Maintenance in South Africa
In current South African law the terms “support”, “maintenance” and “alimony” are used interchangeably. The concept of parental responsibilities and rights also includes the duty to contribute towards the maintenance of the child. The responsibility to support a dependent child constitutes an important aspect of the parent child relationship.
There are certain requirements that have to be met for there to be an existence of a maintenance obligation. There must be a relationship – the closest relative should be held liable for the maintenance of a child. The general rule is that support must always be sought from the nearest relative. Only if it is not available should it be sought from a remote relative.
The next requirement is that the person bearing the responsibility of maintenance should have the resources to provide for the child. Having said that, a child might require maintenance and not be in a position to provide for him/herself. In the case where a child can provide for him/herself and a parent still provides for that child, that parent could obtain a refund of the amount of maintenance supplied if not given as a gift.
When determining the extent of maintenance, the courts will look at what is considered reasonable. Both parents must contribute proportionally accordingly to their ability. Where parents are married in community of property, their children must be supported out of the joint estate. Where the parents are married out of community of property, each parent must contribute to support the child out of their separate estates.
Children born out of wedlock enjoy the same protection as children born in wedlock. A woman claiming support for her extra-marital child must however prove paternity. With regard to adoption, all maintenance claims resting on blood relations is terminated. There is however a maintenance obligation to support between the child and the adoptive parents and the adoptive blood relations.
The Maintenance Act defines a maintenance order as an order for the payment, including the periodical payments of sums of money issued by any court in the Republic. The maintenance court can make an order against a parent or anyone liable to provide support in favour of a child in need of maintenance.
If a person liable to provide for the maintenance of a child and does not do so, a court can be approached for the necessary relief. If that person who is liable to provide maintenance refuses or fails to comply with a maintenance order is guilty of an offence and a fine and or imprisonment may be imposed.
The court also has the power to vary a maintenance order, suspend it or rescind an existing order. The person bringing the relevant application will have to provide the court with proof for the need to either vary the order, suspend or rescind it. An application for the variation will not be refused if the best interest of the child necessitates the change. One must keep in mind that although one’s circumstances may change, as long as an order is in force, maintenance is payable according to that order.