Introduction
Child and spousal maintenance are critical aspects of family law in South Africa, ensuring that dependents are cared for financially when families break up or circumstances change. Maintenance generally refers to the legal obligation of one person to provide financial support to another whom they are liable to maintain. In South Africa, parents have a duty to support their children, and spouses may have a duty to support each other both during and (in certain cases) after marriage. These duties are rooted in common law and reinforced by legislation. The South African Constitution also underpins the protection of children’s rights – for example, Section 28 of the Constitution guarantees every child the right to basic nutrition, shelter, and parental care, which maintenance orders help to fulfill.
This guide explains the definitions and legal context of child maintenance and spousal maintenance, outlines the applicable legislation (including the Divorce Act 70 of 1979, Maintenance Act 99 of 1998, Children’s Act 38 of 2005, and Matrimonial Property Act 88 of 1984), and provides practical guidance on how to apply for maintenance, court procedures, calculation methods, and enforcement mechanisms. We also highlight relevant recent case law and any new policy or procedural developments. Throughout, we use illustrative scenarios to demonstrate how maintenance orders work in practice. The aim is to be accessible to both laypersons and legal professionals, offering clear explanations as well as deeper legal insights where appropriate.
Understanding Child Maintenance
What is Child Maintenance?
Child maintenance (also called child support) is the financial contribution toward the living expenses of a child by the child’s parents or guardians. It covers necessities such as food, clothing, housing, education, medical care, and other reasonable needs of the child. In South African law, both parents – whether married, divorced, separated, or never married – have a legal duty to maintain their children according to their respective means. This duty exists regardless of which parent has custody. Importantly, the duty to support a child is considered the right of the child, meaning parents cannot bargain it away or avoid it; the child’s welfare is paramount and legally protected by the courts.
The duty of support for children is part of the common law, now codified in legislation. Section 15 of the Maintenance Act 99 of 1998 expressly provides that parents have a responsibility to support their children (essentially reflecting the common-law duty), see CL v ZL (Appeal) (A181/2024) [2024] ZAWCHC 325 (21 October 2024). Additionally, the Children’s Act 38 of 2005 confirms this principle: Section 18(2)(d) of the Children’s Act states that a person who has parental responsibilities and rights in respect of a child has the responsibility to contribute to the child’s maintenance. This means that providing for the child’s needs is a core aspect of parenting in the eyes of the law.
Until what age must parents pay? In South Africa, the duty to maintain a child does not automatically end when the child reaches majority (18 years old). While a parent’s legal authority over a child (parental control) ends at 18, the responsibility to support can continue into the child’s adulthood if the child is not yet self-supporting. For example, if an 18-year-old is still in school or university and cannot financially support themselves, a court may order the parents to continue paying maintenance until the child becomes self-supporting. However, once a child is a major (adult), the maintenance claim should be made by the child themselves (or the parent can do so on the adult child’s behalf with the child’s consent), unless a divorce order already provided for support beyond majority. It is common for divorce orders to specify that maintenance is paid until 18 or until the child is self-supporting, to cover this scenario.
Legal context and the child’s best interests: All decisions about child maintenance are guided by the principle of the best interests of the child, as mandated by Section 28(2) of the Constitution and the Children’s Act. Courts will ensure that any maintenance arrangement or order adequately protects the child’s wellbeing see CL v ZL. The Divorce Act 70 of 1979 also incorporates this concern: Section 6(1)(a) of the Divorce Act prohibits a court from granting a divorce unless it is satisfied that proper provision has been made for any minor or dependent children of the marriage. Section 6(3) allows the divorce court to make any order it deems fit regarding the maintenance of children when granting the divorce. In other words, a divorce cannot be finalised without the court addressing child support to its satisfaction.
Key Legislation for Child Maintenance
Several statutes govern or impact child maintenance in South Africa:
Maintenance Act 99 of 1998: This is the primary law dealing with maintenance procedures. It provides the mechanism for claiming maintenance, the powers of the maintenance court (which is usually a specialist role of the Magistrate’s Court), and enforcement measures. The Maintenance Act applies to claims for child maintenance as well as maintenance for other dependents (including spousal maintenance under certain circumstances). It codifies parents’ duty of support (Section 15) and allows maintenance orders to be made, varied, and enforced. The Act has been updated by the Maintenance Amendment Act 9 of 2015 (operational from 2018) to strengthen maintenance enforcement.
Children’s Act 38 of 2005: As noted, the Children’s Act confirms parents’ duty to maintain their children. It also defines parental responsibilities and rights broadly (which include care, contact, guardianship, and maintenance). While the Children’s Act is more focused on custodial issues and children’s rights, it reinforces that both parents are legally responsible for financially supporting their children. Notably, nothing in the Children’s Act removes the duty of support; even if a parent does not have primary care or guardianship, they still must contribute to maintenance. Only adoption of the child by someone else will terminate the original parent’s support duty (since an adoption order, under Section 242 of the Children’s Act, transfers the duty of support to the adoptive parents). In fact, a recent High Court case confirmed that even if a parent’s other parental responsibilities and rights are terminated by a court, that does not terminate the obligation to pay maintenance, see FCP v STC and Another (A 46/2024 ; 1762021/000227) [2025] ZAWCHC 68; [2025] 2 All SA 415 (WCC) (29 January 2025). In that case, a father’s parental rights had been removed by a children’s court, but the High Court held his duty to pay child support remained, because allowing a parent to shed maintenance responsibility would conflict with the constitutional duty to support one’s children.
Divorce Act 70 of 1979: For children of divorcing or divorced parents, the Divorce Act is important. Section 6, as mentioned, ensures that divorce courts attend to arrangements for children’s maintenance (and care) before granting a divorce. The divorce court can make maintenance orders for minor or dependent children (Section 6(3)). These orders are usually incorporated into the divorce decree. After divorce, a child maintenance order from the divorce can be enforced or varied through the maintenance court system as well. Section 8(1) of the Divorce Act allows for the variation of maintenance orders contained in divorce decrees if there is sufficient reason – for example, if circumstances change. In other words, even if a maintenance amount was set at divorce, either parent can later approach a court to increase, decrease, or suspend that maintenance, given a good reason (e.g., a major change in the child’s needs or the parent’s financial position).
Matrimonial Property Act 88 of 1984: This Act governs marital property regimes (in community of property, out of community with or without accrual). While it does not directly deal with maintenance, it influences the financial outcome of a divorce. If spouses are married in community of property, they share assets and debts, which can affect each party’s resources post-divorce and therefore maintenance needs. If married out of community with accrual, at divorce the spouse with a smaller estate may get an accrual claim (a share of the growth of the estates). This can reduce or eliminate the need for spousal maintenance in some cases, as the financial adjustment is made via asset distribution. Conversely, if married out of community without accrual, each spouse leaves with their own assets – in such cases, if one spouse has very little, they might be more likely to seek spousal maintenance, since there is no sharing of assets. The Divorce Act’s Section 7(3) – often read with the Matrimonial Property Act – allows a court to redistribute assets, but if a spouse cannot get redistribution of capital, they may look to maintenance for support. In summary, the Matrimonial Property Act sets the property consequences of the marriage which indirectly shape whether maintenance is necessary to achieve equity. (For example, a spouse who gets a sizable property settlement may have less need for ongoing maintenance, whereas a spouse who exits with few assets might rely on maintenance to survive.)
How to Apply for Child Maintenance
If a parent or caregiver needs financial support for a child from the other parent, they can apply for a maintenance order at the Maintenance Court. The Maintenance Court is part of the Magistrate’s Court system – every Magistrate’s Court district has a maintenance office to handle these matters. The process is designed to be accessible without requiring an attorney (though parties are free to use legal representation if they wish).
Step 1: Lodging a Complaint. The process typically starts with the primary caregiver (or the parent with whom the child lives) lodging a maintenance complaint at the maintenance office. You should go to the court in the area where you or the child resides, or where the other parent (the respondent) resides or works. (The Maintenance Act allows some flexibility in jurisdiction to make it convenient – for instance, you can file in the district where either you or the person to pay lives or is employed.) At the court, you fill out a form (often called Form A: “Application for Maintenance Order”) providing details about the child, your income and expenses, and what support is needed. You will need identification documents and the child’s birth certificate, and it helps to bring proof of your income, expenses, and any information about the other parent’s income if available.
A maintenance officer (a court official) will assist in processing the application. The maintenance officer may conduct an initial investigation into the financial positions of both parents (by asking for salary slips, bank statements, etc.). Sometimes the maintenance officer can help facilitate an agreement between the parties before a formal hearing – mediation is encouraged to reach a voluntary arrangement. If both parties come to an agreement on an amount, the court can make it a consent order (an order by agreement) without the need for a trial. If there is no agreement, the matter will proceed to a maintenance enquiry (a hearing) before a magistrate.
Step 2: Summons and Notice. Once the complaint is lodged, the maintenance court will issue a summons or notice to the respondent (the other parent) to appear in court on a specific date. This document will typically include a financial questionnaire for the respondent to complete, detailing their income, expenses, assets, and liabilities. It is served on the respondent by the maintenance investigator or police officer. It is crucial that the respondent receives this notice – if they evade service, the court can authorise alternative methods or even use the Maintenance Act’s new provisions to trace them via information from cell phone service providers if necessary. Indeed, since 2018, courts can order a mobile network (like Vodacom, MTN, etc.) to furnish contact information of a parent who is avoiding the process, if standard efforts to trace them have failed. This helps prevent defaulters from dodging proceedings by disappearing.
Step 3: The Maintenance Enquiry (Court Hearing). On the date of the hearing (sometimes called an inquiry), both parties should attend. A maintenance magistrate will preside, and the maintenance officer may present the case or evidence. The enquiry is somewhat less formal than a trial; however, it is a legal proceeding – parties may give evidence under oath, call witnesses, and present documents (such as pay slips, bills, school fee statements, etc.). Each party’s financial position is examined alongside the needs of the child. The court will consider the reasonable expenses of the child (housing, food, schooling, clothing, medical, etc.) as well as each parent’s ability to contribute.
The Maintenance Act empowers the court to subpoena documents or witnesses if needed – for example, the court can subpoena an employer to provide proof of a parent’s salary or even bank statements if financial disclosure is incomplete. (The 2015 Amendment strengthened these investigative powers.) If the respondent parent fails to appear in court despite being served, the court can proceed in their absence and even issue a default maintenance order. In practice, courts often postpone and give another chance or issue a warrant to secure the parent’s attendance, but the law does allow an order to be made by default if the evidence supports it and the person is willfully absent.
During the enquiry, the magistrate often encourages negotiation. If parties reach an agreement at this stage (for instance, the respondent agrees to pay a certain amount), the court will make that an order. If not, the magistrate will make a ruling based on the evidence. The resulting maintenance order will state the amount to be paid, the frequency (usually monthly), and possibly specific directives (such as “pay school fees directly to the school” or “provide medical insurance for the child”). The order can also include once-off payments for past expenses or arrears if applicable.
Step 4: Order and Future Variation. Once an order is made, it is legally binding. Circumstances can change, however, and the law provides that either parent can request a variation (increase, decrease, or discharge) of the maintenance order if there is a significant change in circumstances. Under Section 6 of the Maintenance Act (and Section 16 for the enquiry), a maintenance order can be substituted with a new order if “good cause” is shown. For example, if the paying parent loses their job, or conversely if the child’s needs increase (say the child develops a medical condition or enters a more expensive stage of education), the affected party can apply to the maintenance court to modify the order. We will discuss variation in more detail later, but it’s important to know the order is not necessarily set in stone if life circumstances evolve.
Calculation of Child Maintenance
One of the most common questions is: How is the amount of child maintenance determined? South African law does not prescribe a fixed formula or guidelines like some other countries do. Instead, the law calls for a case-by-case evaluation of what is “reasonable and fair” given the child’s needs and the parents’ means. Still, over time, a practical method has developed to guide calculations.
Determining the child’s needs: First, one must quantify the child’s reasonable monthly expenses. This involves looking at the household budget and the specific costs related to the child. Typically, shared household expenses (like rent, utilities, groceries) are apportioned between the members of the household to figure out the child’s share. A commonly used heuristic is to allocate expenses by giving each child a “one-part” share and each adult a “two-part” share. For example, suppose a household has one parent and three minor children. We count two parts for the parent and one part for each child, making a total of 2 + 3 = 5 parts. Each child’s share of the joint expenses would then be 1/5 (20%) of those expenses. Using this method, if the rent, utilities, and groceries total R10,000 per month, each child’s portion would be about R2,000 in that scenario.
To that, we add the child-specific expenses (like school fees, school transport, books, clothing for the child, medical costs for the child, etc.). Summing these up yields the total monthly cost of the child. Let us say, for example, the shared household expenses allocated to the child come to R2,000, school fees are R3,000, other costs R1,000 – the child’s reasonable needs might total R6,000 per month. This figure is the starting point.
Apportioning responsibility between parents: Next, we consider each parent’s financial capacity. Both parents are obliged to contribute according to their means – this generally means the contribution is proportional to each parent’s income (and resources). A simple formula often cited in practice is:
Parent A’s contribution = (Parent A’s gross income / Combined gross income of both parents) × Child’s total needs. For instance, if the mother earns R10,000 and the father earns R20,000 (combined R30,000), the mother has 1/3 of the combined income and the father 2/3. Using the child need of R6,000 above, the mother would be responsible for R2,000 per month and the father R4,000 per month in this rough calculation. This proportional approach is widely used to gauge what each parent should pay. It takes into account ability to pay: the higher-earning parent should bear more of the financial burden. Note that “income” here includes not just salary but could include other financial resources (bonus, rental income, etc.), and courts also look at a parent’s means broadly – assets and overall living standard – not just basic take-home pay.
It is important to emphasise that this formula is not legislated, but it is a helpful guideline. The actual amount may be adjusted based on various factors, such as extraordinary expenses, the child’s age (teenagers might cost more than toddlers, for example), and any other relevant circumstances. Also, if a parent has other dependents (like children from another relationship), that can affect their disposable income and may be considered by the court when deciding a fair amount for the child in question.
The caregiver’s in-kind contribution: Usually, one parent (often the mother in many cases) provides day-to-day care, housing, and supervision for the child. The law recognizes that this custodial parent is already contributing in kind – by providing a home, looking after the child, etc. In maintenance considerations, while the financial sharing is crucial, the court will be mindful that the primary caregiver’s time and care is a valuable contribution that indirectly fulfills some of the maintenance obligation. This does not eliminate the need for the other parent to pay their share; instead, it reinforces that both parents contribute – one often provides care and covers many costs directly, and the other usually pays money to help cover the child’s needs. Both forms of support are important.
Use of a Maintenance Calculator: For a rough estimate, members of the public can use tools like the Maintenance Calculator provided on websites such as www.maintenancecalculator.co.za. This is a public tool that allows parents to input their incomes and the child’s expenses to get an estimated maintenance amount for each parent. Such a calculator applies principles similar to those described above (allocating the child’s expenses and splitting according to income). It can serve as a starting point to understand what might be reasonable. However, it is not binding – the actual maintenance ordered by a court will depend on the specific evidence and what the magistrate considers just. Every family’s situation is unique, so while a calculator offers a ballpark figure, the court may order a different amount after weighing all factors.
Adjustments and changes: Child maintenance is not a static figure forever – it often needs to be adjusted over time. Inflation and the changing needs of a growing child may warrant increases; for example, as children grow older, their school fees might increase or they might have new extracurricular expenses. The Maintenance Act and court processes allow for a variation of maintenance orders. Only if there is a material change in circumstances will a court entertain a change to an existing order. Common examples of changed circumstances include: one parent’s income substantially increases or decreases; the child develops special needs or health issues requiring more support; the child finishes school (possibly reducing certain expenses); or the caregiver incurs new costs (or even savings). Either parent can apply to the Magistrate’s Court where the child resides to increase or decrease the maintenance. The applicant must show why it’s justified (often by presenting updated financial information and explaining the changes in needs or means).
For instance, if a paying parent (father) loses his job, he can ask the court to reduce his maintenance obligation due to lower income – though he would have to prove his unemployment and also show he is not able to earn similarly despite efforts. Alternatively, if the custodial parent (mother) sees that as the child becomes a teenager the costs of food, school, etc., have doubled since the last order, she might seek an increase. The court will evaluate the new figures and make a fair adjustment. It is worth noting that South African courts have held that a parent cannot use a new family or additional dependents as an automatic excuse to reduce prior maintenance commitments. For example, if a father remarries and has more children, he can’t simply reduce the support for his first children on that basis – the first children’s needs remain and should not be prejudiced by the parent’s decision to take on new obligations. Each case is fact-specific, but courts generally expect a parent to honor pre-existing duties to children as a first priority.
Enforcement of Child Maintenance Orders
Securing a maintenance order is only part of the journey – ensuring it gets paid is the next crucial aspect. South African law provides robust enforcement mechanisms to address maintenance failures. The Maintenance Act 99 of 1998, especially as bolstered by the 2015 Amendment, gives courts and maintenance officers various tools to enforce orders and punish defaulters.
Civil enforcement: If a parent who is ordered to pay maintenance (the maintenance debtor) fails to do so, the person owed the money (the maintenance creditor, often the primary caregiver) can return to the maintenance court and lodge a complaint of non-compliance. The court can then employ several methods:
Emoluments Attachment Order (EAO): The court may order the defaulter’s employer to deduct the maintenance amount (plus any arrears) directly from their salary and pay it over to the maintenance beneficiary. This is commonly known as a garnishee order. It ensures the money is taken at source, which is very effective if the person is formally employed. The Maintenance Act streamlines this – once an attachment order is issued, the employer is legally obliged to comply or could face penalties.
Attachment of Debts: If the defaulter has funds in a bank account or is owed money by someone (for example, an upcoming bonus, or rental income from a tenant), the court can order that those funds be attached to cover the maintenance owed. Practically, a garnishment order on a bank account can freeze the account up to the amount of arrears, allowing the money to be paid out to satisfy the maintenance debt.
Execution Against Property: For more substantial arrears, the maintenance court can authorize a warrant of execution, allowing the Sheriff of the court to attach and sell the defaulter’s movable property (and in some cases even immovable property) to recover the unpaid maintenance. Items like cars, furniture, etc., can be seized and auctioned, with proceeds going toward the arrears. This is a strong measure typically used if other methods fail or if the arrears are significant.
These civil remedies do not require a separate lawsuit; they are handled within the maintenance case upon proof of default.
Criminal enforcement: Failing to pay maintenance when one has the means to do so is a criminal offense in South Africa. Section 31 of the Maintenance Act makes it a crime to willfully fail to comply with a maintenance order. The Maintenance Amendment Act increased the penalties – a defaulter can be fined or even imprisoned for up to 3 years for this offense. If a parent is persistently not paying, the maintenance creditor can lay a charge at the police or maintenance office. The defaulter may then be criminally prosecuted in the criminal court. Often, to avoid jail, the defaulter will be given an opportunity to pay the arrears (sometimes the sentence is suspended on condition they pay). Courts prefer compliance over punishment, but the threat of jail is a powerful motivator. It is worth noting the law differentiates between inability to pay and refusal to pay – someone who truly cannot pay (due to job loss, etc.) should approach the court for a reduction rather than simply not pay. But someone who can pay and just does not, or diverts their money elsewhere, faces criminal sanction.
New enforcement measures (2018 onwards): The Maintenance Amendment Act 9 of 2015 (implemented in 2018) introduced additional enforcement tools:
Credit Blacklisting: If a maintenance amount remains unpaid and the court has issued an enforcement order (like an attachment order or warrant) that remains unsatisfied, the defaulter’s details can be forwarded to credit bureaus. In practice, a maintenance court can order that a maintenance debtor be reported to credit bureaus, which will likely make it difficult for them to obtain new credit (loans, credit cards, etc.) while in default. This serves as both a deterrent and a consequence, pressuring the debtor to pay up in order to clear their credit record. As of January 2018, regulations were in place to implement this, and defaulters face being blacklisted until they settle the maintenance debt.
Tracing Tools: As mentioned earlier, courts can now enlist electronic communication providers to find a defaulter’s contact information. This is especially useful when a parent disappears or avoids court. The court must be satisfied that normal methods to trace the person failed, and then an order can be given to, say, Vodacom or MTN to supply the person’s cellphone number and possibly other contact info. The State covers the cost if the complainant cannot afford it, and the defaulter can be ordered to refund the State. This innovation helps close the loophole of parents evading service by changing addresses or not updating contacts.
Interim Orders: The amendment also explicitly allows maintenance courts to grant interim maintenance orders during the enquiry process. If a case is taking time (perhaps evidence is still being gathered), the court can order a temporary amount to be paid in the meantime so that the child does not suffer while waiting for the final order. This is similar to the concept of interim relief in other areas of law and ensures urgent needs are met.
Cost Orders: The maintenance court can now order a party to pay costs in certain instances. For example, if one party’s conduct caused unnecessary delay or the default is egregious, the court might make them pay the other side’s legal costs. Maintenance proceedings usually don’t involve heavy cost orders, but the law permits it to discourage abuse of the system.
In summary, South Africa’s maintenance system gives a wide array of tools to enforce child maintenance. The Department of Justice has stressed that maintenance defaulters will face serious consequences and that these measures are in place to put children’s needs first. By combining civil remedies, criminal penalties, and modern tracing and blacklisting techniques, the law aims to ensure that a piece of paper (the court order) translates into actual support in practice.
Scenario: Thandi and Sipho have a 7-year-old child. Sipho was ordered by the court to pay R2,500 per month in child maintenance, but he has not paid for four months, and Thandi is struggling to make ends meet. In this situation, Thandi can return to the maintenance court and report the arrears. The court might assist her in getting an emoluments attachment order against Sipho’s salary, so his employer will deduct the R2,500 plus an extra amount each month to slowly pay off the arrears. If Sipho is unemployed or working informally, the court could issue a warrant to attach some of his property to cover the arrear amount. If it appears Sipho is wilfully dodging payment despite having means (perhaps he has assets or bank funds), the court could authorise that his information be sent to credit bureaus, affecting his credit score. Additionally, Thandi could lay a criminal charge. Sipho might then face a magistrate in a criminal court and be threatened with a fine or jail up to 3 years if he does not pay what is due. These consequences usually compel compliance – facing jail or a ruined credit record, Sipho would likely prioritize paying the maintenance to avoid further trouble. The law’s multifaceted enforcement scheme thus gives teeth to maintenance orders.
Spousal Maintenance
What is Spousal Maintenance?
Spousal maintenance (also known as spousal support or alimony) is the financial support paid by one spouse to the other either during or after divorce. During a marriage, spouses have a reciprocal duty of support – each must support the other to the extent that they can and the other needs, maintaining the marital standard of living as far as possible. However, when a marriage ends, that automatic mutual duty also ends. South African law does not confer an automatic right to spousal maintenance upon divorce. In fact, the default position is that once divorced, each adult should ideally support themselves. A spouse only has a right to receive maintenance after divorce if such an obligation is created by an agreement or a court order at the time of divorce.
In essence, if one expects spousal support after divorce, it must be claimed and provided for in the divorce proceedings; otherwise, once the decree of divorce is granted, neither party can later demand maintenance from the other (absent an existing order or agreement). The courts have underscored that if spousal maintenance is not claimed at the time of the divorce, it is forever forfeited. This principle was clearly stated in recent case law: for example, the High Court in W.L v W.B.L (2022-015956) [2023] ZAGPJHC 1189 (15 September 2023) warned that an undetermined spousal maintenance claim cannot survive once a divorce is finalised, so a party must raise it before the divorce is granted or lose the opportunity.
The South African approach to spousal maintenance often embraces the “clean break” principle. The clean break principle encourages spouses to settle their financial affairs finally at divorce – through division of assets or appropriate monetary compensation – rather than creating long-term dependency. Many couples, by agreement, opt for no ongoing maintenance, especially if both are employable, instead dividing assets in such a way that each can be self-sufficient. However, in many cases a clean break is not fully achievable – for instance, where one spouse sacrificed career prospects to raise children or manage the household and thus has little earning capacity at divorce. In those cases, spousal maintenance orders can be made to alleviate potential unfairness or hardship.
When is spousal maintenance awarded? It comes down to what is just and equitable in the specific circumstances. The Divorce Act 70 of 1979 sets out the guiding criteria (in Section 7(2)) that a court considers in deciding whether to award maintenance to a spouse and in what amount. Key factors include: each party’s means (income, assets, earning potential), their financial needs and obligations, their ages, the duration of the marriage, the standard of living during the marriage, and any conduct of either that led to the breakdown (only if relevant). The court also considers any distribution of assets (for example, if one spouse is getting a large share of the estate under a prenuptial agreement or forfeiture order, that might reduce the need for maintenance). Ultimately, the court has broad discretion to make a maintenance order if it deems it fair in the circumstances.
Spousal maintenance can take different forms. It might be a periodic payment (monthly amount) for a certain duration or indefinitely, or sometimes a lump sum (though lump sums are more commonly dealt with as part of asset distribution rather than labeled “maintenance”). Common types of spousal maintenance include:
Rehabilitative Maintenance: Support payable for a fixed, limited period to allow the recipient to “rehabilitate” their financial position. For example, if a wife gave up her job to be a homemaker, the court might order the ex-husband to pay her maintenance for, say, 2 or 3 years post-divorce, giving her time to gain skills or employment and become self-supporting. This is often used in medium-duration marriages or where the recipient has the potential to work but needs a buffer period.
Permanent (Lifelong) Maintenance: This is an order for maintenance with no fixed end date – typically phrased as payable “until the death or remarriage of the recipient” (or sometimes until a further court order). Such lifelong maintenance is usually reserved for long marriages where one spouse is of advanced age or in poor health or otherwise unlikely to ever become self-sufficient. It is less common nowadays, but not unheard of. For example, in a 2023 case in the Western Cape High Court, a 57-year-old wife who had no income and significant health issues was awarded lifelong maintenance of R40,000 per month from her ex-husband, given her limited earning capacity and the high standard of living during the marriage. Courts will consider lifelong support if it is the only way to do justice – balancing the need of one party against the ability of the other to pay, and often factoring in the marital standard of living and sacrifices made during the marriage.
Token Maintenance: Sometimes a court (or the parties by agreement) might set a nominal amount, such as R1 per month, as spousal maintenance. This token maintenance is not meant for actual support (the amount is trivial) – rather, it is used as a device to keep the door open. By having an order, even a token one, the recipient can in future return to court for a variation to increase the amount if circumstances change (for example, if the paying party’s financial situation improves dramatically, or if the recipient later truly needs support). If no order existed, they could not come later; but with a R1 order in place, the court’s jurisdiction remains. Token maintenance is usually used when at the time of divorce the spouse does not need maintenance or the other truly can’t afford any, but there’s uncertainty about the future.
Interim Maintenance (Pendente Lite): Apart from post-divorce maintenance, a spouse may need support during the divorce proceedings, especially if the divorce is contested and will take some time to finalize. In such cases, the spouse can apply for interim maintenance under Rule 43 of the High Court Rules (if the case is in the High Court) or Rule 58 of the Magistrate’s Court Rules (if in Regional Court). This is a fast, summary procedure where the applicant files a sworn statement of needs and the other party can answer, and the court makes a quick order for maintenance pending the outcome of the divorce. For example, a wife might get an interim order that her estranged husband pay her R10,000 per month and cover the bond and utility payments while the divorce case is ongoing. These orders are temporary and will lapse or be replaced by the final divorce order, but they are crucial in high-conflict divorces to provide immediate relief.
In South Africa, spousal maintenance is separate from child maintenance – even if both are dealt with in one divorce case. The court considers child support first (children’s needs have priority), and spousal support is then considered in the context of what each spouse can afford thereafter. A spouse cannot contract out of child support, but they can agree to waive spousal support. Many divorce settlement agreements include a clause that each party has no further claim against the other, thereby excluding spousal maintenance (particularly if the estate division is generous enough to cover needs). However, where there is a significant discrepancy in earning power or one spouse’s ability to sustain themselves, spousal maintenance becomes a key issue to ensure fairness.
Law Governing Spousal Maintenance
The principal statute for spousal maintenance on divorce is the Divorce Act 70 of 1979. Here are the key provisions:
Section 7(1): If the parties reach a settlement (written agreement) about maintenance, the court can incorporate that into the divorce order. Essentially, spouses can agree on whether maintenance will be paid and how much, and the court will usually make that agreement an order if it’s deemed reasonable.
Section 7(2): In the absence of an agreement, the court may make a maintenance order in favour of one spouse, in an amount and for a period it considers just, after considering all the relevant factors. The factors listed in Section 7(2) that the court must take into account include: each party’s existing and prospective means (what assets and income they have now and can have in the foreseeable future); their earning capacities (ability to earn income, which could include skills, employability, etc.); their financial needs and obligations (debts, necessary expenses); their ages; the duration of the marriage; their standard of living during the marriage; and their conduct insofar as it may have contributed to the breakdown of the marriage. The court can also consider “any other factor” it finds relevant, which gives flexibility. Notably, fault (conduct) is only a minor consideration and only if it directly impacted the breakdown – South Africa’s divorces are mostly no-fault, so maintenance is not a way to punish misdeeds except in extreme cases. The overarching purpose is to arrive at a fair outcome so that a spouse who is economically disadvantaged by the divorce is not left destitute or at a drastically lower standard of living if the other can afford to assist.
Section 7(3), 7(4), 7(5): These deal with redistribution of assets for certain marriages (mainly those out of community of property , or with antenuptial contracts excluding accrual in specific circumstances). This is slightly tangential to maintenance, but the interplay is important – if a court grants a redistribution of property to a spouse, it will consider that when deciding maintenance. As one court noted, there is a symbiotic relationship between a redistribution order and a maintenance order – they both aim to redress economic imbalance, and a redistribution (a capital award) can reduce the need for ongoing maintenance. Conversely, if a redistribution is not available and one spouse leaves the marriage with little property, maintenance might be the only way to achieve equity.
Section 8(1): As mentioned earlier, this allows for variation of a maintenance order included in a divorce decree on good cause. For example, if after divorce the paying ex-spouse’s income drops significantly (e.g., forced early retirement or business failure), they can apply to court to reduce or terminate the maintenance. Or if the recipient’s situation worsens (e.g., falls ill and incurs big expenses), they might apply to increase the maintenance (but only if the payer can afford it – the court still looks at means). The variation can be handled by the divorce court or by a maintenance court; in practice, many go to the maintenance court for post-divorce maintenance issues, as it is more accessible and specialised.
Apart from the Divorce Act, the Maintenance Act 99 of 1998 also plays a role. If there is a spousal maintenance order (say from a divorce or even an interim order), the Maintenance Act’s mechanisms can be used to enforce it.
The maintenance court does not distinguish whether an order is for a child or ex-spouse – if it is a maintenance order, it can be enforced through the same channels (garnishee, warrants, etc.). Moreover, if a spouse is separated but not yet divorced and needs maintenance, they could potentially approach the maintenance court under the common-law duty of support. This is less common, because usually interim maintenance via Rule 43/58 is pursued, but it’s theoretically possible for a spouse to file a maintenance complaint even while married (for instance, if one spouse deserts the other without support). The Maintenance Act’s definition of “maintenance order” includes spousal maintenance. Therefore, the maintenance system is available to ex-spouses for enforcement and variations.
For example, a woman who obtained spousal maintenance as part of a divorce order can go to the maintenance court if her ex-husband stops paying, and use the Act’s enforcement measures just as one would for child support (including criminal prosecution for default, if needed). (The reference indicates that maintenance orders can even be enforced via salary deductions on the paying spouse.)
It is also useful to mention that South African case law has evolved on spousal maintenance. Historically, lifelong maintenance was more readily granted for homemaker spouses from long marriages. In modern times, courts often aim to empower spouses to become self-reliant where possible, hence the frequent use of rehabilitative awards. However, recent cases illustrate that courts are quite sympathetic to spouses who, due to age or health, realistically cannot rehabilitate. The J.E.R (Nee O) v B.E.S – Appeal (A16/2023; 15871/16) [2023] ZAWCHC 291 (20 November 2023) case in the Western Cape High Court (an appeal judgment) is a prime example where the court awarded substantial lifelong maintenance to a spouse who was 57, in poor health, with no income, in order to approximate for her post-divorce the high standard of living she enjoyed in the 14-year marriage. The court in that case took a holistic approach, weighing all Section 7(2) factors, including non-financial contributions like her role in the marriage, and concluded that fairness demanded the financially stronger spouse continue to support the weaker one. The judge sought to ensure that, as far as possible, both parties could maintain a standard of living not too disparate from what they had during the marriage, given the available resources.
Another noteworthy principle from case law is that remarriage or new relationships of the recipient typically end the maintenance. Divorce orders often explicitly state that spousal maintenance will cease upon the recipient’s remarriage or cohabitation with a new partner, or upon death of either party. This is sometimes called a “dum casta” clause (meaning “while chaste/unmarried”). Even if an order does not say so, our courts generally hold that if a person remarries, they are now presumably supported by the new spouse, and it would usually be grounds to stop maintenance from the former spouse. (Though a contrary agreement can be made if parties so choose, it is rare.)
It is also crucial that a spousal maintenance claim be raised and decided during the divorce process. If a divorce is granted with silence on spousal maintenance (and no agreement in place), the opportunity to claim later is lost. The only workaround is if token maintenance was granted or the matter was explicitly left open by court (which generally does not happen without at least a token order). For candidate attorneys or law students: always advise clients to address the issue of spousal support before the divorce order is final, even if the decision is to waive it – it must be an informed decision.
How to Claim Spousal Maintenance (and Practical Aspects)
During divorce proceedings: To claim spousal maintenance in a divorce, the spouse seeking maintenance must include a request for it in their pleadings (typically, the summons or counterclaim). For example, a wife filing for divorce would include a claim like: “Defendant should pay plaintiff spousal maintenance of RX per month for Y years (or indefinitely).” If the divorce is defended, this forms part of the issues for trial or settlement. In an uncontested divorce, the parties may negotiate and incorporate a maintenance clause in their consent paper (settlement agreement). The court will scrutinise any such agreement to ensure it is fair – if a wife with no income agrees to no maintenance while the husband is wealthy, a court might question that (especially if there’s a power imbalance), but generally adults are free to contract as they wish, and the court will accept it if the overall settlement (perhaps including asset transfers) seems equitable.
Interim maintenance: If the divorce is going to take a while and one spouse needs support urgently, they can bring a Rule 43 application (High Court) or Rule 58 application (Regional Court, which also hears divorces). This is a quick motion where the applicant files an affidavit setting out monthly expenses and income, and why they need an interim contribution. The respondent files a reply, and the court hears brief arguments (usually no oral evidence) and then makes an order. Interim orders can cover spousal maintenance, child maintenance, and contributions to legal costs. These orders are based on a prima facie showing of need and ability to pay, without going into the full trial evidence – they are meant to provide immediate relief. The classic scenario: a breadwinner spouse leaves the home, and the dependent spouse is left without funds to pay household bills or lawyers; Rule 43/58 is designed to get a swift order so that the lights stay on and the legal playing field is levelled. Once the final divorce order is granted, the interim order falls away and is replaced by whatever the final judgment or settlement provides.
After divorce (enforcement or variation): Suppose a divorce order granted spousal maintenance. If the paying ex-spouse reneges, the recipient can use the Maintenance Act enforcement methods as described earlier (garnishee, etc.) by registering the divorce order with the maintenance court. The maintenance court essentially treats it like any maintenance order. If either party wants to change the arrangement post-divorce (increase, decrease, terminate), they would typically apply to the court that made the order (often through a motion application in the High Court or a new case in maintenance court) citing Section 8(1) of the Divorce Act or the Maintenance Act provisions, and demonstrate the “sufficient reason” (changed circumstances) for variation. For instance, if the recipient ex-wife gets a well-paying job two years after divorce, the ex-husband might apply to reduce or stop maintenance on the ground that it is no longer needed or that her earning capacity has improved – the court will examine if the original rationale for maintenance still exists.
Example Scenarios in Practice
To better understand how these principles play out, let’s consider a couple of hypothetical scenarios:
Scenario 1: Child Maintenance – Unmarried Parents Dispute
Ayanda and John had a brief relationship that resulted in the birth of a daughter. They never married. Ayanda is the primary caregiver for the child. John initially denied paternity, causing a delay, but a DNA test confirmed he is the father. Ayanda works part-time and struggles to cover the child’s expenses. John has a good job but has been inconsistent in providing support voluntarily.
In this scenario, Ayanda would approach the Maintenance Court to claim child support from John. The court would confirm paternity (the DNA test result would be key evidence). Since John is the biological father, he has the duty to maintain the child. The maintenance officer would gather information on John’s salary (perhaps subpoena his employer if necessary). Let us say Ayanda shows that the child’s needs are R4,000 per month and she can afford R1,000, leaving R3,000 short. If John’s income indicates he can afford that, the court may order John to pay around R3,000/month for the child. If John fails to appear in court or tries to dodge service, the court can use measures to trace him (even via his cell number). If he still does not cooperate, a default order can be granted and enforced. Now suppose the order is made and a year later John stops paying without explanation – Ayanda can have his wages garnished or even have him blacklisted and criminally charged as a defaulter. Throughout, the court’s focus is the best interests of the child, and even if John and Ayanda have personal disputes, the law ensures the child is entitled to support. This scenario also shows that maintenance is not only for divorced couples; even never-married parents have this obligation. Unmarried fathers have equal responsibility to support their children, even if they were not in a steady relationship with the mother.
Scenario 2: Spousal Maintenance – Long Marriage Divorce
Michael and Thandi have been married for 25 years. Michael is 55, Thandi is 50. They married in community of property. Michael is a senior manager earning a high salary; Thandi was a homemaker for most of the marriage, raising their three children (now adults). She has no formal employment history. They are now divorcing because Michael is in a relationship with someone else. Thandi is concerned about her financial future, as she has little savings or earning ability.
In the divorce, aside from splitting the joint estate (which will give Thandi 50% of their assets, per community property rules), Thandi can claim spousal maintenance. Given the long duration of the marriage and her lack of income, a court would likely find it equitable for Michael to pay her maintenance, especially if the asset split (though equal in percentage) does not produce sufficient income for her (e.g., they might have a house and some savings, but she still needs monthly cash flow). The factors weigh in her favour: she cannot easily earn at age 50 comparable to Michael’s income, her contribution as a homemaker and mother was substantial but unpaid labor, and the standard of living during marriage was high. Michael, on the other hand, has the means to pay. A realistic outcome might be an order for permanent maintenance – say Michael must pay Thandi R15,000 per month until her death or remarriage. The amount would depend on their lifestyle and his salary. If Michael’s infidelity caused the breakdown, the court might morally view him as the cause, but fault does not directly increase maintenance – it is more about need and ability. If Thandi had some earning capacity or got a large sum from the estate, the maintenance might be lower or time-limited (rehabilitative). But in this scenario, since she is near retirement age with no career, it leans toward indefinite support. They might also include an annual inflationary increase clause. If Michael later retires and his income drops, he could apply to reduce maintenance; similarly, if Thandi one day inherits money or starts a business, Michael might seek a reduction. If Thandi remarries in five years, Michael’s payments would cease (as per the typical order). Should Michael refuse to pay in the meantime, Thandi can enforce via maintenance court (attach his bonus or salary). This scenario highlights that spousal maintenance serves as a safety net for spouses who exit a marriage at a significant economic disadvantage. The law aims for fairness: one spouse should not be left impoverished after a divorce that ends a long union, nor should one enjoy a lifestyle far higher than the other if resources can be shared. At the same time, spousal maintenance is not punitive and won’t be awarded if both parties are equally capable or if the marriage was short and each can recover on their own.
Scenario 3: Enforcement and Variation – Changing Circumstances
Consider a post-divorce situation: As part of a consent order, Johan has been paying his ex-wife Lerato R5,000 per month spousal maintenance for a planned period of 5 years. Three years later, Johan loses his high-paying job and takes a new job at half the salary. Meanwhile, Lerato, who initially was unemployed, has acquired new qualifications and started a small business. Johan is now struggling to pay the R5,000, and Lerato’s need has lessened though she is not earning as much as the maintenance amount yet.
In such a case, Johan should not simply stop paying (that would get him into legal trouble); instead, he can apply to the court for a reduction in maintenance due to the change in circumstances. He would present evidence of his diminished income and Lerato’s improved situation. A court is likely to adjust the maintenance downwards – perhaps to R2,000 or R3,000 – reflecting the new reality. The goal is still to be fair: if Lerato can now partly support herself, she may not need the full amount; however, if she is not yet fully self-sufficient, some maintenance could continue. The court might also consider that the original term was 5 years and see if it should be extended or not. Variation works both ways: if Johan had not lost his job but instead gotten a big promotion, and Lerato’s needs increased (say she fell ill and has higher expenses), Lerato could have applied to increase the maintenance or extend it beyond 5 years (though extensions of a fixed term are tricky unless a token or nominal order was left in place; generally, a fixed term order cannot be extended after it lapses, which is why sometimes lawyers advise a nominal maintenance after the term to keep it open). The maintenance court (or divorce court) would weigh the evidence and modify the order as needed. For enforcement, if Johan had simply stopped paying before getting the order changed, Lerato could enforce the original order (since until it’s changed, it remains in force). This underscores the importance of formally varying orders through court rather than taking unilateral action.
In all these scenarios, the thread that runs through is that maintenance law tries to balance fairness to the dependents (children or ex-spouses in need) with the capabilities of the obligors (those who must pay). The law is there to ensure that vulnerable family members are not left destitute and that promises and duties are upheld, all under the supervision of the courts to prevent abuse or neglect.
Conclusion
Child and spousal maintenance in South Africa form a vital support system for families, both during marriage and after relationships end. The legal framework – spanning the Maintenance Act, Children’s Act, Divorce Act, and Matrimonial Property Act – provides comprehensive tools to address maintenance issues. Child maintenance is grounded in the principle that both parents must contribute to their child’s upbringing, reflecting the child’s right to adequate care. Spousal maintenance, while not guaranteed, serves as a remedial measure to ensure fairness when one spouse would otherwise be left at a serious economic disadvantage by divorce.
We have seen how to apply for maintenance through user-friendly maintenance courts, how courts calculate reasonable amounts by examining needs and means, and how orders can adapt over time through variation processes. Enforcement mechanisms are strong – a clear message that defaulting on maintenance is not only a civil violation but a possible crime, with defaulters facing garnishee orders, property seizures, blacklisting, and even imprisonment if they willfully refuse to comply. Recent case law demonstrates the courts’ continued refinement of maintenance principles: from confirming that a parent cannot escape child support by shedding parental rights, to affirming that spousal maintenance must be claimed timeously or lost, to awarding appropriate long-term spousal support where justified. Policy developments like the 2018 maintenance amendments show the law’s commitment to efficient and effective maintenance justice – for example, by leveraging technology to trace absent parents and by deterring non-payment through credit blacklisting.
For legal practitioners and students, it is important to approach maintenance issues with a combination of legal precision and human empathy. One must gather detailed financial information, understand the applicable statutes and precedents, and craft arguments that align the client’s situation with legal criteria (be it Section 7(2) factors for spousal support or the child’s best interests for child support). At the same time, maintenance cases are about real lives – a single mother needing money to buy groceries, or an aging ex-husband needing support for medical bills. The courts strive to reach fair outcomes that protect those who cannot fully support themselves, without unduly burdening those who pay beyond their means. It’s a delicate balancing act, one that requires continuous oversight and, often, adjustment as life goes on.
Lastly, resources like the Maintenance Calculator are available to help individuals estimate their potential maintenance obligations or entitlements. While such tools are not a substitute for professional legal advice, they empower the public with a starting point in understanding maintenance quantification. Maintenance matters can be emotionally charged and complex, but with the legal guidelines and mechanisms outlined in this article, both laypersons and professionals can navigate the process more confidently and ensure that dependents – especially children – receive the support they need and deserve.
Questions and Answers
Q1: What is the legal duty of parents to support their children in South Africa?
A1: In South Africa, both parents have a legal duty to maintain their children according to their respective means, regardless of marital status. This duty is grounded in common law and codified in the Maintenance Act 99 of 1998 (Section 15) and the Children’s Act 38 of 2005 (Section 18(2)(d)). It continues beyond the age of 18 if the child is not self-supporting.
Q2: How do you apply for child maintenance in South Africa?
A2: You apply at the Maintenance Court (usually part of the Magistrate’s Court) where you or the other parent live or work. Complete the application form, provide proof of income and expenses, and the court will issue a summons for the other parent to attend a maintenance enquiry. If no agreement is reached, the magistrate will decide based on the child’s needs and both parents’ ability to contribute.
Q3: How is child maintenance calculated in South Africa?
A3: There’s no fixed formula in law, but courts assess the child’s reasonable needs and apportion the cost between parents according to their incomes. A common method is:
Parent’s share = (Parent’s income ÷ Combined income) × Child’s total monthly needs.
You can use a public tool like maintenancecalculator.co.za to estimate contributions, though final amounts depend on court discretion.
Q4: What happens if a parent doesn’t pay court-ordered child maintenance?
A4: The Maintenance Act allows enforcement via emoluments attachment orders (salary deductions), bank account attachments, seizure of property, credit bureau listing, and even criminal prosecution with up to 3 years’ imprisonment for wilful default. The 2015 Amendment Act also allows tracing through cellphone providers and interim orders to protect the child’s immediate needs.
Q5: Is spousal maintenance automatic after divorce in South Africa?
A5: No. South African law does not give an automatic right to spousal maintenance after divorce. It must be claimed and granted by the court in the divorce proceedings, either by agreement (Section 7(1) Divorce Act) or by the court’s discretion under Section 7(2). If not claimed before divorce is final, the right is lost.
Q6: What factors do courts consider for spousal maintenance?
A6: Section 7(2) of the Divorce Act requires courts to consider: the parties’ means, earning capacity, financial needs and obligations, age, marriage duration, marital standard of living, and relevant conduct. The goal is fairness, often guided by the “clean break” principle, but lifelong or rehabilitative maintenance may be awarded in long marriages or where one spouse cannot become self-sufficient.
Q7: What types of spousal maintenance exist in South African law?
A7:
- Rehabilitative maintenance: fixed-term support to allow financial independence.
- Permanent (lifelong) maintenance: usually until death or remarriage, in long marriages where self-sufficiency is unrealistic.
- Token maintenance: nominal amount (e.g., R1/month) to preserve the right to seek an increase later.
- Interim maintenance: temporary support pending divorce, claimed via Rule 43 (High Court) or Rule 58 (Regional Court).
Q8: Can a maintenance order be changed after it’s granted?
A8: Yes. Under Section 8(1) of the Divorce Act and the Maintenance Act, either party can apply for a variation if circumstances change materially — for example, income loss, increased child expenses, or improved financial status of the recipient. Orders remain binding until officially varied by the court.
Q9: What is the difference between child and spousal maintenance in South Africa?
A9: Child maintenance is a child’s legal right and cannot be waived, focusing solely on the child’s needs and parents’ means. Spousal maintenance is a discretionary post-divorce arrangement to prevent undue hardship, based on fairness between ex-spouses. Courts prioritise child maintenance before considering spousal support.
Q10: How can I quickly estimate my maintenance obligations in South Africa?
A10: You can use the free maintenancecalculator.co.za tool to input your income, the other parent’s income, and the child’s expenses. It provides a guideline split based on proportional income shares. While helpful for planning, actual court orders depend on detailed financial evidence and judicial discretion.
Sources:
Maintenance Act 99 of 1998 and Maintenance Amendment Act 9 of 2015 (South African Government).
Children’s Act 38 of 2005, Section 18(2)(d) (parental responsibility to maintain child).
Divorce Act 70 of 1979, Sections 6, 7(2), 7(3), and 8(1) (maintenance of children and spouses on divorce).
CL v ZL (A181/2024) [2024] ZAWCHC 325 (variation of child maintenance; duty of support codified; best interests principle).
W.L v W.B.L (2022-015956) [2023] ZAGPJHC 1189 (spousal maintenance must be claimed at divorce or forfeited).
F v F (FCP v STC) [2025] ZAWCHC 68 (parental rights termination doesn’t end maintenance duty).
VJ v VJ [2024] ZASCA 92 (dum casta clause – maintenance ceases on remarriage/cohabitation).
J.E.R v B.E.S [2023] ZAWCHC 291 (lifelong spousal maintenance awarded; court’s holistic approach to Section 7(2) factors).
Written by Bertus Preller, a Family Law and Divorce Law attorney and Mediator at Maurice Phillips Wisenberg in Cape Town and founder of DivorceOnline and iANC. A blog, managed by SplashLaw, for more information on Family Law read more here.