There are many misconceptions about divorce and maintenance myths in South Africa which can cause people to make rash decisions that may end up hurting them (and their minor children!) in the long run. Knowing your rights and the true facts about maintenance will ensure that you at all times act in the best interests of your children. It will also help you avoid a situation where you find yourself on the wrong side of the law. This article will explain the interesting facts behind 5 of the most common maintenance myths that are widely believed, but simply are not true.
1. “I can deny my ex contact with our child if s/he does not pay maintenance.”
Contact (previously known as “access”) to children and Maintenance are two completely separate legal issues, whether we like it or not. These two separate legal issues are even dealt with in entirely separate courts. Maintenance disputes are dealt with in Maintenance court and Contact disputes are dealt with in Children’s court. If your ex is not paying maintenance you need to follow the correct legal process by approaching the Maintenance court to enforce his/her maintenance obligations in terms of the maintenance order.
Many parents say, “I don’t care, if s/he is not paying maintenance, then s/he cannot see the kids.” The problem with this reasoning, other than the fact that it is incorrect and unlawful, is that children love both their parents despite who or what that parent is to the other parent. When you withhold contact you are not only taking someone away from your children that they love (they don’t understand what they did wrong) but you are also denying your children the right to have and maintain a relationship with both parents.) If your ex had to approach the Children’s court to enforce his contact rights, and you raise non-payment of maintenance as a defense for withholding contact, the Magistrate will tell you to go to Maintenance court (which is usually right next door to Children’s court!). It is also possible that the Magistrate might even order more contact for the other parent, regardless of whether they are paying maintenance or not. Judges and Magistrates does not appreciate when parents use children as pawns and it is likely that you will hear this in court.
Did you know?
Having an attorney to assist you with a maintenance matter is not compulsory. Contact your nearest maintenance/Magistrate’s Court’s clerk or maintenance officer for assistance. He/she will guide you through the necessary steps get the relief sought.
2. “I can stop paying maintenance if my ex won’t le me see my kids.”
On the flipside of the coin, if you have stopped paying maintenance for your children because you ex are withholding contact, then you are acting in contravention of your divorce order/maintenance order.
Your obligation to pay maintenance is not linked to your contact rights; it is linked to the common law and statutory duty that you have to maintain your children . Even if you are unable to see your children, you should keep paying maintenance. Your children still need to eat in your absence, is that not so? Instead of placing undue financial hardship on the other parent (which directly impacts the minor children as they are the ones who has to go without), follow the correct legal process and approach the Children’s court to enforce your contact rights. As mentioned above, Judges and Magistrates do not appreciate when parents use children as pawns as it is not in their best interests.
Did you know?
Every Magistrate’s Court is a Children’s Court?
3. “Maintenance can only be for the children”.
There are different types of maintenance:
- Maintenance for children,
- Spousal/personal maintenance, and in some cases also
- Interim maintenance pending divorce litigation in terms of Rule 43 (High Court Rules) or Rule 58 (Magistrate Court Rules).
There is a reciprocal duty of support between not only parents and children, but also between spouses. And do not forget that a parent can also claim maintenance against a child in certain circumstances. A duty of support can also arise between unrelated or unmarried people who have created such a duty by conduct.
Want to know more about spousal maintenance?
4. “The maintenance amount cannot be changed after my divorce.”
What happens if a parent loses his/her job after divorce and is no longer is in a position to pay maintenance for the children? If a parent receives a huge promotion, shouldn’t he/she pay more maintenance for the children? In other words, what is the effect of changed financial circumstances after divorce?
The children’s maintenance as stipulated in the divorce order can always be changed after divorce if there is a significant change in circumstances. Spousal maintenance can also be changed after divorce unless there is a specific clause in the divorce order that states otherwise.
How do you change the maintenance amount?
Contact you nearest Magistrate’s Court’s clerk or maintenance officer for assistance. He / she will guide you through the process. It will not be compulsory to have an attorney with you.
5. “There is a set standard maintenance per child.”
This is not true. There is no standard child maintenance table or schedule and it’s unclear when, where or how this myth even started. Many factors including affordability, the parent with whom the children spend most of their time, the standard of living and the children’s ages will affect what is considered to be a reasonable maintenance amount per child.
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Nazli Williams (BCom, LLB), the director of Patton Williams Attorneys, is an admitted attorney of the High Court of South Africa, specializing in Divorce and Family Law matters. Her fields of expertise and interest include Divorce Law, Family Law, Domestic Violence Law and International Divorce Law. Her vision is to demystify Family Law processes, helping good people in plain language and with great technology, to achieve remarkable results.