Child Maintenance & Rights
Learn about how much maintenance a father or mother has to pay and for how long they must pay maintenance for, as well as what the Maintenance Act says, amongst much more.
According to South Africa's Constitution, a child is legally entitled to food, clothing, housing, medical care, and education from their parent(s) and/or guardian(s). This duty exists:
- irrespective of whether the child is adopted, born in wedlock, born out of wedlock or in any other marriage regardless of its number or time; and/or
- whenever a child has been placed in the custody or care of a guardian.
Who Must Pay Maintenance
Legally, both parents and/or any guardian(s) are required to financially support their child according to their proportional means. This means that the duty to financially support a child is placed on all parents and/or guardians, irrespective of their financial well-being. The fact that one parent or guardian may be richer than the other does not mean that the other parent or guardian does not have a duty to contribute money towards their child's care. However, parents and/or guardians can mutually agree that one parent and/or guardian provides financial support, while the other contributes their time and/or skills towards raising the child.
Note: Grandparents and siblings may be required to pay maintenance to help support a child if it is deemed necessary by a Court. This may happen in circumstances where the child's parent(s) and/or guardian(s) are unable to financially support their child. The duty of financial support does not stretch to step-parents, as the duty flows primarily from blood relations.
Note: Natural guardians have a legal duty to support their children and must use their own money to support the children. Legal guardians have no such duty. They do not have to use their own money to support a child in their care.
How long does the duty to pay maintenance last?
The duty to pay maintenance continues regardless of the child’s age and continues until the child is self-supporting, adopted or dead. Once the child reaches the age of 18 years old, the responsibility is on the child to prove how much maintenance they need. In the event of a parent’s or guardian's death, the child may lodge a claim for maintenance against the deceased parent’s or guardian's estate.
Applying For Maintenance Orders
In order to get a maintenance order from the Court, a person must fill out the relevant forms at their nearest Magistrate’s Court. The Clerk of the Court will then submit these forms, on the person's behalf, to a maintenance office for review and registration. When applying, these documents are needed:
- The ID document of the person applying;
- Certified copies of the child’s birth certificate;
- Three months bank statements of the person applying;
- Three months proof of income of the person applying;
- roof of physical home address of the person applying;
- List of the person applying's income and expenditure;
- A list of all the first and last names of the persons responsible for paying the child’s maintenance; and
- A copy of decree of divorce (in the case of a divorce).
Once reviewed and registered, the Court will then serve summons on the relevant parent, guardian or blood relation of the child to appear in Court on a specific date to discuss the child's maintenance and financial well-being. This can be avoided if all persons concerned with the child's financial well-being come to an agreement before the court date and provides written proof of this agreement to the Clerk of the Court.
Note: Although tensions and emotions might run high, a polite but firm resolution to a dispute is always more favourable and beneficial for all involved parties when compared to a legal solution.
When summoned to Court, the Court will then hear the matter and make a decision as to who pay's maintenance and how much. This decision will always be made in the best interest of the child. When a Court considers a maintenance order, it takes the following into account:
- The reasonable needs of the child based on their lifestyle;
- The parent(s) and/or guardian(s) financial means and well-being; and
- The best interests of the child.
Note: What is ‘reasonable’ will depend on the child's standard of living, the parent(s) and/or guardian(s) income and the cost of living.
Can the maintenance amount be reduced?
A parent or guardian can always apply to Court for a reduction in their maintenance duty. However, before making a change, the Court will financially investigate all of the people responsible for the child's maintenance and financial well-being. This is done in order to see whether the child's maintenance claim can or must be reduced or if the burden of the cost of paying the child's maintenance can be moved elsewhere.
What if a parent or guardian is unemployed?
If a parent or guardian is unemployed, the Magistrate might postpone an order for maintenance to allow the unemployed parent and/or guardian to look for a job. In this regard, a letter from prospective employers, proving that the unemployed parent or guardian was looking for work, will need to be obtained. If the unemployed parent or guardian can still not find a job after this period, the Court may decided that they do not need to pay maintenance.
Note: If a parent or guardian is unemployed, they may be obliged to apply for a child support grant from the South African Social Security Agency (SASSA).
Withholding Maintenance Orders
A parent or guardian is not entitled to withhold from paying their maintenance order. A parent's and/or guardian's view of the another parent’s and/or guardian's behaviour has no effect on their child’s right to maintenance. All parents and guardians have a duty to pay their child's maintenance, even if the other parent or guardian remarries, is involved in another relationship, or does not allow that parent or guardian to see their child - no matter how much this may hurt.
Note: The duties of a parent and/or guardian to pay maintenance towards their child's well-being and their right of contact to that child are two separate matters; the one has no relation or bearing on the other.
Defaulting on Maintenance Orders
If someone fails to comply with the terms of a maintenance order (for example, if they fail to pay their monthly maintenance) and the order remains unsatisfied for a period of 10 days, the aggrieved parent or guardian or child can apply to the Maintenance Court for that person to be held responsible 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 due maintenance payments; and/or
- Have their property or salary attached by the Sheriff and sold.
Note: The best way to resolve matters of non-payment are to always first attempt to reach out to the defaulting party and discuss the matter politely with them. If no solution can be found, then legal action might be necessary. Although tensions and emotions might run high, a polite but firm resolution to a dispute is always more favourable and beneficial for all involved parties when compared to a legal solution.