How much child support should you claim or pay?

[caption id="attachment_7076" align="alignleft" width="230"]Advocate of the High Court South Africa Family Law Advocate 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:
  1. What are the reasonable monthly needs of the child? If you can place an amount to it, do so.
  2. 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.
  3. 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

advice-child-maintenance-child-custody-divorceThe 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.advice-child-maintenance-child-custody-divorce Should you require any other legal services and advice, not related to family law, visit Private Legal or Business SA.

How much child support should you claim or pay?

Advocate of the High Court South Africa Family Law Advocate
Advocate Muhammad Abduroaf – Advocate of the High Court of South Africa

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:

  1. What are the reasonable monthly needs of the child? If you can place an amount to it, do so.
  2. 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.
  3. 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

advice-child-maintenance-child-custody-divorceThe 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.advice-child-maintenance-child-custody-divorce

Should you require any other legal services and advice, not related to family law, visit Private Legal or Business SA.

Related Post

Family Law matter and legal representation by attorneys or advocates. What are common questions asked?

What follows are some  frequently asked questions regarding legal representation and family law matters.

What is the right of mothers in South Africa?

In South Africa, mothers have several important rights concerning their children, particularly in matters of custody, care, and parental responsibilities. Here are some key rights:
  1. Parental Rights: Mothers have the right to make decisions about their child’s upbringing, including education, healthcare, and religion, especially if they are the primary caregiver or have sole custody.
  2. Custody and Access: Mothers can apply for custody of their children, and the courts prioritize the best interests of the child when determining custody arrangements. They also have the right to seek visitation rights if the father has custody.
  3. Child Maintenance: Mothers have the right to claim child maintenance from the father to ensure that the child’s financial needs are met.
  4. Legal Representation: Mothers have the right to seek legal advice and representation in family law matters, including custody disputes and maintenance claims.
  5. Protection Against Unreasonable Actions: Mothers can seek legal recourse if the father is acting unreasonably regarding custody, access, or maintenance obligations.
  6. Participation in Major Decisions: Mothers should be involved in significant decisions affecting their child’s life, such as schooling and medical treatment.
  7. Maternity Leave and Benefits: South African labour laws protect mothers’ rights to maternity leave and benefits in the workplace.
  8. Access to Social Services: Mothers can access social services and support systems to help with parenting, health care, and financial assistance if needed.
It’s essential for mothers to be aware of their rights and seek legal advice if they encounter challenges in exercising them.

Can a mother keep the child away from the father in South Africa?

In South Africa, a mother cannot unilaterally keep a child away from the father without a valid legal reason. Here are some important points to consider:
  1. Legal Custody: If the father has legal custody or parental rights, the mother must adhere to any court orders regarding access and custody. Ignoring these can lead to legal consequences.
  2. Best Interests of the Child: South African law prioritises the best interests of the child. Keeping a child away from a parent without a justifiable reason (e.g., concerns about safety or well-being) is generally not in the child’s best interest.
  3. Valid Reasons: If there are legitimate concerns—such as abuse, neglect, or substance abuse—these should be documented and, if necessary, reported to the authorities or brought before the court.
  4. Court Orders: If there are disputes regarding custody or access, it’s advisable to seek a court order to formally address these issues rather than taking unilateral action.
  5. Mediation: Engaging in mediation can help resolve conflicts between parents regarding custody and access in a way that considers the child’s best interests.

Who has more rights over a child in South Africa, a father or mother?

In South Africa, both parents generally have equal rights over a child, as the law emphasizes the best interests of the child. However, specific rights can depend on factors like custody arrangements and parental responsibilities:
  1. Equal Rights: Both parents have equal rights in making decisions about the child’s upbringing, education, and healthcare, unless a court order states otherwise.
  2. Custody Arrangements: If there is a custody agreement or court order in place, the terms of that order will determine the rights of each parent. For example, if one parent has sole custody, that parent may have more decision-making power.
  3. Parental Responsibilities: The Children’s Act outlines parental responsibilities and rights, which include the right to care for the child, maintain contact, and contribute to the child’s upbringing. Both parents typically share these responsibilities.
  4. Best Interests of the Child: Courts prioritize the child’s best interests when determining custody and access, which can sometimes lead to one parent being granted more rights in certain situations.
Overall, while mothers and fathers have equal rights, individual circumstances and legal agreements can influence specific rights and responsibilities. Legal advice is recommended for parents navigating custody and access issues.

Who qualifies for legal aid in South Africa and how can one apply for it?

In South Africa, legal aid is available to individuals who cannot afford legal representation. Here’s a breakdown of who qualifies and how to apply: Qualifications for Legal Aid
  1. Financial Means Test: Legal aid is primarily aimed at those with limited financial resources. Applicants must meet specific income and asset thresholds, which are reviewed periodically.
  2. Type of Case: Legal aid typically covers civil, criminal, and family law matters, including:
    • Criminal cases where imprisonment may be a consequence.
    • Family law matters, such as divorce, custody, and maintenance.
    • Certain civil cases, such as disputes involving social grants or housing.
  3. Merit of the Case: The case must have a reasonable chance of success. Legal aid is not provided for cases deemed frivolous or without merit.
How to Apply for Legal Aid
  1. Visit a Legal Aid Office: Applicants can visit a local Legal Aid South Africa office. These offices are located throughout the country.
  2. Complete the Application Form: At the office, you’ll need to fill out an application form. Staff will assist you in understanding the process and requirements.
  3. Provide Documentation: You may need to present supporting documents, such as:
    • Proof of income (payslips, bank statements).
    • Details about your assets.
    • Information about the legal issue you are facing.
  4. Assessment: Once your application is submitted, it will be assessed for eligibility based on financial means and the merits of the case.
  5. Await Decision: You will be informed about the outcome of your application. If approved, you will be assigned a legal representative.
How does pro bono work in South Africa? Pro bono legal services in South Africa refer to legal work undertaken voluntarily and without charge, aimed at assisting individuals or communities who cannot afford legal representation. Here’s how pro bono work functions in South Africa: Key Aspects of Pro Bono Work
  1. Purpose: Pro bono services are intended to promote access to justice, particularly for marginalized or disadvantaged individuals who may be unable to afford legal fees.
  2. Eligibility: There are typically no strict eligibility criteria for receiving pro bono services, but organizations may prioritize cases based on need, urgency, and the potential impact of the legal issue.
  3. Types of Cases: Pro bono work often covers a range of legal matters, including:
    • Family law (e.g., custody, divorce)
    • Criminal defense
    • Land rights and housing issues
    • Employment law
    • Public interest litigation
How Pro Bono Work is Organized
  1. Law Firms and NGOs: Many law firms, both large and small, have pro bono departments or initiatives. Non-governmental organizations (NGOs) also provide pro bono legal services, often focusing on specific areas of law.
  2. Legal Aid Clinics: Some universities and legal organizations operate legal aid clinics staffed by law students under the supervision of qualified attorneys, offering free legal advice and representation.
  3. Referral Systems: Legal practitioners may refer clients to pro bono services if they identify that the client cannot afford legal representation.
How to Access Pro Bono Services
  1. Contact Law Firms or NGOs: Individuals seeking pro bono assistance can reach out to local law firms or NGOs that offer these services. Many firms have specific programs dedicated to pro bono work.
  2. Legal Aid South Africa: While this is a separate entity, it’s important to note that Legal Aid South Africa provides legal services to those who qualify based on financial means, and they may refer clients to pro bono resources.
  3. Community Legal Clinics: Some communities have legal clinics that provide free advice and assistance. These clinics often focus on specific legal issues and can be a valuable resource.
Benefits of Pro Bono Work
  • Access to Justice: Pro bono work helps bridge the gap for individuals who might otherwise be unable to afford legal help.
  • Public Interest: It allows lawyers to engage in matters that benefit society as a whole, addressing systemic issues.
  • Professional Development: For young lawyers and law students, pro bono work provides valuable experience and the opportunity to develop their skills while making a difference.
Overall, pro bono legal services play a crucial role in promoting equality and justice in South Africa.

What is the difference between an advocate and an attorney?

In South Africa, the terms “advocate” and “attorney” refer to different roles within the legal profession. Here are the key differences: Advocate
  1. Role: Advocates primarily represent clients in court and are specialised in litigation. They provide expert legal opinions and arguments during trials.
  2. Direct Access: Generally, advocates are instructed by attorneys. However, in some cases, clients can approach an advocate directly (known as “direct access”).
  3. Chambers: Advocates typically work independently from their own chambers or practice, rather than as part of a law firm.
Attorney
  1. Role: Attorneys handle a wide range of legal matters, including providing legal advice, preparing documents, and managing client relationships. They often deal with clients directly.
  2. Court Representation: While attorneys can represent clients in lower courts, they may instruct an advocate for higher courts or more complex litigation matters.
  3. Law Firms: Attorneys typically work in law firms or practice independently. They may specialize in various areas of law, such as family law, criminal law, or commercial law.
  4. Regulation: Attorneys are regulated by the Law Society of South Africa and must complete practical legal training and pass exams to practice.
Summary In essence, attorneys are the first point of contact for clients and handle a broad range of legal work, while advocates specialize in courtroom representation and litigation. The two roles complement each other within the legal system.

Can a client pay an advocate directly?

In South Africa, it is generally not standard practice for clients to pay advocates directly. Advocates are typically retained by attorneys, who then handle the payment arrangements. Here are some key points regarding this process:
  1. Attorney-Advocate Relationship: Clients usually hire an attorney, who will then brief an advocate for specific legal representation. The attorney is responsible for paying the advocate’s fees.
  2. Direct Payments: While it’s possible for a client to pay an advocate directly in certain circumstances, this is less common and may require prior agreement. If an advocate is briefed directly (as in some cases of direct access), they may accept payment from the client.
  3. Fee Agreements: If a client and an advocate agree on direct payment, it’s essential to have a clear fee agreement in writing, outlining the services provided and the payment structure.
  4. Cost Orders: In court cases, if a client wins, the court may order the losing party to pay the legal costs, which could include the advocate’s fees, but these costs typically flow through the attorney.
It’s advisable for clients to clarify payment arrangements with their attorney or advocate upfront to avoid misunderstandings.

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