Child Support: What Are Parents’ Financial Obligations?

Children hold a special place in South African law. Their rights, enshrined in the Constitution, are further entrenched in the Children’s Act of 2005, among other pieces of legislation. Biological parents have well-defined financial obligations towards their children, irrespective of the relationship between parents. These obligations may extend to step-parents, guardians and caregivers who assume the role of substitute parents to a child.

Under Section 28 of the Constitution, a child under 18 years of age has the right, among other things, to:

• Family or parental care, or appropriate alternative care when removed from the family environment.

• Basic needs – access to basic nutrition, shelter, basic health care and social services.

• Protection from maltreatment, neglect, abuse, or degradation, and from exploitative labour practices.

The Children’s Act gives effect to these rights based on the “best interests of the child” principle. Courts uphold this principle when making decisions affecting children, even taking children’s own preferences or feelings into account.

Such interventions typically arise when the child’s family life is disrupted, typically through divorce or the death of a parent. The court will need to decide on custody and maintenance, among other things.

The Maintenance Act creates an obligation on both parents to support their children proportionately in accordance with their financial means. In the absence of one or both biological parents, adoptive parents or a legally appointed guardian, the duty of support may fall to grandparents, siblings of the biological parents, or other caregivers, as determined by the court.

In blended families where step-parenting is part of daily life, questions of who is responsible for supporting which child frequently arise. While our law does not impose automatic maintenance obligations on step-parents, the “best interests of the child” principle still prevails, as a recent court case showed. 

Recently, in a decision by the Western Cape High Court, a man was ordered to financially support his step-children during an ongoing divorce case with the children’s biological mother. The court ordered the step-father to pay maintenance of R40 000 a month and continue covering a range of expenses, including rent capped at R35 000, the children’s medical expenses not covered by his medical aid, utilities and other household costs. The order arose from a Rule 43 application, which allows for temporary relief pending the finalisation of the divorce. 

John Manyike, Head of Financial Education at Old Mutual, says that even where children are not biologically related to one of the spouses, the law ensures that those children are not left vulnerable. “Step-parents are, if the court sees fit, required to contribute to the maintenance of those children, as they would for their biological children. This reflects a profound commitment to prioritising children’s well-being above all else in line with our Constitution,” he says.

In coming to such a decision, Manyike says the court will consider factors such as:

• Whether the step-parent had already assumed a parental role in caring for the step-children and providing financial support during the marriage.

• Whether there was an established bond between the step-parent and the step-children.

•  Whether the step-parent had made a promise or contractual undertaking to financially support the step-child.

• The standard of living to which the children had become accustomed.

In another case, involving a biological father, this last point, of the children’s accustomed standard of living, was put to the test.

When issuing maintenance orders and determining amounts, courts take into consideration that the duty of support jointly falls on both parents, apportioning maintenance according to the parents’ respective means. You can apply to the court for a reduction if your circumstances have changed – for example, if you have lost your job. Note that the court will look at not only your income but also your assets, and may even order assets to be liquidated to cover maintenance expenses.

According to a report by IOL, a divorcing father was ordered by the Gauteng High Court to pay arrears school fees of R380 000 for the private schooling of his two children – and to continue maintaining them at the private school – after demanding that they attend a government school instead. 

The court did not take kindly to the father’s attempts to uproot his children, aged 10 and 13, from the private school they have attended since they were little, the report says.

“The uprooting of both children from a long-standing private school environment to a public school, primarily due to one parent’s unilateral desire to reduce expenses (despite evidence of ability to pay), would not serve their best interests,” the court said.