April 4, 2017

Should maintenance cover private school fees?

Paying maintenance can often be a thorny topic between couples going through a divorce or separation.

Often, the person primarily responsible for paying maintenance will try escape their liability by advancing the argument that the children should be moved from a private learning institution to a government learning institution. In this blog, I will briefly look at the relevant case law and what the Courts have stated on the various issues in question regarding maintenance.

  1. The best interest of the child

In M.B.R vs M.H.R, counsel for the Respondent referred to Eramus Superior Court Practice page 316 and to Rule 43(1)(c), which provides that the principles of preserving the status quo with regards to the current circumstances of the minor child is subject to the considerations that the paramount interest of the children must prevail and the status quo must not constitute an unreasonable state of affairs.

In another case, Kroon vs Kroon, the Honourable Judge stated the following:

“The parties are no doubt aware that in most cases persons who have become divorced will be compelled by necessity to reduce their standard of living, for where the available means of support are not adequate to maintain both according to their former scale of living, each must of necessity scale down his or her budget….”

This case also highlights two important sections of the constitution which are as follows:

1.1.      Section 28(2) of the Constitution of the Republic of South Africa which provides

that :

A child’s vest interest is of paramount importance in every matter

            concerning the child.”

1.2.      Section 18(2) of the Children’s Act 38 of 2005 provides that:

The parental responsibilities and rights that a person may have in respect of a

            child include the responsibility and the right:-

            (a)        to care for the child;

            (b)        to maintain contact with the child;

            (c)        to act as guardian of the child; and

            (d)        to contribute to the maintenance of the child.”

In Kroon v Kroon, the court also provides the following with regards to parents trying to maintain the same standard of living as they had when still sharing the communal home:

“My view is that the applicant equated “want” with “need”.

“What does the applicant want and what does she need? Wants and needs are two different things. People usually want more than they need. The applicant cannot expect to have the same standard of living she had when she lived with the respondent.”

  1. Whether it is deemed to be “reasonable”

What is ‘reasonable’ will depend on the family’s standard of living, their income and cost of living. The standard of living usually determines whether expenses for recreation, and secondary and tertiary level education will be awarded.

It is submitted that in our case, the family is used to a high standard of living and therefore private education will be deemed reasonable by any court of law.

A court will look at the reasonable financial needs of the children involved, bearing in mind the family’s pre-divorce standard of living; then, each parent must provide for the children according to his or her means (what he or she earns and spends) on a pro-rata basis.

Parents cannot use self-created reduced circumstances to reduce their maintenance obligations. Thus for instance, a father cannot put forward the needs of his second wife over and above those of his prior wife and children from the previous marriage. The father will usually, by necessity, end up leading a modest lifestyle.

In the case of Brossy vs Brossy, the Honourable Magistrate stated that sufficient grounds need to be advanced in order to justify an increase or reduction in maintenance payments, stating

“When one is dealing with acrimonious litigation concerning the fundamental important questions of where a child shall live and who shall be responsible for their principal day-to-day care and the central decisions concerning their lives, such as schooling, health, religion and the like, it seems to me that, if the court comes to the conclusion that the voice of the child had been drowned out the warring voices of her or his parents, it is a necessary conclusion that substantial injustice to the child will result if he or she is not afforded the assistance of legal practitioner to make his or his voice heard”.

It is no longer the case that children should be seen and not heard. Maintenance matters are not an exception to this rule.

Author: Sabina Chivasa

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