What is the Law on Child Maintenance?

When we think about the support and care that parents provide to their children, we rarely think of it in a legal capacity. We automatically assume that most parents will sustain and nurture their kids as they grow up and that judicial intervention will not be necessary. Sadly though, this isn’t always the case. Many children across South Africa are raised in broken homes without stable support structures, and disputes often arise when determining who should provide for them financially and how much should be paid. These conversations also raise other, equally important, questions, such as – Who has to pay child maintenance? When can they stop? And what does the law say about all of this? What is the Law on Child Maintenance?

According to the Children’s Act 38 of 2005, parents (and sometimes other parties) have certain parental obligations and responsibilities with regard to their children. 

Specifically, chapter 3 section 18 of the act notes that these individuals are responsible for contributing to the maintenance of the child. Likewise, the Maintenance Act 99 of 1998 identifies the legal duty of parents to support their children. 

But what does this really mean? Who exactly has to pay? And what qualifies as maintenance?

What is the Law on Child Maintenance?
What is the Law on Child Maintenance?

What is Child Maintenance?

The term ‘child maintenance’ (or ‘maintenance’ more broadly) refers to the legal obligation of certain parties to provide others (usually their children) with things like clothing, housing, education and medical care, etc. 

That said, this term can also include the means which are required to provide these essentials. In other words, it may simply refer to the money that is needed to purchase these necessities, rather than to the necessities themselves. 

Who Has to Pay Child Maintenance?

When trying to figure out who pays child maintenance, the rules go something like this  –

All Parents – The parents of the child in question are required to pay maintenance. This includes biological parents, as well as adoptive parents. Additionally, the relationship status of the parents does not play a role in this decision. In other words, parents will have to pay child maintenance whether they are together, separated, married, divorced, etc. Children born out of wedlock will also require maintenance pay. 

Grandparents – In situations where the child’s parents are not able to pay, the grandparents may be required to do so in their stead. Again, the marital or relationship status of the parents does not factor into this decision.

Legal Guardians – Individuals who are legally responsible for the child may be required to pay maintenance even when they are not the biological parents.

It is important to note that children are not the only ones who may require maintenance. In certain scenarios, a family member who cannot maintain themselves may request maintenance from any other family member.

What is the Minimum Maintenance for a Child in South Africa?

The actual money required for child maintenance cannot be simply determined without first considering the specifics of each party involved.

Generally speaking, the amount required will be primarily based on how much each parent earns, so a person making R20 000 per month will normally have to pay a lot less than a person earning R 2 000 000 per month. 

Additionally, the maintenance itself may fluctuate as the needs of the child and the financial situations of the parents’ change. 

What is the Law on Child Maintenance?
What is the Law on Child Maintenance?

Can a Father Refuse to Pay Maintenance?

Generally speaking, no, a father (or any other person ordered to pay maintenance) may not simply refuse to pay. Refusing to pay maintenance is a criminal offence and can result in fines and/or prison time. That said, there are certain defences that can be invoked on behalf of the person paying maintenance. 

First and foremost, the individual must have the means available to pay the maintenance, and the maintenance claim itself must be reasonable. Individuals ordered to pay maintenance may request that the court reduce the amount they are required to pay if they are unable to afford the current order.

It should also be noted, however, that disputes and appeals do not automatically suspend the current maintenance order.

At What Age Does a Father Stop Paying Maintenance in South Africa?

Believe it or not, age isn’t actually a key factor when paying maintenance. Parents may actually have to keep paying maintenance until their child is self-supporting, adopted, or dead. In other words, a person who is over the age of 18 may still make a maintenance claim against their parents in certain scenarios. 

That said, once the child has reached the age of 18, it will be up to them to prove how much maintenance they need. 

Do I Still Pay Child Maintenance if my Ex Remarries?

Yes, you do. As noted, marital status does not affect the issue of child maintenance. In other words, you will have to make maintenance payments regardless of whether or not your ex remarries.

Do Mothers Have to Pay Child Maintenance?

Yes, they do. Both parents will be required to pay child maintenance, although, as mentioned, the amount required will be based primarily on the relative incomes of the parents. 

Simply put, both parents will pay maintenance, but if one parent (the father, for example), makes significantly more money than the other, that parent will generally need to pay more.

Do you Have to Pay Child Maintenance If You Don’t Have Contact with Your Child?

Unfortunately, yes you do. The duty to pay child maintenance is not related to the issue of contact with your child. In other words, you will need to pay maintenance for your child even if you are not able to see them. 

Where do you go to Apply for Child Maintenance?

If you wish to apply for child maintenance, you should seek out your local magistrates’ court. You will need to complete and submit the relevant paperwork to begin the application process. 

In Conclusion – What is Child Maintenance and What does the Law say about it?

Child maintenance is a legal obligation placed on parents or other lawful guardians which requires them to provide their child with certain necessities or with the means with which to acquire those necessities. 

Generally, child maintenance takes the form of a payment that must be made by parents to ensure that their child is able to receive things like clothing, food, shelter, etc. The issue of child maintenance, and maintenance more broadly, is covered by the Children’s Act and the Maintenance Act respectively. 

What is the Law on Child Maintenance?
What is the Law on Child Maintenance?

Parents of a child are the first parties obligated to provide this maintenance. If they are unable to do so, a court may order the grandparents or some other legal guardian to do so instead. 

The relationship status of parents does not influence this situation. In other words, maintenance payments will be required whether or not the parents are living together, separated, married, divorced, etc. 

The actual amount that a person will need to be paid will vary depending on the individuals involved. Normally, the amount that is required will be calculated after considering the relative incomes of the parents and the reasonable needs of the child. 

Simply put, the parent who earns substantially more money will usually end up paying the lion’s share of the maintenance, and the more money they earn, the more they will normally have to pay. 

Individuals may not simply refuse to pay for this maintenance and a failure to do so may result in fines and/or prison time. That said, you may approach the court and seek a reduction in the amount if you are unable to pay for it. 

One of the key factors which influence maintenance payments is the parent’s ability to cover the costs. The paying parties must have the means to pay and the maintenance claim must be reasonable in nature. 

There is no real cut-off age with regards to child maintenance payments. A parent must continue to provide for their child, so long as they are unable to do so for themselves. This means that maintenance payments may be required for a child who is over the age of 18 until they are self-supporting.  

Additionally, the issue of contact with a child does not factor into the discussion of maintenance. In other words, you may be required to pay maintenance even when you are not allowed to contact the child in question. 

It is also worth noting that maintenance is not limited to children and you may be asked to provide maintenance to a family member who is not capable of supporting themselves. 

Disclaimer LAW101: All of our posts are for research purposes only. Law 101 aims to assist its readers with useful information on the laws of our country that can guide you to make decisions in line with the South African Governmental Laws currently in place. Although our posts cite the constitution in many instances, they are intended to assist readers who are looking to expand their knowledge of the law. Should you require specific legal advice we advise you to get in touch with a qualified legal expert.

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