06/08/2013 21:36


Maintenance for children


We were recently faced with an interesting question: where parties are in the process of divorce, and there is no maintenance order in force, is the Court entitled to make an order for the attachment of a parent’s inheritance for the payment of arrear and future maintenance of that person’s child or children?


South African common law upholds the principle of freedom of testation, which, in layman’s terms, means that a person is free to leave his or her assets to whomever he or she chooses.  Our courts will only interfere with the wishes of a testator or testatrix if such wishes and/or bequest(s) are illegal, contrary to public policy or unenforceable (for a number of various reasons).


The Childrens Act of 2005 is based on the premise that the child’s best interests are paramount.  Bearing this in mind, the Maintenance Court’s point of departure is that children should not be left to suffer when their unsupportive parent has the means and capability to maintain and support his or her child. 


So where does that leave a parent who has inherited some money?


If a parent inherits money, and there is no other means available for that parent to pay maintenance, then the Maintenance Court can consider and take into account the inheritance by making a maintenance order against such parent who has received the inheritance.  

When a maintenance order is already in place and the spouse whose duty it is to pay the maintenance fails to do so, only the High Court can order the attachment of an inheritance to satisfy arrear maintenance. 


Where there is no maintenance order in force, the Maintenance Court will only take the unsupportive parent’s inheritance into account as a factor to be considered in determining the parent’s existing and prospective means to support his or her child, and will only be able to make an award or order for current and future maintenance for the child, but not for arrear maintenance.  


The rationale for not awarding arrear maintenance in this situation is that the ‘burden’ of supporting a child or children whether before or after divorce, is a joint obligation on both parents, with the only qualification being that such an obligation is distributable between the parents according to their means.


Therefore, in the situation where the parents are in the process of divorce, and only one of the parents supports a child or children, and the other does not, the parent who feels that he or she has been unfairly tasked with the ‘burden’ of raising a child alone, may have a civil claim against the unsupportive parent similar to that of a claim against a joint debtor for the expenditure and indebtedness actually incurred at the time.


Spousal Maintenance

The duty to maintain a child is inherent in being a parent.  The same is not true of the duty to maintain a former spouse.  This duty arises only if a court orders one spouse to maintain another (which it does by taking numerous factors into account), or if the parties reach an agreement as to the maintenance by one spouse of another. 


Whether a spouse has inherited money is irrelevant to the question of whether there is a duty to maintain a spouse.  It is, however, taken into account once the court has decided that there is indeed such a duty, and when it is called to determine the amount of such maintenance.


Vuyani Phenduka is a junior associate at Natalie Lubbe & Associates Inc.  His interests lie in a number of fields, including family law, insolvency law and commercial litigation.