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Maintenance – Minor Children & Spousal

A minor child (below the age of 18) is entitled to functional upkeep to provide for his or her clothing, housing, medical care, education, and if applicable, recreation. The duty to support the child rests on both parents, unless exceptional circumstances call for one parent to exclusively provide maintenance. However, this does not preclude the other parent from being a part of the child’s life. Where the parents are in disagreement with each other, the Maintenance Court has the right to settle the dispute.

If one parent disapproves of the other parent’s performance, he or she may not withhold the payment of maintenance. Regardless of whether or not the other parent remarries, denies you access to your child, or has more children of his or her own, you still have to pay maintenance.

The duty to pay spousal maintenance post-divorce is found in Section 7 of the Divorce Act, 70 of 1979. This duty arises in two ways:

– Section 7(1) of the Act provides that the court, when granting a decree of divorce, may in accordance with the written agreement between the parties, make an order with regard to the payment of maintenance by one spouse to the other. This is usually in the case where a settlement agreement is entered into between the parties prior to finalisation of the divorce.​

– Section 7 (2) of the Act and in the absence of a written agreement (settlement agreement) the court may make an order which it finds just in respect of the payment of maintenance by the one spouse to the other by taking various factors into account. The court is required to consider the factors referred to in section 7(2) in order to decide, firstly whether maintenance is to be paid at all and, if so, the amount to be paid and the period for which maintenance is to be paid.

According to section 8 of the Divorce Act, 70 of 1979 a maintenance order, made in terms of this Act, may at any time be rescinded or varied or, in the case of a maintenance order, be suspended by a court if the court finds that there is sufficient reason.