Fathers Rights Article 3: How maintenance is determined
In our previous article, we briefly discussed what the rights of unmarried fathers to their children consist of.
In this article, we shall consider the responsibility of the unmarried fathers in regards to maintenance for the minor child, specifically how maintenance is determined.
Both parents have a legal duty to support their minor children in accordance with their respective means, regardless of whether the parents have never been married. The courts 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 father’s means. What this results in is a two-stage enquiry:
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;
The father’s 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 father (the non-custodial parent in this instance) taking into account the facts in 1 above. However, in terms of the 2 above the father may simply not be able to afford the amount taking into account the financial requirements that he 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 father if the father simply does not have the means to support the minor child. This may occur if, for example, the father may have been retrenched and has no current income.
However, this example is based on the situation at the time of an order for maintenance being granted and can be reviewed and amended should the father’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 father not having any access or visitation to the minor children the father 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 the father’s duty and cannot be waived.
While not strictly speaking relevant to this article it should be noted that the father’s right to access and visitation is not dependent on the payment of maintenance as these are separate rights and issues. Therefore should the father 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 stipulate at what stage the order is to continue. 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 options available to unmarried fathers when access and visitation are refused.