Child support or Maintenance is the obligation to provide another person, for example a minor with:
- medical care
or means that are necessary for providing the person with these essentials. This legal duty to maintain is called the duty to maintain or the duty to support.
Who must provide maintenance?
The duty to maintain is based on blood relationship, adoption, or the fact that the parties are married to each other.
A child must be supported or maintained by:
- parents, whether married, living together, separated or divorced, including parents who have adopted the child
- grandparents, whether or not the child’s parents were married to each other. However, this varies from one case to another.
The duty to support a family member is not limited to supporting a child. Any family member, irrespective of age, can ask any family member to support or maintain the child, provided that the following two conditions are met:
- the family member:
- who claims support is unable to maintain oneself
- from whom maintenance is claimed is able to afford the maintenance claimed.
What expenses may be claimed?
You may claim reasonable support that is necessary for providing the child or other person who has a right to maintenance with a proper living and upbringing. This includes providing necessities such as food, clothing and housing, as well as paying for a proper education. The court may also order the father to contribute to the payment of laying-in expenses and maintenance from the date of the child’s birth up to the date on which the maintenance order is granted. The court may also grant an order for the payment of medical expenses, or may order that the child be registered on the medical scheme of one of the parties as a dependant. To enable the court to grant a fair maintenance order, both parties must provide the court with proof of their expenses.
Your view of the other parent’s behaviour has no effect on your children’s right to maintenance. You still have to pay maintenance, even if the other parent:
- is involved in another relationship
- does not allow you to see the children
- if either party later has more children.
Your duty to pay maintenance and your right of access to your children is two entirely separate matters and one has no relation to the other. Furthermore, children of either party do not influence the duty to support. However, the amount of maintenance to be paid may be amended by the court if either of the parties should bring such an application.
Steps to follow
- Apply for maintenance at the magistrate’s court in the district where you live.
- If you are in doubt, your local court will tell you at which court to apply for maintenance.
- Go to the relevant court and complete and submit Form A: Application for a maintenance order.
- In addition to the completed form, submit proof of your monthly income and expenses, such as receipts for food purchases, electricity and/or rent bill payments.
- The court will set a date on which you and the person whom you wish to pay maintenance must go to the court.
- A maintenance officer and an investigator will investigate your claim and look into your circumstances.
- The court will serve a letter instructing a person to come to court on the person against whom the claim is brought to appear in court on a specific date to discuss the matter.
- The respondent then has a choice between agreeing to pay the maintenance as claimed, and contesting the matter in court.
- If the respondent agrees to pay the maintenance as claimed, a magistrate will review the relevant documentation. They will then make an order, and may decide to do so without requiring the parties to appear in court.
- If the person who is allegedly liable to pay maintenance does not consent to the issuance of an order, they must appear in court, where evidence from both parties and their witnesses will be heard.
- If the court finds the person liable for paying maintenance, it will make an order for the amount of maintenance to be paid. The court will also determine when and how maintenance payments must be made.
- The court can order maintenance money to be paid in one of the following ways:
- at the local magistrate’s office or any other government office designated for this purpose
- into the bank or building society account designated by the person concerned
- directly to the person who is entitled to the money
- by means of an order that directs the employer of the person who is liable for paying maintenance to deduct the maintenance payment directly from the employee’s salary, in accordance with the Maintenance Act, 1998 (Act No. 99 of 1998).
- You will be treated equally, humanely and with dignity.
- Complaints will be treated as quickly and as efficiently as possible.
- There is no prescribed time frame for this service. The entire process, from submitting your application to receiving your first maintenance payment, may take several weeks, depending on the cooperation of both parties.
- Witnesses, who attend the proceedings, including the person who claims maintenance, are entitled to prescribed subsistence and travelling allowances. However, the court will decide at its own discretion whether such an allowance will be paid to the person against whom a maintenance order may be made.
- The person who is claiming maintenance must apply to the maintenance officer for the payment of witness fees.
The service is free.
Increase or decrease of maintenance
If you are receiving maintenance and you feel the amount being paid to you is insufficient, you can request that the amount paid to you for maintenance be increased or if you are paying maintenance and feel that you can no longer afford to pay that certain amount, you can request the amount you pay decreased.
Steps to follow
If you are the person who receives maintenance:
- Apply at the magistrate’s court that is situated in the district where you and your child lives
- Complete the relevant application form and submit it, together with a statement of income and expenditure, to the maintenance officer.
- If you are the person who paying maintenance:
- Apply for the decrease/variation order at the magistrate’s office where your maintenance order was made
- Complete the relevant form and submit it to the maintenance officer.
- Submit a complete statement of income and expenditure, as well as a statement explaining the reasons for the application, to the maintenance officer regardless of whether you are the recipient or the payer of the maintenance money. The same process as when a claim for maintenance is first instituted will then be followed.
Maintenance Act, 1998 (Act 99 of 1998)
All acts administered by the Department, can be obtained online.
- You will be treated equally, humanely, and with dignity and respect.
- Your application will be handled as quickly and efficiently as possible.
- Lodge any complaints that you may have with the Maintenance Investigator; the Maintenance Officer; the Court Manager; the Regional Head: Justice and Constitutional Development or the Centre of Service Excellence; the National Department of Justice and Constitutional Development’s Project for Maintenance; or with the Directorate: Gender Issues.
Unless the sheriff asks for an advance to enable him or her issue an execution order for maintenance, there will be little cost or none at all.
Maintenance is the obligation to provide a person, (e.g. a minor child), with shelter, food, clothing, education and medical care, to supply the means that are necessary for providing these essentials. This duty is based on blood relationship, adoption, or the fact that the parties are married to each other.
The maintenance officer will consider the children’s needs and help you to calculate how much maintenance you should pay. Each parent will make a fair contribution in proportion to the income.
Who should pay maintenance?
A child should be supported or maintained by:
- natural or adoptive parents, regardless of whether they are married, living together, separated or divorced or not and
- grandparents, regardless of whether the child’s parents were married to each other or not. However, this can vary from one case to another.
The duty to support a child exists in the following cases:
- a child is born:
- in wedlock, both parents have a duty to provide support
- out of wedlock, both parents have a duty to provide support.
- a child whose parents are deceased, the estate must provide support, regardless of whether the parents were married or not
- some grandparents or siblings of the child have a duty to provide support.
The duty to support a family member is not limited to supporting a child.
Any person, irrespective of age, can ask support or maintenance from any family member if:
the family member:
- who is claiming support is unable to maintain themselves
- whom maintenance is claimed and can afford to pay the amount that is claimed.
The court order must state the method of payment that the payer will choose, e.g.
- garnishee order: the company that you work for deducts the money directly from your salary
- cash payment: go to the court and pay the money over the counter
- bank account: deposit the money in the bank account of the person who is entitled to it.
Both the payer and the recipient of the maintenance money must always inform the court if their bank account details change, because in such a case a new court order must be issued.
If the maintenance money is not paid on the specific date, action will only be taken against the person who is responsible for payment if the recipient complains to the maintenance officer and makes a statement under oath. In cases of non-payment the maintenance officer at the local magistrate’s office should therefore be approached as soon as possible.