The Supreme Court of Appeal (SCA) delivered a landmark ruling that will take some weight off single parent’s shoulders. Last week it upheld an earlier decision by the Western Cape Division of the High Court that public schools must grant a conditional fee exemption to the custodial parent based on their income alone.
David Thomson, Legal advisor at Sanlam Trust says this ruling will open access to quality education for many children who are growing up with single parents.
“It is extremely important that parents who cannot afford to pay school fees are aware of their right to apply for a fee exemption. But most importantly, single parents need to be aware that while public schools’ governing bodies may recognise payment of school fees as a joint and several obligation; this SCA has effectively said that payment of school fees is only a joint obligation.”
What this means, explains Thomson, is that each parent is liable for his/her proportionate share of the fees as opposed to the full amount. If the custodial parent cannot afford to pay their share, they should receive a partial fee exemption for their share of the fees. But the SCA ruling goes further by asking public fee-paying school to calculate the fee exemption based on the custodial parent’s income alone. The school should not refuse an application on the basis that the non-custodial parent can afford the full fee.
Thomson says this is significant in a country like South Africa which counts among the highest when it comes to children being raised by single and divorced mothers. According to Statistics SA, 55.6% of divorce cases in 2015 involved couples with children younger than 18 years.
“Proper planning can help divorced and single parents share the load of raising their children equitably. For instance, when negotiating a divorce settlement, it is critical to agree in detail and in writing about how maintenance and school fees will be paid and what should happen to the minor child if the custodial parent passes away, etc.” Details about guardianship need to be particularly well thought through, he says.
“According to the Children’s Act, the surviving biological parent automatically becomes the guardian. But, what if this person lives abroad or in another city and your children have to leave their familiar school and their entire routine is disrupted? What if a new spouse (from a second marriage) decides to adopt your minor children? Who would you want to appoint to protect or guard the inheritance you’ve left for your children? These are just some of the intricacies that could turn your children’s’ lives upside down if you don’t pay attention to them,” says Thomson.
The surviving parent automatically becomes the minor child’s legal guardian, irrespective of your divorce or custody agreement when you were alive.
As the legal guardian, the surviving parent will make all financial and legal decision for the child, even if they don’t live with the child. These include administering and safeguard the child’s property interests; making decision about schooling; giving or refusing consent to enter into financial and legal agreements as well as for the purposes of travelling out of the country - among other things.
“But, a child may also have more than one guardian. So, if you want to appoint someone as a guardian, it’s strongly advised to state it in your will. It’s also good to motivate in your will why you are appointing that person,” says Thomson.