Justice/Family/Maintenance FAQ

Family Law

Maintenance FAQ

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

Maintenance FAQ, 2012

Follow this link for the maintenance checklist, 2015.

Follow this link for general information on maintenance, 2026.

Follow this link for information on international maintenance.

FREQUENTLY ASKED QUESTIONS

Types of Maintenance

Child maintenance
Spousal maintenance
Cross border maintenance

Who should pay maintenance?
It is a legal obligation of both the biological parents, grandparents or legal guardian of the child to pay maintenance.

Who can apply for Maintenance?

The parent/person who is in custody of the child/ren may claim maintenance from the other parent who is responsible or liable to pay maintenance
Or in an instance where one spouse would like to apply for support from the other where applicable.
Maintenance can be claimed from the biological grandparent if the parents cannot pay maintenance.

Documents needed to lodge a maintenance claim?

The Identity document, birth certificate of the child, bank statements of both the parents, list of the expenses of the child, list of expenses of both the parents, Proof of applicant’s income and expenditure, Name and surname of parent/person responsible for the payment of maintenance money, Physical/work address of the parent/person responsible for the payment of maintenance money if available, Copy of bank statement, Proof of residence/affidavit,
The maintenance clerk will then assist you in completing the forms.
The Maintenance Clerk will refer your application to the Maintenance Officer for ﬁnal assessment of your documents.
After assessment the registration of application and reference number will be issued.

Issuing a directive

The Maintenance Officer will issue a directive calling upon the parties to meet, for the purposes of conducting an investigation into the alleged complaint. The Maintenance Officer will then conduct an investigation into the alleged complaint, or conduct mediation with both parties present.

Mediation and granting of an order by consent

The Maintenance Officer will conduct mediation with both parties to reach an agreement/settlement
Where the parties reach an agreement/settlement, the agreement will be made an order of the court. The Maintenance Officer may request both parties to sign a written consent and have that made an order of the court.
The court then makes an order for payment of maintenance in accordance with the agreement between the two parties.
Where parties do not reach an agreement, the matter is then referred to court for formal enquiry.

Court date

On the day of the court appearance, an enquiry will be held to determine the needs of the applicant and the means available to provide maintenance from both parties.
After consideration, the Magistrate will make a maintenance order indicating the amount to be paid.

Payment method
The court may order the respondent to make payments by means of:

An electronic funds transfer (EFT) to the beneﬁciaries bank account.
A deduct of the maintenance money from the respondents’ salary, (Garnishee order)
Direct deposit to the beneficiaries bank account

Can I claim maintenance from grandparents?
Yes maintenance can be claimed from the biological grandparent if the parents cannot pay maintenance.

Is maintenance a responsibility of biological parents only?
No, any person who is responsible to raise the child i.e legal guardian, adoptive parents and grandparents of the child, if the biological parents do not have means to pay maintenance.

Why must you pay maintenance?
You must pay maintenance for proper living and upbringing of the child, and includes the provision of food, clothing, accommodation, medical care and education.

Is it compulsory to pay maintenance?
Yes, it is compulsory to pay maintenance.

Where are you suppose to lodge a complaint for maintenance?
In any local magistrate court where the applicant and/or the child resides.

Can I go to any magistrate court in the country to lodge maintenance?
Yes, you can go to any local magistrate court where you and/or the child resides.

How often should maintenance be paid?
The maintenance money should be paid every month on the dates agreed upon by both the parties and granted by the court.

How much money should be paid for maintenance?
The amount payable for maintenance will be determined by the needs of the child and the financial means of the parents.

At what age should you stop paying maintenance?
The maintenance should be paid until the child is selfsupporting.

What happens when the person responsible for paying child maintenance dies?
The maintenance money should be paid out from the deceased estate for future maintenance.

What happens if the child reaches the age of 18 and she/he is still not self- supporting?
The payment of maintenance will continue until the child is self-supporting. However, the maintenance payment should be deposited directly to the child’s banking account.

Can I increase/decrease the maintenance amount after the order has been granted?
Yes, you can request decrease/increase of the amounts, especially if the financial circumstances have changed.

What documents do I need to lodge a maintenance claim?
The Identity document, birth certificate of the child, bank statements of both the parents, list of the expenses of the child,list of expenses of both the parents, etc.

Can I claim maintenance while living together with the father/mother of the child?
Yes, you can claim maintenance if the other parent does not take responsibility of maintaining the child.

Procedure in cases where a respondent does not pay
If the respondent fails to pay within the speciﬁed times, you should report the matter to the Maintenance Offices. The court will follow one of the following two options:

Civil Enforcement of Maintenance, through the Magistrate may order one of the following: Emolument attachment, attachment of debt and/or, execution of movable/immovable property.
Criminal Prosecution. A warrant of arrest can be issued as the respondent failed to comply with an order of court.

EMOLUMENTS ATTACHMENT ORDERS/ GARNISHEE ORDERS

What are Emoluments?

“Emoluments” means salary or wages.
An emoluments attachment takes place when the employer of a debtor is instructed by a court order to deduct a specific amount (installment) from the salary or wages of a debtor, to recover a judgment debt owed by the debtor to a judgment creditor.
Section 65J of the Magistrates’ Courts Act, 1944 (Act No. 32 of 1944) (the Magistrates’ Courts Act), deals with emoluments attachment orders (EAO).

What is a Garnishee order?

A garnishee order means an order of the court for the attachment of a debt owed to the debtor, other than his or her salary or wages, to recover payment of a debt owed by that debtor.
Section 72 of the Magistrates’ Courts Act provides that the court may, on ex parte application by the judgment creditor or when making an order during an inquiry into the financial position of the judgment debtor (section 65E(1)(b)), order the attachment of any debt at present or in future owing or accruing to a judgment debtor by or from any other person (excluding the State), to an amount sufficient to satisfy the judgment and the costs of the proceedings for attachment.

Application for an emoluments attachment order?

In terms of section 65J of the Magistrates’ Courts Act, an EAO may only be issued when-

the debtor has consented thereto in writing;
the court has authorised the EAO, whether on application to the court or otherwise, and the court has not suspended such authorisation; or
the judgment creditor or his or her attorney has first—
sent a registered letter to the judgment debtor advising him or her of the amount of the judgment debt and costs as yet unpaid and warning him or her that an emoluments attachment order will be issued if the said amount is not paid within ten days of the date on which that registered letter was posted; and
filed with the clerk of the court an affidavit or an affirmation by the judgment creditor or a certificate by his or her attorney setting forth the amount of the judgment debt at the date of the order laying down the specific instalments, the costs, if any, which have accumulated since that date, the payments received since that date and the balance owing and declaring that the provisions of subparagraph (i) have been complied with on the date specified therein.
A debtor usually consents to an EAO when he or she admits liability for the debt and agrees to pay it in instalments, in terms of section 57 of the Magistrates’ Courts Act, or when he or she consents to judgment in terms of section 58 of the Act or when he or she offers to pay the judgment debt in instalments, after judgment has been granted, but before a notice to appear in court for a financial inquiry is issued. The court may, when the debtor appears for an inquiry into his or her financial position in terms of section 65A of the Magistrates’ Courts Act, authorize an EAO.
An application in terms of rule 55 of the Magistrates’ Courts Rules could also be brought in terms of which the court is asked to authorize an EAO. When there is already an instalment order made, which could be in terms of section 57, 58 or 65 of the Magistrates’ Courts Act, and the debtor fails to comply with the instalment order, the creditor or his or her attorney may, after having complied with the provisions set out in paragraph 2.1(c) above, request the clerk of the court to issue the EAO. (The EAO is in the form of Form 38 of Annexure 1 to the Magistrates’ Courts Rules, which is prepared by the creditor or his or her attorney and signed by the clerk of the court.)
Rule 55 of the Magistrates’ Courts Rules provides for the requirements to bring an application to the court. In summary, every application must be brought on notice of motion supported by an affidavit as to the facts upon which the applicant relies for relief. Notice must be given to the other party or parties and to the registrar or clerk of the court and certain time limits apply.

Jurisdiction

In respect of EAO’s, section 65J provides that the EAO must be issued from the court of the district in which the employer of the debtor resides, carries on business or is employed, or, if the judgment debtor is employed by the State, the district in which the judgment debtor is employed.
The judgment could have been granted in another district, in accordance with the jurisdictional limits set out in sections 28 and 29 of the Magistrates’ Courts Act.

The current status on the Magistrates’ Courts Amendment Bill in an attempt to curb the abuses of the debt recovery procedure system

The Bill is now called the Courts of Law Amendment Bill as it contains an amendment to the Superior Courts Act, 2013 (Act No. 10 of 2013), as well.
The Bill has been introduced into Parliament in May 2016 and is awaiting processing by the Portfolio Committee on Justice and Correctional Services, once Parliament convenes after the elections.