Divorce Article 10: Maintenance for Minor Children in Divorce Proceedings.

must be in accordance with the parent’s means. What this results in is a two-stage inquiry:

The minor’s needs from time to time, age,

health, educational needs, social status, the fact that one party already bears

the expense of custody, and so on;

The parent's financial means.

The second stage of the

inquiry is what causes the controversy. By way of example, it can be shown that

the child in question requires a certain amount of maintenance from the

non-custodial parent taking into account the facts in 1 above. However, in terms

of 2 above the parent from whom maintenance is required may simply not be able

to afford the amount taking into account the financial requirements that he or

she may need to survive. In this instance, the court has held that the custodian

parent is not entitled to claim maintenance for the minor children from the

non-custodial parent if that non-custodial parent simply does not have the

means to support the minor child. This may occur if, at the time of the divorce, the non-custodial parent may have been retrenched.

However, this example is based

on the situation at the time of the order being granted and can be reviewed and

amended should the non-custodial parent’s circumstances change.

The parties, as explained in

previous articles, can reach an agreement on the maintenance to be provided for

the minor children. However, the court is not necessarily bound to this and may

make a different order.

By way of example, it has

occurred that the parties agree on a complete separation, and in exchange for

the one parent not having any access or visitation to the minor children that

party would not be required to pay maintenance. The court rejected this stating

that the right to be maintained by both parents is the minor’s right and

non-custodial parent’s duty and cannot be waived by the custodial parent.

While not strictly speaking

relevant to this article it should be noted that the non-custodian’s right to

access and visitation is not dependent on the payment of maintenance as these

are separate rights and issues. Therefore should the non-custodial parent be

defaulting on maintenance, for example, due to the change of circumstances or

dispute on the maintenance amount, this does not warrant the custodial parent

from denying access and visitation.

Maintenance orders usually

stipulate at what stage the order is to continue. For example until the

minor reaches the age of majority or becomes self-supporting.

In our next article, we shall discuss

the rights of the non-custodial parent in divorce proceedings. While this will

involve some issues discussed in our previous article on guardianship, custody, and access it is nevertheless an important consideration.

Related Practice Areas: Maintenance & Spousal Support | Child Custody

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