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Does the choice to seek out another territory carry a price tag of forfeiting the capability to effectively enforce certain maintenance rights? Has an appropriate international legal framework developed as rapidly, if at all, as the ability of people to call a different country home?
Consider X and Y, previously married, now divorced, the parents of child Z. They were all resident in South Africa until X emigrated with Z to Australia. Y remained in South Africa. Following emigration X realises that
In 1963 the then State President of the Republic of South Africa assented to the Reciprocal Enforcement of Maintenance Orders Act 80 of 1963 (REMO). The application of that Act is limited and only applies in respect of some proclaimed countries such as Australia, Botswana, Canada, Cyprus, Fiji, Germany, Guernsey, Hong Kong, Mauritius, Namibia, New Zealand, Singapore, the United Kingdom and the United States of America. REMO permits proclaimed countries to send, via diplomatic channels, maintenance orders made in those countries i.e. foreign orders, to South Africa and places an obligation upon the South African maintenance courts to institute an enquiry with a view to possibly confirming those foreign orders.
REMO permits the South African maintenance courts to:
No regulations to REMO have been promulgated. REMO is silent on the aspects which the South African maintenance court will consider in its determination for the recognition of a foreign order. Surely then, the South African maintenance court will conduct a maintenance enquiry in accordance with South Africa law.
In terms of South African law, children have a common law right to be supported by their parents to the extent reasonably required for their proper living and upbringing which includes the provision of food, clothing, accommodation, medical care and education. In order to determine the amount to be paid as maintenance in respect of children, South African maintenance courts must consider factors such as the duty of supporting a child as an obligation incurred jointly by parents and that their respective contributions must be apportioned between them according to their respective means. Above all, maintenance courts are required to consider the circumstances of each case and determine an outcome which is reasonable. The test applied in South Africa is a needs and means test, however, the test is also that of reasonableness which allows the court to assess each case on its own merits and apply for example the
How then does the scenario between X, Y and Z unfurl before a South African maintenance court when an Australian order is placed before it?
Australian maintenance orders are produced as a result of a different legal system, in a country where the needs of children are generally different and in accordance with a default system. The method in Australia utilises aspects such as earnings of each parent, funds required by each parent to financially support oneself, financial obligations of each parent with regard to other children etc which are captured in a program that calculates a default output amount as maintenance payable and apportioned between each parent as a result of the input aspects. There is no consideration of reasonableness. Whether the Australian authorities consider the inequality between the Rand and Australian Dollar is another consideration altogether. In the scenario provided it may even be that X and Y had an existing and enforceable maintenance arrangement under South African law before X emigrated with Z. What then of those rights and obligations? REMO does not provide solutions and South African courts are likely to avoid all the uncertainty by making no order.
South Africa is a party to some international conventions which concern the maintenance of children, though not the most pertinent convention in this instance, the Convention on the International Recovery of Child Support and Other Forms of Family Maintenance. The preamble of the Maintenance Act 99 of 1998 acknowledges that the recovery of maintenance in South Africa does not meet the international obligations.
In the premises, we strongly suggest that any person planning to emigrate with a child ensures that they are aware of their maintenance rights and the application of those rights by seeking legal advice
This article is not intended to provide legal advice; it is for general information purposes only and to provide a general understanding of the law. It is advisable that advice relating to the specific circumstances of your matter be sought from an attorney before acting upon the content of this article. This article is written at a particular point in time and accordingly may not always reflect the most current legal developments, legislation and/or judgments which may be applicable from time to time. The author and/or Rushmere Noach Incorporated are not responsible for any errors or omissions in the content.
