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Biological parents have a legal obligation to maintain their children. Parents easily lose perspective if the parties are involved in a divorce.
Children and maintenance are unfortunately often used during a divorce to establish a settlement and the parent who is not given the permanent residency of the minor child, will have a maintenance duty towards the minor child until he/she either reaches the age of 18 years or becomes self-supporting. There is no instant formula to calculate maintenance by, because every family's needs are unique.
In general, the following principles apply when calculating maintenance:
- The needs of the children - this is based on the current actual expenditures on behalf of the children. This does not only apply to school-related expenses, but also include shelter, clothing, transportation end medical expenses. Each child's needs are unique.
- The ability to meet the needs of the children - under normal circumstances both parents need to maintain the children to the same extent after a divorce. If the income of one parent is drastically reduced, he/she won't have the ability to meet the needs of the children to the same extent. However, if a parent's income increases, it will put that parent in a better position to meet the children's needs.
- The principle of proportionality - if the income of both parents is equal, each parent will contribute 50% towards the needs of the minor children. When calculating the actual expenditure in respect of the children, the current income of both parents are taken into account and the principle of proportionality is applied to it, in this way one should be able to comfortably make a calculation as to what a fair amount of maintenance is. Maintenance should be every parent's first priority.
It is also important to remember that the finalization of a divorce should not be postponed because of a maintenance dispute. If all other aspects of the divorce have already been agreed upon, it is simply not cost effective to continue a dispute over maintenance in the Supreme Court. The Magistrates Court offers a more affordable forum where the public prosecutor will act on behalf of the parent who claims a maintenance amount.
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