Maintenance

Children

Both parents have a legal duty and obligation to maintain the minor (minor means a child under 18) biological child born of their marriage. Maintenance must be paid according to what the respective income of each party is. The court will look at various factors such as the age of each child, the state of health of the child and educational needs of each child in order to arrive at a conclusion on how much maintenance is payable.

It is advisable that a party who wishes to get divorced make a list of the expenses of the minor child. These expenses would normally include, rent, medical, schooling, clothes, electricity, transport, groceries aftercare fees, domestic workers, extramural activities, and any other day-to-day expenses.

It is possible to obtain a maintenance order before a divorce order is granted by means of a “Rule 32 Application” in a lower court or a “Rule 43 Application” in the High court.

A party to a divorce action can also bring an application in the maintenance court. Without being married a biological parent can also bring a maintenance application against the father or mother of the biological child.

In terms of our law, a child becomes an adult at the age of 18. A lot of people believe that in fact that is when an obligation for maintenance ends, but this is not so. The Maintenance Act itself does not comment on the duration of this responsibility to support a child and in the circumstances, the answer is found in our common law which provides that a parent has a duty to support the child, until the child becomes self-supporting. A child cannot be self-supporting, if for example, the child is still studying or if for example, the child is handicapped and cannot look after him/herself.

Spouse

The main issue in a divorce does not always relate to the maintenance of the children but very often also to the maintenance of a spouse. A party in a divorce matter would normally only be entitled to lifelong maintenance if can be proven that the other party was the sole bread winner throughout the marriage and got him/her used to a certain standard of living which should be maintained after the divorce. Other factors such as the age of the parties and their respective qualifications, as well as the length of the marriage also come in to play.

Very often in a divorce settlement one party would be ordered to pay the other party maintenance for one or two years after the divorce and no longer than that, in order to assist the other spouse financially for a couple of years after the divorce.