Divorce Article 10: Maintenance for minor children in divorce proceedings

In our previous article, we briefly discussed some issues regarding guardianship, custody and access. In this article, we shall consider maintenance for minor children in divorce proceedings.  

During the subsistence of the marriage, both parents have a duty to support the minor children in accordance with their respective means. This duty does not terminate on divorce and the court must ensure suitable arrangements are made in this regard. Please refer to our previous articles on the determination of the best interests of minor children. However, the aspect that causes controversy in this aspect is how maintenance must be determined. As stated above the support of minor children must be in accordance with the parent’s means. What this results in is a two-stage enquiry:

1. The minor’s needs from time to time, age, health, educational needs, social status, the fact that one party already bears the expense of custody and so on;

2. The parent in question financial means.

The second stage of the enquiry is what causes the controversy. By way of example, it can be shown that the child in question requires a certain amount of maintenance from the non-custodial parent taking into account the facts in 1 above. However, in terms of 2 above the parent from whom maintenance is required may simply not be able to afford the amount taking into account the financial requirements that he or she may need to survive. In this instance, the court has held that the custodian parent is not entitled to claim maintenance for the minor children from the non-custodial parent if that non-custodial parent simply does not have the means to support the minor child. This may occur if at the time of the divorce the non-custodian may have been retrenched.

However, this example is based on the situation at the time of the order being granted and can be reviewed and amended should the non-custodial parent’s circumstances change.

The parties, as explained in previous articles, can reach an agreement on the maintenance to be provided for the minor children. However, the court is not necessarily bound to this and may make a different order.

By way of example, it has occurred that the parties agree on a complete separation and in exchange for the one parent not having any access or visitation to the minor children that party would not be required to pay maintenance. The court rejected this stating that the right to be maintained by both parents is the minor’s right and non-custodial parent’s duty and cannot be waived by the custodian parent.

While not strictly speaking relevant to this article it should be noted that the non-custodial's right to access and visitation is not dependent on the payment of maintenance as these are separate rights and issues. Therefore should the non-custodial parent be defaulting on maintenance, for example, due to the change of circumstances or dispute on the maintenance amount, this does not warrant the custodian parent from denying access and visitation.

Maintenance orders usually stipulates at what stage the order is to continue to. For example, until the minor reaches the age of majority or becomes self-supporting.

***Kindly note that the contents of this article are intended for information purposes only and does not constitute legal advice. Please consult an attorney.

In our next article, we shall discuss the rights of the non-custodial parent in divorce proceedings. While this will involve some issues discussed in our previous article on guardianship, custody and access it is nevertheless an important consideration.