Child maintenance: how the maintenance court works

At a glance

Where

Any magistrate's court

Each one is a maintenance court for its own area (section 3). You use the one where the child, or the person caring for the child, lives or works (section 6).

Who must pay

Both parents

Jointly, each according to their means, whether or not they were ever married (section 15).

Do you need a lawyer?

No

A maintenance officer investigates and brings the case. Either side may have a lawyer (section 10).

If it is not paid

It can be enforced

Against a salary, property, a debt or a pension, once it is ten days late (section 26).

What maintenance covers

What the child reasonably needs for a proper living and upbringing. The Act names food, clothing, a place to live, medical care and education (section 15).

Step by step

1. Lodge a complaint

   Who:

   You

   Where:

   The maintenance officer at the magistrate's court

   You tell the maintenance officer that a person who is legally liable is not maintaining the child. The same route is used to change or end an existing order (section 6).

2. The maintenance officer investigates

   Who:

   The maintenance officer, sometimes with an investigator

   The officer can take sworn statements and gather information about where the other parent is and what they earn and own (section 7).

   If the other parent cannot be found after every reasonable effort, the court can direct a cellphone or internet provider to hand over their contact details (section 7(3)).

3. The enquiry

   Who:

   Both parents

   Where:

   The maintenance court

   The court hears evidence and can call anyone it needs. It has to finish as quickly as possible and keep postponements few and short (section 10).

4. An interim order, if it is postponed

   Who:

   The court

   If there is no order yet and the enquiry has to be postponed, the court can make an interim order where it looks likely that the other parent is liable and the child would suffer undue hardship from the delay (section 10(6)).

5. The order

   Who:

   The court

   The court can order set amounts, at set times, paid in a set way, including by stop order. It can order medical costs to be covered, including putting the child on a medical scheme. It can also order the costs of the birth and of the child's maintenance since birth to be paid back to the mother (section 16).

How the amount is shared

The Act sets no formula and no percentage. The court must arrive at an amount it considers fair, keeping in mind that both parents carry the duty and that their shares follow their means (section 15(3)).

One common way to picture "according to their means" is to share the child's costs in the same proportion as the parents' incomes. The child maintenance estimate works this way.

What the child costs each month
Share of rent, food and electricity	R4 200
School fees, transport and aftercare	R2 600
Medical aid, clothes and the rest	R1 200
Total for the child	R8 000
What each parent earns after tax
Naledi	R15 000
Kagiso	R25 000
The shares
Naledi: 15 000 of 40 000, which is 37.5%	R3 000
Kagiso: 25 000 of 40 000, which is 62.5%	R5 000

An illustration of sharing by means. A court looks at all the circumstances, not income alone.

A child from a first marriage has no priority over a child from a later one (section 15(4)).

What can happen

• You agree

  An order by consent

  If you both consent in writing, the court can make the order without either of you appearing (section 17).

• The other parent does not come

  An order by default

  If they knew about the date and stayed away, the court can hear you and make an order without them. They can apply to change it or set it aside within 20 days of learning of it (section 18).

• The court decides

  After an enquiry

  The court makes an order, changes an existing one, ends it, or makes no order (section 16).

• It is paid from the salary

  An order on the employer

  The court can direct an employer, or anyone else who pays the other parent regularly, to pay the maintenance straight from that money, ahead of other court orders (section 16(2) and (3)).

If it is not paid

Once a payment is ten days late, you can apply at the court where you live for any of these (section 26).

• Property

  A warrant of execution

  The debtor's property is sold to pay what is owed.

• Salary

  Attachment of emoluments

  The employer pays the arrears, with interest and costs, out of present and future pay until it is settled (section 28).

• Money owed to the debtor

  Attachment of a debt

  Money that someone else owes the debtor is paid to you instead.

• Pensions

  Despite any other law

  Pensions, annuities and gratuities can be attached to satisfy a maintenance order (section 26(4)).

Two more things follow from not paying.

• A credit record. When the court grants enforcement, the debtor's details can be sent to businesses that grant credit or rate creditworthiness (section 26(2A)).
• A criminal offence. Failing to pay under a maintenance order is an offence, with a fine or up to three years in prison. Not being able to afford it is a defence, unless the cause is unwillingness to work or misconduct (section 31).

What goes wrong

• Arriving without figures

  The court has to find an amount that is fair in all the circumstances (section 15). It can only weigh what is put in front of it.

  Worth checking: that you can show what the child costs each month, item by item, and what you earn.

• Waiting because the other parent has disappeared

  The maintenance officer can investigate where someone is, and the court can order a service provider to give contact details (section 7).

  Worth checking: what you know: an ID number, an old employer, a cellphone number, relatives.

• Moving or changing jobs and telling nobody

  A person ordered to pay must tell the maintenance officer in writing within seven days of changing address or employment (section 16(4)).

  Worth checking: that the court has your current address and employer, whichever side you are on.

• Ignoring an order made in your absence

  A default order stands unless you apply to change it, and the 20 days run from when you became aware of it (section 18).

  Worth checking: the date you first learned of the order.

• Stopping payment when money is short

  An order stays in force until a court changes or ends it, and a complaint to change it is made the same way as the first one (section 6). Missing a payment is an offence (section 31).

  Worth checking: whether to ask the court to change the order before a payment is missed.

What to gather