses for the previous 12 months divided by 12 to get an average expected monthly expense. If there is an expected increase (eg. recent medical diagnosis that will now require frequent medication etc.) then you can include the expected monthly cost of this based on the available information. This inclusion can then be justified to a court if disputed by the other person.