Both parents have a legal duty to support their children, and the maintenance court decides each parent’s share on the evidence in front of it. The parent who arrives with proof of the children’s needs and of both parents’ finances is in the strongest position.
This article explains how a maintenance claim works under the Maintenance Act 99 of 1998, and what you should take with you to court. Each point refers to the section of the legislation it comes from.
1. Who must pay, and how much
Contributing to a child’s maintenance is one of every parent’s parental responsibilities (Children’s Act 38 of 2005, s 18(2)(d)). The Maintenance Act gives effect to that duty:
- What it covers. The duty extends to the support a child reasonably needs for a proper living and upbringing, including food, clothing, accommodation, medical care and education (Maintenance Act, s 15(2)).
- Who carries it. Supporting a child is an obligation the parents have incurred jointly (s 15(3)(a)(i)).
- How it is shared. Each parent’s share is apportioned according to their respective means (s 15(3)(a)(ii)).
- For every child. The duty exists whether the child was born in or out of wedlock, or of a first or later marriage (s 15(3)(a)(iii)).
- A fair amount. The court must set an amount it considers fair in all the circumstances (s 15(3)(b)).
Two things therefore decide the amount: what the children reasonably need, and what each parent can afford. Everything you take to court should prove one or the other.
2. How a maintenance claim starts
- You lodge a complaint with the maintenance officer, in the prescribed manner, that a person who is legally liable to maintain the child is failing to do so (Maintenance Act, s 6(1)(a)). You can also complain that there is good cause to change or cancel an existing order or agreement (s 6(1)(b)-(c)).
- The maintenance officer investigates. The officer may take statements under oath, and gather information about where the other parent is and about the financial position of anyone affected (s 7(1)(a)-(b)). A maintenance investigator may be used to trace the other parent (s 7(2)(a)).
- An enquiry is held in the maintenance court for the area where the child, or the person caring for the child, lives, works or does business (s 6(2)).
- The court decides. After considering the evidence, the court may make a maintenance order, change or cancel an existing one, or make no order (s 16(1)).
If both parents agree, the court can make the order on the strength of their written consent, even if one or both are absent (s 17(1)).
3. The court can compel financial information
You do not have to rely only on what the other parent chooses to disclose. The legislation gives the maintenance officer and the court real powers:
- The maintenance officer may have any person subpoenaed to give evidence, or to produce any book, document or statement (s 9(1)(a)).
- This expressly includes documents about the financial position of anyone affected by the maintenance duty, and, for an employee, a statement of full particulars of earnings signed by the employer (s 9(1)(b)).
- The court may subpoena or question any person during the enquiry, and recall witnesses (s 10(1)).
- Every witness gives evidence under oath or affirmation (s 10(2)). Wilfully giving false evidence is an offence (s 33(2)).
- Every party has the right to be represented by a legal representative (s 10(3)).
- The court may ask the Family Advocate to investigate the welfare of a child affected by the enquiry (s 10(1A)).
If you know where the other parent works, banks or does business, tell the maintenance officer. That information helps the officer decide whom to subpoena.
4. What to take to court
The court sets maintenance on the evidence (s 16(1)). Organise your documents around the two questions the Act asks: what the children need (s 15(2)), and what each parent can afford (s 15(3)(a)(ii)).
| What to bring | Why it matters | Legislation |
|---|---|---|
| Your identity document and the children’s birth certificates | Shows who the parents are and that the duty applies to each child | s 15(3)(a)(iii) |
| Any existing maintenance order, court order, divorce order or written maintenance agreement | Needed if you ask the court to change or replace it | s 6(1)(b)-(c); s 16(1)(b) |
| A monthly budget of the children’s expenses, with receipts | Proves what the children reasonably need | s 15(2) |
| Proof of accommodation costs: lease, bond statement, municipal account | Accommodation is part of a child’s needs | s 15(2) |
| School fee statements, uniform, transport, stationery and extramural costs | Education is part of a child’s needs | s 15(2) |
| Medical aid certificate and statements, and unpaid medical accounts | Medical care is part of a child’s needs, and the court may order the children to be kept on a medical scheme | s 15(2); s 16(1)(a)(i) |
| Your own payslips and bank statements for the last six months | Proves your means, so the shares can be apportioned | s 15(3)(a)(ii) |
| Anything showing the other parent’s income: payslips, business details, employer’s name and address, lifestyle evidence | Proves the other parent’s means, and lets the maintenance officer subpoena an employer’s earnings statement | s 9(1)(b); s 15(3)(a)(ii) |
| Proof of payments you have already made, or arrears owed | Relevant to enforcement and any arrears claim | s 26(1) |
| For a newborn: proof of birth and lying-in expenses | The court may order the liable parent to repay the mother’s birth expenses and maintenance from the child’s birth | s 16(1)(a)(ii) |
Make copies of everything for the court, the maintenance officer and the other party. If you cannot get a document, tell the maintenance officer, who can subpoena it (s 9(1)).
5. If the other parent does not co-operate or does not pay
Not coming to court. If a person who knows about the subpoena, or who was warned to return to court, fails to appear, the court may make an order by default on the strength of the complainant’s evidence (s 18(1)).
Payment direct from salary. When the court makes a maintenance order, it must also order anyone who pays the liable parent periodically — such as an employer or a pension fund — to pay the maintenance directly from those amounts, subject to the exceptions in the Act (s 16(2)(a)).
Enforcing arrears. If a payment is missed, the order can be enforced, with interest, by execution against property, attachment of salary or wages, or attachment of a debt owed to the defaulting parent (s 26(1)).
Criminal liability. Failing to make any payment under a maintenance order is a criminal offence, punishable by a fine or up to three years’ imprisonment (s 31(1)). Lack of means is not a defence if the failure was caused by an unwillingness to work or by misconduct (s 31(2)).
6. Changing an order later
Circumstances change: children grow, school fees rise, a parent loses a job or earns more. Either parent may lodge a complaint that good cause exists to substitute or discharge an existing maintenance order (s 6(1)(b)). After an enquiry, the court may replace the order or discharge it (s 16(1)(b)). The same evidence applies: proof of the children’s current needs and of each parent’s current means.
Until the court changes an order, it remains in force, and missing a payment remains an offence (s 31(1)).
How Suhannie Greyling Attorneys can help
We can help you prepare your maintenance claim or defence, assemble the financial evidence, represent you at the maintenance enquiry (s 10(3)), and enforce or vary an existing order.
Suhannie Greyling Attorneys Inc.
28A Taylor Street, Burgersdorp, 9744
Email: info@suhannie.co.za
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This article provides general information about South African law and is not legal advice. Every case is different. Please consult an attorney about your specific situation.
