What Is the Maintenance Court?
The Maintenance Court is a section of the Magistrates' Court that deals only with maintenance matters. There is one at every Magistrates' Court in South Africa, from the major cities down to the smallest rural towns. The procedure, the forms, and the rules are all set out in the Maintenance Act 99 of 1998 and the regulations made under it.
Maintenance courts deal with two main categories of matter:
- Child maintenance — applications by one parent against the other (or by another caregiver against a parent), or by an adult child against a parent in limited circumstances.
- Spousal maintenance — applications between current spouses, between divorced spouses where a maintenance order is needed, and in some cases between people in life partnerships.
The Maintenance Court is deliberately accessible. There are no court fees, you do not need a lawyer to apply, and the maintenance officer at each court is required to help applicants complete the paperwork.
Who Can Claim Maintenance
Children
Both legal parents (biological or adoptive) have a duty to maintain their minor children regardless of marital status. This duty exists whether the parents are married, unmarried, divorced, separated, or never lived together. It does not depend on contact: a parent who has no contact with the child still owes maintenance, and a parent who has primary residence still has a duty to contribute to the child's costs.
In limited circumstances, grandparents may also be liable to maintain a grandchild if both parents are unable to do so.
The duty of maintenance does not automatically end when the child turns 18. If the child is still in education, training, or otherwise unable to be self-supporting (for example, due to disability), the duty continues. Most maintenance orders for children are framed to continue until the child is "self-supporting" rather than ending on a fixed date.
Spouses
A spouse can claim maintenance against the other spouse during the marriage and on divorce. Spousal maintenance is not automatic. The court considers the factors in section 7(2) of the Divorce Act, including the length of the marriage, each spouse's earning capacity, their ages, the standard of living during the marriage, and the conduct that contributed to the breakdown.
Maintenance can also be ordered as part of a separation arrangement before divorce, especially where a Rule 43 application is made for interim relief while the divorce is pending.
How Maintenance Is Calculated
There is no fixed formula in South African law. The court applies a needs-and-means test:
- The reasonable needs of the maintenance recipient (or, in the case of children, their reasonable needs including food, accommodation, schooling, healthcare, transport, clothing and other necessaries)
- The respective means of both parents, including income, assets, expenses, and earning potential
In child maintenance matters, the court typically asks both parents to complete a budget for the child. This is then divided between the parents in proportion to their respective incomes. A parent earning more pays a larger share. The total amount must be reasonable in relation to the child's actual needs and the family's overall standard of living.
Means includes earning capacity, not just current income
If a parent has the ability to earn but is deliberately unemployed or under-employed, the court can impute an income to them based on their qualifications and earning capacity. Maintenance cannot be avoided by walking away from work.
How to Apply: Step by Step
The procedure for an application is largely the same across all Maintenance Courts in South Africa.
- Visit the Maintenance Court. Go to the Magistrates' Court that has jurisdiction over the area where the child lives (for child maintenance) or where the applicant lives (for spousal maintenance). Ask for the maintenance section.
- Complete the application form (Form J101, "Complaint in terms of section 6(1)(a) of the Maintenance Act"). The maintenance officer will assist if needed. You will be asked for personal details of both parties, details of the children, your monthly income and expenses, and details of the maintenance you are seeking.
- Provide supporting documents. Bring identity documents, birth certificates of the children, proof of income (payslips, bank statements), proof of expenses (school fees, medical aid contributions, rent, utility bills), and any existing court orders.
- The maintenance officer investigates. The maintenance officer must investigate the complaint under section 6 of the Act and can issue directives requiring parties or third parties to produce documents or attend interviews. Once a maintenance enquiry has been instituted, the officer can also subpoena witnesses, books and documents to give evidence at the enquiry.
- The respondent is summoned. The respondent (the person from whom maintenance is sought) is served with a summons requiring them to attend the inquiry on a specified date and to bring proof of their income and expenses.
- The maintenance inquiry is held. The magistrate hears both parties, considers the evidence, and either makes an order by consent or after considering the evidence.
- The order is granted. The maintenance order specifies the amount, the date payments must start, the frequency, and any other conditions. It is binding immediately.
The Maintenance Inquiry
The inquiry is informal compared to a civil trial but still follows a fair procedure. Both parties give evidence under oath, can be cross-examined, and can call witnesses if needed. The magistrate is entitled to ask questions and direct the proceedings.
Most inquiries do not run for a full day. Many are resolved by a consent order where the parties agree on the amount and the magistrate makes that agreement an order of court. Where the parties cannot agree, the magistrate hears evidence and decides.
If the respondent fails to attend after being properly summoned, the court can grant a default order in the respondent's absence. If the respondent fails to provide proper financial information, the court can draw adverse inferences against them.
Enforcement of Maintenance Orders
A maintenance order is binding from the date it is made. Failure to pay is treated as both a civil and a criminal matter under the Maintenance Act.
Civil Enforcement
- Attachment of emoluments (garnishee order): the court can order the defaulter's employer to deduct the maintenance directly from the defaulter's salary or wage and pay it over to the recipient.
- Civil judgment: arrears can be obtained as a money judgment under section 26 of the Act and enforced like an ordinary judgment debt. In serious or persistent cases the existence of arrears can be reported to credit bureaus, which can affect the defaulter's credit profile.
- Attachment of bank accounts: the court can order the defaulter's bank to freeze accounts and pay the arrears from the funds available.
- Warrant of execution against property: movable property of the defaulter (such as a vehicle or household goods) can be attached by the Sheriff and sold to pay the arrears.
Criminal Enforcement
Section 31 of the Maintenance Act makes failure to pay maintenance a criminal offence. A defaulter who fails to comply with a maintenance order can be prosecuted, convicted, fined, or sentenced to imprisonment for a period not exceeding three years (or both). The defence of lack of means is not available where the failure to pay was due to unwillingness to work or misconduct. In serious or repeated cases, prosecution is the most effective remedy.
How to start enforcement
Go back to the same Maintenance Court where the order was granted, complete the enforcement application form, and provide proof of the arrears. The maintenance officer can advise on which enforcement option is most likely to succeed in your circumstances.
Varying or Reducing an Order
A maintenance order is not permanent. Either party can apply to the same Maintenance Court to vary the order if circumstances have changed. The procedure mirrors a fresh application: complete the application form, provide supporting documents, and attend an inquiry.
Common reasons to apply for variation include:
- A material change in either party's income (job loss, retrenchment, promotion, business growth)
- A change in the child's needs (starting a new school, increased medical costs, university)
- The recipient remarrying (which may reduce or end spousal maintenance, but does not affect child maintenance)
- Long-term illness or disability of either party
The court will only vary an order if the change in circumstances is real and material. A respondent cannot simply ask for a reduction because they want to pay less.
Cross-Border Maintenance
South Africa is not a party to the United Nations Convention on the Recovery Abroad of Maintenance (1956) or the Hague Maintenance Convention (2007). Cross-border maintenance is instead handled under domestic legislation, principally the Reciprocal Enforcement of Maintenance Orders Act 80 of 1963 and the Reciprocal Enforcement of Maintenance Orders (Countries in Africa) Act 6 of 1989. Through the 1963 Act, maintenance orders can be enforced reciprocally between South Africa and a list of proclaimed countries that includes the United Kingdom, Australia, New Zealand, Canada, Germany, the Isle of Man, Hong Kong, Lesotho, Botswana, Namibia, Zimbabwe and Zambia, among others.
If a defaulter has emigrated or is working abroad in a proclaimed country, you can still pursue maintenance. The procedure is more complex than a domestic application and usually requires legal assistance. The Department of Justice handles requests for reciprocal enforcement through designated courts.
Maintenance Courts by City
There is a Maintenance Court at every Magistrates' Court in South Africa. Below are notes on the major centres. To find the exact address, contact details and operating hours of any court, visit www.justice.gov.za or call the relevant court directly.
Johannesburg Maintenance Court
Operates within the Johannesburg Magistrates' Court. The largest maintenance court in the country by volume. There are also dedicated maintenance courts at Roodepoort, Randburg, Soweto, Alexandra and other Gauteng centres.
Cape Town Maintenance Court
Located at the Cape Town Magistrates' Court. Other Western Cape maintenance courts include Wynberg, Mitchells Plain, Bishop Lavis, Bellville and Goodwood.
Pretoria Maintenance Court
At the Pretoria Magistrates' Court. Other Tshwane area maintenance courts include Atteridgeville, Soshanguve and Mamelodi.
Durban Maintenance Court
At the Durban Magistrates' Court. Other KwaZulu-Natal centres include Pinetown, Pietermaritzburg, Verulam, Umlazi and Chatsworth.
Bloemfontein Maintenance Court
At the Bloemfontein Magistrates' Court, serving the Free State. Other Free State courts include Welkom, Sasolburg and Kroonstad.
Port Elizabeth Maintenance Court
At the Port Elizabeth (Gqeberha) Magistrates' Court. Other Eastern Cape courts include East London, Mthatha and Uitenhage.
Germiston, Tembisa, and Other East Rand
The East Rand has dedicated maintenance courts at Germiston, Tembisa, Alberton, Boksburg, Benoni, Brakpan and Springs.
Potchefstroom Maintenance Court
At the Potchefstroom Magistrates' Court. Anel Krog Attorneys is based in Potchefstroom and assists with maintenance matters in the surrounding North West region.
When You Need an Attorney
The Maintenance Court is designed to work without lawyers, and many uncomplicated cases are handled by the parties themselves. However, having an attorney is strongly recommended in the following situations:
- The respondent denies the duty to maintain (for example, paternity is disputed)
- The respondent is hiding income, has complex business interests, or claims poverty in bad faith
- You are appealing a decision of the Maintenance Court to the High Court (appeals must be noted within 20 days of the order — leaving it longer usually forfeits the right of appeal)
- The other party is represented and you are not
- A cross-border element is involved
- The matter is part of broader divorce or family law proceedings
Even in uncomplicated cases, a short consultation with an attorney before lodging the application can help you set realistic expectations and gather the right documents.
Need Help With a Maintenance Matter?
Anel Krog Attorneys handles maintenance applications, variations, enforcement and appeals in Potchefstroom and surrounding areas. Get clear guidance and professional representation.
Frequently Asked Questions
Where is the Maintenance Court?
There is a Maintenance Court at every Magistrates' Court in South Africa. You apply at the court that has jurisdiction over the area where the child lives or, in the case of spousal maintenance, where the applicant lives.
How much does it cost to apply for maintenance?
Applying to the Maintenance Court is free. The Maintenance Act 99 of 1998 makes the procedure deliberately accessible. There are no court fees for issuing the application or for the maintenance inquiry.
How long does the Maintenance Court take?
From application to first inquiry is typically 4 to 12 weeks at busier courts and faster at smaller ones. Default orders can be made if the respondent ignores the summons.
What happens if the maintenance order is not paid?
Failure to pay is a criminal offence under section 31 of the Maintenance Act. Enforcement options include attachment of salary, civil judgment, attachment of bank accounts, attachment of property, and ultimately criminal prosecution which can result in a fine or imprisonment of up to three years.
Can a maintenance order be changed?
Yes. Either party can apply to the Maintenance Court to vary an existing order if circumstances have changed materially. Common grounds include a change in income or expenses, the child's needs changing, or remarriage of the recipient spouse.
Do I need a lawyer for the Maintenance Court?
You do not need a lawyer to apply, and the system is designed to be accessible. However, in contested matters where the respondent denies the duty to maintain, claims poverty, or hides income, having an attorney is strongly recommended.
