CAN’T PAY TO PLAY: WHAT EXACTLY IS THE RELATIONSHIP BETWEEN MAINTENANCE AND CONTACT?

“If you don’t pay for our child’s expenses, then you can’t see/spend time with our child.” 

“If I you don’t let me see our child, I am not going to pay XYZ.” 

Do either of the above sound familiar to you? 

You are not alone. These are struggles shared by many divorced and separated parents. Following divorce or separation, reaching an agreement regarding the care and contact of children born from the marriage or relationship is often no easy task. 

It is for this exact reason that the law steps in to attempt to ensure that regardless of the acrimony between parents, children’s basic needs are upheld as envisioned in the Constitution and the Children’s Act 38 of 2005.

Legal Framework 

Under Section 28 of the Constitution of South Africa children have the right, among others, to: 

28(1)(b): family care or parental care, or to appropriate alternative care when removed from the family environment; 

28(1)(c): basic nutrition, shelter, basic health care services and social services;

28(1)(d): be protected from maltreatment, neglect, abuse or degradation; and 

28(2): a child’s best interests is of paramount importance in every matter concerning the child. 

The Children’s Act 38 of 2005 was promulgated in order to establish a legal framework that sets out children’s rights and the associated responsibilities of parents. 

Under Section 18 of the Act, parental responsibilities are as follows: to care for the child, to maintain contact with the child, to act as a guardian of the child and to contribute to the maintenance of the child. 

Contact in this regard can be described as maintaining a personal relationship with the child and if the child lives with someone else, communication on a regular basis with the child in person, including visiting the child, being visited by the child or communication on a regular basis with the child in any other manner.

In short, contact can be defined as upholding a stable, healthy, caring relationship with and for the benefit of the child. This includes arrangements for regular visits, outings, conversations via telephonic call and/or video call and other forms of quality time. 

Although maintenance is not directly described in the Act, Section 15(2) of the Maintenance Act 99 of 1998 defines maintenance as being a “duty [that] extends to such support as a child reasonably requires for his or her proper living and upbringing and includes the provision of food, clothing accommodation, medical care and education.” 

The key word is reasonable. Reasonable expenses relating to the child’s reasonable needs. There is no expectation that a child requires designer clothes and/or 5 course 5-star meals, rather that the child’s basic needs must be met.

Section 15(3) goes on to state that maintaining a child is a duty that is shared by both parents. This ‘share’ is apportioned according to their respective means in order to contribute to the child’s reasonable expenses. Therefore, should one parent have greater financial means to contribute to the child, their obligation would be proportionally higher than the other parent. It is important to note that, whether parent’s portions are split on a 50/50 or 80/20 ratio (for example), the responsibility to care for the child remains shared by both parents.

As much as it is the responsibility of the parent, it is also the child’s right to be appropriately cared for.

A phrase you will regularly hear in discussions or read in case law regarding children is that of “the best interests of the child”. This phrase is drawn from Section 9 of the Children’s Act 38 of 2005 (as well as Section 28(2) of the Constitution). It means that from the outset, every decision that impacts the child is tested against whether, objectively, the outcome will improve or impair the child’s development and growth. 

Relationship between rights and responsibilities 

It is a common misconception that should you fail to meet one of your responsibilities as a parent, that you automatically lose your rights. For example, if you do not pay maintenance (because you do not have the means to do so), you are disqualified from having contact with your child or, if you do not have contact with your child, that you are exempt from paying maintenance. This is not true. 

That being said, there are serious consequences should a parent either fail to meet their parental responsibilities toward the child or hinder the other parent from exercising their parental rights in terms of the child. 

Remedies 

Maintenance

Should a parent fail to meet their maintenance obligations, you may approach the Maintenance Court and file an application to have the parents’ maintenance obligations be made an order of Court. 

Failure on the part of the other parent to meet the Court ordered maintenance obligations would put the defaulting parent in what is termed contempt of Court (which is a criminal offence punishable by a fine or imprisonment of up to 1 [one] year). 

Should a parent be unable to meet their maintenance obligations due to financial hardship, they cannot simply escape contributing to the child’s welfare, instead they would need to apply to have the maintenance Order varied/reduced or discharged. 

Contact 

The terms care and contact are also not mutually exclusive but are both concepts of parental rights and responsibilities.

As a starting point, divorced or separated parents should come to an agreement regarding the care and contact of their child. This can be achieved through the drafting and signing of a Parenting Plan. This document highlights each parent’s respective responsibilities as well as care and contact in respect of the child. The Parenting Plan may be submitted to the Office of the Family Advocate for endorsement and thereafter be formally made an order of Court. If parties cannot agree on the terms of a plan, then the Court will make a determination as to the appropriate arrangements that are in the best interests of the child. It is always advisable for parents to reach an agreement before approaching Court.

Should either party have their contact with their child frustrated by the other parent, they may approach the Children’s Court for assistance and intervention. 

There are serious consequences in the event that a parent obstructs the other parent’s contact with the child in terms of the Parenting Plan that has been made an order of Court. Section 35 of the Children’s Act 38 of 2005 states that it is a criminal offence to prevent a parent who holds parental rights and responsibilities in terms on an order of Court/Parenting Plan/Settlement Agreement from exercising those rights and responsibilities. 

Contact us at info@rouxlegal.com should you require any legal guidance regarding all aspects of family law.

By Clarisse Scheepers (Candidate Attorney)

02 June 2025

While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this article, neither the writer/s of the article nor the publisher shall bear any responsibility for the consequences of any actions based on information and/or recommendations contained herein. The URA article material is for informational and educational purposes only.