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Approaches to the Determination of Maintenance

Author: Adrian Grieve
Date: 2005-04-07

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The different approaches to the determination of maintenance payable by the non-custodial parent within the South African context are outlined and compared. Equitable decisions need to be based on knowledge of the costs and resources of each parent, and the needs and best interests of the child. Ultimately, a formula is not likely to yield efficiency gains in the South African context.

At present, the system of determining maintenance in South Africa is broadly discretionary and subjective. While a formula is used, the inputs to the formula are highly subjective, introducing uncertainty as to its efficacy. There is a question as to whether or not a more objective or policy-driven approach, as used in other countries, might yield substantial efficiency gains and, ideally, a more equitable system.

In order to make an informed determination, information regarding a particular case is required. With low rates of formal employment, uncertainty regarding income and affordability, and issues with having to provide proof for an enquiry to take place, obtaining relevant information becomes a challenge. This results in costly delays and efficiency losses, exacerbated by the fact that many Maintenance Officers are unqualified. One common outcome is that the determination is based on what top-up is required for the custodian parent to provide for the child each month, leaving the non-custodian parent to only pay the required top-up. This approach places the burden of the maintenance of the child firmly on the custodial parent.

The report looks into the potential for implementing formulae-based approaches. Formulae can range from complex — such as the Michigan formula, which outlines a formulated base support figure, adjusted according to time spent with the child, with additional items taken separately and divided equally — to simple — such as in the UK, where the formula is calculated as a percentage, taking into account the number of children for whom maintenance is sought, the income of the non-custodian parent, and the number of children living with the custodian parent to whom the non-custodian parent owes a duty to maintain. In both cases, the application of the formulae and the consideration of a range of variables provides some flexibility for individual circumstance, while maintaining understood standards.

It becomes clear that assessing formulae based on outcomes results in little more than a value judgment. Thus the study transfers its attention to analysing the intentions behind the various formulae. The following four key areas are assessed;

  • Is the approach of the formula objective, subjective or policy based?
  • What inputs are required by the formula?
  • What outputs are to be produced by the formula?
  • To what extent does the formula allow for deviation?

Formulae are developed based on the various relationships between these four factors. The formula used in South Africa is subjective, due to the inputs being subjectively calculated. The complex formula used in Canada is an example of the objective approach. In this approach, the formula reduces lifestyle to a costed figure. This removes uncertainty and places the needs of the child, relative to the lifestyle of the parents, front and centre. The UK's formula is levied more like a tax, relative only to the income figure, and not the child's perceived needs. This is the Policy Approach.

There is a great deal of complexity to defining inputs for the South African case – especially to quantify a child's needs. In terms of outputs, it is important to consider the child's needs, as well as the position of both parents. Therefore there remains a need for a high level of subjectivity.

In order to build a suitable model for South Africa, the report considers codifying the status quo. However, the principles themselves are subjective, and without developing a formula for their interaction, codifying them would be to no purpose. Further development of the principles, as well as addressing the information and enforcement issues, is required.

It is recommended that the formula that best suits South Africa's needs be a policy-based, but relatively subjective, three-part formula. It should allow for differing income brackets,but should look at family income and not only the income of the non-custodian parent. Medical and other expenses should be dealt with separately. It should also make accommodations for those living below the breadline, and other deviations.

The study concludes that a formula-based approach is desirable and can be suitably adjusted to serve the South African case, but that without reforming and improving the maintenance court structures, any alterations that affect the determination of maintenance can only have limited impact.