In accordance with the Childrens’ Act 38 of 2005 both parents share equal rights and responsibilities in respect of their child. Thus, both parents must support their child, according to their means. One parent does not escape his/her obligation to support his/her child in the event that the other parent has adequate means to solely support the child.
Maintenance in respect of children includes education. Whether or not this extends to tertiary eduction will depend on the parents’ financial circumstances, and social status as well as the child’s academic aptitude and achievements.
If a parent has to pay maintenance for a child, the fact that the child is visiting him/her temporarily does not entitle him/her to suspend or reduce the payment during that period, unless the Court order contains a specific provision to that effect. It is against public policy to agree in a divorce settlement agreement one of the parents is not liable to maintain the child. If the custodian parent removes the child from the Court’s jurisdiction or refuses to allow the other parent access to the child, this does not mean that the other parent is absolved from the liability of maintenance.
A parent cannot evade the duty to support by giving up work by, for example, starting full time studies. It could however be argued that by taking on part-time studies, that this would increase the parent’s future potential earning capacity. Further, a parent who was previously employed, cannot fail to recognise the full potential of their earning capacity to the detriment of their children who require support. In respect of someone who has previously been employed, a parent’s duty to support his/her child can be made through his/her pension fund.
The parental duty of support only comes to an end when the child becomes self-supporting, which is not necessarily the age of majority, since most 18 year olds are either finishing high school or starting tertiary education. The mere fact that a child is working does not mean that he/she is necessarily self-supporting.
The duty to support a child will also cease when the child is guilty of ingratitude to a degree that would justify disinheritance.
Step- Children and Adopted Children
A parent’s duty is in no way affected by his/her re-marriage. A step-parent is under no obligation to support a step -child. However, any children born of the subsequent marriage will be taken into consideration when calculating maintenance. If a parent re-marries in community of property, his/her proportionate contribution to the child’s maintenance will come out of the joint estate.
An adopted child is deemed to be the legitimate child of the adoptive parent. The reciprocal duty of support between the adopted child and his/her natural parents thus ceases to exist upon finalisation of the adoption.
Children’s Duty to Support their Parents
Children have a duty to support their parents, but subject to the rule that support must be claimed from nearer relatives first. There is a stricter criterion where parents want to claim from their children. The parent must be able to prove that he/she is indigent.
Indigence is defined as extreme need or lack of the basic necessities of life, such as housing or food. To prove indigence, the parent must prove that he/she had previously been maintained/ supported by another person who is now deceased or for some other reason no longer able to support him/her. Secondly the parent must prove that he/she is unable to support themselves. Further where the parent seeking maintenance has other dependants, then their needs must also be taken in to consideration.
In terms of the common law an extra-marital child has a duty to support his/her mother, but whether or not he/she must support his/her father has yet to be decided. It can however be argued that an extra-marital child would be liable to maintain his/her father in terms of section 16 of the Children’s Act.