CHILD MAINTENANCE

Child maintenance in South Africa is governed by the Maintenance Act 99 of 1998 and the Children’s Act 38 of 2005, and is the legal duty of both parents — married, separated, divorced, or unmarried — to support a child according to their respective means. The duty covers reasonable needs including housing, food, clothing, education, and medical care, and is independent of either parent’s remarriage, a new relationship, or whether the paying parent is denied contact with the child. Applications are filed at the Magistrate’s Court (Maintenance Court) in the district where the applicant and child live using Form A [J101], and existing orders can be varied or enforced through subsequent applications to the same court.

The Legal Framework: The Duty of Support Under South African Law

The duty to maintain is based on blood relationship, adoption, or marriage, and applies irrespective of whether the parents were ever married to each other. The Children’s Act 38 of 2005 defines parental responsibilities and rights as four distinct concepts — care, contact, guardianship, and maintenance — and the duty of support runs alongside, not in place of, the other three. The Maintenance Act 99 of 1998 is the procedural statute that creates Maintenance Courts and sets out how applications, investigations, and enforcement work.

The court’s primary consideration is the reasonable needs of the child, with each parent’s contribution proportionate to their means — not an automatic 50/50 split.

Who Has a Duty to Pay Maintenance

Liable party	When the duty arises
Both parents	Always — whether married, living together, separated, or divorced. Adoptive parents stand in the place of biological parents.
Grandparents (maternal and paternal)	Where neither parent can pay, an application can be brought against them.
Siblings (including half-siblings)	Where neither parent nor grandparent can pay and the claiming sibling is indigent.
Step-parents	Generally no legal duty — the duty rests on blood relationship, not affinity — although the Maintenance Act allows the court to subpoena a step-parent for information, and at least one reported divorce-court order has required a step-parent to contribute to school fees.

Burger Huyser Attorneys’ Family Law department handles applications against parents, grandparents, and siblings across its Gauteng branches; the firm maintains standing to instruct counsel where a motion-court enforcement strategy is required.

What Maintenance Covers

Category	Typical scope
Housing and utilities	Rent or bond, water and electricity, rates
Food and household	Groceries, household consumables
Clothing	Reasonable clothing and footwear for the child’s age and standard of living
Education	School fees, aftercare, books, stationery, uniforms, transport, extramural activities (including sport tours and their travel and accommodation)
Medical	Medical aid contributions, co-payments, dental, surgical, hospital, orthodontic, ophthalmological, physio, occupational, speech and holistic therapy, psychiatry and psychology, chiropractic, medication, spectacles, contact lenses
Tertiary education	Tuition, accommodation, travel, books and equipment — payable for as long as the child shows due diligence and satisfactory progress
Laying-in and birth-related expenses	The court may order the father to contribute to the mother’s laying-in expenses and to maintenance from the date of the child’s birth up to the order date

How the Amount Is Calculated: Reasonable Needs and Proportional Contribution

Maintenance is calculated from the child’s reasonable needs and each parent’s means — not an automatic 50/50 split. A worked example: with R12,000 per month in total reasonable needs and the parents earning R30,000 and R10,000 net respectively, the higher earner’s share is 75% (R9,000) and the lower earner’s share is 25% (R3,000).

Direct in-kind payments — medical aid membership maintained for the child, school fees paid directly to the school — are usually built into the order alongside the cash component. Many orders also include an annual escalation clause tied to the percentage change in headline CPI (Consumer Price Index) as published by Statistics South Africa, which keeps the order in step with inflation without requiring a fresh application each year.

Where to Apply: The Magistrate’s Court (Maintenance Court)

Maintenance applications are filed at the Magistrate’s Court in the district where the applicant and the child live, not in the High Court. District courts generally sit as maintenance courts by virtue of the Maintenance Act 99 of 1998, and every magistrate’s court in Gauteng can hear maintenance applications.

If the matter is one slice of a divorce already running in the High Court, interim maintenance, contribution to legal costs, and temporary care and contact arrangements can be pursued under Rule 43 of the Uniform Rules of Court — a faster interim route than waiting for the divorce to finalise.

How to Apply for a Maintenance Order (Step by Step)

1. Complete Form A [J101] (Application for a Maintenance Order) — available from the maintenance office at the relevant magistrate’s court or from the Department of Justice and Constitutional Development’s forms portal.
2. Submit the form together with proof of monthly income and expenses — payslips, three months of bank statements, receipts for groceries, electricity, rent, school, and medical costs.
3. Provide identifying documents for both the applicant and the child (ID book or passport, the child’s birth certificate) and the full name and physical and work address of the person from whom maintenance is claimed.
4. The maintenance officer and an investigator will verify both parties’ financial circumstances — disclosure is required from both sides.
5. The court issues a summons for the respondent to appear on a specified date; the matter is first routed through enquiry or mediation before a formal inquiry.
6. If the respondent consents, the magistrate may make the order on the papers without requiring both parties to appear; if the respondent contests, evidence is heard and the magistrate determines the amount and payment method.
7. The order specifies the amount, the payment date each month, and how payment must be made — options include direct payment at the magistrate’s office or another designated government office, payment into a bank or building society account, direct payment to the person entitled, or an emoluments attachment order against the payer’s salary.

What to Bring to the Maintenance Office

Applicant	Respondent
ID book, passport, or driver’s licence	ID book, passport, or driver’s licence
Certified copies of the child’s or children’s birth certificates	Three months of bank statements (latest)
Three months of bank statements (latest)	Three months of proof of income (payslip) or employer’s letter confirming income
Three months of proof of income (payslip) or employer’s letter	Proof of physical work and residential address
List of monthly income and expenditure (water and lights, groceries, school, medical, clothing)	List of monthly expenditure in the same categories as the applicant
Full name and physical and work address of the person from whom maintenance is claimed	Copy of any existing maintenance order from another court
Copy of the decree of divorce (where applicable)	Birth certificates of any other biological children

Varying the Order When Circumstances Change

Either party can apply to increase or decrease the maintenance amount if their circumstances have changed materially — job loss, illness, new dependants, change in the child’s needs. For a Maintenance Court order, the route is to lodge a fresh complaint for substitution or discharge (Form B [J107]) at the magistrate’s court that made the original order. For an interim order made during a pending divorce in the High Court, the variation route is Rule 43(6) of the Uniform Rules of Court.

Enforcement: What Happens If a Parent Defaults

If an order remains unsatisfied for 10 days, the complainant can apply to the maintenance court for one or more of the following remedies:

• Warrant of execution against the defaulter’s movable property.
• Emoluments attachment order (garnishee order) — the defaulter’s employer is ordered to deduct the maintenance amount from salary or wages and pay it across.
• Attachment of debt — funds the defaulter is owed by a third party (rents, contract payments) are attached in favour of the maintenance creditor.

For wilful non-compliance, criminal prosecution under section 31 of the Maintenance Act is available, carrying a penalty of up to one year’s imprisonment, a fine, or both. Civil contempt of court can be invoked for breach of any court order, including a Rule 43 order.

South Africa maintains a public maintenance defaulters list, and from late 2024 the Department of Justice and Constitutional Development has been moving to share defaulter details with credit bureaus. On 1 November 2024, the Minister of Justice and Constitutional Development signed the Maintenance Online Listing of Defaulters (MOLD) Memorandum of Understanding, enabling the Department to forward defaulter details to credit bureaus — with the practical effect that defaulters may struggle to obtain new credit, vehicle finance, or bond approval until their maintenance obligations are met. A maintenance claim does not prescribe easily: the Supreme Court of Appeal has upheld claims for arrears long after the divorce.

Maintenance vs. Contact: The Bright Line

The duty to pay maintenance and the right of contact (access) are two entirely separate matters. A parent who is denied contact with the child may not stop paying maintenance as a response — the correct remedy is to enforce the contact order in the Children’s Court or High Court. A parent who is not receiving maintenance may not withhold contact as leverage — the correct remedy is to enforce payment through the maintenance remedies above. The duty continues even if the other parent remarries, enters a new relationship, has more children, or denies the paying parent contact with the child.

Special Considerations

Unmarried Fathers

An unmarried biological father can acquire full parental responsibilities and rights under Section 21 of the Children’s Act 38 of 2005 by demonstrating commitment to the child — by living with the mother in a permanent life-partnership, by consenting to be identified as the father on the birth register, or by having contributed or attempted to contribute to the child’s upbringing and maintenance for a reasonable period. Where those rights are disputed, an application can be made to the Children’s Court or High Court.

Paternity Disputes

The court can order DNA testing, and interim contributions may be ordered in the child’s interests pending the outcome.

International and Cross-Border Maintenance

Where one party lives in a country with which South Africa has a reciprocal enforcement agreement, orders can be served and enforced through diplomatic channels. Reciprocal arrangements are in force with countries including the United Kingdom, Germany, Australia, Canada (some provinces), the United States (some states), Namibia, Botswana, Lesotho, Eswatini (Swaziland), and Zimbabwe. For non-reciprocal countries, the foreign route must be pursued separately.

Maintenance for Adult (Major) Children

Once a child turns 18, the child — not the parent in whose care the child lives — must bring the application in their own name. The duty continues while the child remains dependent (full-time studies, disability, transitional unemployment), and an unemployed adult child must show evidence of job-seeking to succeed. A reported maintenance court ruling confirmed that a 19-year-old full-time student had a valid claim, ordering contribution to actual educational costs and basic living costs but rejecting a separate flat in Stellenbosch where the mother lived twenty minutes away and a separate request for a motor vehicle for the child.

Frequently Asked Questions

Does child maintenance end when the child turns 18?

No. Under the Children’s Act 38 of 2005 the parental duty to maintain a child formally runs until age 18, but the duty of support continues while the child remains dependent — typically full-time studies, a recognised disability, or transitional unemployment. Once the child turns 18, the application for maintenance must be brought by the child in their own name, not by the parent in whose care the child lives. An unemployed adult child will usually need to show evidence of job-seeking to succeed with the claim.

Can I stop paying maintenance if I am being denied contact with my child?

No. The duty to pay maintenance and the right of contact are two entirely separate matters, and one has no legal effect on the other. The correct response to being denied contact is to enforce the contact order through the Children’s Court or High Court, or to apply for a contact order if none exists. Stopping maintenance payments without a court variation will run up arrears that can be enforced against you.

What happens if I lose my job and can no longer afford the maintenance amount?

Apply to vary the order immediately through the magistrate’s court that made it (using Form B [J107]) and bring proof of the change in your income — a retrenchment letter, reduced payslips, or medical report. Do not simply stop paying: arrears continue to run while the variation is being processed, and the existing order can be enforced against you in the meantime. If the maintenance order was made as an interim order during a pending divorce in the High Court, the variation route is Rule 43(6) of the Uniform Rules of Court.

How is the maintenance amount calculated?

The court starts from the child’s reasonable needs — housing, food, clothing, education, medical care, and (where the child is over 18 and dependent) tertiary costs — and apportions the responsibility between the parents in proportion to their respective means. There is no automatic 50/50 split. A parent with direct in-kind expenses (maintaining medical aid membership for the child, paying school fees directly to the school) will typically have those recognised in the order alongside any cash component.

What can I do if the other parent is not paying maintenance?

Once an order has remained unsatisfied for 10 days, you can apply to the maintenance court for a warrant of execution against the defaulter’s movable property, an emoluments attachment order against their salary, or an attachment of debt against funds owed to them by a third party. For wilful non-compliance, criminal prosecution is available (carrying up to one year’s imprisonment or a fine), and civil contempt of court can be invoked for breach of a court order. The maintenance defaulters list and the credit-bureau reporting arrangements that came on stream from late 2024 add further practical pressure.

Do I have to go through the Maintenance Court, or can I agree on maintenance privately?

You can agree privately and document the agreement in a consent order, but the maintenance court route is the formal mechanism for creating an enforceable order. A private agreement that is not made a court order is harder to enforce if one party stops performing. Many parties settle on an amount at the enquiry or mediation stage of the maintenance court process itself, with the magistrate converting the agreement into a formal order.

Need help with a maintenance matter? Burger Huyser Attorneys’ Family Law team handles maintenance applications, variation of existing orders, and enforcement of arrears across its Gauteng branches — Linden head office in Randburg (011 888 0246), Sandton (011 253 3080), Pretoria in Menlyn (012 471 5700), Centurion (012 644 4990), Roodepoort (011 668 0030), Bedfordview (011 201 7190), Alberton (011 439 3990), and Midrand (010 022 4082). Initial consultations are booked through the branch nearest to you; bring your ID, the child’s birth certificate, three months of payslips and bank statements, and a schedule of monthly expenses to the first meeting. Burger Huyser Attorneys holds a 4.8/5 average rating across 250+ Google reviews (Trustindex verified) and was named Best Family Law Firm 2024 – South Africa by Lawyers Monthly, as well as Family Law Firm of the Year 2024 – South Africa at the MEA Business Awards.