Divorce and Family Law

 

 

While some basic online calculators might provide a rough estimate, it's important to understand that these are not legally binding and don't account for the specific nuances of each case. The calculation of child maintenance is highly fact-dependent and requires a thorough assessment of individual circumstances.

Yes, a child maintenance order can be varied (increased or decreased) if there is a significant change in circumstances. This could include changes in the child's needs (e.g., starting tertiary education, requiring specialized medical treatment) or changes in either parent's income or expenses. An application must be made to the Maintenance Court to request a variation.   
 

While you can approach the Maintenance Court directly, engaging a lawyer, like the experienced professionals at Aucamp Inc., can be highly beneficial. We can provide expert guidance on the relevant legal principles, assist you in gathering the necessary financial information, help you negotiate a fair maintenance agreement, and represent you in court if necessary. This can significantly increase your chances of reaching a just and equitable outcome that prioritizes your child's best interests.   

While the amount of time a child spends with each parent isn't the sole determining factor, it can be taken into consideration. If parents share care responsibilities relatively equally, the court might adjust the maintenance contributions accordingly, focusing on the actual expenses incurred by each parent for the child.

The court will consider the gross income of both parents, as well as their reasonable expenses and financial obligations. The aim is to ensure that both parents contribute proportionally to the child's needs based on their respective financial means. The parent with a higher income will generally be expected to contribute a larger share.

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Calculating Child Maintenance Ensuring Your Child's Needs are Met with Aucamp Inc.

The well-being of your child is paramount, and ensuring they receive the necessary financial support is a legal obligation for both parents. At Aucamp Inc., we understand the complexities surrounding child maintenance calculations and are here to provide expert guidance and assistance in navigating this crucial aspect of family law. We are dedicated to helping you secure a fair and reasonable maintenance order that prioritizes your child's best interests.

In South African law, the calculation of child maintenance is rooted in the principle that a child has a right to reasonable maintenance to cover their essential needs. This legal duty, known as the "duty to maintain" or "duty to support," rests on both parents, who are obligated to contribute according to their respective financial means. This responsibility extends to all children, including those adopted, born in or out of wedlock, and from any marriage.

Calculating Child Maintenance

The legal obligation to provide for a child's essential needs, such as clothing, housing, food, education, and medical care, rests equally on both parents according to their financial capabilities. In South Africa, every Magistrate’s Court has a dedicated Maintenance Court to deal specifically with all maintenance-related matters. This court is staffed by various officials, including a Magistrate, a Maintenance Officer, and Maintenance Investigators, who oversee different types of applications and processes.

1.  Application for Maintenance (Where No Existing Court Order is in Place)

If you are a single parent whose child's other parent is not providing financial support and there is no existing maintenance order, you will need to initiate an application for a Maintenance Order.

Completing the Application Form: Your first step is to complete the form titled ‘Application for Maintenance Order’.

  • You will fill in your personal details as ‘the complainant’.
  • Under point number 1, you will provide the details of the other parent, who is referred to as ‘the defendant’.
  • Point number 2 asks why the defendant should maintain you. It is important to note that you are applying for the other parent to maintain your child(ren), as you are their primary caregiver.
  • At point number 3, you will specify the period during which the other parent has not provided monthly cash contributions for the child(ren). You can also include details of other unpaid contributions, such as for education, medical care, and clothing.
  • Point number 4 is typically completed at the end of the form.
  • At point number 5, under ‘ASSETS and INCOME’, you must declare your current assets and income. Full disclosure is legally required.
  • The ‘EXPENDITURE’ section requires you to detail your household expenses, allocating costs fairly between yourself and your child(ren). For shared expenses like lodging, you would typically divide the total cost by the number of household members to determine the individual and children's portions. Expenses solely for the children, such as school fees and uniform costs, should only be allocated to the children’s column.
  • Finally, calculate the ‘TOTAL EXPENDITURE’ for yourself, your child(ren), and the total household.
  • Specifying the Claimed Amount Once your expense calculations are complete, return to point number 4. Considering the total needs (expenses) of your child(ren), insert the specific amount you are claiming for each child, along with their name and date of birth. You can also specify other contributions sought under ‘OTHER CONTRIBUTION’, such as for education, medical needs, and clothing.
  • Submitting the Application After completing the form, you must sign it in front of a Commissioner of Oaths (available at SAPS stations, banks, or post offices), who will also sign and stamp the form. Attach a copy of your child(ren)’s birth certificate(s) and your identity document. Your attorney or you can then submit the form to the clerk of the maintenance court. The clerk will process your application and provide a ‘Directive’ containing your first court date.
  • Serving the Application Your attorney will take the Directive to the Sheriff’s office to serve the application and the Directive on the other parent, informing them of the court date and the nature of the application.
  • First Court Date (Directive) As the applicant, you will need to be present at court on the date specified in the Directive. Typically, the other parent (respondent) will also be present. The maintenance officer will then set another court date to formally subpoena the respondent. This initial appearance is mainly to establish if the respondent intends to have legal representation and to ensure their formal attendance, which is necessary for a potential Warrant of Arrest in the future if they fail to appear. You, as the applicant, are not always required to appear on this first date. The matter will be postponed for the respondent's attorney to be appointed or for settlement discussions.

2.  Application for an Increase or Reduction in Maintenance (Where an Existing Court Order is in Place)

If the current maintenance amount is no longer sufficient to meet your child(ren)’s needs, or if your financial circumstances have changed making it difficult to pay the current amount, you will need to apply for a substitution or discharge of the existing maintenance order. It is crucial to formally apply for a reduction if you cannot afford the current payments; simply stopping payments is not permissible.

  • Completing the Application Form You will need to complete the form titled “SUBSTITUTION OR DISCHARGE OF EXISTING MAINTENANCE ORDER”.
  • Fill in your personal details as ‘the deponent’.
  • Under point number 1, provide the details of the other parent (the person against whom the existing maintenance order was made).
  • Indicate the current maintenance amount being paid or received and any additional contributions made for the child(ren).
  • Attach a copy of the existing maintenance order to the application form.
  • At point number 2, specify the new maintenance amount you are requesting (either an increase or a decrease).
  • At point number 3, clearly state the reasons for seeking an increase or reduction, such as increased needs of the child(ren) or a change in either parent’s financial situation (e.g., injury, disability, retrenchment).
  • Point number 4 requires you to disclose your current assets and income in the ‘ASSETS and INCOME’ section and detail your expenses in the ‘EXPENDITURE’ section, using the same allocation formula as in the initial application.
  • Calculate the ‘TOTAL EXPENDITURE’ for yourself, your child(ren), and the total household.
  • Submitting the Application Sign the completed form in front of a Commissioner of Oaths, who will also sign and stamp it. Attach a copy of your child(ren)’s birth certificate(s) and your identity document. Submit the form to the clerk of the maintenance court. The clerk will process your application and provide a ‘Directive’ with your first court date.
  • Court Process The court process for an application for substitution or discharge of an existing maintenance order is similar to that of a new application. The Maintenance Officer will inquire about the reasons for the requested increase or decrease on your first court date as per the Directive.

The Court Process - From Application to Final Order

The process in the Maintenance Court typically involves several stages

  • Initial Application and Directive The application is lodged with the court, and a first court date (Directive) is issued.
  • First Court Appearance The respondent appears to confirm their intention regarding legal representation and to ensure formal subpoena.
  • Document Exchange The court will typically postpone the matter for the exchange of financial documents between both parties, including salary slips, bank statements, and proof of expenses.
  • Informal Meeting An informal meeting is held in the Maintenance Officer’s office with both parties, their legal representatives (if any), and the Maintenance Officer. This is an opportunity to scrutinize documents and attempt to reach a settlement. If an agreement is reached, a consent form is prepared and presented to the Magistrate to be made an order of court.
  • Formal Enquiry (Trial) If no settlement is reached during the informal stage, the matter will be postponed for a formal enquiry (trial) before the Magistrate. Both parties will present oral evidence and can be cross-examined.

Key Considerations in Calculating Child Maintenance

  • Reasonable Needs of the Child The maintenance amount should cover the child’s reasonable needs based on their standard of living. Inflated or unnecessary expenses can hinder the process.
  • Change in Circumstances For applications to reduce maintenance, the court will require proof of a significant change in either parent’s financial situation.
  • Proof of Expenses It is vital to keep thorough records and proof of all expenses related to the child(ren) and the household to support your maintenance claim.
  • Interim Maintenance If there is no existing maintenance order, you can request an interim maintenance order to be put in place while the final order is being processed.

Legal Assistance in Child Maintenance

Navigating the complexities of child maintenance applications can be challenging. At Aucamp Inc., our experienced team can provide you with the expert legal assistance you need to understand your rights and obligations, prepare and submit your application correctly, and represent you in the Maintenance Court. Contact Aucamp Inc.today for a consultation to ensure your child’s financial well-being is protected.