By Isabel Pretorius
It’s no secret that maintenance (for minor children) in South Africa is regarded as a very important responsibility. Courts tend to take applications where maintenance disputes are involved, very seriously. Any Court (such as the High Court, or Maintenance Court) should always make an order which promotes and protects the best interest of the minor children involved.
In a recent judgment (in Pretoria High Court) a father failed to adhere to his maintenance obligations in full. The father was in arrears for a small amount (R6 000.00) and his attorneys informed his former spouse of his intention to settle the arrear maintenance as soon as he is in the position to do so. The reason for the default in the maintenance payment was due to the Covid-19 pandemic and the resultant financial predicament many professional persons are facing. The father’s salary was reduced and therefore there was a significant change in his financial circumstances.
Despite this, the mother proceeded with a Court application to hold the father in contempt of a Court order. Her legal team argued that the father should be held responsible for the arrear payment, and summoned to imprisonment should he fail to adhere to his maintenance payments in the future.
The Acting Judge considered all the documents and surrounding circumstances. It was clear that the father paid only a portion of his maintenance (with a shortage of R6 000.00) however he immediately advised his former spouse of the reason for the short payment as well as his intention to settle the arrears in full. The Acting Judge found that the mother was unreasonable by launching the contempt of Court proceedings and made an order that the father was not in contempt of Court. The mother was also awarded a cost order and liable for the costs of the application. Furthermore, the Court made it clear that the mother was unreasonable with her expenses and she had to re-examine her expenses.
So how do the courts calculate maintenance? First, it is important to note that every child’s maintenance needs should be determined individually. The maintenance Court has a calculation to determine what amount each parent should contribute. Let’s assume the father’s contribution should be determined, the calculation will be as follows:
Father's monthly contribution = (Father's monthly gross income x child's monthly living expenses) / total monthly gross income of both parents
What about shared expenses? Fuel, DSTv, lodging, etc. are expenses that benefit not only the parent with whom the children reside, but also the children. To calculate the child’s portion of a shared expense (in a home where one adult and one minor child resides) the total amount of the shared expense should be divided by three. An adult’s portion of a shared expense will be 2 parts and a child’s portion will be 1 part. Therefore, the shared expenses should be divided by three, and the child’s portion will be a third of the total amount.
It is important to calculate maintenance reasonably and to ensure that the minor child’s needs are protected. When your financial position changes, you are entitled to approach the maintenance court for assistance. No matter what your circumstances are, always ensure that your actions are bona fide and in the best interest of the minor children involved.
Isabel Pretorius is an Associate of Family Law at Barnard Inc Attorneys
PERSONAL FINANCE