Maintenance and children not born from a marriage

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First things first, the woman claiming child support for a child born out of wedlock must prove paternity. In Sager v Bezuidenhout it is clear that both parents must contribute to the minor child’s needs and expenses. These expenses include any reasonable expenses that are considered in the best interest of the child, whether it is maintenance before or after the birth of the child.

The same principles will apply to children that are adopted. The parents of an adopted child have full parental responsibilities and rights conferred upon them, in terms of The Children’s Act 38 of 2005 (“The Children’s Act”). It makes no difference whether the child was adopted or not. However, the duty of support of the adopted child’s natural parents ceases to exist.

Children conceived by way of fertilisation are presumed that consent of both spouses was obtained for the artificial fertilisation and any child born as a result thereof is regarded as the child of those spouses, in terms of The Children’s Act.

However subject to section 296 of the Children’s Act which relates to surrogacy agreement, no right, duty or obligation arises between a child born as a result of the artificial insemination of a woman and a person whose gamete or gametes have been used for the artificial insemination, or the blood relations of that person, unless that person is the woman who gave birth to the child or was her husband at the time of the artificial insemination. In the matter of L v J, Berman J stated that if no consent has been given by a husband for the artificial insemination of his wife, with sperm from an unknown donor, the child is deemed to be born out of wedlock and no duty of maintenance towards the minor child can be claimed against the husband.

Paternity of a parent may be determined by way of a paternity test and should a party refuse to submit himself, herself or the child to take a blood sample, the Court must warn the refusing party of the effect it may have on the credibility of the party. A maintenance officer may only order parties to take blood tests if the parties consent to such an order and may also, with consideration of certain factors, make an order as to who will be responsible for the paternity test.

When the maintenance Court is to determine maintenance in respect of the child, the following is taken into consideration:

  • parent’s joint duty to support their children;
  • each parent’s duty is apportioned in accordance with their financial means; and
  • that a duty exists whether born out of wedlock, by adoption or by artificial fertilisation.

In terms of section 15 of the Maintenance Act 99 of 1998, any maintenance order made should be fair in all circumstances of each case and that no child has priority of maintenance over another being born out of a second or third marriage.

The maintenance Court may make an order for maintenance of a child, after consideration of the evidence, to:

  • order a person proven to be legally liable to support the child to make payments;
  • stipulate the manner, duration and time of payment;
  • to whom the payment shall be made;
  • include medical expenses or order for a child to be registered as a dependant on a medical aid scheme; and
  • to pay the mother of the child the expenses plus interest in connection with the birth of the child and the maintenance from birth to the date of enquiry.

When a maintenance order is already in force, it may be replaced by the maintenance Court, and a person may be discharged from maintenance or make no order, in which case it will be equivalent to an order of absolution. It is of high importance that a maintenance order is specific.

South African Courts always consider the best interest of a child, as a priority and therefore will always take into account the best interest of the child when making a maintenance order.

Reference List:

  • The handbook of the South African law of maintenace by Dr Brigitte Clark
  • Clark ‘Handbook of the South African Law of Maintenance’ 13

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

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