Duties of Support

Preamble

The law imposes a duty (arising by its operation and not through contract) upon one person to support another when three requirements are satisfied:

  • The person claiming support must be unable to support himself;
  • The person from whom support is claimed must be able to support the claimant;  
  • The relationship between the parties must be such as to create a legal duty of support between them.

Generally, duties of support are reciprocal, meaning that they may arise in either party, e.g. although usually the parent is obliged to maintain his child, in certain circumstances the obligation would fall on the child to support his parent, subject to certain conditions.  The test is whether the above requirements are met, save for that a more stringent requirement of need is applied to parents than to children.

A notable exception to the above is the child born out of wedlock who is entitled to support from his father although he does not owe his father the corresponding duty.

 

1. The Duty of a Parent towards his Child

The duty to support a child rests commonly to both parents and must be shared between them according to their means. Where both parents and child live in a common household, apportionment of the duty of support is not likely to be an issue but on divorce, this issue becomes important. Remarriage after divorce does not relieve a parent of his responsibility to maintain a child of a previous marriage. Section 15(3)(iii) of the Maintenance Act 99 of 1998 provides that the duty to support children exists irrespective of whether a child is born in or out of wedlock or is born of a first or subsequent marriage.

A parent is therefore obliged to supply his child with food, clothing, accommodation, medical and dental needs, education or training to fit him for his place in society. In other circumstances the parents may be obliged to also pay for university costs or other post-school education. The level at which maintenance is provided is usually determined by the standard of living of the parents and their standing in the community. However, in accordance with the general principles applicable to all duties of support no obligation would rest upon a parent who is indigent or has ill-health and therefore unable to discharge his duties. Likewise, a child who has a means to support himself and is able to do so cannot look up to his parents to support him.

The duty to maintain the child ceases when the child becomes self-supporting.

 

2. The Duty between Husband and Wife

At common law the reciprocal duty of support existing between husband and wife ends on the death of one of the parties and on divorce; but statutory provision is made for the court to order one spouse to pay maintenance to the other on divorce, either in terms of an agreement between the parties or otherwise (Divorce Act 70, 1979 sec 7).

         In the past, husbands were burdened with the duty in favour of their wives because they had greater means and ability to provide support than their wives could do but nowadays wives are on par with their husbands due to changed circumstances and the duty can therefore easily devolve on the wife. The reciprocal duty includes the duty to contribute to the costs of the spouse’s litigation.

         Be that as it may, the existence of a relationship between a husband, his wife and children creates a rebuttable presumption of duty of support, i.e. there is no necessity to allege and prove the need for support where a wife or a child claims maintenance.

Cohabiters have until recently not been considered to owe each other a duty of support either during their relationship or when it ends. It has been held in recent case law that in the light of the constitution, partners in a long-term same-sex union owed each other a duty of support.

 

3. Child’s Duty to Support Parents

In terms of the Children’s Act, a child becomes a major at the age of 18 years and up to this age the parent would have taken full responsibility to offer support to the child.  Does this then mean the duty to support parents begin here? 

The Appellate Division found in the case of Bursey v Bursey and Another 1999 2 ALL SA 289 (A) that the duty of support towards a child by a parent does not terminate at the child’s reaching the age of majority but continues until he becomes self-supporting. A child cannot therefore be said to be self-supporting if, for example, he or she is still studying or is mentally or physically challenged and can’t work. The duty therefore arises when the child is able to offer support.

Parents and children have a reciprocal duty of support. Children have a duty to support their parents and grandparents. The parent or grandparent must however show that he or she is in want of what should, considering his or her situation in life, be regarded as necessities.

When the child is able to maintain his parents, the support must generally be confined to the basic needs like food, clothing, shelter, medicine and care in times of illness, and provided of course that the parent is indigent, i.e., is in extreme need or want.

 

4. Other considerations

As far as relatives are concerned, there could be a duty of support between relatives in the collateral line, meaning that there could be a duty of support between brothers ands sisters, including half brothers and sisters although seemingly this could not be as extensive as that of a parent. There is also a reciprocal duty of support between grand parents and grand children.

The duty of support can also extend to the deceased estate of a person. This is common where there was an existing Court order as at date of death of a person who was obliged to pay maintenance.

 

ENFORCEMENT OF DUTIES OF SUPPORT

 

1. RELEVANT LEGISLATION

 

1.1 The Child Care Act, Act No. 74 of 1983

Section 50(1)(b) of the Child Care Act provides that any parent or guardian of a child or any person having custody of a child who abandons the child is guilty of an offence. Section 50(2) provides that any person legally to maintain a child who, while able to do so, fails to provide that child with adequate food, clothing, lodging and medical aid is guilty of an offence.

 

1.2 The Maintenance Act, Act No. 99 of 1998

The Maintenance Act is the most important instrument of enforcement of maintenance in our law. It emphasises the duty of parents to support their children and children’s rights, in particular their right to maintenance.

 

1.3 The Constitution of the Republic of South Africa, Act 108 of 1996

Chapter 2 of the Constitution of South Africa, which embodies the Bill of rights, contains the following provisions which are of relevance to the child’s right to support:

  • Everyone has inherent dignity and the right to have their dignity respected and protected (s 10).
  • Everyone has the right to life (s 11)
  • Everyone has the right to have access to health care services, … sufficient food and water, and social security, including, if they are unable to support themselves and their dependants, appropriate social assistance (s27(1)(a),(b) and (c)

The state must take reasonable legislative and other measures , within its available resources, to achieve the progressive realisation of each of these rights (s27(2))

Every child has the right to:

  • Family care or parental care, or to appropriate alternative care when removed from the family environment (s28(1)(b).
  • Basic nutrition, shelter, basic health care services and social services (s28(1)(c).
  • A child’s best interests are of paramount importance in every matter concerning the child (s28(2))
  • Everyone has a right to a basic education, including adult basic education, and to further education (s29(1)(a) and (b).

 

2. CLAIMING MAINTENANCE

 

2.1 When can you approach the Maintenance Court?

  • When the other party does not provide for the maintenance of the child or family.
  • When applying for maintenance for the first time
  • When the Divorce Court has made an order for maintenance
  • When applying for an increase or decrease of an existing maintenance order.

 

2.2 Which court should you approach for Maintenance Money?

  • According to the Maintenance Act, every Magistrate’s Court shall within its area of jurisdiction be Maintenance Court. This therefore means that you may approach any Magistrate’s Court situate in the district which the child or person to be maintained resides.

 

2.3 What do you need to bring to court with you?

  • Your Identity Book
  • Copy of Identity Book of person responsible for payment of maintenance
  • Bank statement if you have a bank account
  • List of expenses describing the child’s needs/needs for person to be maintained
  • Documents to prove these expenses, eg. Water & lights bill, grocery till slips, clothing accounts, etc.
  • Current payslips of both parties who earn an income
  • Physical, residential and work address of the person who must pay maintenance
  • Physical, residential and work address of a family member or next-of-kin.
  • Court date (if already determined)
  • Reference number(if already allocated)
  • Court order(if already granted)
  • Divorce Agreement(in the case of a divorce)
  • Payment date.

 

2.4 What expenses can be listed as needs?

  • Accommodation             
  • Water & lights
  • Food & other groceries
  • Clothes
  • School Fees
  • Medical costs
  • Travel costs

Supporting documents of all the above will need to be produced.

 

3. RECIPROCITY AND RECOGNITION OF FOREIGN MAINTANANCE ORDERS.

The necessity for international co-operation in respect of enforcement of orders against persons obliged to pay maintenance and who have taken shelter in foreign states has led to various multinational conventions to which South Africa is a signatory. South Africa has, in addition, also passed its own legislation in this regard, namely The Reciprocal Enforcement of Maintenance Orders Act, (Act No. 80 of 1963).

The Act makes provision for the reciprocal enforcement of maintenance orders in the Republic and certain proclaimed foreign countries. A proclaimed country is a country which has a special arrangement with South Africa so that maintenance orders granted in one country can be enforced in the other. Proclaimed countries with which South Africa has reciprocal enforcement agreements are Australia, Botswana, Canada, Cocoa(Keeling) islands, Fiji, Guernsey, Isle of Jersey, Kenya, Malawi, Namibia, Nigeria, Sarawak, St Helena, United Kingdom, USA, Zambia, Cyprus, Germany, Hong Kong, Isle of Man, Lesotho, Mauritius, New Zealand, Norfolk Island, Singapore, Swaziland and Zimbabwe.

Section 3 of the Act also makes provision for the registration and confirmation of maintenance orders. When a certified copy of a maintenance order issued by a court in a proclaimed country is delivered in the prescribed manner to the Minister of Justice, the Minister or his nominee delivers a copy of the order to the maintenance court which then registers it in the prescribed manner. The maintenance officer of that court then institutes an enquiry in the maintenance court with a view to confirming the order. An appeal against an order made in terms of this provision is allowed to the division of the High Court having jurisdiction.

 

 

Written by:      Sipho Mthethwa (Candidate Attorney)

 

 

REFERENCES:  

 

  • Van Zyl L : The Law of Maintenance: 2nd Ed; Lexis Nexis  
  • Boberg PQR :  The Law of Persons and the Family, Juta & Co
  • Department of Justice & Constitutional Development Website
  • The Child Care Act, Act No. 74 of 1983
  • The Maintenance Act, Act No. 99 of 1998
  • The Constitution of the Republic of South Africa, Act No.108 of 1996
  • Divorce Act, Act No. 70 of 1979
  • The Reciprocal Enforcement of Maintenance Orders Act, Act No. 80 of 1963
  • Bursey v Bursey and Another 1999 2 ALL SA 289(A)

     

 

  • Added 10 September 2012

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