Within Family Law, an application is dedicated to protecting and serving the best interests of a/the child(ren) and their parents.
Maintenance is a the duty of support provided by one party for a child’s or spouse basic interests. Such as; food, shelter, medical care etc.
There are two types of maintenance:
Spousal maintenance is maintenance that is paid by a husband or a wife to their former spouse after a divorce.
Upon divorce, South African law favours the “clean break” principle. This means that after a divorce the parties should become economically independent of one another as soon as possible. There is no automatic right to spousal maintenance after a divorce,
Refusing to pay maintenance.
Maintenance under South African law.
Each case is judged on its own facts, but in practice the following is generally considered:
This area of law has recently seen a major change in the case of Venter v Venter [2013] JOL 30700 (KZP), where the court refused to grant a 57 year-old woman life time maintenance. The judges said: “… the idea that marriage ought to provide a woman with a “bread ticket” for life is on its way out…”. They further referred to two unreported decisions of Robert v Robert (case number 933/2002 DCLD) and McCarthy v McCarthy (case number 5570/2003 CPD).
Spousal maintenance can be claimed via a Rule 43 Application in a divorce case or at the Maintenance Court
But every case depends on its own facts. For example if a wife wants maintenance and but she is young, well qualified, has no children, has worked throughout her married life, is working at the time she seeks maintenance, is in good health and the marriage was not of long duration, the court will not likely award her maintenance.
Forgot to pay custody?
Father duties.
The duty to maintain a child is of such importance in our law that a court is empowered to hold back a decree of divorce if it finds that unsatisfactory maintenance arrangements have been made regarding the child, see section 6(1) of the Divorce Act 70 of 1979 (DA). A decree of divorce will not be granted if the provisions made with regards to the welfare of a minor or dependent child are:
Section 6(3) of the DA goes one step further by granting such a court the power to make any order which it deems fit with regards to the maintenance of a dependent child of the marriage.
A child is entitled to reasonable maintenance to provide for housing, clothing, medical care, as well as education and training and, where affordable, recreation.
What is reasonable will depend upon the circumstances of each case. Below are examples of some of the factors that can be taken into account:
The law also states that a parent must use their income and where necessary, their capital in order to fulfil their child maintenance obligation.
If you miss the deadline to refer your matter to the CCMA, you can still request condonation, which is essentially permission to submit your claim
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