The duty of support contained in the Divorce Act 70 of 1979
Section 6(1) of the Divorce Act 70 of 1979 provides that a decree of divorce may not be granted until the court is satisfied that the provisions made for the welfare of the children are satisfactory, or that they are the best in the circumstances.
The law requires that both parents must support their children. When parents divorce children are entitled to reasonable maintenance. This reasonable maintenance must provide for housing, clothing, medical and dental and health care, education and training and recreation where applicable. What is reasonable will depend on the means of the parents and their normal standard of living.
If the parents are affluent it is obvious that reasonable maintenance will include secondary and tertiary education and may also include vocational training. Whether a child is entitled to a university education will depend whether such an education can be classified as a “necessary”. In Smit v Smit 1980 (3) SA 1010 (O) the court said that the concepts of “necessaries” and “indigence” are elastic and that the duty of support is not necessarily limited to a low level of education.
It is against public policy to stipulate in a maintenance agreement on divorce that a parent is not liable to maintain a child (Shields v Shields 1946 CPD 242)). It is also against public policy for a parent to undertake to contribute everything he or she earns towards the maintenance of the children (Baart v Malan 1990 (2) SA 862 (E)).
In Du Toit v Du Toit 1991 (3) SA 856 (O) the court refused to make a special order for a child’s medical expenses. This order would have been an order over and above the maintenance order. The court found that the effect of such special orders could make the total amount of maintenance payable unrealistically high. In the event of a major illness the custodian parent should apply for an increase in maintenance.
However, a different approach was adopted by the court in Schmidt v Schmidt 1996 (2) SA 211 (W) regarding separate orders for medical services and school fees. The court pointed out that these fees are constantly increasing and it is not practical to try and quantify the amount, which could lead to frequent approaches to the maintenance court for a variation of the special order.
A maintenance court is empowered to make special provision for medical expenses in addition to the maintenance order. The maintenance court may also make an order that the person register the dependent in a medical scheme to which that person belongs.
What is the position where the parties are living apart and the husband refuses to pay maintenance on the basis that he was not to blame for his wife’s departure and that he was willing to accommodate and pay for his family in his home?
This argument is valid insofar as it relates to the wife. However, the position in respect of the children is different. The fact that the parties are in dispute does not affect the duty of support on the father and he is required to pay maintenance for the children on the basis that the children’s interests are paramount.
In Zimelka v Zimelka 1990 (4) SA 303 (W) a father had been awarded custody of his children. The father had a substantial income but nevertheless applied for a variation of the divorce order which had not required the mother to contribute towards the maintenance of the children. The court said that the fact that he did not need any contribution from the mother was irrelevant. However, on appeal the court said it was indeed relevant whether the father required any contribution but that he had not proved that he did. The mother was already making a substantial contribution to the children’s maintenance because she spent holidays and weekends with her. The application for a variation order was turned down.
The failure to comply with a maintenance order is an offence. If a maintenance order has been made against a person, and that person fails to make any particular payment, the court may order the attachment of movable or immovable property.
In Burger v Burger 2006 (4) SA 414 (D) the court found that the Act is limited with regard to the recovery of maintenance from a husband who had adopted a hostile attitude regarding the claim for maintenance. In this case, the father, who was obliged to pay maintenance for his minor children was unemployed and also in arrears with the maintenance payments. He was due to receive certain moneys for the sale of his immovable property and his wife applied for the payment of this amount to cover maintenance payments. The court pointed out that the Act does not make provision for the attachment of a lump sum in order to secure future monthly maintenance payments. However, the court relied on its inherent powers and ordered that the father should be restrained from having access to the funds.
The re-marriage of one of the spouses after divorce, does not affect the parent’s duty of support.
A step-parent is under no obligation to support a stepchild. However, if the second marriage is in community of property and the wife has children from her first marriage, her contribution to her child’s support comes out of the joint estate.
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