Child Support Rights for Parents In South Africa Explained

Both parents in South Africa have a legal right to apply for child support, and both have a legal obligation to pay it. The right is set out in the Maintenance Act 99 of 1998 and the Children’s Act 38 of 2005, and it applies to married, unmarried, and divorced parents alike. The right is enforceable against the other parent, and the state has powers to enforce the order through attachment of wages, garnishee orders, and warrants of arrest.

This page explains the rights of parents in child support matters, what each parent can claim, and how those rights are enforced. If you need help putting a working arrangement in place, our Sandton-based Family Law team can assist.

The right to apply for child support

Either parent can apply to the maintenance court for a child support order. The parent who has primary care usually applies, since the order runs in their favour. The other parent can apply for a variation of the order, including a reduction in the amount, on a material change in circumstances.

The application is made at the maintenance court in the district where the child lives, or where the parent being claimed against lives. The clerk of the court will assist with the paperwork, and the matter is set down for an enquiry once the application is filed.

The right to a fair hearing

Both parents have the right to be heard at the maintenance enquiry. The court will consider the financial position of each parent, the needs of the child, and any other relevant circumstances. The order is a balanced order, not a one-sided ruling.

The right to be heard includes the right to bring documents, the right to call witnesses, and the right to cross-examine the other side’s witnesses. Where a parent is not properly served with the application, the enquiry cannot proceed, and the matter is postponed.

The right to variation

Either parent can apply to the maintenance court to vary the order on a material change in circumstances. 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.

The right to enforce the order

The parent in whose favour the order is made has the right to enforce it. The court has a wide range of tools to enforce a maintenance order, including the following:

• 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.

The right to legal representation

Both parents have the right to be legally represented at the maintenance enquiry. The parent in whose favour the order is made may qualify for Legal Aid South Africa, where their income falls below the means test. The parent against whom the order is made usually funds their own representation.

A family attorney can help either parent prepare the application, gather the supporting documents, and present the case at the enquiry.

The right to privacy

Maintenance matters are heard in the magistrate’s court, and the records are part of the court file. The media can attend the hearing, but the matter is not usually reported in the press. The names of the parties are not generally published, and the court has the discretion to hold the enquiry in closed chambers where the circumstances justify it.

Common Mistakes to Avoid

These are the patterns that leave parents without the benefit of their rights.

• Assuming that maintenance is a one-sided right. Both parents have rights and obligations.
• Failing to apply for variation when circumstances change. The order does not adjust automatically.
• Letting the warrant of arrest issue. The longer the matter is left, the more the court sees it as wilful.
• Skipping the supporting documents. The court will not vary an order on bare assertions.
• Communicating with the other parent directly during the matter. Threats and pressure in those messages can be used as evidence.

Frequently Asked Questions

What are the child support rights for parents in South Africa?

Both parents have the right to apply for child support, the right to a fair hearing at the maintenance enquiry, the right to apply for variation on a material change in circumstances, the right to enforce the order, and the right to legal representation. The rights are set out in the Maintenance Act 99 of 1998 and the Children’s Act 38 of 2005.

Can a father apply for child support in South Africa?

Yes. Either parent can apply to the maintenance court for a child support order. The father can apply where the mother has primary care, and the mother can apply where the father has primary care. The order runs in favour of the parent with primary care.

Can a mother apply for child support in South Africa?

Yes. The mother can apply to the maintenance court for a child support order against the father, where the mother has primary care. The order is set at the amount the father can reasonably afford, based on his income and the child’s needs.

What are the rights of the parent paying child support?

The parent paying child support has the right to apply for a variation of the order on a material change in circumstances, the right to be heard at the enquiry, the right to bring documents and witnesses, and the right to legal representation.

What are the rights of the parent receiving child support?

The parent receiving child support has the right to apply for the order in the first place, the right to a fair hearing, the right to enforce the order through attachment of wages, garnishee orders, and warrants of arrest, and the right to legal representation. The order is also subject to variation on a material change in circumstances.

Can a parent lose the right to child support?

The right to child support can be lost in narrow circumstances, including where the parent has abandoned the child, where the parent has been found guilty of abuse, or where the parent has remarried and the new spouse has assumed the role of financial provider. The court considers the best interests of the child in every case.

Does a parent have to apply for child support separately for each child?

No. A parent can apply for child support for all the children of the relationship in a single application. The court will set an order for each child, and the total amount is the sum of the orders for each child.

Get help with your child support rights. If you need help with a child support matter, whether applying for the first time, varying an existing order, or enforcing an order that is in default, 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 support rights for parents 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 Children’s 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.