There is no fixed formula for calculating child maintenance in South Africa. Maintenance is assessed on a case-by-case basis, considering:
- The reasonable needs of the child;
- Each parent’s income and earning capacity;
- Each parent’s financial obligations;
- The standard of living of the child;
- Any special needs of the child.
Parents are expected to contribute proportionally according to their means, not equally. A higher-earning parent may therefore be required to contribute a greater share.
Maintenance and Unmarried Mothers
In most cases, the unmarried mother is the primary caregiver. This does not exempt her from contributing financially. Her contribution may take the form of:
- Direct financial support; and/or
- Indirect contributions such as housing, caregiving, and daily supervision.
Where the mother’s income is limited, the father may be required to contribute a larger financial portion to ensure the child’s needs are met.
Maintenance and Unmarried Fathers
An unmarried father is legally obliged to maintain his child, irrespective of whether he has parental responsibilities and rights under the Children’s Act.
Importantly:
- Maintenance is not conditional on contact or custody;
- A father may not withhold maintenance because access is denied;
- Equally, a parent may not deny access because maintenance is unpaid.
Each issue must be addressed through the appropriate legal process.
Private Maintenance Agreements
Unmarried parents may enter into a private maintenance agreement, setting out:
- The amount payable;
- Payment frequency;
- Shared expenses such as school fees and medical aid;
- Annual increases.
For enforceability, such agreements should be made an order of court. Without a court order, enforcement may be difficult if one party defaults.
Maintenance Court Proceedings
Where parents cannot agree, either party may approach the Maintenance Court in the district where the child resides.
The process generally involves:
- Lodging a maintenance application;
- Financial disclosure by both parents;
- An inquiry conducted by a maintenance officer or magistrate;
- The issuing of a maintenance order.
The court may also make interim arrangements pending the final determination.
Enforcement of Maintenance Orders
If a parent fails to comply with a maintenance order, the Maintenance Act provides several enforcement mechanisms, including:
- Garnishee orders against salary or wages;
- Attachment of property;
- Interest on arrears;
- Criminal prosecution for wilful default.
Failure to pay maintenance is a serious offence and may result in fines or imprisonment.
Variation or Reduction of Maintenance
Maintenance orders are not permanent and may be varied or reduced where circumstances change. Valid reasons include:
- Loss of employment;
- Significant reduction in income;
- Increased needs of the child;
- Remarriage or additional dependants.
Any variation must be authorised by the Maintenance Court. Unilateral reduction of payments is unlawful.
Maintenance Beyond Majority
A parent’s duty to maintain a child does not automatically end when the child turns 18. Maintenance may continue where the child:
- Is still dependent;
- Is pursuing tertiary education;
- Is unable to support themselves due to disability or illness.
In such cases, maintenance may be claimed directly by the child.
The Best Interests of the Child
All maintenance matters are guided by the best interests of the child. The court’s primary concern is ensuring that the child’s basic and developmental needs are met in a manner that promotes dignity, stability, and security.
Conclusion
Child maintenance is a legal obligation rooted in the rights of the child rather than the relationship between the parents. For unmarried parents, the law provides clear mechanisms to ensure that children receive adequate financial support from both parents according to their means.
Early legal advice can assist parents in understanding their rights and obligations, resolving disputes efficiently, and ensuring that maintenance arrangements remain lawful, fair, and focused on the child’s welfare.