Maintenance Plans and Family Mediation
Maintenance plans can help separating parents create clarity around one of the issues that most often becomes difficult after separation or divorce: how the financial needs of their children will be met.
Maintenance is rarely only about a number. Behind the discussion are questions about what a child reasonably needs, what each parent can afford, how expenses should be shared, what happens when costs increase and how parents will deal with expenses that cannot always be predicted in advance.
I use the term maintenance plan to describe a practical agreement about how these financial responsibilities will be managed.
In South Africa, child maintenance is governed principally by the Maintenance Act 99 of 1998, together with the responsibilities created by the Children’s Act. Section 15 of the Maintenance Act confirms that parents share the duty to support their children, with their respective contributions apportioned according to their means. The duty extends to what a child reasonably requires for proper living and upbringing.
What Are Maintenance Plans?
“Maintenance plan” is a useful practical description, but it is not the name of a particular statutory document in the Maintenance Act.
Depending on the circumstances, the agreed maintenance terms may ultimately be included in a parenting plan, divorce settlement agreement, consent maintenance order or another appropriate legal arrangement.
What matters most is that the terms are clear enough for both parents to understand what is expected and, where necessary, capable of being properly formalised and enforced.
Both Parents Have a Duty to Support Their Children
Child maintenance is not based on the assumption that one parent must pay for everything while the other contributes only through care.
Section 15 of the Maintenance Act provides that the duty of support is a joint obligation, and that the parents’ respective shares are apportioned according to their respective means.
This means that fair does not automatically mean 50/50.
If one parent has substantially greater financial means than the other, an equal division of every expense may not produce a fair outcome.
The starting point is generally:
What does the child reasonably need, and what can each parent reasonably contribute?
The Department of Justice’s information on maintenance similarly explains that the amount of maintenance depends on the needs of the child and the financial means of the parents.
What Does Child Maintenance Cover?
Maintenance is broader than food and a monthly cash payment.
The Maintenance Act expressly refers to food, clothing, accommodation, medical care and education as part of what a child may reasonably require.
In practice, parents may also need to consider:
- housing and household costs
- groceries and clothing
- school fees, stationery, textbooks and uniforms
- transport
- medical aid
- medical expenses not covered by medical aid
- therapy
- sport and extracurricular activities
- additional tuition
- school camps and tours
- other reasonable educational or developmental costs.
Some expenses arise monthly.
Others arise annually.
Some arrive without warning.
A useful maintenance arrangement therefore needs to deal with how different types of expenses will actually be paid, rather than focusing only on one monthly figure.
Working Out What Is Fair
Money discussions during separation can quickly become emotional.
One parent may feel:
“I am carrying everything.”
The other may feel:
“Nothing I contribute is ever enough.”
Disputes can develop around whether a particular expense is necessary, whether somebody was consulted before it was incurred or whether the expense reflects the child’s needs rather than one parent’s preferences.
Family mediation helps bring the conversation back to practical questions:
- What does the child reasonably need?
- What does it cost to meet those needs?
- What are each parent’s income, resources and financial obligations?
- What can each parent reasonably contribute?
The purpose is not to find a number that feels like a victory for one parent.
It is to find an arrangement that provides properly for the child and is realistic enough to be maintained.
Financial Transparency
It is difficult to negotiate maintenance properly without reliable financial information.
Parents need a reasonably clear picture of the child’s expenditure and of each person’s financial circumstances.
The Maintenance Court process similarly requires supporting financial information. The Department of Justice lists documents such as proof of income, recent bank statements and evidence of expenses as part of the maintenance process.
Mediation can apply the same practical discipline.
Instead of beginning with competing demands about what somebody should pay, the parties can work through the figures and understand what sits behind them.
Monthly Maintenance and Direct Expenses
A maintenance arrangement does not necessarily have to consist of one payment covering everything.
Parents may agree on a monthly contribution while dealing separately with certain expenses.
For example, one arrangement might provide for a monthly payment together with separate responsibility for school fees, medical aid, uncovered medical expenses or agreed extracurricular activities.
The Maintenance Act also allows maintenance orders to deal with medical expenses and, where appropriate, registration of a child as a dependant on a medical scheme.
The important thing is clarity.
Phrases such as “reasonable medical expenses” or “extracurricular expenses will be shared” may sound adequate until the parents disagree about what those terms actually mean.
It helps to specify what is covered, whether prior consultation is required, how payment or reimbursement will happen and by when.
Annual Increases
Children’s costs do not remain the same indefinitely.
School fees change. Food and transport become more expensive. Medical aid premiums rise. Children’s needs change as they grow.
Parents may therefore agree that a cash maintenance amount will increase annually.
There is no single percentage that must automatically be applied to every private maintenance arrangement. Some agreements or maintenance orders use an escalation linked to the Consumer Price Index, while others provide for a different mechanism.
The important practical questions are:
How will the amount change, and on what date?
It is far better to agree on this when the maintenance arrangement is created than to reopen the same argument every year.
Extraordinary and Unexpected Expenses
Children occasionally need things that nobody included in the monthly budget.
There may be orthodontic treatment, additional therapy, specialised educational support, a school tour, a laptop for school or an unexpected medical expense.
A maintenance arrangement can provide a process for dealing with these costs.
That might include specifying:
- which expenses require prior discussion
- how approval is obtained
- what happens in an emergency
- how the expense will be divided
- how quickly reimbursement must take place.
These details can seem unnecessarily specific while communication between parents is good.
They become valuable when communication later becomes more difficult.
Maintenance Does Not Automatically End at 18
A parent’s duty of support does not automatically disappear when a child turns 18.
Maintenance may continue while an adult child remains dependent and is not yet self-supporting. This may arise, for example, during tertiary studies or where there are other genuine barriers to financial independence.
There is, however, an important legal nuance.
Once the child is an adult, questions about who may enforce an existing maintenance provision or bring a claim can depend on the wording of the existing order and the particular circumstances.
Specific legal advice can therefore be useful where maintenance for an adult dependent child is disputed.
When parents are creating an arrangement while children are still young, it is nevertheless useful to think ahead:
What happens after school?
How will tertiary education or vocational training be approached?
What happens while the child is studying and not yet financially independent?
Thinking about these questions now can reduce uncertainty later.
When Circumstances Change
Maintenance arrangements do not necessarily remain appropriate forever.
A parent’s income may change. Someone may lose a job, become ill or experience a substantial change in earnings. A child’s needs may also change significantly.
The Maintenance Act provides mechanisms for an existing maintenance arrangement or order to be reconsidered where circumstances justify it.
The Department of Justice provides information about applications to increase or decrease maintenance and publishes the relevant Maintenance Forms, including the prescribed form relating to substitution or discharge of an existing maintenance order.
This does not mean that maintenance should constantly be renegotiated whenever one parent is unhappy with the arrangement.
It means that an arrangement created for one set of circumstances may sometimes need to change when those circumstances change materially.
Maintenance and Parenting Time Are Separate Issues
Maintenance is not payment for access to a child.
A parent does not lose contact with a child simply because maintenance has not been paid.
Similarly, the amount of time a child spends with each parent does not by itself determine what maintenance should be paid.
The parenting arrangement can affect the costs carried in each household and therefore forms part of the financial picture, but the maintenance discussion remains centred on the child’s reasonable needs and the parents’ respective means.
Financial conflict should not be fought through the child.
Spousal Maintenance
Where parties are divorcing, the discussion may also include spousal maintenance, which is legally different from child maintenance.
Section 7 of the Divorce Act 70 of 1979 allows a divorce court to make an order for spousal maintenance in accordance with a written agreement between the parties.
Where there is no agreement, the court may consider factors including the parties’ existing and prospective means, earning capacities, financial needs and obligations, age, duration of the marriage and previous standard of living.
Spousal maintenance should therefore not be treated as something that automatically follows a divorce.
Where it forms part of mediation, the discussion may include whether maintenance is required, the amount, the period for which it will be paid and the circumstances in which the arrangement may end or be reviewed.
Because these provisions can have substantial long-term legal and financial consequences, independent legal advice is particularly important before final terms are signed.
The Role of Family Mediation
Maintenance is well suited to family mediation where both parties are able to engage openly and provide the financial information needed for a proper discussion.
The mediator does not decide what somebody must pay.
The process creates a structure in which the parties can identify the child’s needs, examine their respective financial circumstances, work through disagreements and develop practical proposals.
It can deal with far more than the monthly maintenance amount:
payment dates, medical aid, uncovered medical costs, school fees, annual increases, extraordinary expenditure, tertiary education and what happens when circumstances change.
A clause saying:
“The parents will share all expenses equally.”
may appear simple.
It can also create years of arguments if nobody has agreed what qualifies as an expense, who may incur it and whether equal sharing is actually appropriate.
Good mediation tries to identify those problems before they become future disputes.
Formalising the Agreement
Agreement in mediation and an enforceable maintenance order are not necessarily the same thing.
The Maintenance Court can make a maintenance order by consent where the parties agree. The Department of Justice publishes Form G, Consent and Maintenance Order, for this purpose through its Maintenance Forms.
Maintenance provisions may also form part of a divorce settlement and ultimately be incorporated into a divorce order where appropriate.
My role in mediation is to help the parties work through the financial issues, identify the areas that require agreement and record what has been agreed clearly.
Where formal legal drafting, independent legal advice or a court process is required, the parties should obtain assistance from an appropriately qualified attorney or the relevant court.
Creating an Arrangement That Works
A maintenance agreement needs to work beyond the negotiation in which it was created.
It needs to make sense next month, next year and as the child grows.
The strongest arrangements are usually the ones in which both parents understand what the child needs, what each parent is responsible for, how different expenses will be dealt with, what happens when an unexpected cost arises and what process will be followed if circumstances change.
Maintenance can understandably become emotional because money, fairness, parenting and separation are closely connected.
A structured mediation process can make those conversations more manageable.
The focus remains on creating an arrangement that is clear, financially workable and centred on the child’s reasonable needs.
