Child Maintenance in South Africa: How the Amount Is Set and How It Is Enforced

Child maintenance is one of the few money obligations in South African law that a court will enforce against you criminally. It is not a favour, a negotiation between adults, or something that lapses because a relationship ended badly. It is a duty owed to the child.

Yet it is also one of the least understood. Parents on both sides of it operate on beliefs that are simply wrong — that the father pays a set percentage, that children from a first marriage come first, that nothing can be done if the other parent has disappeared, that a defaulter can only be dealt with by going to court for years.

Here is what the Maintenance Act actually says, on both the amount and the enforcement.

What the duty covers

A maintenance order enforces the common law duty of a child's parents to support that child. The Act spells out the scope: such support as the child "reasonably requires for his or her proper living and upbringing", and it "includes the provision of food, clothing, accommodation, medical care and education."

That list matters in practice. School fees, uniforms and medical costs are not extras to be argued about separately — they sit inside the duty itself.

How the amount is decided

There is no formula in the Act, no percentage and no table. Instead the court is directed to take three things into account.

First, that supporting a child is an obligation the parents have incurred jointly. Both parents owe it. A parent who has the child living with them is already discharging part of it.

Second, that their respective shares are apportioned between them according to their respective means. This is proportional, not equal. Two parents earning very different amounts do not contribute the same.

Third, that the duty exists irrespective of whether a child is born in or out of wedlock, or is born of a first or subsequent marriage.

Beyond those, the amount is whatever the court "may consider fair in all the circumstances of the case."

There is a fourth point worth stating separately, because the belief persists decades after it stopped being true. Any rule that an obligation to a child of a first marriage takes priority over an obligation to any other child has, since the Act commenced, been of no force and effect. Children are not ranked by the order in which their parents' relationships happened.

What this means when you prepare

Because the test is means and reasonable requirements, the case is won or lost on documentation rather than argument. Bring a realistic monthly breakdown of what the child actually costs — with school fees, medical contributions, transport and food itemised — and proof of your own income and expenses.

Expect the same scrutiny of your own figures that you want applied to the other parent's. Inflated claims tend to damage the credibility of the genuine ones sitting next to them.

If you cannot find the other parent

This is where many people give up, and it is now the wrong place to give up.

Where a complaint has been lodged and the maintenance officer's reasonable efforts to locate the person have failed, the officer may apply to the maintenance court for a direction. The court, if satisfied that all reasonable efforts have failed, may direct one or more electronic communications service providers to furnish it with that person's contact information, if the person is in fact a customer of that provider.

In plain terms: the court can require cellphone networks to hand over the contact details of a parent who has vanished. The provider may apply for more time, or to cancel the direction if it does not serve that person or does not hold the information — but the power exists, and it is used.

"I do not know where he is" is not the end of the matter.

When payments stop: the ten-day trigger

An order that has "remained unsatisfied for a period of 10 days" from the day the amount became payable opens up enforcement.

One detail here saves people a great deal of travel: the application is made to the maintenance court where the person in whose favour the order was made is resident — not where the defaulter lives. You go to your own court.

The application is made in the prescribed manner, with a copy of the order and a sworn statement setting out what has not been paid.

Three ways the money is taken

Once an order is unsatisfied, it is enforceable for the unpaid amount together with any interest by three routes:

• Execution against property. A warrant of execution issued against the defaulter's assets.
• Attachment of emoluments. An order attaching salary — "at present or in future owing or accruing" — to cover the unpaid amount, the interest, and the costs of the attachment. It authorises the employer to make those payments until the full amount is settled.
• Attachment of debt. An order attaching money that a third party owes the defaulter.

The 2015 amendments closed a delay tactic in the second one. A court may now make an emoluments order without postponing to hear the employer's evidence, where a further postponement would cause unreasonable delay to the detriment of the people to be maintained.

If you have seen how salary attachment works in the credit context, the mechanism will look familiar — our explainer on how garnishee orders work covers the general machinery, though maintenance runs under its own statute.

The credit bureau listing most defaulters do not expect

This provision, inserted by the 2015 amendments and effective from January 2018, is the one that changes behaviour fastest.

When the maintenance court grants an enforcement application, the maintenance officer or the clerk of the court "shall", despite anything to the contrary in any law, furnish the defaulter's particulars and a certified copy of the order to any business which has as its object the granting of credit or is involved in the credit rating of persons.

Read the verb. It is shall, not may. And it happens at the enforcement stage — no criminal conviction is required first.

For a defaulter, this lands where it is felt: home loan applications, vehicle finance, credit facilities. If you are on the receiving end of such a listing, our guide to reading your credit report explains how the record works.

It is also a crime

Separately from all of the above, failing to make any particular payment in accordance with a maintenance order is an offence. On conviction it carries a fine, or imprisonment for a period not exceeding three years, or such imprisonment without the option of a fine.

The obvious defence has a limit written into the statute. If a person charged raises lack of means, they are not entitled to an acquittal merely on that ground if it is proved that the failure was due to their unwillingness to work or misconduct. Genuine inability is a defence. Choosing not to earn is not.

A conviction also triggers its own, separate credit listing: the maintenance officer must furnish the convicted person's particulars to credit-granting and credit-rating businesses.

The right response to genuine inability is not to stop paying. It is to apply to vary the order, which the Act expressly provides for. Arrears accrue whether or not anybody is looking.

Recovering the arrears — including from retirement money

A conviction is not the end of the money question. A court convicting someone of the offence may, on the public prosecutor's application, and either in addition to or instead of a penalty, grant an order for the recovery of everything unpaid together with interest. That order has the effect of a civil judgment.

In deciding, the court weighs the convicted person's existing and prospective means, the financial needs and obligations of the person being maintained, and the convicted person's own conduct in relation to the failure to pay.

Then comes the provision with the longest reach in the whole Act. Notwithstanding anything to the contrary in any law, any pension, annuity, gratuity or compassionate allowance or other similar benefit is liable to be attached or subjected to execution under such an order.

Retirement money is ordinarily well protected from creditors in South Africa. Against a maintenance recovery order, it is not.

Practical steps

1. Start at the maintenance court in the district where you live and lodge a complaint with the maintenance officer. There is no fee and you do not need a lawyer.
2. Take documents, not arguments. An itemised monthly cost of the child, proof of your income and expenses, the birth certificate, and any existing order.
3. If the other parent has disappeared, say so — the officer can ask the court to direct cellphone providers to produce contact details.
4. If an order is already in place and unpaid for 10 days, apply at your own maintenance court for a warrant of execution, attachment of emoluments, or attachment of debt.
5. If your circumstances genuinely change, apply to vary the order rather than simply stopping. Non-payment is an offence; a variation application is not.
6. Keep proof of every payment made or missed. Every remedy above runs on dates and amounts.

One thing the Act does not do is link maintenance to contact with the child. Withholding one does not justify withholding the other, in either direction.

If household income is the underlying problem, the state child support grant is a separate system administered by SASSA with its own means test — see our grants overview — and it does not displace a parent's duty to support their child.

Where a separation also involves a jointly owned home, divorce and the joint bond covers that side. For everything else, start at our money guides.

Frequently asked questions

Is there a set percentage of income for child maintenance? No. The Act sets no formula. The duty is shared jointly by both parents and apportioned according to their respective means, with the court awarding what it considers fair in all the circumstances.

What does maintenance have to cover? Support the child reasonably requires for proper living and upbringing, including food, clothing, accommodation, medical care and education.

Do children from a first marriage come first? No. Any rule giving obligations to children of a first marriage priority over other children has no force or effect, and the duty applies whether a child is born in or out of wedlock.

What if I cannot find the other parent? Where reasonable efforts to locate the person have failed, the maintenance court may direct electronic communications service providers to give the court that person's contact information if they are a customer.

How soon can I enforce an unpaid order? Once it has remained unsatisfied for 10 days. You apply at the maintenance court where you are resident, not where the defaulter lives.

How is the money actually recovered? By execution against property, attachment of emoluments from a salary, or attachment of a debt owed to the defaulter — for the unpaid amount plus interest and costs.

Will a defaulter be listed with credit bureaus? Yes. On granting an enforcement application the maintenance officer or clerk must furnish the defaulter's particulars and a certified copy of the order to credit-granting and credit-rating businesses. A separate listing follows a conviction.

Can someone go to prison for not paying? Yes. It is an offence carrying a fine or imprisonment of up to three years, or imprisonment without the option of a fine. Claiming a lack of means does not secure an acquittal where the failure was due to unwillingness to work or misconduct.

Can a retirement fund be touched for arrears? Under a recovery order following a conviction, yes — a pension, annuity, gratuity or similar benefit may be attached, despite any law to the contrary.

What should I do if I genuinely cannot afford the order any more? Apply to the maintenance court to vary it. Stopping payment is an offence and the arrears continue to accumulate regardless.