Both parents have a legal duty to support their children. That duty does not depend on whether the parents were married, whether the paying parent has contact with the child, or whether the parents get along. Yet maintenance arrears remain one of the most common family law problems in South Africa.
This article explains how maintenance is determined, how long it lasts and how it can be enforced.
The duty of support
The common-law duty of support is reinforced by section 28 of the Constitution, section 18 of the Children’s Act and the Maintenance Act 99 of 1998. Key principles:
- Both parents must contribute, in proportion to their respective means.
- Maintenance covers the child’s reasonable needs, including food, clothing, housing, medical care, education and reasonable recreation, at a level consistent with the family’s standard of living.
- The duty can extend, in limited circumstances, to grandparents where the parents cannot provide.
How much?
There is no fixed formula. The Maintenance Court, or the High Court in a divorce, considers:
- the child’s reasonable monthly needs, supported by a realistic budget;
- each parent’s income, assets and reasonable expenses; and
- the share each parent should bear in proportion to their means.
Expenses often treated separately include school fees, medical aid and excess medical costs, extramural activities and school uniforms.
How long does it last?
The duty of support does not end automatically when a child turns 18. It continues until the child is self-supporting. In Bursey v Bursey 1999 (3) SA 33 (SCA), the court confirmed that a parent may be obliged to support an adult child who is studying, if the parent can afford it and the studies are reasonable.
Where a divorce order provides for maintenance until a specified age, or “until the child becomes self-supporting”, the wording of the order matters. An adult child may also claim maintenance from a parent in their own name.
Applying for maintenance
A claim can be brought in the Maintenance Court in the district where the child lives. The process is free, and a maintenance officer will assist. The court can:
- summon the respondent and witnesses;
- order the respondent to disclose financial information, including from employers and banks;
- order maintenance, including interim maintenance; and
- grant a default order if the respondent fails to attend.
Maintenance can also be claimed within divorce proceedings, including on an interim basis under Rule 43.
When the other parent won’t pay
The Maintenance Act gives powerful enforcement tools:
- Attachment of salary (emoluments attachment order): the employer deducts maintenance directly from the defaulter’s salary.
- Attachment of debts: money owed to the defaulter, such as rental income or a bank account, can be attached.
- Warrant of execution: the defaulter’s property can be attached and sold.
- Credit bureau listing: under the Maintenance Amendment Act 9 of 2015, the details of a person against whom an order is made in respect of arrears can be submitted to credit bureaus, limiting their access to credit.
- Cellphone tracing: where a defaulter cannot be found, the court can order electronic communication service providers to provide their contact details.
- Criminal prosecution: failure to comply with a maintenance order is a criminal offence. A conviction may result in a fine or imprisonment, and may also lead to a criminal record.
Pension and provident fund benefits may also be available for maintenance arrears in certain circumstances.
Defences and reductions
A parent whose circumstances have changed, for example through retrenchment, should apply promptly to reduce the order. Stopping payments unilaterally is not a defence: arrears accumulate, and each missed payment is enforceable.
Refusal of contact by the other parent is not a defence to non-payment. Contact and maintenance are separate issues. A parent who is being denied contact should apply to court for a contact order. See our article on care and contact.
Hidden income
Where a parent is self-employed, owns a business or is paid through a company or trust, income may be hard to establish. Courts look at the parent’s lifestyle, bank statements, company records and expenditure, and may draw adverse inferences from incomplete disclosure. Legal assistance and forensic accounting can be valuable in these cases.
How O’Reilly Law can help
We act for parents claiming, varying and defending maintenance, including complex matters involving business owners, trusts and international payers. We also bring enforcement proceedings against defaulters. Contact us to discuss your situation.
Related reading: Care and contact under the Children’s Act · Spousal maintenance after divorce
This article is general information and not legal advice. Correct as at October 2026.