Getting a maintenance order | Western Cape Government

22Covid-19 Alerts

COVID-19 Vaccine Information and Dashboard

View Vaccine information

TB Information and Dashboard

View TB information

Getting a maintenance order

Description:

As parents, we have a legal duty to support our children financially.

If you're the primary caregiver of a child, you have the right to apply to a maintenance court for an official demand that the other parent contributes monthly to support the child.

Instructions:

Maintenance orderIf the child is not living with the mother or the father, the child's caregiver can also apply for maintenance costs from the parents. For example, the grandparents can apply for maintenance from the child's father and mother if the child is living with grandparents.

If a parent receives a court order instructing them to pay child support, it's a criminal offence not to pay.

Important steps to follow:

  • You must first apply for a maintenance order at the Magistrate's Court (also known as District Courts) in the district where you live. If you’re unsure, your local court will give you advice and tell you at which court to apply for maintenance.
  • Go to the relevant court, complete and submit Form A: Application for a maintenance order (J101) (Afrikaans).
  • You’ll also need to bring the following:
    • Your ID or a certified copy.
    • Certified copies of the child/children’s birth certificates.
    • Proof of your monthly income and expenses, such as receipts for food purchases, electricity and/or rent payments.
    • Bank statements for the latest 3 months.
    • Payslips for the latest 3 months. Full name and proof of the physical and/or work address of the person responsible for paying the maintenance money.
    • If you were married and are now divorced, a copy of the divorce order. 
  • The court will set a date on which you and the respondent (the person who 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. They will then make an order and may decide to do so without requiring the parties to appear in court.
  • If the person  allegedly liable to pay maintenance doesn't consent to the issuance of an order, they must appear in court, where both parties and their witnesses will give evidence..  
  • If the court finds the person liable for paying maintenance, it will order the person to pay the amount of support required. The court will also determine when and how maintenance payments must be made. The court can order the payment of maintenance money 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, or
    • Using 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 keeping with the 1998 Maintenance Act.

Your view of the other parent's behaviour does not effect your children's right to maintenance. You still have to pay maintenance, even if the other parent Maintenance order

  • has remarried,
  • is involved in another relationship,
  • doesn't allow you to see the children, and/or
  • if either party later has more children.

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. You’ll need to follow these steps to change the maintenance amount:

  • If you are the person who receives maintenance:
    • Apply at the magistrate's court in the district where you as the applicant and the child reside or live.
    • Complete the relevant application form and submit it,  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 to the magistrate's office that issued your maintenance order to ask for a decrease or variation of the order. 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.

How long will child maintenance be paid?

The duty to pay maintenance continues regardless of how old your child is and lasts until the child is self-supporting, adopted or has died.

  • Once your child reaches the age of 18 years, the responsibility is on them to prove how much maintenance they  need.
    Note: If your child is self-supporting, they can't claim maintenance from any of their parents.
  • The duty to support a child ends at the child’s death but not at the parent’s death. However, in the event of the parent’s death, the child may lodge a claim for maintenance against the deceased parent’s estate. 

What if the respondent doesn’t pay

If the respondent fails to pay within the specified times, you should report the matter to the Maintenance Offices. The court will follow one of the following two options:

  1. Civil Enforcement of Maintenance, through the Magistrate, may order one of the following: Emolument attachment, attachment of debt and/or, execution of movable/immovable property.
  2. Criminal Prosecution. A warrant of arrest can be issued as the respondent failed to comply with an order of a court.
Cost

Applying for a maintenance order is free.

Forms to complete

All forms are available from the National Department of Justice and Constitutional Development.

For more information

Provided At: These facility categories:
Provided by:
Government Body: (The Government of South Africa)
54 17727
The content on this page was last updated on 29 July 2022