Child support applies regardless of relationship status
Experts say maintenance is a legal obligation based on a child’s needs, not whether parents are married or separated.
Many South African parents wrongly believe that marriage determines who must financially support a child, but the law says otherwise.
According to legal expert Ann-Suhet Marx, director and head of litigation at VDM Incorporated, both parents are responsible for a child’s needs, regardless of whether they are married, separated or have never lived together.
“The law doesn’t tie children’s rights to maintenance to the parents’ relationship. That right exists from birth,” Marx advises.
The Children’s Act outlines four key parental responsibilities:
• Care
Providing a safe, stable environment and meeting the child’s daily physical, emotional and developmental needs.
• Contact
Maintaining a meaningful relationship with the child through time spent together and regular communication, even when the parent doesn’t live with the child.
• Guardianship
Making major decisions that affect the child’s life, including medical consent, travel documents, legal matters and property administration.
• Maintenance
The financial duty to support the child’s reasonable needs is an obligation that cannot be waived, transferred or avoided.
These duties apply equally to all parents unless a court rules otherwise.
Marx emphasised that maintenance and contact are separate issues.
A parent cannot refuse to pay maintenance due to a lack of access, nor can they deny access because maintenance is unpaid.
Courts have consistently upheld a child’s right to support as non-negotiable.
Contributions are not split equally but are based on each parent’s financial means.
“Maintenance is also not a 50/50 calculation. In J v J (2008), the Supreme Court of Appeal made it clear that contributions must be proportionate to each parent’s means, not divided equally or based on marital status,” Marx emphasises.
Even when parents are separated but still married, the duty to support a child continues.
While unmarried parents share equal responsibility, below are a few obligations:
• Mothers automatically acquire full parental responsibilities at birth.
• Unmarried fathers acquire full responsibilities and rights if they acknowledge paternity, contribute or attempt to contribute to the child’s upbringing and maintenance, and
maintain a relationship with the child.
To reduce conflict, Marx urges separating parents to register a parenting plan with the family advocate or via court order to formalise the following:
• Care and contact arrangements
• Financial responsibilities
• Decision–making structures
• Communication expectations
Failure to comply with maintenance orders can lead to serious consequences, including salary deductions, the attachment of assets, or arrest.
South African law is designed to protect children from the fallout of adult conflict.
“Maintenance is not a negotiation tactic. It’s a legal obligation grounded in the best interests of the child.
When parents understand their responsibilities early, children are protected from unnecessary hardship,” Marx emphasises.
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