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Child support - what the law says

Feb 16 2019 13:57

South African law may make a minor distinction between unmarried fathers and those who were at some point married to the mother of their child in terms of rights, but when it comes to supporting the child there is no difference, explains attorney Simon Dippenaar.

The Maintenance Act states that "the parents' respective shares of such obligation are apportioned between them...and...the duty exists, irrespective of whether a child is born in or out of wedlock or is born of a first or subsequent marriage.

In simple terms, all parents carry the responsibility to financially support their children. This is the case even if conception was unplanned or the relationship between mother and father was casual, Dippenaar says.

Individual circumstances

The law takes into account the respective means of both parents, and there are no fixed amounts or minimums applied by the courts.

Parents have a duty to provide reasonable requirements for a child's upbringing. This includes food, clothing, accommodation, medical care and education.

The court will take into consideration the ability of each parent to pay, and the obligation on each will not necessarily be identical. The court strives for fairness rather than equality.

Equal contributions could, for instance, be very unfair to one party if the other party has significantly higher earnings. However, the higher earning capacity of one parent does not release the other parent from the reciprocal duty to support the child, Dippenaar notes.

Siblings

The birth of subsequent children to either parent does not lessen or dissolve the obligation to support the first or earlier-born child or children.

Furthermore, where a change in circumstances of a parent, such as unemployment, results in a considerable decrease in their ability to contribute to child support, the court may require the parent to access capital such as a pension fund or retrenchment pay-out.

In some circumstances, grandparents may even be held liable to support the child.

Really can't pay?

If a parent is genuinely unable to pay, for example if they are incapable of working due to serious illness, the duty of support lapses, but one cannot make oneself unemployed voluntarily to avoid maintenance payments.

Even if a parent's access to a child is restricted due to their behaviour being dangerous or detrimental to the child, it does not impact the parent's responsibilities to maintain the child.

The law states that parents remain responsible for children until they are self-supporting. However, the nature of support changes when a child is no longer a minor. At this stage parents are only responsible for essentials like accommodation and food.

When aren't you responsible? 

Of course, there are situations where biological parents do not carry any responsibility for the upbringing and financial support of their children.

Men who donate sperm and women who donate eggs are not deemed to be the legal parents of any children born as a result.

Surrogate mothers who carry a child for someone else are also not entitled to parental rights, nor do they have the corresponding responsibilities, according to the Children's Act.

* Simon Dippenaar is an attorney at Simon Dippenaar & Associates in Cape Town.

simon dippenaar  |  family  |  money  |  law  |  child support
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