Are you recently divorced and a stay-at-home parent? Know your rights and get what you deserve!

In South African law, section 7(2) of the Divorce Act deals with the payment of maintenance in situations where no settlement agreement has been entered into between the parties, and it’s up to the courts to deal with the matter of maintenance.

What happens if I get divorced?

Rehabilitative maintenance refers to divorce situations where a maintenance order is given for a certain time after the divorce is finalised. The court makes a decision based on certain factors, including; the divorcing couple’s current and potential future financial means, their ages, the length of the marriage, their standard of living before the divorce, and any behaviour that may have contributed to the divorce.

In South Africa, no maintenance will be awarded to someone who can support themselves, or has the ability to support themselves. If the stay-at-home parent has not abandoned or downscaled his/her career to stay at home to take care of the children, no maintenance will be awarded.

How can the law protect me?

An award for rehabilitative maintenance is usually given when the court finds that a marriage has significantly affected the ability of one person to support themselves. When maintenance is awarded, the court takes into consideration the amount of time it will take for the stay-at-home parent to upskill him/herself to re-enter the job market. In many cases, it isn’t possible for the stay-at-home parent to re-enter the job market, and they may find themselves without an income once the period of rehabilitative maintenance is over.

Courts need to look at how employable the stay-at-home parent is when he/she seeks a maintenance award. If employability isn’t possible, the stay-at-home parent should be granted maintenance until death or remarriage.

The ages of the couple’s children will also be taken into consideration, as well as which parent will be the primary resident parent. Rehabilitative maintenance could be awarded to the stay-at-home parent to take care of the children until they can support themselves.

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).

References:

http://www.w24.co.za/Work/Legal/Stay-at-home-spouses-divorce-and-maintenance-20150219

http://www.justice.gov.za/legislation/acts/1979-070.pdf

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Contact refers to maintaining a personal relationship with a child. It entitles a person to see, spend time with (visit or be visited) or communicate (through post, by telephone or any form of electronic communication) with a child who does not live with that person. The child’s parent/s or a person other than the child’s parent/s (such as grandparent) can obtain the right to contact a child, provided that the contact would serve in the child’s best interests.

What will the court consider when granting an order in respect of contact?

• The best interests of the child.
• The nature of the personal relationship between the child and his/her parent/s.
• The degree of commitment the parent/s has shown towards the child.
• The extent to which the parent/s has contributed towards the expenses in connection with the birth and maintenance of the child.
• The likely effect on the child of any change in the child’s circumstances, including the effect of being separated from the parent/s or brothers/sisters with whom the child has been living.
• Any family violence involving the child or a family member of the child.
• The need to protect the child from any physical or psychological harm that may be caused by subjecting or exposing the child to maltreatment, abuse, neglect, degradation, violence or harmful behaviour.
• The child’s age, maturity, stage of development, gender, background and relevant characteristics of the child.
• Any disability that a child may have and any chronic illness from which a child may suffer from.

A parenting plan will contain a clause setting out the reasonable contact that the parent of alternate residence shall have with the child during term time and school holidays, taking into account the child’s social, school and extra-mural activities.

​There are an infinite number of possibilities available when drawing up a parenting plan. Jobs, schools and a variety of other factors must still be taken into account. The bottom line is to find a plan that works for the whole family.

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)

References:

https://www.legalwise.co.za/help-yourself/quicklaw-guides/child-contact/

http://www.divorcelaws.co.za/the-non-custodian-parent-and-contact.html

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