Halle Berry and Johnny Depp are both paying huge sums to their exes in maintenance. We speak to two experts about the issues behind maintenance in SA.
Halle Berry will pay her ex-partner and father of her daughter, Gabriel Aubry, R163 000 every month in maintenance. Berry is not the only star though who is set to cough up monetary support for a former partner.
Johnny Depp recently split from his live-in lover and mother of his two children, Vanessa Paradis. Depp is said to be considering paying Paradis R1,2 billion. According to Bang ShowBiz, Depp was contemplating settling out of court with Paradis in an attempt to ensure they separate under amicable circumstances.
A source told Bangshowbiz Depp wants to have an amicable relationship with Depp for the sake of their children. "They want to stay friends, but they were making each other unhappy. Vanessa didn't like Johnny's partying and moods," the insider added.
Meanwhile Berry and Aubry are embroiled in a bitter custody battle over their daughter. A judge ordered Berry to pay the sum to Aubry as Berry’s former beau sought to rent a home for himself and their daughter. We chat to People Opposing Women Abuse legal advisor, Priscilla Matsapole, and attorney at the Cape Town-based Women's Legal Centre Hoodah Abrahams-Fayker about maintenance.
What factors are taken into consideration when deciding on the amount for maintenance?
Matsapole: There are two forms of maintenance. With spousal maintenance the court will look at the duration of the marriage, standard of living and age of the party requesting the maintenance. With child maintenance, both parties are obliged to account for the chldren. Affordability is taken into consideration for both parents. For example, if a father earns R1 000, the court will take a look at his debts, bills and whether he is maintaining any other children. Usually both parents are required to draft the child's basic needs which may include school fees, food, clothing, uniform and medical expenses.
Who decides who pays whom?
Matsapole: After looking at the affordability of both parents or spouse and the details of the case, the court will make a decision.
Abrahams-Fayker: Both parents have a legal obligation to maintain their children. The primary caregiver will be the parent with whom the child is residing/staying with, whereby the other parent will make a contribution to the maintenance of the child.
If both partners are working, does this have an impact on the final decision?
How often does it happen in SA that a woman is ordered to pay her spouse or partner?
Matsapole: According to the spousal maintenance act, if both partners were married and they decide to divorce and the husband or wife was not working and the other was working, then the working spouse should pay. In South Africa it is rare for such to happen. I can say that at least five to 10 percent cases are like these because most men are working. Another thing is that because of the gender dynamics, most men are not comfortable going to claim spousal maintenance from court. From what I've seen with my male clients, they usually say that they will make a plan to survive. In cases where they do claim it is because they were married in community of property or due to a disability.
Abrahams-Fayker: Our advice queries regarding maintenance are generally where women are applying for maintenance against the father of their child/children. This reflects the general position with the lived reality of women in a South African context that women are the vulnerable in the community.
Due consideration must be given to the fact that women within relationships generally do not have the same power as their male counterparts and are consequently vulnerable because of the patriarchal stereotyping and history of apartheid which marginalises women socially and economically. Women are predominantly adversely affected when it comes to the financial and social consequences of the dissolution of relationships.
Women are generally the primary caregivers for children which would mean that they will be the one’s applying for maintenance from the father. The economic circumstances of mother and child impact on the realisation of the other constitutional rights of the child. The mother thus bears the brunt of child care and the responsibility not to compromise on the child’s right to basic nutrition, shelter, healthcare, education and development.
Do the same maintenance/spousal support laws apply to couples who have never married and were just living together? Matsapole: In South Africa there is no law that calls for partners who lived together to be entitled to maintenance once they break up. A partnership act was tabled in 2008, enabling people living together to have similar rights to those who are married but it has not been passed as a bill yet. Sometimes if a person can prove that they were living with their partner for years, the court could consider awarding special maintenance.
Abrahams-Fayker: There is a reciprocal duty of support between spouses. Couples who live together are regarding as being in a domestic partnership. Domestic partnerships are not legal recognised in South Africa, so there is not a legal duty to maintain. However, an application may be made to court by a partner to a domestic partnership where the court may grant an order for maintenance depending on the facts of each particular case.