Quick answer: When people refer to the Child Maintenance Act in South Africa, they are usually referring to the Maintenance Act 99 of 1998, read with the Children’s Act 38 of 2005. Parents have a duty to maintain children according to the child’s needs and each parent’s means, and a court order can be enforced if a parent does not pay.
Which maintenance route do you need?
- If there is no order yet, start with the Maintenance Court process.
- If an existing order is not being paid, use the maintenance enforcement route.
- If divorce has started but there is no final arrangement yet, consider interim maintenance in divorce.
- For the general parental duty, read our guide to child maintenance in South Africa.
Official maintenance references
Useful source material includes the Maintenance Act 99 of 1998, the Department of Justice maintenance guide, the official maintenance forms, and the Children’s Act 38 of 2005.
Negotiating a maintenance settlement can be a difficult aspect of reaching a divorce agreement.
Compulsory Maintenance
Under South African law children have the right to receive financial maintenance. Both parents are required to provide financial support for a child.
Maintenance amounts are not arbitrary. They must be negotiated and finalised according to the Maintenance Act 99 of 1998 and the Children’s Act 38 of 2005. According to legislation, parents are obliged to pay for their children’s upbringing. However, their respective payments depend on how much each parent earns. Therefore, the split may not be 50/50.
Consequently, the amount of maintenance paid to the primary caregiver is a calculation based on the monthly earnings of each parent and the cost of the child’s education, care and upbringing.
Maintenance Orders
A maintenance order is a court order. Failure to comply can lead to enforcement steps and, in appropriate cases, criminal consequences.
Interim Maintenance
In the process of divorce, one parent may experience financial difficulties in supporting a child until the arrangements have been worked out and the divorce is finalised. In this situation, South African divorce law allows a spouse to obtain interim relief and maintenance payments.
Married or not
The duty to maintain a child is not linked to marriage. The Maintenance Act says, “the parents’ respective shares of such obligation are apportioned between them…and…the duty exists, irrespective of whether a child is born in or out of wedlock or is born of a first or subsequent marriage.” In other words, the marital status at the time of birth or at any subsequent time has no impact on the responsibility to financially support one’s child.
However, along with responsibilities go rights. Unmarried fathers may be presented with a bill for maintenance but denied access to their children. Fortunately, unmarried parents have rights too.
Do you need help or advice?
We’re here to help. Simon Dippenaar & Associates Inc. are expert family lawyers and divorce attorneys in Cape Town, we can assist in all aspects of the Maintenance Act. Contact us or call us now on +27 (0) 86 099 5146.
Learn more about family lawyer Simon Dippenaar.
Further reading:
- Maintenance Court in South Africa: what parents need to know
- Child maintenance and fathers’ rights in South Africa
- Moving with children post divorce
- Parental Alienation Syndrome
- 3 Benefits of Divorce Mediation
- Parenting Coordination – When parents can’t agree, on anything
- Taking a Child Abroad
- Parent Plan – During divorce, with which parent should the child stay?
- Can a father reduce child maintenance in South Africa?