Our expert says:
Family law expert
In terms of the Law of Maintenance the amount to be paid for dependants, after a divorce, is a duty of support by both parents.
Basically said, it means that one parent cannot pay an amount for maintenance while the other parent does not contribute to the maintenance of the children.
As mentioned above, maintenance is a wide concept embracing, amongst other things, the provision of food, housing, clothing, medical care, and, in respect of children, education and probably the cost of litigation. When the parents are divorced, it is the custodian parent who decides the question of proper education for the children. Education may include tertiary education. In other words, far more is envisaged than the provision of the bare necessaties. As was pointed out in the case of Prophet v Prophet, "need" embraces more than "merely such as is necessary for the support of life". The criterion of the "best" or true "interests" of the child is often invoked. Although parent and child have a reciprocal obligation of support, the consept of "necessaties" is given a far wider interpretation when it comes the support of children than in respect of the support of a parent.
The level at which maintenance is provided is usually determined by the standard of living of the parents and their standing in the community. It is they who determine the standard of living of a child. However, in calculating how much maintenance a child should receive the approach of first estimating what the liable parent can afford to contribute and then adapting the child's needs accordingly is incorrect. In addition to food, clothing and accommodation the provision of the amenities of electricity, water, linen, cutlery and laundering should be taken into account.
In order to fulfil their obligations to support children, parents must use their income and also, if necessary, their capital.
As mentioned above, one of the three prerequisites of the duty of support is that there be adequate recourses on the part of the person who is called upon to provide support. It follows that as long as a parent is genuinely indigent and unable to work, for example for health reasons, he or she is not under an obligation to support children. Where a parent is able to provide only limited support or a limited contribution to the child's support and any particular requirements of the child is beyond the parents financial means, the parent is not obliged and is under no duty to provide the requirement concerned.
A father is presumed to be capable of supporting his child until the contrary is proved. A parent cannot evade the duty to support by giving up word and, for example, embarking on full-time studies. Similarly, parents cannot be allowed to realise the potential of their earning capacity to the detriment of their children by, for example, charging abnormaly low rentals on property belonging to them.
In accordance wiht the second of the three prerequisites mentioned above, parents need not support a child who does not need maintenance or is self-supporting. The child may be working or have an income from other sources. The fact that a child can support him- or herself does not always preclude a duty to provide higher, however. Where a child has income but the parent nevertheless maintains that child, the question whether the parent can at a later stage recover the contribution depends on the intention with which it was made; if it was intended as a donation there can be no recovery of the contribution.
It is therefore clear that the amount of R5000.00 for both children is not an unrealistic figure and do you have to consider the prerequisites as stated above. If the father of the children is able to pay more maintenance and the need for the children is such that a larger amount of maintenance is required, then the maintenance court can be approached for an increase of maintenance.
Family Law Attorney
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