Understanding the New Child Maintenance Law in South Africa

The child maintenance law in South Africa is the Maintenance Act 99 of 1998, read together with the Children’s Act 38 of 2005. There is no separate “new” child maintenance law, but the existing law has been amended over the years to expand the maintenance officer’s powers, to clarify the criminal liability of defaulters, and to tighten the enforcement tools available to the court. The most recent amendments have focused on the duty to support, the duty to disclose financial information, and the consequences of wilful default.

This page explains the current state of the child maintenance law of South Africa, the amendments that have shaped it, and the practical steps to apply for maintenance under the current law. If you need help with a maintenance matter, our Sandton-based Family Law team can assist. Many families face financial strain, particularly those dealing with the challenges of financial support for unemployed parents. Accessing the right resources can significantly alleviate these burdens. It is crucial that parents understand their rights and the support systems available to help them during difficult times.

What the current law says

The Maintenance Act 99 of 1998 is the principal law that governs child maintenance in South Africa. The 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 38 of 2005 supplements the Maintenance Act. It 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.

What the new law changed

There is no brand-new child maintenance statute in South Africa. The Maintenance Act 99 of 1998, read with the Children’s Act 38 of 2005, still governs child support. What people refer to as the new law is the Maintenance Amendment Act 9 of 2015, which came fully into operation on 5 January 2018. It expanded maintenance officers’ investigative powers, introduced a duty to disclose financial information such as payslips and bank statements, and allowed a maintenance court to have a defaulter’s particulars listed with the credit bureaus, with interest able to be added to arrears. The most important changes are listed below.

• The Maintenance Amendment Act expanded the maintenance officer’s powers to investigate applications and gather financial information.
• The Amendment Act clarified the criminal liability of defaulters, including the limit on the section 31 sentence to one year.
• The Amendment Act introduced the duty to disclose financial information, including payslips and bank statements, on the application of the maintenance officer.
• The Amendment Act tightened enforcement against defaulters by allowing their particulars to be listed with the credit bureaus and by allowing interest to be added to maintenance arrears.

What the law does not change

The amendments have not changed the basic structure of the law. The court still applies the same test on a maintenance application: it looks at the child’s needs, the parent’s income, and the parents’ other obligations. The order is calibrated to the facts of the matter, not a fixed percentage.

The general rule is still that 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.

What the law means for parents

The law treats both parents as equally liable for the support of the child. The parent with primary care is expected to meet the day-to-day costs of the child from her own resources, including any government grants or family support. The non-resident parent is expected to pay a monthly amount to the parent with primary care.

The non-resident parent has the right to apply for a variation of the order on a material change in circumstances. The court will consider the actual facts of the matter, including the parent’s income, the child’s needs, and the parents’ other obligations.

What the law means for the court

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 on the wrong side of the law.

• Assuming the law has changed dramatically. The amendments have been targeted, not sweeping, and the basic structure remains the same.
• Assuming the law is the same in every province. The Maintenance Act is a national law, but the procedural rules can vary by magistrate’s court.
• Forgetting the duty to disclose. The maintenance officer can compel the parent to disclose payslips and bank statements, and the failure to disclose can be used against the parent.
• Quitting a job to avoid the order. The court treats voluntary unemployment as a factor against the parent.
• Letting the warrant of arrest issue. The criminal side escalates quickly, and the right path is to engage with the court.

Frequently Asked Questions

What is the new child maintenance law in South Africa?

There is no separate new child maintenance law. The current law is the Maintenance Act 99 of 1998, read together with the Children’s Act 38 of 2005. The Maintenance Act has been amended over the years to expand the maintenance officer’s powers, to clarify the criminal liability of defaulters, and to tighten the enforcement tools available to the court.

Has the child maintenance law changed in South Africa?

The Maintenance Act has been amended several times since it came into force. The amendments have focused on the duty to support, the duty to disclose financial information, and the consequences of wilful default. The basic structure of the law remains the same.

What is the main law on child maintenance in South Africa?

The main law on child maintenance in South Africa is the Maintenance Act 99 of 1998, read together with the Children’s Act 38 of 2005. The 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.

When did the new child maintenance law come into effect in South Africa?

The Maintenance Act 99 of 1998 came into force on 26 November 1999. The Act has been amended several times since then, most recently through the Maintenance Amendment Act, which focused on the duty to disclose financial information and the consequences of wilful default.

Yes. The Maintenance Act and the Children’s Act apply to married, unmarried, and divorced parents alike. The legal obligation to pay child maintenance is the same regardless of whether the parents were married or not.

What is the maximum sentence for child maintenance default in South Africa?

Section 31 of the Maintenance Act sets the maximum sentence for child maintenance default at one year in prison. The court can also impose a fine, a suspended sentence, or a combination of the two. The sentence is calibrated to the actual facts of the matter.

Can a parent be arrested for not paying child maintenance in South Africa?

Yes. Where the parent has been served and fails to appear at the maintenance enquiry, or where the parent evades service, the court can issue a warrant of arrest. The warrant is then executed by the police.

Get help with your maintenance matter. If you need help with a 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 provides general information about the child maintenance law 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.