Maintenance Court South Africa: Claiming Child and Spousal Support

Who Can Apply for Maintenance?

• A parent or guardian seeking maintenance for a minor child (under 18)
• An adult child who is unable to support themselves due to a disability or being a full-time student
• A spouse or former spouse seeking spousal maintenance during or after divorce proceedings
• A child born outside marriage (illegitimate child) — both parents are equally liable

How to Apply: Filing a Complaint

1. Visit the Maintenance Court at your nearest Magistrate's Court. Bring your ID, the respondent's (other parent's) full name, ID number and address, the child's birth certificate, and any proof of the respondent's income (payslips, bank statements, business records).
2. Complete Form 1 (Complaint) available from the Maintenance Clerk. Describe the maintenance needed, what the respondent currently pays (if anything), and the child's monthly expenses.
3. The Maintenance Clerk stamps your complaint and assigns a case number.
4. A maintenance officer investigates the matter. They have powers under section 5 of the Act to subpoena the respondent, obtain the respondent's bank records and employer information, and access SARS tax records.
5. The maintenance officer issues a subpoena (Form 5) requiring the respondent to appear at a maintenance enquiry.
6. At the enquiry both parties disclose their income and expenses to the magistrate. The magistrate then makes a maintenance order.

The Maintenance Order

A maintenance order specifies the exact rand amount the respondent must pay, the frequency of payment (usually monthly), the bank account to which payment must be made, and when payment increases (often annually linked to CPI). The order remains in force until the child turns 18 or becomes self-supporting, whichever is later. A court may also order maintenance to continue if the child is a full-time student or disabled.

Enforcement: When the Respondent Does Not Pay

The Maintenance Act provides several enforcement mechanisms when a maintenance order is not complied with:

• Emoluments Attachment Order (EAO / garnishee order) — the court instructs the respondent's employer to deduct the maintenance amount directly from their salary each month and pay it to you.
• Warrant of execution — the Sheriff attaches and sells the respondent's movable assets.
• Warrant of arrest and imprisonment — the respondent can be arrested and sentenced to up to three years in prison for wilful failure to pay maintenance. This is a criminal sanction.
• Civil judgment — arrear maintenance becomes a civil debt and can be included in a court judgment.

Varying a Maintenance Order

Either party can apply to the Maintenance Court to vary (change) an existing order if circumstances have materially changed. For example, if the paying parent loses their job, or if the child's school fees increase substantially. File a new Form 1 and explain the change in circumstances. The court will re-investigate and may increase, decrease, or suspend the order.

Reciprocal Enforcement: When the Other Parent Lives Abroad

South Africa has reciprocal maintenance enforcement agreements with many countries under the Reciprocal Enforcement of Maintenance Orders Act 80 of 1963. The Maintenance Court can issue an order and register it for enforcement in the foreign country through the Department of Justice's Central Authority.

Maintenance and the Children's Act

The duty to pay maintenance is separate from custody and access rights under the Children's Act 38 of 2005. A parent cannot withhold access to a child because maintenance is unpaid, and a parent cannot withhold maintenance because they are denied access. These are two separate legal obligations.