All you need to know about child maintenance
When it comes to our children, strong commitment and love aren't negotiable. Unfortunately, not all parents honour this duty, specifically their legal duty to maintain the well-being of their children. Considering this, the child maintenance system ensures that all parents honour their duty to maintain their children.
Who has a duty to pay maintenance?
- All parents, whether married or not, living together, separated, or divorced and parents of adopted children, are required to support the financial needs of their children.
- The biological grandparents may need to pay maintenance if the child’s parents can’t pay.
- Any person who’s responsible to raise the child, for example, a legal guardian, adoptive parents and grandparents of the child.
Essential facts about child maintenance
- If you don’t know the whereabouts of your child's other parent, maintenance investigators can trace them and determine their financial capabilities.
- Parents are required to pay maintenance until a child is self-supporting.
- The court determines how much a child needs.
- If maintenance isn't paid, the court can take the money from the maintenance payer's salary, their investment account, auction their property or issue a warrant of arrest.
- The maintenance amount can increase or decrease depending on the financial circumstances.
Why should I pay maintenance?
Known as the “duty to maintain” or the “duty to support”, all parents have the responsibility to ensure that their children have access to necessities such as:
- Medical care
How are payments made?
- At the local magistrate's office and designated government offices.
- To the bank account of the primary caregiver.
- Directly to the primary caregiver.
- By means of deducting the money from the maintenance payer's salary (garnishee order), in accordance with the Maintenance Act, 1998.
- If your child is 18 and not self-supporting, maintenance should be paid into the child’s bank account.
Visit the nearest magistrates’ court to apply for child maintenance and take the following documents
- Birth certificate of your child/children.
- Your identity document.
- Proof of residence.
- A divorce settlement.
- Proof of your monthly income and expenses.
- The personal details of the parent required to pay maintenance such as their name, surname physical and work address.
- Copy of your 3-month bank statement.
The application process
- A maintenance clerk will submit your forms to the maintenance office for review and registration.
- Submit proof of your monthly income and expenses such as receipts for food purchases and electricity/rent bills along with your completed form.
- You'll then receive a reference number.
- The court will serve a summons (a letter instructing a person to come to court) on the respondent (the parent or guardian who should pay maintenance) to appear in court on a specific date to discuss the matter.
- The magistrate will review the relevant documentation. He/she will then make an order and may decide to do so without requiring the parties to appear in court.
- If the responsible person doesn't consent to the issuance of an order, they 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, payments must be made. It's a criminal offence not to pay.
Enforcing a maintenance order
If a parent who must pay maintenance doesn't pay, the primary caregiver of the child can do the following:
- Lay a formal complaint at the maintenance office.
- Take along records of payment and non-payment as it shows how much is owed.
- Ask the court to get the maintenance directly from their employer.
The court grants permission to the defaulting parent to explain why they didn't pay. However, without a good reason, the parent will either need to pay all the outstanding maintenance or they’ll go to jail.
Increasing or decreasing the amount of maintenance
If you're the primary caregiver of the children, you can ask for the amount that you’re paid for maintenance to be increased if it’s not enough to provide for the children. You'll have to complete an application form at the Magistrate’s court and provide a statement detailing your income and expenditure.
If you're the maintenance payer and can no longer afford to pay the agreed maintenance amount, you can apply for a decrease order at the Magistrate’s Court that your maintenance order was made at. You’ll have to complete the relevant form, submit a detailed income and expenditure statement and submit it to the maintenance officer.
The law and maintenance defaulters
According to the Maintenance Amendment Act (Act No.9 of 2015) parents who default on their maintenance order can be held liable in the following ways:
- be blacklisted at credit bureaus,
- be jailed for a period not longer than 3 years,
- be imprisoned with the option of paying a fine,
- have interest added to their maintenance arrears, or
- have their property or salary attached.
If the parent who's liable for maintenance can't be reached, the court can issue an order to a cellphone service provider to provide the court with their contact details.
Maintenance: Frequently Asked Questions:
Maintenance: What you need to know (2011)