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The Maintenance Manual

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

This is a legal duty and also called ‘the duty to maintain’ or ‘the duty to support’.

Links courtesy of the South African Government Services

Application for a maintenance order

Who must provide maintenance?

The duty to maintain is based on blood relationship, adoption, or the fact that the parties are married to each other.

A child must be supported or maintained by:

  • his or her parents, whether married, living together, separated or divorced, including parents who have adopted the child; and/or
  • his or her grandparents, whether or not the child’s parents were married to each other. However, this varies from one case to another.

The duty to support a family member is not limited to supporting a child. Any family member, irrespective of his or her age, can ask any family member to support or maintain him or her, provided that the following two conditions are met:

  • The family member who claims support is unable to maintain himself or herself.
  • The family member from whom maintenance is claimed is able to afford the maintenance that is claimed.

What expenses may be claimed?

Reasonable support may be claimed that is necessary for providing the child or other person who has a right to maintenance with a proper living and upbringing. This includes providing necessities such as food, clothing and housing, as well as paying for a proper education.

The Court can make various orders, such as:

  • ordering the father to contribute to the payment of laying-in expenses and maintenance from the date of the child’s birth up to the date on which the maintenance order is granted;
  • order for the payment of medical expenses, or
  • order that the child be registered on the medical scheme of one of the parties as a dependant.

To enable the court to grant a fair maintenance order, both parties must provide the court with proof of the applicable expenses.

The duty to maintain is a right and you may not withhold the payment of maintenance even if the other parent:

  • remarries;
  • is involved in another relationship;
  • does not allow you to see the children; or
  • if either party later has more children.

The duty to pay maintenance and the right of access to your child is two complete separate matters with no relation to the other. The amount of maintenance to be paid may be amended by the court if either of the parties should bring such an application.

For further information, go to the Department of Justice and Constitutional Development.

Steps to follow to apply for Maintenance:

  • Go to the magistrate’s court in the district where you reside.
  • Complete and submit Form A: The Application for a maintenance order.
  • In addition to completing this form, you also need to submit proof of your monthly income and expenditure, for example receipts for food purchases, electricity and/or rent bill payments.
  • The court will then set a date on which you and the respondent (the person from whom you claim maintenance) must be present.
  • Once you have lodged your application a maintenance officer and an investigator will look into your claim and circumstances.
  • The court will then serve a summons on the respondent to appear at court on the specific date.
  • The respondent then has two choices, either agreeing to pay the maintenance, or contesting the matter in court.
  • If the respondent agrees to pay the maintenance, a magistrate will review the relevant documentation and will make an order; such an order can be made in your absence.
  • If the respondent decides not to consent to the issuance of such an order, he/she must appear in court, where evidence from both parties and their witnesses, if any will be heard.
  • If the court finds the person liable to maintenance, it will make an order for the amount of maintenance to be paid. The court will also determine when and how maintenance payments must be made.
  • The court can order maintenance money to be paid in one of the following ways:
    • At the local magistrate’s office or any other government office designated for this purpose
    • Into the bank or building society account designated by the person concerned
    • Directly to the person who is entitled to the money
    • By means of an order that directs the employer of the person who is liable for paying maintenance to deduct the maintenance payment directly from the employee’s salary, in accordance with the new Maintenance Act, 1998

Legal Issues

Maintenance Act, 1998 (Act No. 99 of 1998) and related Regulations

Service standard

  • You will be treated equally, humanely and with dignity.
  • Complaints will be treated as quickly and as efficiently as possible.
  • There is no prescribed time frame for this service. The entire process, from submitting your application to receiving your first maintenance payment, may take several weeks, depending on the cooperation of both parties.
  • Witnesses who attend the proceedings, including the person who claims maintenance, are entitled to prescribed subsistence and travelling allowances. However, the court will decide at its own discretion whether such an allowance will be paid to the person against whom a maintenance order may be made.
  • The person who is claiming maintenance must apply to the maintenance officer for the payment of witness fees.

Cost

This is a free service.

Forms to complete

Form A: Application for Maintenance Order

Form B: Substitution or Discharge of existing Maintenance Order

Form C1: Subpoena in terms of Section (9)(2) of the Maintenance Act, 1998 (Act No. 99 of 1998)

Form C2: Subpoena in terms of Section (9)(2) of the Maintenance Act, 1998

Form D: Notification to admit Statements by Witnesses

Form E: Maintenance Order in terms of section 16 of the Maintenance Act, 1998

Form F: Notice to make Maintenance Payments on behalf of person against whom Maintenance Order was made

Form G: Consent and Maintenance Order in terms of section 17 read with Section 16 of the Maintenance Act, 1998

Form H: Order by Default and Notice in terms of Section 18 read with Section 16 of the Maintenance Act, 1998

Form I: Application for Variation/Setting Aside of an Order by Default in terms of Section 19 (4) of the Maintenance Act, 1998

Form J: Notice in terms of Section 19 of the Maintenance Act, 1998

Form K: Application for Enforcement of Maintenance or other Order in terms of Section 26 of the Maintenance Act, 1998

Form L: Warrant of execution against Property in terms of Section 27 of the Maintenance Act

Form M: Application for Setting Aside of a warrant of Execution in terms of section 27(3) of the Maintenance Act, 1998

Form N: Application for Suspension, Amendment or Rescission of an Order for the attachment of Emoluments in terms of Section 28(2) of the Maintenance Act, 1998

Form O: Notices to and by Employer in terms of Section 29 of the Maintenance Act, 1998

Form P: Application for Suspension, Amendment or Rescission of an Order for the attachment of Debts in terms of Section 30(2) of the Maintenance Act, 1998

Form Q: Complaint of Failure to Comply with a Maintenance Order for purposes of Section 31(1) of the Maintenance Act, 1998

Paying maintenance

For further information go to the Department of Justice and Constitutional Affairs

Steps to follow

The court order must state the method of payment that the payer has chosen.

The steps for the various methods of payment are as follows:

If you pay by means of a garnishee order

the company that you work for deducts the money directly from your salary

If you make a cash payment,

go to the court and pay the money over the counter.

If you make a direct payment into the bank account,

deposit the money directly into the bank account of the recipient, stating the reference number that the court has given you; and

fax proof of payment (the deposit slip or receipt) to the court.

Applicable Forms

Form B: Substitution or Discharge of existing Maintenance Order

Form E: Maintenance Order in terms of section 16 of the Maintenance Act, 1998

Form F: Notice to make Maintenance Payments on behalf of person against whom Maintenance

Form G: Consent and Maintenance Order in terms of section 17 read with Section 16 of the Maintenance Act, 1998

Form H: Order by Default and Notice in terms of Section 18 read with Section 16 of the Maintenance Act, 1998

Form I: Application for Variation/Setting Aside of an Order by Default in terms of Section 19 (4) of the Maintenance Act, 1998

Form J: Notice in terms of Section 19 of the Maintenance Act, 1998

Form K: Application for enforcement of maintenance or other order in terms of Section 26 of the Maintenance Act, 1998

Form L: Warrant of execution against Property in terms of Section 27 of the Maintenance Act

Form M: Application for Setting Aside of a warrant of Execution in terms of section 27(3) of the Maintenance Act, 1998

Form N: Application for Suspension, Amendment or Rescission of an Order for the attachment of Emoluments in terms of Section 28(2) of the Maintenance Act, 1998

Form O: Notices to and by Employer in terms of Section 29 of the Maintenance Act, 1998

Form P: Application for Suspension, Amendment or Rescission of an Order for the attachment of Debts in terms of Section 30(2) of the Maintenance Act, 1998

Form Q: Complaint of Failure to Comply with a Maintenance Order for purposes of Section 31(1) of the Maintenance Act, 1998

Application to change the amount of maintenance

If the amount paid for maintenance has become insufficient, you can request it to be changed. You can also request to change the amount if you are the payer of maintenance and can no longer afford to pay the amount of money required.

For more information, go to the Department of Justice and Constitutional Development.

Steps to follow

  • If you are the person who receives maintenance:
    • Apply at the magistrate’s court situated in the district where the person who pays the maintenance lives.
    • Complete the relevant application form and submit it together with a statement of income and expenditure to the maintenance officer.
  • If you are the person who pays the maintenance but can no longer afford the amount:
    • Apply for the amendment of the order at the magistrate’s office in the district where the recipient of the maintenance lives.
    • Complete the relevant form and submit it to the maintenance officer.
  • Submit a complete statement of income and expenditure, as well as a statement explaining the reasons for the application, to the maintenance officer irregardless of whether you are the recipient or the payer of the maintenance money. The same process as when a claim for maintenance is first instituted will then be followed.

Cost

Unless the sheriff asks for an advance to enable him or her issue an execution order for maintenance, there will be little or no cost at all.

Forms to complete

Form A: Application for Maintenance Order

Form B: Substitution or Discharge of existing Maintenance Order

Form C1: Subpoena in terms of Section (9)(2) of the Maintenance Act, 1998 (Act No. 99 of 1998)

Form C2: Subpoena in terms of Section (9)(2) of the Maintenance Act, 1998

Form D: Notification to admit Statements by Witnesses

Form E: Maintenance Order in terms of section 16 of the Maintenance Act, 1998

Form F: Notice to make Maintenance Payments on behalf of person against whom Maintenance Order was made

Form G: Consent and Maintenance Order in terms of section 17 read with Section 16 of the Maintenance Act, 1998

Form H: Order by Default and Notice in terms of Section 18 read with Section 16 of the Maintenance Act, 1998

Form I: Application for Variation/Setting Aside of an Order by Default in terms of Section 19 (4) of the Maintenance Act, 1998

Form J: Notice in terms of Section 19 of the Maintenance Act, 1998

Form K: Application for Enforcement of Maintenance or other Order in terms of Section 26 of the Maintenance Act, 1998

Form L: Warrant of execution against Property in terms of Section 27 of the Maintenance Act

Form M: Application for Setting Aside of a warrant of Execution in terms of section 27(3) of the Maintenance Act, 1998

Form N: Application for Suspension, Amendment or Rescission of an Order for the attachment of Emoluments in terms of Section 28(2) of the Maintenance Act, 1998

Form O: Notices to and by Employer in terms of Section 29 of the Maintenance Act, 1998

Form P: Application for Suspension, Amendment or Rescission of an Order for the attachment of Debts in terms of Section 30(2) of the Maintenance Act, 1998

Form Q: Complaint of Failure to comply with a Maintenance Order for purposes of Section 31(1) of the Maintenance Act, 1998

Failure to Pay Maintenance

Steps you can take if your spouse fails to pay maintenance?

If your spouse was ordered to pay maintenance in terms of a divorce order, settlement deed or maintenance court order. You will have the following remedies:

Maintenance enquiry in terms of the Maintenance Act.

  • Lodge a complaint with your local maintenance court;
  • A maintenance officer will investigate the complaint and may institute an enquiry in the maintenance court area in which your spouse resides;
  • If your complaint is justified, the maintenance officer will require your spouse to appear before a magistrate;
  • After considering the evidence, the court will make an order as it deems fit including granting a garnishee order requiring your spouse’s employer to deduct the maintenance amount from his salary.

If your maintenance order was granted by the maintenance court

  • If your spouse fails to make payment, you can execute your claim against his property, goods, emoluments (any monies that may be due to him) or any debts that are due to him;
  • The maintenance court must however authorise the issue of a warrant of execution to attach goods, emoluments or debts.
  • The application for the authorization of a Warrant of Execution must be accompanied by a copy of the maintenance and a statement under oath stating the amount which the person against whom the order was made has to pay. All these forms are available at the maintenance court.

If your maintenance order was granted pursuant to a decree of divorce

  • You can apply to the High Court that issued that decree with a request to issue a Warrant of Execution against your spouse. You will need your attorney to assist you in that regard.
  • You could also ask your attorney to take steps to obtain a garnishee order against your spouse’s salary if he is employed. You will need your attorney to assist you in that regard.

Criminal procedure

  • A person who fails to make a payment in accordance with a court or maintenance order is guilty of an offence and liable on conviction to a fine or to imprisonment or to imprisonment without the option of a fine unless the defence that failure to make a payment in terms of a maintenance order is because of lack of means;
  • Your are entitled to lay a criminal charge against your spouse if he fails to adhere to the terms of the decree of divorce or any order made by a maintenance court;
  • Although this step will likely result in your spouse’s being arrested it will not necessarily result in your receiving payment.
  • But on a practical level, however, if your spouse is arrested and he immediately pays all the arrears it is more than likely that the state will drop the charge so this is yet another lever that you have to exert pressure to obtain payment.