A child maintenance court order in South Africa is the order made by the magistrate at the maintenance enquiry, setting out the monthly amount the parent must pay, the day the payment is due, and the payment method. The order is recorded in the court file and a copy is given to each parent. The order has the same legal force as any other order of court, and the parent must keep paying the order until the court says otherwise.
This page explains how a child maintenance court order works, what it includes, and what to do when circumstances change. If you need help with a maintenance order, our Sandton-based Family Law team can assist.
What a child maintenance court order is
A child maintenance order is the order made by the magistrate at the maintenance enquiry. The order is recorded in the court file, and a copy is given to each parent. The order is enforceable under the Maintenance Act 99 of 1998, and the parent must keep paying the order until the court says otherwise.
The order is the final number on the matter. The parent cannot avoid the order by refusing to pay, and the court has a wide range of tools to enforce the order. The most common tools are attachment of wages, garnishee order on the bank account, and warrant of arrest for non-appearance.
What the order includes
The order sets out the monthly amount the parent must pay, the day the payment is due, the payment method, and any specific expenses that are covered. The list below gives the items that typically appear in a maintenance order.
- The monthly amount, in rand, that the parent must pay.
- The day of the month the payment is due, usually before the end of the month.
- The payment method, usually by electronic transfer to a nominated bank account.
- The bank account details, including the bank, the account name, the account number, and the branch code.
- Any specific expenses that are covered, including school fees, medical aid, and extramural activities.
- The date the order comes into effect, usually the date of the enquiry.
How the order is set
The order is set at the maintenance enquiry. The enquiry is held at the maintenance court, and both parents attend. The maintenance officer presents the matter to the magistrate, and the magistrate hears the evidence, considers the documents, and makes the order.
The order is set at the amount the parent can reasonably afford, based on the parent’s income and the child’s needs. The court will weigh the actual facts of the matter against the parents’ other obligations, and the order is calibrated to the facts of the matter.
Default orders
Where the parent has been served and does not appear at the enquiry, the court can make a default order based on the evidence in front of it. The default order has the same force as any other maintenance order, and the court can issue a warrant of arrest for the parent who has evaded service.
The default order can be set aside on application by the parent who did not appear. The court will look at whether the parent has a reasonable explanation for not appearing, whether the parent has a defence that has reasonable prospects of success, and whether it is just and fair to set the order aside.
Variation of the order
Either parent can apply to the maintenance court to vary the order on a material change in circumstances. The court will recalculate the order based on the new facts. The most common reasons for a variation are listed below in the order they usually appear in practice.
- A change in income, including a job loss or a promotion.
- A change in the child’s needs, including a new school or a medical condition.
- A change in residence, including a relocation to a different province.
- A change in the family, including a new child or a new marriage.
Enforcement of the order
The court has a wide range of tools to enforce a maintenance order. The most common tools are listed below in the order they usually appear.
- Attachment of wages, which forces the employer to pay part of the defaulter’s salary directly to the claimant.
- Garnishee order on the defaulter’s bank account, which can clean out the account on the next pay day.
- Attachment of the defaulter’s pension interest, in some cases.
- Seizure and sale of movable property, in serious cases.
- A warrant of arrest, where the defaulter has evaded service or failed to appear.
Common Mistakes to Avoid
These are the patterns that leave parents with the wrong order.
- Skipping the enquiry. The order will be made in your absence, and the court will assume you have nothing to say.
- Forgetting the supporting documents. The court will not make an order on bare assertions.
- Failing to apply for specific expenses. The default order may not cover school fees or medical aid.
- Letting the order go stale. A material change in circumstances should trigger a variation application.
- Paying cash without a record. The court only counts what is paid through formal channels.
Frequently Asked Questions
What is a child maintenance court order in South Africa?
A child maintenance court order is the order made by the magistrate at the maintenance enquiry, setting out the monthly amount the parent must pay, the day the payment is due, and the payment method. The order is recorded in the court file and a copy is given to each parent.
What does a child maintenance court order include?
The order sets out the monthly amount the parent must pay, the day of the month the payment is due, the payment method, the bank account details, any specific expenses that are covered, and the date the order comes into effect.
How is a child maintenance court order set?
The order is set at the maintenance enquiry. The enquiry is held at the maintenance court, and both parents attend. The magistrate hears the evidence, considers the documents, and makes the order based on the child’s needs and the parents’ means.
Can a child maintenance court order be set aside?
Yes. A default order can be set aside on application by the parent who did not appear. The court will look at whether the parent has a reasonable explanation for not appearing, whether the parent has a defence that has reasonable prospects of success, and whether it is just and fair to set the order aside.
Can a child maintenance court order be varied?
Yes. Either parent can apply to the maintenance court to vary the order on a material change in circumstances, including a change in income, a change in the child’s needs, a change in residence, or a change in the family.
How is a child maintenance court order enforced?
The court has a wide range of tools to enforce a maintenance order, including attachment of wages, garnishee order on the bank account, attachment of pension interest, seizure of movable property, and warrant of arrest for non-appearance.
What happens if a parent fails to pay a child maintenance court order?
Section 31(1) of the Maintenance Act makes any failure to pay in terms of a maintenance order a criminal offence. The court can issue a warrant of arrest, and on conviction, the magistrate can impose a fine, a suspended sentence, or direct imprisonment of up to one year.
Get help with your maintenance order. If you need help with a child maintenance order, whether applying for the first time, varying an existing order, or defending a section 31 charge, Otrebski Attorneys’ Family Law team in Sandton can assist. As a 100% women-led firm with a 5-star Google rating, we focus on compassionate, practical legal solutions for families.
Disclaimer. This article provides general information about child maintenance court orders in South Africa. It is not legal advice and does not replace consultation with a qualified family attorney. The relevant law is set out in the Maintenance Act 99 of 1998, and the Childrens Act 38 of 2005, both of which may be amended. Confirm the current position with the Department of Justice and Constitutional Development or speak to a family attorney before relying on anything in this article.