Understanding the Child Maintenance Act

The Child Maintenance Act in South Africa is the Maintenance Act 99 of 1998, read together with the Children’s Act 38 of 2005. The Maintenance Act sets the legal framework for applying for maintenance, the enquiry process, the criminal liability of defaulters, and the enforcement tools available to the court. The Children’s Act sets the broader principle that every child has the right to be cared for and supported by the parents, and that the parents’ obligation to support the child is independent of the parents’ relationship status.

This page is a complete legal guide for parents. It explains the framework, the application process, the variation process, the criminal side, and the practical steps to apply for maintenance. If you need help with a maintenance matter, our Sandton-based Family Law team can assist.

The legal framework

The legal framework for child maintenance in South Africa is set by two pieces of legislation. The Maintenance Act 99 of 1998 sets the procedural framework, including the application process, the enquiry process, the criminal liability of defaulters, and the enforcement tools available to the court.

The Children’s Act 38 of 2005 sets the broader principle that every child has the right to be cared for and supported by the parents. The Act gives the parents the joint responsibility to support the child, and clarifies that the obligation exists regardless of the parents’ relationship status.

Who is liable for maintenance

The legal obligation to pay child maintenance falls on the parents of the child, regardless of whether the parents are married, in a civil partnership, or unmarried. The obligation also extends to:

• A parent’s estate, where the parent has died.
• A grandparent, where the grandparent has acted in loco parentis to the child.
• A step-parent, where the step-parent has formally adopted the child or has otherwise assumed legal responsibility.
• A guardian, where the guardian has accepted the legal role.

How to apply for maintenance

To apply for child maintenance, the parent with primary care of the child goes to the maintenance court in the district where the child or the other parent lives, completes the application form at the clerk’s office, and serves the application on the other parent. The matter is then set down for an enquiry, where the magistrate decides the order based on the child’s needs and the parents’ means.

The application form is a single page at most maintenance courts. It asks for the parties’ full names, ID numbers, addresses, and the child’s details. The supporting documents include the child’s birth certificate, the parents’ ID documents, three months of payslips, and three months of bank statements.

How the order is calculated

The maintenance court calculates the order by looking at three sets of facts: the child’s needs, the parents’ income, and the parents’ other obligations. The court is not bound by a fixed percentage, although the broad working assumption is that the parent with primary care covers the day-to-day costs, and the non-resident parent covers a meaningful monthly amount.

The order can include food, clothing, school fees, medical aid, and any other reasonable expense that is necessary for the child’s wellbeing. The court will weigh the actual facts of the matter against the parents’ competing obligations.

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.

The criminal side: section 31

Section 31(1) of the Maintenance Act makes any failure to pay in terms of a maintenance order a criminal offence. The prosecution needs to prove that the payment was due and that it was not made. It does not need to prove intent.

Section 31(2) closes the obvious defence. The parent cannot escape liability by saying they simply lacked the means. The defence of “lack of means” only succeeds if the parent can show that the failure was not due to their own negligence.

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.

When maintenance ends

The general rule is that child maintenance ends when the child turns 18, becomes self-supporting, or gets married. The court has the discretion to extend the order where the child is still in secondary school, is studying at a tertiary institution, or is unable to support themselves for reasons beyond their control.

Common Mistakes to Avoid

These are the patterns that leave parents with the wrong order on the file.

• Assuming maintenance ends at 18. There are exceptions for secondary school and tertiary studies.
• Treating maintenance as a fixed formula. The court looks at the actual facts, not a percentage.
• Forgetting to apply for medical expenses or school fees. The default order may not cover them.
• 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 the Child Maintenance Act in South Africa?

The Child Maintenance Act in South Africa is the Maintenance Act 99 of 1998, read together with the Children’s Act 38 of 2005. The Maintenance Act sets the procedural framework, including the application process, the enquiry process, the criminal liability of defaulters, and the enforcement tools available to the court.

Who is liable for child maintenance in South Africa?

Both parents are liable for child maintenance, regardless of whether they are married, in a civil partnership, or unmarried. The obligation also extends to a parent’s estate, a grandparent who has acted in loco parentis, a step-parent who has formally adopted the child, and a guardian who has accepted the legal role.

How do I apply for child maintenance under the Act?

Go to the maintenance court in the district where the child or the other parent lives, complete the application form at the clerk’s office, and serve the application on the other parent. The matter is set down for an enquiry, where the magistrate decides the order based on the child’s needs and the parents’ means.

How is the maintenance order calculated?

The maintenance court calculates the order by looking at the child’s needs, the parents’ income, and the parents’ other obligations. The court is not bound by a fixed percentage, and the order is calibrated to the actual facts of the matter.

Can the 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.

What happens if a parent fails to pay maintenance?

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.

When does child maintenance end?

The general rule is that child maintenance ends when the child turns 18, becomes self-supporting, or gets married. The court has the discretion to extend the order where the child is still in secondary school, is studying at a tertiary institution, or is unable to support themselves for reasons beyond their control.

Get help with your maintenance matter. If you need help with a child maintenance matter, 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 is a complete legal guide for parents on the Child Maintenance Act in South Africa. It is not legal advice and does not replace consultation with a qualified family attorney. The relevant legislation is detailed 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.