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WCLawyer
WCLawyer, Attorney
Category: South Africa Law
Satisfied Customers: 15597
Experience:  L.LB (UOVS)
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My stepson is almost 20 and is matriculating now. The maintenance

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My stepson is almost 20 and is matriculating now. The maintenance order signed in January 2004 has been adhered to and a small policy was taken out to provide for tertiary education. When does his father stop paying maintenance to the mother and legally can she demand full coverage of tertiary education or only half? Surely she should be providing half the education costs of a college
Good day and thank you for your question. My name is XXXXX XXXXX I will try and assist you today.

The South African the common law with regards XXXXX XXXXX maintenance of children require that each parent support their children proportionate to their means. This basically means that, establishing the amount of maintenance that a parent is liable for, should be established following a three pronged process.

(a). Firstly, the needs of the child estate be established. This will typically include a roof over his head, food, schooling, medical costs etc. A child, that is used to a certain standard of living, can be expected to maintain that standard insofar as his parents can afford it. Note that, in this section, the personal expenses of the custodian parent should not be factored in. For instance, if they are to children that needs to be maintained and the rent of the house that they are living in is for instance, R 3000, it needs to be established which portion of that R3000 is for the custodian parent personally. Typically, assuming there are two children and one noncustodial parent, the amount of R 3000 will be divided into three and the R2000 that is left will be divided between the two parents as per the calculation in paragraph 2 below.

(b). Once the amount of maintenance has been established, you need to establish which part of that amount each parent is liable for. This is done right calculating the portion of a parent salary in comparison with the combined salary of both parents. For example; let's assume that the father earns R20,000 per month and the mother earns R10,000 per month. The father earns 66, 6% of the total combined salary and the mother earns 33, 3% of the total combined salary. Let's assume that the amount in 1. Equals R3000 per month. This would mean that the father would have to pay R2000 towards maintenance, and the mother needs to pay R1000 towards maintenance.

(c). The final step in establishing the amount of maintenance that a parent is liable for, would be affordability. The court will have a look at the finances of a parent to establish whether the parent can in fact afford, for instance, the R2000 in maintenance. You need to note, however, that the court will not allow the parent to maintain a luxurious lifestyle at the expense of the child. If the court find that the parent cannot afford the maintenance, the court will look whether the parent can exclude some luxurious expenses from his personal budget. If, after that, he still cannot afford the maintenance, the court will make some final adjustments to bring the amount of maintenance payable in line with what the parent can afford.

Since the child is not a minor anymore, your husband can pay him directly and no longer have to pay the wife. The calculation mentioned above also changes slightly. Insofar as the child is able to provide for his own income, that must be subtracted from what his maintenance needs is to be calculated at.

What I suggest your husband do is to first see what he can negotiate with his son. The mother does not feature in those negotiations anymore. She cannot represent him with regards XXXXX XXXXX legal action anymore.

If the two of them can get to some sort of agreement, then that agreement can be taken to the maintenance court and be filed as an amended order.

If not, then your husband would have to approach the Maintenance Court and ask that both the son and the mother be brought to the maintenance court that the above mentioned calculation can be done and the maintenance be reduced in accordance with that.

I hope I have answered all of your questions and addressed all your concerns, but if you have follow up questions before you rate, feel free to ask them at no extra cost. If you are satisfied with the service, kindly rate it positively.
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Customer: replied 3 years ago.

Hi thank you for the reply, however when is it legal to stop paying maintenance, is it when he finishes matric or are we liable for maintenance to his mother til he's 21 even if he's left school and studies for a year at college. Can we stop paying maintenance at the end of the year and discuss his needs with him without his mother sueing us?


 


Regards


Sandy

The law merely says that he the parent is liable until he becomes self sufficient. How this normally works in practice is:

1. Either the parent will go to court and ask the court to rescind the maintenance order, or;

2. The child will just stop asking for maintenance or tell the parent that he does not need it anymore, hence my suggestion that you start by talking to him.

I really need you to get this: His mother is not allowed, by law, to sue his father for maintenance on his behalf. She does not have the legal standing to do so, since the maintenance claim "belongs" to the son and not to the mother. The same as your parents are not allowed to sue me for bad advice given to you (by way of example), because the advice was not given to them, the same his mother cannot sue his father for a maintenance order for the son. The son needs to do that himself.

The only instance where the mother can get involved is where she has paid more maintenance that she is supposed to in terms of common law or a court order and she is now claiming what she paid too much from the father. This seldom happens nowadays.

So, in short, if you stop paying maintenance to her and start giving it to him, she cannot do anything about it. It is child maintenance and the son is the child. Even if he stops all together paying, then the son needs to take it up with the Maintenance Officer, not the mother. She is not allowed to. She does not have the legal standing to do so.

Does this answer your question?