Getting divorce within 3 days

It often happens, when a marriage has irretrievably broken down, the parties are in agreement that they have to divorce. Furthermore, the parties came to an agreement regarding the propriety aspects of the marriage, care and contact of the minor children, as well as who should pay for the cost in relation to the divorce. If all the latter has been agreed upon, there is no need for the parties to wait many months to get divorced. What this article deals with is a real-life scenario where the marriage between a couple would be dissolved in the shortest possible time. In this case, three (3) days from the date of meeting their lawyer. If you don’t feel like reading this entire article, scroll down to the bottom for an illustration of a divorce finalised in 3 (three) days. Furthermore, it may become necessary for there to be a quick divorce. One such reason could be that a party is only visiting South Africa for a very short while and wants to resolve issues expeditiously. This would especially be so if the parties lived separately for a long time despite being married. Before we proceed with exploring and unpacking the question this article relates to, we will first have to look at certain basic requirements in order for parties to get divorced. This relates to the court’s jurisdiction, as well as the requirement that a marriage has broken down irretrievably. Another one is that they should be married. I guess we all knew that. [ninja_form id=72]

The jurisdiction of the divorce court

It does not mean that because you got married in a specific province or town that the Court situated there has the authority to divorce you. For example, if you married in Cape Town, and relocated to Johannesburg, and live there for quite some time, then Cape Town Court will not necessarily have the jurisdiction to divorce you. The same would apply should the parties have married in Johannesburg and relocated to the United States of America, and are domiciled there. Should they wish to get divorced, they cannot get divorced in Johannesburg. This is so as the Johannesburg Court will not have jurisdiction to divorce this specific couple. Now, what determines jurisdiction? Clearly, it is not the fact that you got married in the Court’s area of jurisdiction. Let’s look at the law.

The Divorce Act

Section 2 of the Divorce Act 70 of 1979 states the following: “A court shall have jurisdiction in a divorce action if the parties are or either of the parties is-

domiciled in the area of jurisdiction of the court on the date on which the action is instituted; or
Ordinarily resident in the area of jurisdiction of the court on the said date and have or has been ordinarily resident in the Republic for a period of not less than one year immediately prior to that date.

Well, there you have it. It does not mean that if you got married within the area of jurisdiction of the court, that automatically, that Court would have the jurisdiction to divorce you. You or your spouse should at least be domiciled, or resided within that honorable court’s jurisdiction for a specific period. When we refer to domicile, we basically mean that you intend the specific location to be your permanent home. This is a simple definition. Now let us move on to the second issue. That is the irretrievable breakdown of the marriage.

Irretrievable breakdown of the marriage between the parties

It goes without saying, a court will not divorce a couple who is happily married. There has to be some problem in the marriage. Now let’s go straight into the law and find out when, or under what circumstances a Court of law may divorce you in South Africa.

The Divorce Act

According to section 4(1) of the Divorce Act: “A court may grant a decree of divorce on the ground of irretrievable breakdown of a marriage if it is satisfied that the marriage relationship between the parties to the marriage has reached such a state of disintegration that there is no reasonable prospect of the restoration of a normal marriage relationship between them.” Section 4(3) of the Divorce Act then states: “If it appears to the court that there is a reasonable possibility that the parties may become reconciled through marriage counsel, treatment or reflection, the court may postpone the proceedings in order that the parties may attempt a reconciliation.” Considering the latter law, it is clear that the marriage should have broken down irretrievably, in other words, it cannot be saved. Furthermore, it should not appear to the court that reconciliation is possible. So moving forward, presuming that the court has jurisdiction and the marriage has irretrievably broken down, we can now deal with the aspect of a quick divorce. That is why you are reading this article? We shall start with what is required in order to institute divorce proceedings.

The summons commencing the divorce action

As would be obvious from the foregoing, only a court of law can dissolve a marriage. Therefore, one needs to follow the legal processes in place in order for a court to deal with your matter. In the case of a divorce, the process starts with the issuing of a summons. Basically, this is a document outlining who all the parties are and what the Plaintiff (the person instituting the divorce proceedings) wants from the court. The summons would be signed by the Court Registrar who would direct the Sherriff of the Court to serve it on the Defendant (the other party to the divorce). It would also have attached to it, a particulars of claim, comprising of certain relevant information in order for the court and the other party to know what the reasons for the relief sought, or divorce is. This we deal with next.

The Particulars of Claim

In the case of a divorce summons, you will state who the parties are, when they got married, details of the minor children involved, and reasons for the breakdown of the marriage. With regard to the reasons for the breakdown of the marriage, you will state that for example, there is no longer any love and affection between the parties, and both parties wish to get divorced.

The latter information is stated in a document, called “particulars of claim”. This document is attached to the summons. The particulars of claim will then also outline the relief sought. For example, it will first state that you wish for a decree of divorce, and further what you wish in relation to care and contact in relation to the minor children, child maintenance, personal maintenance, the division of the joint estate, and who pays the legal fees. It is also wise for the parties to enter into a consent paper or settlement agreement. This we deal with next.

The Consent Paper or Settlement Agreement

You should stipulate in the particulars of claim exactly what you wish the court to grant you. However, what is a good idea, if the divorce is undefended, to enter into a consent paper or settlement agreement. This document basically outlines what the parties agree upon in relation to the divorce. It deals with child custody, maintenance, and the division of the joint estate if it applies. The parties would sign the consent paper or settlement agreement and it would be made an order of court should the court so grant it. Therefore, if you follow this route, the court would basically make an order stating that it grants a decree of divorce, incorporating the terms of the consent paper or settlement agreement.

The consent paper or settlement agreement may be entered into between the parties before divorce proceedings are instituted or after. If it is done before divorce proceedings are instituted, it is usually attached to the summons. Your prayers in your particulars of claim would basically be that you ask for a decree of divorce, incorporating the terms of the consent paper attached thereto.

What happens after the summons has been issued?

Let us presume that the summons, particulars of claim and consent paper have been drafted, and all documents have been signed. It should then be taken to a court to be issued and a case number is allocated to it. The next step would be for the summons with all the relevant documents attached thereto to be served on the defendant. This would be the case even though the divorce is agreed upon. Service of the divorce documents on the defendant would have to be done by the office of the sheriff. In other words, the sheriff would give a copy of the divorce papers to the other party, in this case, the defendant. A sheriff then provides a document called, “return of service”. Basically, it tells the court that he served the documents on the defendant. The defendant would then have a period of ten (10) working days to decide whether or not to defend the divorce. This is stated in the summons. A reason for defending would be that he or she opposes the divorce, or don’t believe the contact arrangements are in the children’s best interests. Once the ten (10) working days have passed, the divorce may be set down for hearing.

How quick can the divorce be finalised

Continuing with the example of a friendly divorce, once the ten (10) days have lapsed, and the defendant did not file a notice of his intention to defend the divorce action, the divorce can proceed on an undefended basis. The Plaintiff or the person who instituted the divorce proceedings may then set the divorce matter down for hearing on an undefended basis. If the divorce was instituted in the Western Cape High Court, it could be set-down within three (3) days. For example, if the ten (10) days have expired, The Plaintiff may file his notice of set-down the Monday before noon with the Registrar, to be heard on Wednesday. This is explained at the end of this article.

Waiving the ten (10) ten days waiting period – The waiver

This is where this article becomes interesting. It is also possible under certain circumstances, for a defendant to file a waiver. Basically, the defendant would file a document stating that he waives his right to ten (10) days to decide whether or not he wants to defend the divorce. If a waiver is filed, and the court has no issue therewith, then the divorce can take place much sooner than ten (10) days. This we explain a bit more next.

Demonstrating a quick divorce

Considering the above and, ensuring that all legal processes are in place, a divorce can be finalised very quickly and in certain circumstances, within a few days. As long as the court has jurisdiction to hear the matter and the marriage has broken down irretrievably, there is no reason why the divorce can’t take a maximum period of four weeks to finalise. If, however, the divorce is urgent and undefended it is possible for the defendant to file a waiver advising the court that he has no issue with a divorce taking place within the ten (10) days given to him. His reason for this could also be that he and the Plaintiff entered into a Consent Paper and wants the divorce as well. In this case, the divorce could take three (3) days. This would apply in the following hypothetical example:

Monday:

Meet with the fast and efficient lawyer (or give us a call to refer you to one);
Draft the summons, particulars, consent paper;
Sign the consent paper and issue the summons;
Serve the summons on the defendant by the sheriff;
The defendant signs a waiver;
File the consent paper at the office of the family advocate for endorsement; and
Ensure the court file is in order and set the matter down before noon.

Tuesday:

Collect the endorsed consent paper from the office of the Family Advocate.
Meet with your lawyer, or one of our recommended lawyers, to prepare you for court the next day.

Wednesday:

Be at Court early.
Get divorced.

Posted on 11 February 2025 by Telelaw

Getting divorce within 3 days

Furthermore, it may become necessary for there to be a quick divorce. One such reason could be that a party is only visiting South Africa for a very short while and wants to resolve issues expeditiously. This would especially be so if the parties lived separately for a long time despite being married. Before we proceed with exploring and unpacking the question this article relates to, we will first have to look at certain basic requirements in order for parties to get divorced. This relates to the court’s jurisdiction, as well as the requirement that a marriage has broken down irretrievably. Another one is that they should be married. I guess we all knew that.

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The jurisdiction of the divorce court

The Divorce Act

Section 2 of the Divorce Act 70 of 1979 states the following:

“A court shall have jurisdiction in a divorce action if the parties are or either of the parties is-

domiciled in the area of jurisdiction of the court on the date on which the action is instituted; or
Ordinarily resident in the area of jurisdiction of the court on the said date and have or has been ordinarily resident in the Republic for a period of not less than one year immediately prior to that date.

Well, there you have it. It does not mean that if you got married within the area of jurisdiction of the court, that automatically, that Court would have the jurisdiction to divorce you.

You or your spouse should at least be domiciled, or resided within that honorable court’s jurisdiction for a specific period. When we refer to domicile, we basically mean that you intend the specific location to be your permanent home. This is a simple definition. Now let us move on to the second issue. That is the irretrievable breakdown of the marriage.

Irretrievable breakdown of the marriage between the parties

The Divorce Act

According to section 4(1) of the Divorce Act:

“A court may grant a decree of divorce on the ground of irretrievable breakdown of a marriage if it is satisfied that the marriage relationship between the parties to the marriage has reached such a state of disintegration that there is no reasonable prospect of the restoration of a normal marriage relationship between them.”

Section 4(3) of the Divorce Act then states:

“If it appears to the court that there is a reasonable possibility that the parties may become reconciled through marriage counsel, treatment or reflection, the court may postpone the proceedings in order that the parties may attempt a reconciliation.”

Considering the latter law, it is clear that the marriage should have broken down irretrievably, in other words, it cannot be saved. Furthermore, it should not appear to the court that reconciliation is possible. So moving forward, presuming that the court has jurisdiction and the marriage has irretrievably broken down, we can now deal with the aspect of a quick divorce. That is why you are reading this article? We shall start with what is required in order to institute divorce proceedings.

The summons commencing the divorce action

It would also have attached to it, a particulars of claim, comprising of certain relevant information in order for the court and the other party to know what the reasons for the relief sought, or divorce is. This we deal with next.

The Particulars of Claim

The Consent Paper or Settlement Agreement

The parties would sign the consent paper or settlement agreement and it would be made an order of court should the court so grant it. Therefore, if you follow this route, the court would basically make an order stating that it grants a decree of divorce, incorporating the terms of the consent paper or settlement agreement.

What happens after the summons has been issued?

Service of the divorce documents on the defendant would have to be done by the office of the sheriff. In other words, the sheriff would give a copy of the divorce papers to the other party, in this case, the defendant. A sheriff then provides a document called, “return of service”. Basically, it tells the court that he served the documents on the defendant.

The defendant would then have a period of ten (10) working days to decide whether or not to defend the divorce. This is stated in the summons. A reason for defending would be that he or she opposes the divorce, or don’t believe the contact arrangements are in the children’s best interests. Once the ten (10) working days have passed, the divorce may be set down for hearing.

How quick can the divorce be finalised

Waiving the ten (10) ten days waiting period – The waiver

Demonstrating a quick divorce

If, however, the divorce is urgent and undefended it is possible for the defendant to file a waiver advising the court that he has no issue with a divorce taking place within the ten (10) days given to him. His reason for this could also be that he and the Plaintiff entered into a Consent Paper and wants the divorce as well. In this case, the divorce could take three (3) days. This would apply in the following hypothetical example:

Monday:

Meet with the fast and efficient lawyer (or give us a call to refer you to one);
Draft the summons, particulars, consent paper;
Sign the consent paper and issue the summons;
Serve the summons on the defendant by the sheriff;
The defendant signs a waiver;
File the consent paper at the office of the family advocate for endorsement; and
Ensure the court file is in order and set the matter down before noon.

Tuesday:

Collect the endorsed consent paper from the office of the Family Advocate.
Meet with your lawyer, or one of our recommended lawyers, to prepare you for court the next day.

Wednesday:

Be at Court early.
Get divorced.

Relocation with my minor child to Spain, Palma de Mallorca (Consent and Refusal) – Advocate Muhammad Abduroaf
The world is becoming a much smaller place, and technology plays a huge role. People are moving across the world for employment, love and happiness, something that was not the norm a few decades ago. There is no reason why you should remain in South Africa if you can find a better life for yourself and your family overseas. Moving overseas may provide you with the quality of life you want or the possibility of experiencing things you always wanted. The same applies to your child or children relocating with you.
Relocation of your minor child to Palma de Mallorca, Spain
If you are single and do not have any minor children, then moving around the world would not be too complicated. All you need to do is ensure that you have the necessary travel documentation and travel ticket (and spending money), and off you go. However, if you want to travel with your minor children (for example, ages nine or ten) or relocate to another country, things may not be that simple. Firstly, if there is another parent, and he or she has parental responsibilities and rights, then his or her consent is required. For example, let us say you live in Boksburg or Ladysmith, South Africa, and you want to relocate to Palma de Mallorca, Spain, you would require the other parent’s consent to leave South Africa with your minor child. This can cause challenges, especially if the staying parent (in South Africa) does not agree to the relocation.
What about Passport Consent to travel or relocate to Palma de Mallorca, Spain?
The same applies when it comes to your minor child applying for a South African passport to relocate to Spain, or any country. Both parents who have parental responsibilities and rights of guardianship will have to consent to the minor child’s passport application as well. In this regard, both parents have to be at the Department of Home Affairs (or the relevant bank that also assists with passport application) when making the Application with the minor child. This can be challenging if you have a disinterested parent who does not want to cooperate with the passport application. As you will see later, legal action would need to be taken.
What are the steps to follow when I want to relocate to Palma de Mallorca, Spain with my minor child? There is another parent.
To simplify the process for relocation, the first step would be to receive the other parent’s consent in principle for the relocation and that he or she will co-operate in this regard. Once that has been resolved, the parent relocating would need to make the appointment for the minor child’s passport application as well as the application for the relevant VISA. Each country has different requirements; however, seeing that it is a relocation, you need to apply for the correct VISA. For that, you need the Passport. Once the visa and travel arrangements have been finalised, the parent remaining behind will sign a parental consent letter for the international travel. That letter can be found on the Department of Home Affairs website. Basically, the parent remaining behind would state that he or she gives consent for the minor child to leave the Republic of South Africa and travel and/or relocate to Palma de Mallorca, Spain.
What can I do if the other parent does not want to consent to the minor child’s relocation to Palma de Mallorca, Spain?
If the parent remaining in South Africa does not want to consent to the minor child’s passport application and/or his or her relocation to Palma de Mallorca, Spain, then you would need to approach the Court. The Court, as upper guardian of the minor child, may order that the parent’s consent for the passport application and relocation be dispensed with. What this entails is submitting Court documents explaining why you want to relocate to Palma de Mallorca, Spain. The other parent would also have an opportunity to give reasons why he or she objects. At the end of the process, the Court would determine what is in the minor child’s best interests. If it is in the minor child’s best interests to relocate to Palma de Mallorca, Spain, the Court would make it possible despite the issue of consent or refusal.
What is the first step I should take if the other parent does not want to consent to the minor child’s passport application and/or relocation to Palma de Mallorca, Spain?
If the other parent does not want to consent to the passport application and/or the relocation of the minor child to Palma de Mallorca, Spain – in that case, we suggest you approach an attorney or advocate (trust account) to assist you with the legal process. He or she would then contact the other parent explaining the reasons for the relocation and request the necessary consent. If the parent remaining in South Africa does still not agree to the passport application and/or to the relocation to Palma de Mallorca, Spain, then the attorney or advocate will proceed to take the matter to court. The legal route can be expensive. However, it is necessary to make the relocation of the minor child possible. You may also attend to the legal process yourself.
Getting legal assistance or help with your relocation application to Palma de Mallorca, Spain
If you require legal assistance or representation with relocating to Palma de Mallorca, Spain due to the other parent not cooperating or providing consent, then feel free to contact us for assistance. The Firm Advocate, Muhammad Abduroaf, deals with these types of matters.

Posted on 11 February 2025 by Telelaw

Top tips from a Senior Family Law Advocate on how to deal with your Child Custody matter in the Queenstown Children’s Court

Family law legal matters can be very stressful. This is so whether you live in Queenstown or any other city in South Africa. Especially so if you have no idea how the legal processes work. It is one thing to know that you are entitled to child support, but it is a totally different matter to know the law and procedure on how to claim child support. Luckily in child maintenance matters, the maintenance court is there to assist you in completing the application form. However, many times that is not enough. Especially so if the other parent has a lawyer and knows how to present the case for his or her client.
This article, however, deals with some top tips in care and contact or custody matters in the Children’s Court in Queenstown. It would explain the processes involved and advise on how to be best prepared for your matter. This advice is applicable whether you live in Queenstown or any other city in South Africa.
What to do before visiting the Queenstown Children’s Court
Before you approach the Children’s Court in Queenstown, first try to resolve the issues with the other parent. Therefore, if you want more contact with your child and the other parent is refusing, try to resolve the matter first with that parent. If that does not work, try mediation. The mediator can be anyone, from a trusted mutual friend, priest, or other religious leaders, or a professional like an attorney, psychologist, or the office of the Family Advocate. Queenstown has many professionals that can assist you in this regard. If resolving the matter by yourselves is not possible, or mediation fails, then we suggest you approach the Queenstown Children’s Court for assistance.
TIP: Focus on getting someone neutral to assist in mediating your matter. Organisations like FAMSA and FAMAC can be of assistance. Google them.
Approaching the Queenstown Children’s Court
The Queenstown Children’s Court should be approached if it is the closest Children’s Court to you. You need to verify with the Queenstown Children’s Court that you fall under their area of jurisdiction. If not, they would direct you to which Children’s Court is applicable to you.
Once you arrive at the Queenstown Children’s Court, they will provide you with a form headed “Bringing Matter to Court in Terms of Section 53 Children’s Act, 2005 (Act no. 38 of 2005) Regulation Relating to Children’s Court and International Child Abduction, 2008 [Regulation 6]. This form is also called Form 2.
In this form, you will provide all your particulars and that of the child or children and the other parent. The sections in the form are as follows:
PART A: PARTICULARS OF CHILD(REN)
PART B: PARTICULARS OF CHILD WHO IS AFFECTED BY OR INVOLVED IN THE MATTER/PERSON ACTING IN THE INTEREST OF THE CHILD/ON BEHALF OF THE CHILD WHO CANNOT ACT IN HIS/HER OWN NAME/ MEMBER OF A GROUP OF CLASS OF CHILDREN/*IN THE PUBLIC INTEREST (SECTION 53(2)
PART C: PARTICULARS OF PERSONS HAVING AN INTEREST IN THE MATTER
PART D: PARTICULARS OF MATTER
In part D, the following is stated which you need to provide in the form:
Nature of matter brought to Court: (Please give full details of the matter e.g., registration/amendment of parenting plans, removal of child to safe care, children in need of care and protection, placement in youth care centers, adoption etc.
Documents: Are there any documents relating to the matter? (If so please attach)
Once you have completed the form and attached the relevant documents to it, you must take it to a commissioner of Oaths to have it commissioned. It does not have to be in Queenstown.
TIP: Draft a separate affidavit explaining your case. Outline some background information and reasons why the Court should give you what you request. Attach it to Form 2.
Processing your Application at the Queenstown Children’s Court
Once you complete the Form A and submit it to the Clerk of the Queenstown Children’s Court, they will process it and allocate it a case number or reference number. The Clerk of the Court would then allocate a date to the matter and advise the parties accordingly when the court date is. Please note that some courts follow a different process for processing the application and informing the parties of the court date. Please enquire from the Court when making the application what process they follow.
TIP: Obtain the contact details of the Court for you to contact them to obtain the Court date or other information. Ask for their contact number and email address.
Appearing in the Queenstown Children’s Court
When notified of the Court date, both you and the other parent should attend. If you are making use of a lawyer (Advocate or Attorney), inform them timeously of the date. Depending on the Court, you may first see the Clerk or go directly to the Magistrate. The Children’s Court would do its best to try to resolve the matter. If the parents cannot come to an agreement, the Children’s Court may postpone the matter for either of the following:
Get a social worker involved in the matter;
Appoint a legal representative for the minor child;
Implement interim care and contact arrangements;
Having the parties attempt to agree on a parenting plan;

In serious matters, the Court may remove the minor child from both parents and place the child in foster care. The powers of the Children’s Court are extensive. It will, however, focus on what is in the child’s best interests.
TIP: Be as vocal as possible. Do not expect the Court to be understanding of your case or be on your side. It is your duty to explain your case and provide the Court with all the relevant information they require for them to make a fair decision.
Finalising the matter in the Queenstown Children’s Court
Once the Queenstown Children’s Court has enough information to make a final decision, it will do so. Depending on the facts of the matter, that could either be making a Parenting Plan, an Order of the Court or a final care and contact Order. The Court may even make further interim orders, where the parties are to return to Court after a few months, or a year later.
TIP: Do not agree to something just because the social worker, a lawyer, or the Court suggest it. You need to be happy with what is decided.
The above Queenstown Children’s Court Application tips should apply to the following provinces and cities:
Eastern Cape:
Alice, Butterworth, East London, Graaff-Reinet, Grahamstown, King William’s Town, Mthatha
Port Elizabeth, Queenstown, Uitenhage, Zwelitsha
Free State:
Bethlehem. Bloemfontein, Jagersfontein, Kroonstad, Odendaalsrus, Parys, Phuthaditjhaba, Sasolburg, Virginia, Welkom
Gauteng:
Benoni, Boksburg, Brakpan, Carletonville, Germiston, Johannesburg, Krugersdorp, Pretoria, Randburg, Randfontein, Roodepoort, Soweto, Springs, Vanderbijlpark, Vereeniging
KwaZulu-Natal:
Durban, Empangeni, Ladysmith, Newcastle, Pietermaritzburg, Pinetown, Ulundi, Umlazi
Limpopo:
Giyani, Lebowakgomo, Musina, Phalaborwa, Polokwane, Seshego, Sibasa, Thabazimbi
Mpumalanga:
Emalahleni, Nelspruit, Secunda, North West, Klerksdorp, Mahikeng, Mmabatho, Potchefstroom, Rustenburg, Northern Cape, Kimberley, Kuruman, Port Nolloth
Western Cape:
Bellville, Queenstown, Constantia, George, Hopefield, Oudtshoorn, Paarl, Simon’s Town, Stellenbosch, Swellendam, Worcester

Posted on 11 February 2025 by Telelaw

Appeals and Reviews – How does it work?

Appeals in court cases typically involve requesting a higher court to review a decision made by a lower court. For example, approaching the High Court to review the decision in the Magistrates Court matter. The process usually begins with filing a notice of appeal, outlining the grounds for the appeal and providing the necessary documents to support the case.

The appellate court will then review the lower court’s decision and determine whether any errors were made. If successful, the appellate court may either overturn the decision, order a new trial, or modify the original ruling. It’s important to seek legal assistance to navigate the complexities of the appeals process effectively. If you need legal assistance with appeals or reviews, consider reaching out to a qualified attorney or advocate for guidance.

Getting Legal Assistance with Appeals

If you require legal assistance or representation with your appeal matter, then feel free to contact us for assistance. The Firm Advocate, Muhammad Abduroaf, deals with these types of matters.

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How much child support should you claim or pay?

[caption id="attachment_7076" align="alignleft" width="230"]

Advocate Muhammad Abduroaf – Advocate of the High Court of South Africa[/caption] It is not only mothers who want to know how much maintenance they should claim. Fathers are very much interested in wanting to know how much they should pay. It is my view that there is nothing wrong with a father wanting to know whether or not he is paying too much maintenance. This is so as it is both parent’s responsibilities to maintain a child according to their means. However, what I do have the issue with is when fathers try to avoid their maintenance obligations. Even if you are unemployed, you can still pay maintenance depending on your means. And then you have mothers who want to exploit the fathers. The same applies when the roles are reversed. This is when the father is the primary caregiver and the mother pays him child support. – Adv. Muhammad Abduroaf LL.B LL.M – Advocate of the High Court of South Africa. Purchase a Consultation with us from our Online Shop, by clicking here.

Common child maintenance questions

How much child support should I claim for my child?
How much child support should I pay for my children?
The father of my child is unemployed, should I still claim child support?

These are two questions which are posed to me regularly. But what is the answer? What follows are certain factors I use to determine the amount of child support my clients should claim or pay when dealing with a child support matter.

Factors to consider regarding child support amounts

There are many factors to consider when it comes to figures in child support matters. Some are common to most people. However, depending on the situation, they won’t be the same for everyone. Remember, the explanation below is provided for information purposes only. The formula I follow is as follows:

What are the reasonable monthly needs of the child? If you can place an amount to it, do so.
The monthly income and expenses of both parents. The assets of the parents should also be considered should they not have an income or be unemployed.
What can each parent reasonably contribute towards the monthly expenses of the child?

Want to know more about Rule 43 Applications in the High Court and Rule 58 Applications in the Magistrates’ Court? Click here.

Reasonable needs of a child – Basic Maintenance Question

The reasonable needs of a child include food, clothing, accommodation, medical expenses and so on. Depending on the standard of living of the parents, or what the child is accustomed to, as seen later, it could include extramural expenses, the upkeep of a pony, and piano lessons. Once you determined what the child’s needs are, and what the parents can afford, you can determine what each parent should contribute. This amount should factor in once off yearly expenses. For example, school fees, TV and Car licenses and membership fees and so on. Let me explain this by way of example. Purchase a Consultation with us from our Online Shop, by clicking here.

Income and expenses of child and parents

Child’s expense: R 1 000 – 00.
Custodian Parent’s income: R 10 000 – 00.
Custodian Parent’s monthly expenses: R 5 000 – 00.
Paying parent’s income: R 20 000 – 00.
Paying parent’s monthly expenses: R 10 000 – 00.

Considering the above example, the paying parent earns double that of the custodian parent. And his or her monthly expenses are proportionately the same as that of the has parent. Therefore, if all else being equal, his or her contribution should be double of that of the custodian parent. If the paying parent becomes unemployed, his maintenance obligations does nott come to an end. He may have other means. If he has a flashy car, he needs to downgrade and use some of that money for maintenance.

Final child maintenance amount:

The Paying parent would pay two thirds of the child’s expenses which equates to R 666 – 00 per month. And the custodian parent would thus cover the balance of R 334 – 00 per month. The R 666 – 00 would be less should he pay any of the minor child’s expenses directly. For example, medical aid or school fees.

The challenge regarding child maintenance amounts

The golden rule in all matters regarding children is that their best interest be upheld. However, in child maintenance matters it is not as easy as saying that the child needs to have the best of clothes, education, and food available. By taking this view, it would be as saying that during the parents’ marriage, or while the parents lived together, the child went to the best school in the area, wore the best of clothes and ate the best of food. This is so, notwithstanding the parents earning a far below average income. Such a legal approach would be nonsensical. Another challenge is when the paying parent is self-employed or unemployed. In the case of self-employed parents, their income varies. However, what we look at is the average they earn each month. For an unemployed parent, as stated, we look at their means.

Factors the Court considers in Child Maintenance Matters

Each child maintenance case is determined on its own merits by weighing various factors. There are certain overlapping factors. The factors to consider are:

The reasonable needs of the minor child;
The reasonable expenses of the parents;
The standard of living the child was accustomed to while the parties were married or living together (if applicable);
The earning capacity of the parents; and
The assets of the parents.

Therefore, it does not mean every 5-year-old child will require a child maintenance contribution of R 500 00 (five hundred rands). A contribution of R 500 – 00 for a specific 5-year-old child might be reasonable or even too high, depending on the circumstances. Let me provide you with two scenarios: Purchase a Consultation with us from our Online Shop, by clicking here.

Scenario A – Child Maintenance

A 5-year-old child’s parents each earns R 500 – 00 per month. They were bringing up the child perfectly under the circumstances with their modest standard of living which is the norm in the area they live in. Furthermore, this is the same standard the parents were accustomed to when they were raised by their parents. If they are to estimate the costs of the child, it would be about R 200 – 00 per month which goes to food, shelter, clothes etc. Should the parents separate or divorce, and, let’s say in this case, the mother claims maintenance from the father for child support, she would not have a case for more than R 150 – 00 per month. You might wonder why I don’t say R 100 – 00 per month seeing that the parents earned the same salary? The mother in this scenario had to find alternative accommodation, and therefore the child would require more maintenance (it could even be less).

Scenario B – Child Maintenance

Let’s say the parents of a 5-year-old child each earns R 50 000 – 00 per month. The child has an au pair, own room, policies in his or her favour, expensive clothes, medical aid, expensive creams, attends ballet and violin classes etc. The monthly costs of this child are about R 25 000 – 00 per month. Should the parents separate, a claim for maintenance could easily be in the region of R 15 000 – 00. R 14 850 – 00 more than the 5-year-old child in the previous scenario above. The amount to pay therefore all depends on the facts, circumstances etc. To make things more complicated, if the mother in this scenario have assets worth millions and the father only owns a car of R 100 000 – 00, his contribution could be far less than R 15 000 – 00, even if they have the same monthly salary. It is even possible that his contribution could be R 150 – 00 (and not R 15 000 – 00) as in the case of scenario A above. All these factors have to be discussed with your maintenance lawyer or advocate. I hope this gave you a feel for how child support or child maintenance is calculated. Therefore, in answering the questions posed above, i.e. How much child support should you claim for your child, and how much child maintenance should you pay; the answer is, it depends on the facts.

Other maintenance calculation views

You or your attorney or advocate might have one view on what the amount should be, however the other parent or the maintenance court might have a totally different view. I therefore strongly advise that you first consult with a maintenance lawyer or advocate, or the maintenance court before submitting your amount to the court. In complicated cases, an advocate may be approached by your attorney for an opinion. Sharing is Caring This and other articles and posts found on this website are written by Adv. Muhammad Abduroaf to assist people with various family law related issues they may have. If you find any of our articles and posts interesting, or possibly useful to others, please link and share it on Social media.

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