CHILDREN & DIVORCE

 ‘Parental rights and responsibilities’ is the broad term for the rights and responsibilities a person may have in respect of a child. These include all or some of the elements of guardianship, care, contact and maintenance. A holder of full parental rights and responsibilities has the right and responsibility to: care for the child; maintain contact with the child; act as the guardian of the child; and contribute to the maintenance of the child. Maintenance and contact (access) will be the focus of this article.

As previously mentioned in ‘PART 1’, section 6 of the Divorce Act 70 of 1979 provides that a decree of divorce will not be issued until the Court is satisfied that there are appropriate provisions in place for the well-being and in the best interests of the minor or dependent children of the marriage. Prior to a divorce, both parents will enter into a settle agreement and a parenting plan which sets out which parent will be the parent of primary residence and the parent of alternate residence. The parents therefore need to reach an agreement about when, where and how the parent of alternate residence will have access to the children. If it is not in the best interests of the children for the other parent to have access rights, then the court can restrict access.

 A child is entitled to reasonable maintenance to cover his/her clothing, housing, dental and medical care, education and training and where applicable, recreation. When determining what is ‘reasonable’, the family’s standard of living, their income and the cost of living will be taken into account. Both parents have a duty to maintain the child in accordance with their respective means. This duty does not solely rest on the father; so where the father can adequately provide for the child it does not mean that the mother can avoid contributing. In practice, maintenance will include: monthly cash payments; medical expenses; educational costs and tertiary educational costs. When claiming maintenance the reasonable needs of the child on a monthly basis must first be determined. Generally the child’s share of the common expenses in the household is determined by allocating one-part per child and two-parts per adult or older child. Only once the child’s reasonable monthly needs have been determined will one be able to establish the contribution that each parent is required to make to meet those needs.

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