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Maintenance

Maintenance is the obligation to provide another person, for example a minor, with housing, food, clothing, education and medical care, or with the means that are necessary for providing the person with these essentials. This legal duty to maintain is called ‘the duty to maintain’ or ‘the duty to support'.

Who must provide maintenance?

The duty to maintain is based on blood relationship, adoption, or the fact that the parties are married to each other.

A child must be supported or maintained by:

  • his or her parents, whether married, living together, separated or divorced, including parents who have adopted the child; and/or
  • his or her grandparents, whether or not the child's parents were married to each other. However, this varies from one case to another.
  • The duty to support a family member is not limited to supporting a child. Any family member, irrespective of his or her age, can ask any family member to support or maintain him or her, provided that the following two conditions are met:
    • The family member who claims support is unable to maintain himself or herself.
    • The family member from whom maintenance is claimed is able to afford the maintenance that is claimed.
    • The main requirement of the means test is that the person who is liable to pay maintenance must have MEANS and the maintenance claimed must be REASONABLE.

What expenses may be claimed?

You may claim reasonable support that is necessary for providing the child or other person who has a right to maintenance with a proper living and upbringing. This includes providing necessities such as food, clothing and housing, as well as paying for a proper education. The court may also order the father to contribute to the payment of laying-in expenses and maintenance from the date of the child's birth up to the date on which the maintenance order is granted. The court may also grant an order for the payment of medical expenses, or may order that the child be registered on the medical scheme of one of the parties as a dependant. To enable the court to grant a fair maintenance order, both parties must provide the court with proof of their expenses.

Your view of the other parent's behaviour has no effect on your children's right to maintenance. You still have to pay maintenance, even if the other parent:

  • remarries
  • is involved in another relationship
  • does not allow you to see the children or
  • if either party later has more children.

Your duty to pay maintenance and your right of access to your children are two entirely separate matters and one has no relation to the other. Furthermore, children of either party do not influence the duty to support. However, the amount of maintenance to be paid may be amended by the court if either of the parties should bring such an application.

Steps to follow to apply for Maintenance

  • Apply for maintenance at the magistrate's court in the district where you live.
  • If you are in doubt, your local court will tell you at which court to apply for maintenance.
  • Go to the relevant court and complete and submit J101, Form A: Application for a maintenance order (Afrikaans).
  • In addition to the completed form, submit proof of your monthly income and expenses, such as receipts for food purchases, electricity and/or rent bill payments.
  • The court will set a date on which you and the respondent (the person whom you wish to pay maintenance) must go to the court.
  • A maintenance officer and an investigator will investigate your claim and look into your circumstances.
  • The court will serve a summons (a letter instructing a person to come to court) on the respondent (the person against whom the claim is brought) to appear in court on a specific date to discuss the matter.
  • The respondent then has a choice between agreeing to pay the maintenance as claimed, or contesting the matter in court.
  • If the respondent agrees to pay the maintenance as claimed, a magistrate will review the relevant documentation. He or she will then make an order, and may decide to do so without requiring the parties to appear in court.
  • If the person who is allegedly liable to pay maintenance does not consent to the issuance of an order, he or she must appear in court, where evidence from both parties and their witnesses will be heard.
  • If the court finds the person liable for paying maintenance, it will make an order for the amount of maintenance to be paid. The court will also determine when and how maintenance payments must be made.
  • The court can order maintenance money to be paid in one of the following ways:
    • At the local magistrate's office or any other government office designated for this purpose
    • Into the bank or building society account designated by the person concerned
    • Directly to the person who is entitled to the money
    • By means of an order that directs the employer of the person who is liable for paying maintenance to deduct the maintenance payment directly from the employee’s salary, in accordance with the new Maintenance Act, 1998.

Changing (increase or decrease) the amount of maintenance (variation or substitution)

You can request that the amount paid for maintenance be increased or decreased, either because it has become insufficient or because you can no longer afford to pay that amount of maintenance.

Steps to follow
  • If you are the person who receives maintenance:
    • Apply at the magistrate's court that is situated in the district where you as the applicant and the child resides or lives.
    • Complete the relevant application form and submit it, together with a statement of income and expenditure, to the maintenance officer.
  • If you are the person who pays maintenance but can no longer afford the amount:
    • Apply for the decrease/ variation order at the magistrate's office where your maintenance order was made.
    • Complete the relevant form and submit it to the maintenance officer.
  • Submit a complete statement of income and expenditure, as well as a statement explaining the reasons for the application, to the maintenance officer regardless of whether you are the recipient or the payer of the maintenance money. The same process as when a claim for maintenance is first instituted will then be followed.

Updating your personal information

If you are paying or receiving child maintenance monies, you need to update your personal information.

Forms: Follow this link to view all the maintenance forms.

Articles:

Pamphlets:

Frequently Asked Questions (FAQs)

Legislation: Follow this link to view the Act and Regulationspdf

Contact details:
Office of the Family Advocate, Name: Advocate Kepadisa, Tel No: 012 315 1205, e-mail: GKepadisa@justice.gov.za

Directorate: Gender Issues, Tel: 012 315 1670

CHILD MAINTENANCE CHECKLIST

Maintenance Check listWHAT THE APPliCANT NEEDS TO BRING TO THE MAINTENANCE OFFICE AT THE MAGISTRATES’ COURT WHEN MAKING AN APPliCATION FOR CHILD MAINTENANCE:

Note: bring the following documentation to the maintenance office to make copies and if these are not available on the date of application please bring the documents on the next day and/or on the hearing date. Unavailability of the documents on the date of application for maintenance should not stop the applicant from completing the J101 (Afr) application (Form A to the maintenance regulation). Follow this link to view all the other maintenance forms.

  1. An identity book (green book with your photo) or passport or drivers licence and or immigration permit
  2. Certified copies of the child/children’s birth certificates
  3. Three months bank statement (LATEST)
  4. Three months proof of income(payslip) or the signed letter from the employer confirming your income.
  5. Physical/work address of the person responsible for paying the maintenance money.
  6. list of your income and expenditure e.g. water and lights bill, till slips for groceries, school expenses; medical and travel receipts, clothing accounts, etc.,
  7. Full name of parent/person responsible for paying the maintenance money.
  8. Copy of Decree of Divorce (in the case of divorce)

WHAT THE RESPONDENT NEEDS TO BRING TO COURT WHEN APPEARING BEFORE THE MAINTENANCE OFFICER FOR ENQUIRY/MEDIATION:
The respondent is require to bring all the required documents on the date of enquiry:

  1. An identity book (green book with your photo) or passport or drivers licence and or immigration permit
  2. Three months bank statement (Latest)
  3. Three months proof of income(payslip) or the signed letter from the employer confirming your income
  4. Proof of physical work and residential address
  5. list of your expenditure e.g. water and lights bill, till slips for groceries, school expenses; medical and travel receipts, clothing accounts, etc.,
  6. Provide the copy of the maintenance court order if there is a maintenance court order against you in another court
  7. Birth certificates of all your other biological children other than children in question

The matter will not be postponed because of lack of the above- mentioned documents, so it is compulsory that the Maintenance Officer /Clerk explain that the parties should comply with the requirements on the return date.

International MaintenanceRECIPROCAL ENFORCEMENT OF MAINTENANCE ORDERS (INTERNATIONAL MAINTENANCE) refers to cases where one of the parties is residing in a proclaimed country or territory.

South Africa have reciprocal enforcement agreements with the following countries: Australia*, Botswana, Canada*, Cocoa (Keeling) Islands, Cyprus, Fiji, Germany, Guernsey (Bailiwick of), Hong Kong, Isle of Jersey, Isle of Man, Kenya, Lesotho, Malawi, Mauritius, Namibia, New Zealand, Nigeria, Norfolk Island, Sarawak, Singapore, St Helena, Swaziland, United Kingdom, England, Northern Ireland, Scotland, Wales, United States of America (California - Florida), Zambia, Zimbabwe

Follow this link for information on international maintenance.

Yilungelo Lakho | Child maintenance defaulters to be blacklisted at credit bureaus, 12 Nov 2024
The Department of Justice and Constitutional Development, in collaboration with the Social Justice Foundation and the Consumer Profile Bureau, is taking very drastic steps to compel deadbeat parents to maintain their children. Parents who fail to do so could see their names blacklisted at a credit bureau, a fate that could make their lives even worse.

Child Maintenance: Minister Simelane signs MOU to report defaulters to Credit Bureaus, SABC News, 01 Nov 2024
Parents who fail to honour their obligation of paying maintenance for their children have been warned. Justice and Constitutional Development Minister Thembisile Simelane has signed a memorandum of understanding which will see personal details of child maintenance defaulters given to Credit Bureaus and credit providers to make it difficult for them to obtain credit.

Citizens Corner: Understanding South Africa’s maintenance laws, SAfm, 14 Aug 2024
Guest: Advocate Brenda Makganyoha, Principal Family Advocate of the Department of Justice and Constitutional Development.

Masterclass: The Work of The Maintenance Court, Power Talk, 6 Sep 2022
In a recent court case, the Supreme Court of Appeal ordered that a man pay over R3 million in maintenance arrears to his ex-wife, even though it is now 29 years after their divorce. The judgement, which was written by Acting Justice John Smith, upheld the terms of the 'Prescription Act', a legal principle in terms of which a debtor's liability to pay an outstanding debt is extinguished after the passing of prescribed periods. In this week’s edition of the masterclass, we look at the work and functions of the maintenance court. Kamogelo Lekubu, Director: Office of The Chief Family Advocate.

 

Masterclass on Maintenance Court, Radio 702, 23 Mar 2022
With Kamogelo Lekubu - Director: Office of the Chief Family Advocate and Refilwe Lekgoathi - National Manager: Senior Maintenance Prosecutors at the NPA

 

Masterclass on Maintenance Court, Radio 702, 17 Feb 2022
With Kamogelo Lekubu - Director: Office of the Chief Family Advocate and Refilwe Lekgoathi - National Manager: Senior Maintenance Prosecutors at the NPA

 

Maintenance defaulters, be warned! A new tracking system is on the cards

A stern warning to those parents who do not honour their obligation of paying child maintenance: there will be no place to hide. This is as a result of a new system, recently introduced by the Department, to track down maintenance defaulters from their unbecoming behaviour.
Read more

MP3: New system to track down maintenance defaulting parents, PowerFM, 09 Feb 2021, 06:59 min

[MP3: New efforts in chasing after maintenance defaulters, The Thinking point, SAFM, 10 Feb 2021, 07:15 min]
In an effort to ease dependency on social grants, the Department of Justice and Correctional Services are coming up with new ways of chasing after child maintenance defaulters.