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What is the Legal Process for Suspending a Maintenance Order

In cases of divorce or separation, a maintenance order is often established to ensure financial support for a child’s well-being. However, as children grow and become self-supportive, the necessity of continuing such maintenance orders may diminish.

In this article, we will seek to explain when a maintenance order will cease to exist automatically and when a parent needs to approach a court to have the maintenance order set aside.

The duty of parents to support their child

Maintenance includes the reasonable provision towards supporting a child in terms of clothing, housing, dental and medical care, and education. Both parents have a duty to maintain the child according to their respective means as well as the circumstances and needs of the child.

Section 18 of the Children’s Act 38 of 2005 deals with parental rights and responsibilities and in that it places a duty on parents to care for their child and to contribute to the maintenance of the child.

Section 15(2) of the Maintenance Act 99 of 1998 further explains that the duty placed on parents to contribute to the maintenance of the child extends to the support that a child reasonably requires for his/her proper upbringing, this includes providing food, accommodation, clothing, education, and medical care.

When does a parent’s duty to contribute to maintenance stop?

In South Africa, a parent’s responsibility to contribute to the maintenance of the child does not automatically stop when the child reaches the age of majority (which is 18 years) or when the child becomes self-supporting.

It has been held in court, that the wording of a court order in terms of the responsibility to contribute to maintenance is the deciding factor as to when the maintenance obligation will lapse. For instance, where a maintenance order specifically indicates that payment of maintenance will stop when a child reaches the age of 18, the maintenance order will cease to exist when a child reaches the age of 18.

However, if the maintenance order does not specify the above or if the maintenance order states that a parent will no longer have to contribute to the maintenance of a child if the child becomes self-supporting, the maintenance order will need to be set aside by way of an application by a parent that is able to prove that the setting aside of the maintenance order is warranted. 

It is important to mention that a parent’s responsibility and right to apply for maintenance on behalf of a minor child stops when the child reaches the age of 18. However, this does not mean that a parent’s duty to contribute to the maintenance of the major child stops, it only means that the child is deemed to be old enough to bring an application for maintenance in their own name.

When does a child become self-supporting?

Ordinarily, a child who has reached the age of majority, moved out of their family home, obtained employment and/or pays for their own expenses, is seen as self-supporting. A dispute can also arise regarding whether a child is self-supporting if that child is earning an income but is still living in the family home. Another factor to be considered is if the child is ill or physically challenged.

The question arises: At what point is a child regarded as self-supporting?

When deciding on whether a child is self-supporting, there is no definitive list of factors that the courts must look at and the decision is ultimately within the court’s discretion.

A child cannot be regarded as self-supporting purely based on the fact that they are employed, however, this is certainly a factor that the court will consider when it is dealing with an application to set aside the maintenance order. However, even if the child is employed they may still need monthly maintenance contributions from their parents if they are not earning enough money to fully support themselves.

The abovementioned was made clear in the case of Gold v Gold [1975] 4 All SA 325 (D) wherein the court held that if a child is employed it will have to consider whether the child is employed full-time/part-time; the expenses of the child; how much the child earns; whether they are receiving support from the other parent or guardian; and the terms of the maintenance order.

It is important to mention that it is also possible for a court to regard a child as self-supporting even if they are unemployed.

In the case of M v M (0042146/17) [2018] ZAGPJHC 506, the Applicant sought relief in terms of section 8(1) of the Divorce Act 70 of 1979 whereby he brought an application to vary the court order that was granted in which his responsibility to contribute to the maintenance towards the children born of the marriage was set out.

The background of the abovementioned case is as follows: At the time of the dissolution of the marriage, L was in matric, and S was a dependent major child because he was enrolled at university (however, he stopped attending lectures in his third year and eventually dropped out). In terms of clauses 4.1 and 4.2 of the settlement agreement, the Applicant was ordered to pay maintenance in the amount of R25 000.00 in respect of both children.

The Applicant paid the amount of R25 000.00 amount into the Respondent’s banking account on a monthly basis. However, in April 2014, he stopped paying the maintenance when L had passed her matric examinations and decided thereafter to not pursue her studies further and to stay at home. During this time, S re-registered at the university but dropped out again.

In January 2018, S registered at the university for his third and fourth-year modules to enable him to complete his degree. Because the Applicant was liable for maintaining L, who was not pursuing any further studies or has no future plans to support herself, and S (inclusive of his tuition fees), the Applicant brought an application in terms of section 8(1) of the Divorce Act.

The application was based on the following facts:

  • S was 27 years old and the Applicant had paid for all his private school education, tuition fees and living expenses during his third year of studies. He stopped attending classes and simply stayed home.
  • The Applicant offered him employment at his company and the Respondent intervened by simply refusing and that contended that the Applicant should pay the children a monthly salary (without them having to work) as he could afford to do so.

The Court held that clauses 4.1 and 4.2 of the settlement agreement should have been deleted which meant that the Applicant was no longer liable to pay maintenance towards the children.

If a major child has an illness or disability and the child cannot be self-supporting, the parents will continue to have a responsibility to maintain the child.

An application to have a court set aside a maintenance order

In terms of Section 8 of the Divorce Act, 70 of 1979 a maintenance order may at any time be suspended or varied by a maintenance court if the court finds that there is sufficient reason to do so. This means that our courts have the power to set aside a maintenance order if it can be sufficiently proved that a child is self-supporting.

Section 18(4) of the Maintenance Act 99 of 1998 makes provision for a parent against whom a maintenance court has made an order to apply to the maintenance court for the variation or setting aside of the maintenance order by way of an application.

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