Maintenance Court: How to Claim Child Maintenance in South Africa, the Forms and What Happens If the Parent Does Not Pay
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What the Maintenance Court Does
Every child has the right to be supported by both parents. Maintenance means money for the things a child needs: food, clothing, a place to live, medical care and school. The law that covers it is the Maintenance Act 99 of 1998.
Maintenance cases are heard at the magistrate’s court. The people you deal with there are:
| Who | What they do |
|---|---|
| Maintenance clerk | Helps you fill in the forms and takes your application |
| Maintenance officer | Checks your papers, registers the case and calls both parents in |
| Maintenance investigator | Finds out more about the other parent, such as where they work and what they earn |
| Magistrate | Hears the case and makes the maintenance order |
Both parents must pay, each according to what they earn. This applies whether the parents were married or not.
Who Can Claim Maintenance, and From Whom
- The parent or the person who looks after the child can claim from the parent who does not pay.
- Grandparents, a legal guardian or adoptive parents may have to pay if the biological parents cannot. The Department of Justice says you can claim from the child’s biological grandparents when the parents cannot pay.
- A husband or wife can also claim spousal maintenance from the other spouse, where it applies.
- You can claim even if you still live with the other parent, if they do not help support the child.
Documents to Take to the Maintenance Court
The Department of Justice lists these for the person who applies:
- Your ID book, smart ID card, passport, driving licence or immigration permit
- Certified copies of the children’s birth certificates
- Your bank statements for the last three months
- Your payslips for the last three months, or a signed letter from your employer that says what you earn
- A list of your income and expenses, and the child’s expenses, with receipts where you have them (food, rent, electricity, school fees, transport, clothes)
- The other parent’s full name and where they work or live
- Your divorce order, if you were married
Do not stay at home because a document is missing. The department says your application will still be taken, and you can bring the rest later. If the child does not have a birth certificate yet, see our guide to the birth certificate application.
How to Apply for Maintenance: Step by Step
- Go to the maintenance office at the magistrate’s court in the district where you or the child live.
- Fill in Form A, the Application for a Maintenance Order (J101), with the clerk’s help, and hand in your documents.
- The maintenance officer checks your papers, registers the case and gives you a reference number. Keep it safe.
- The maintenance officer sends a notice or summons that calls both parents to the court on a set date, for an investigation or for mediation.
- If you agree on an amount, you both sign a consent, and the court makes it an order.
- If you do not agree, the case goes to a formal inquiry in court. Both sides explain their income and expenses, and the magistrate decides how much must be paid, when and how.
If the other parent was told about the court date and does not come, ask the court about an order by default. The other parent can later ask the court to change or set aside a default order (Form I, J256).
How much maintenance will the court order?
There is no fixed amount. The magistrate looks at what the child reasonably needs and what each parent can afford. This is why your list of expenses and proof of income matter so much.
How maintenance is paid
The court decides how the money must be paid. The Department of Justice names these ways:
- An electronic transfer or deposit into the bank account of the person who looks after the child (the department prefers this)
- Payment at the magistrate’s office or another government office
- A deduction from the paying parent’s salary, sent by their employer
Payments are usually monthly, on the date in the order.
Maintenance Court Forms
All the public forms are free on the Department of Justice forms page (justice.gov.za, under Forms, then Maintenance). These are the ones most people need:
| Form | Number | When you use it |
|---|---|---|
| Form A | J101 | To apply for a maintenance order for the first time |
| Form B | J107 | To change (increase or decrease) or cancel an existing order |
| Form K | J306 | To ask the court to enforce an order when payments stop |
| Form Q | J470 | To lay a complaint that someone did not obey a maintenance order (a criminal case) |
| Form I | J256 | To ask the court to change or set aside an order made by default |
The clerk at the court has the forms too, so you do not have to print them yourself.
What Happens If the Parent Does Not Pay
Report the missed payments to the maintenance office at the court, and take proof of what was and was not paid, such as your bank statements. The court has two routes.
Civil enforcement: getting the money
| Step | What it means |
|---|---|
| Attachment of salary (emoluments) | The court orders the employer to take the maintenance from the parent’s salary every month |
| Attachment of debts | Money owed to the parent, for example in an investment account, is paid over for the maintenance |
| Warrant of execution | The parent’s property can be taken and sold, and the money used for the child |
Criminal case: not paying is an offence
Not paying maintenance under a court order is a crime under section 31 of the Maintenance Act. Since the 2015 amendment, the court can give a fine or a prison term of up to three years. A magistrate can also issue a warrant of arrest when a parent ignores the court order. The Act does allow a parent to argue in court that they did not pay because they had no money.
Credit bureau listing and tracing a parent who disappeared
The Maintenance Amendment Act 9 of 2015 added stronger steps, and the last parts came into force on 5 January 2018:
- The details of a parent who defaults can be sent to credit bureaus, so that they find it hard to get credit while they owe maintenance.
- If the court is satisfied that all reasonable efforts to find a parent have failed, it can order cellphone and other electronic communication companies (such as Vodacom, MTN, Cell C and Telkom) to give the court the parent’s contact details.
- If you cannot afford the cost of getting this information, the state pays, and the court can order the defaulting parent to pay it back.
Changing a Maintenance Order
Either parent can ask the court to raise or lower the amount when money matters change, for example when the child starts school, or when the paying parent loses a job. Use Form B (J107) and take a new list of income and expenses. Apply at the magistrate’s court where the child or the person asking lives. A parent who wants a lower amount can also apply at the court that made the first order.
Until the court changes the order, the old amount must still be paid in full.
When Maintenance Stops
Maintenance does not stop at a set age. It carries on until the child can support themselves. When a child over 18 is still not self-supporting, for example a student, the Department of Justice says the money is then paid straight into the child’s own bank account. If the paying parent dies, future maintenance can be claimed from their estate.
Where to Get Free Help
- The maintenance clerk at your magistrate’s court helps with the forms for free.
- If the other parent fights the case and you want a lawyer, see if you qualify for free help from Legal Aid South Africa (Advice Line 0800 110 110).
- While you wait for maintenance, you may be able to get a SASSA Child Support Grant. The grant has its own means test, so ask SASSA how maintenance money counts in your case.
Maintenance Court Questions
How do I apply for maintenance at the maintenance court?
Go to the magistrate’s court in the area where you or the child live and ask for the maintenance office. Fill in Form A (J101) with the clerk’s help and hand in your ID, the child’s birth certificate, three months of bank statements and payslips, and a list of expenses.
Do I need a lawyer for the maintenance court?
No. The maintenance clerk and maintenance officer help you, and you do not pay to apply. If you want a lawyer, Legal Aid South Africa may help you for free if you pass its means test.
What documents do I need for a maintenance claim?
Your ID, certified copies of the children’s birth certificates, your last three months of bank statements and payslips (or a letter from your employer), a list of income and expenses with receipts, the other parent’s name and work or home address, and your divorce order if you have one.
What happens if someone does not pay maintenance?
Report it at the maintenance office. The court can take the money from the parent’s salary, debts or property, and it can open a criminal case. Not paying under a court order can lead to a fine or up to three years in prison.
Can I claim maintenance from grandparents?
Yes. The Department of Justice says you can claim from the child’s biological grandparents if the parents cannot pay.
Until what age must a parent pay maintenance?
Until the child can support themselves. It does not end automatically at 18. For a child over 18 who is still not self-supporting, the money is paid into the child’s own bank account.
More: Legal Aid South Africa, SASSA Child Support Grant and birth certificate application.