The Court's New Attitude on Parent's taking Responsibility for their Kids!
As most of you know, maintenance is normally a word people bandy about in housework or movable repairs. Of course, on the more serious note, it also relates to a duty by one person to support another person or people. This duty of support can either result from an act of volition (i.e. marriage or adoption) or from conception of life (i.e. a child or parent). They are reciprocal duties of support that each party owes to the other. The two differ in minor respects but the concepts are (for this purpose) essentially very similar.
Support depends on a lifestyle to which a person has become accustomed (when married and subsequently divorced) or depends on the needs of that person with whom a duty exists (when dealing with a child born out of wedlock or your own parents). However, as with lifestyles these days, they are fickle and subject to changes in one's own circumstances. If this occurs, it is up to the person who suffers those changes to approach the court for a variation in support ("maintenance"). This comes with certain duties of its own, like proving changed circumstances, that the same affect your affordability, etc.
Although South African law has, on the whole, balanced out the inequalities in respect of primary parental roles in children's lives, factually, the mother is usually the person who bears the brunt of financial burdens to care for children. It is then the father's duty to pay his maintenance on a ratio calculated based on the parties' respective incomes against the children's needs.
What bothers me the most of this particular process is that more often than not, a father could show a small change in circumstances but the court would order a major variation in the order which ultimately is not in the best interests of the child(ren). The opposite is also true viz a father in such precarious financial dire straits that notwithstanding proof being supplied, the court errs on the side of caution and reduces the maintenance only marginally but not within a margin for him to manage. This then does not allow the father be given an opportunity to build his own portfolio and to better himself so that one day, he can get back to where he was (or better).
A recent decision of the KwaZulu Natal High Court left me flabbergasted (in delight!) as to the possible repercussions of this order. In MS v KS 2012 (6) SA 482 (KZP), the court took a dim view on apparent changed circumstances of this particular person and in fact made suggestions as to how the father could reduce his income to satisfy his children's needs. The court made an important ruling that the most important considerations in all of this were the needs and welfare of the children. Justice Swain correctly pointed out that "the payment of maintenance for minor children was a priority in the demands upon the resources of the individual liable for the payment of such maintenance." Swain J added that the father could, for example, reduce payments towards his retirement annuity and temporarily suspend payments to a family member (in respect of a loan) as priority is first always to the children's expenses. Swain J went on to say that expenses which are not basic expenses of the father (e.g. clothing and entertainment) could be considered a saving and that saving could be utilised towards the children's expenses. Any assessment is always in the best interests of a child / children.
This case, in my opinion, is a landmark decision as it paves a way forward for Magistrates to become a lot stricter on Variation applications. Hope and faith restored is yet to be seen but is imminent.
Support depends on a lifestyle to which a person has become accustomed (when married and subsequently divorced) or depends on the needs of that person with whom a duty exists (when dealing with a child born out of wedlock or your own parents). However, as with lifestyles these days, they are fickle and subject to changes in one's own circumstances. If this occurs, it is up to the person who suffers those changes to approach the court for a variation in support ("maintenance"). This comes with certain duties of its own, like proving changed circumstances, that the same affect your affordability, etc.
Although South African law has, on the whole, balanced out the inequalities in respect of primary parental roles in children's lives, factually, the mother is usually the person who bears the brunt of financial burdens to care for children. It is then the father's duty to pay his maintenance on a ratio calculated based on the parties' respective incomes against the children's needs.
What bothers me the most of this particular process is that more often than not, a father could show a small change in circumstances but the court would order a major variation in the order which ultimately is not in the best interests of the child(ren). The opposite is also true viz a father in such precarious financial dire straits that notwithstanding proof being supplied, the court errs on the side of caution and reduces the maintenance only marginally but not within a margin for him to manage. This then does not allow the father be given an opportunity to build his own portfolio and to better himself so that one day, he can get back to where he was (or better).
A recent decision of the KwaZulu Natal High Court left me flabbergasted (in delight!) as to the possible repercussions of this order. In MS v KS 2012 (6) SA 482 (KZP), the court took a dim view on apparent changed circumstances of this particular person and in fact made suggestions as to how the father could reduce his income to satisfy his children's needs. The court made an important ruling that the most important considerations in all of this were the needs and welfare of the children. Justice Swain correctly pointed out that "the payment of maintenance for minor children was a priority in the demands upon the resources of the individual liable for the payment of such maintenance." Swain J added that the father could, for example, reduce payments towards his retirement annuity and temporarily suspend payments to a family member (in respect of a loan) as priority is first always to the children's expenses. Swain J went on to say that expenses which are not basic expenses of the father (e.g. clothing and entertainment) could be considered a saving and that saving could be utilised towards the children's expenses. Any assessment is always in the best interests of a child / children.
This case, in my opinion, is a landmark decision as it paves a way forward for Magistrates to become a lot stricter on Variation applications. Hope and faith restored is yet to be seen but is imminent.
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