Maintenance Court

Learn which rights you have in relation to child support and maintenance, how to get a maintenance order and how to enforce your maintenance rights.

General

When it comes to looking after children- strong commitment and love are non-negotiable, but unfortunately some parents do not honour this legal duty, which can have legal consequences.

If a parent is not providing for their child a court can grant a maintenance* order against that parent- such an order is granted by the maintenance court. The child maintenance system ensures that all parents honour their duty to maintain their children, and that the child gets the support they need.

*Maintenance is the obligation to provide another person, such as a child, with housing, food, clothing, education and medical care, or with the means that are necessary for providing the person with these essentials.

Note: The ins and outs of the eligibility for a maintenance claim are not discussed here but rather in the Maintenance” Section.

How to get a maintenance order

Visit the nearest magistrates’ court (all magistrates courts double as a Maintenance court) to apply for child maintenance and take the following documents:

  1. Birth certificate of your child/children;
  2. Your identity document;
  3. Proof of residence;
  4. A divorce settlement;
  5. Proof of your monthly income and expenses;
  6. The personal details of the parent required to pay maintenance such as their name, surname physical and work address; and
  7. Copy of your 3-month bank statement.

A person can find their nearest magistrate court on the following website:

http://www.justice.gov.za/contact/lowercourts_full.html

Note: Child maintenance is discussed here because it is the most common form of maintenance, but the same process can be followed in order to receive spousal maintenance.

The application process

  1. A maintenance clerk will submit the forms to the maintenance office for review and registration.
  2. One must submit their monthly income and expenses such as receipts for food purchases and electricity/rent bills along with the completed form.
  3. A reference number will then be given
  4. 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.
  5. The magistrate will review the relevant documentation. The magistrate will then make an order and may decide to do so without requiring the parties to appear in court.
  6. 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.
  7. If the court finds the person liable for paying maintenance, payments must be made.

 Note: It's a criminal offence not to pay.

How maintenance payments are made:

Maintenance payments are made either;

  1. At the local magistrate’s court or at designated government offices;
  2. To a bank account or specific place designated by the person concerned;
  3. Directly to the person entitled to the money;
  4. By means of deducting the money from the person’s salary (garnishee order); or
  5. If your child is 18 and not self-supporting, maintenance should be paid into the child’s bank account.

Enforcing a maintenance order

If a parent doesn't pay, an interested party can:

  1. Lay a formal complaint at the maintenance office.
  2. Take along records of payment and non-payment as it shows how much is owed.
  3. Ask the court to get the maintenance directly from their employer.

Note: The court will give the defaulting parent a change to explain why they haven not paid- however, without a good reason, the parent will either need to pay all the outstanding maintenance or they will go to jail.

What happens to those who do not pay their court mandated maintenance?

Parents who default on their maintenance order can be held liable in the following ways:

  1. be blacklisted at credit bureaus;
  2. be jailed for a period not longer than 3 years;
  3. be imprisoned with the option of paying a fine
  4. have interest added to their maintenance arrears; or
  5. have their property or salary attached.

Note: If the parent who's liable for maintenance can't be traced, the court can issue an order to a cellphone service provider to provide the court with their contact details.