In South Africa, the Maintenance Act governs child support, ensuring children receive the care and financial support they are entitled to. Below we explain how the law works, and how you can keep meeting your maintenance obligations while undergoing debt counselling.
Understanding child support laws in South Africa
Under South African law, both parents are legally obliged to support their children financially, regardless of their marital status or whether they live with the child. This responsibility covers essential needs such as food, clothing, shelter, education, and medical expenses.
The Maintenance Act
The Maintenance Act sets out the legal framework for child support in South Africa. It is designed to ensure that both parents contribute financially to their child's upbringing, regardless of their relationship status, and it establishes fair and reasonable maintenance amounts with the best interests of the child in mind.
How maintenance amounts are determined
The amount of maintenance is determined by several factors, including the income and expenses of both parents, the child's needs, and the standard of living the child is accustomed to. The goal is to provide the child with the same quality of life they would have enjoyed if their parents were living together.
Each parent contributes in proportion to their means, which is why the maintenance court examines both parents' income and reasonable expenses before making an order.
The financial responsibilities of parents
Basic needs
Providing for your child's basic needs is the first priority. This includes a safe and comfortable place to live, nutritious food, and appropriate clothing.
Medical and educational expenses
Maintenance also extends to medical and educational costs. From doctor's visits and medical aid contributions to school fees, uniforms, and transport, both parents are expected to contribute to these aspects of their child's life.
The consequences of not paying maintenance
Failing to pay court-ordered maintenance carries serious consequences in South Africa. If you fall into arrears, the maintenance court can enforce the order through any of the following:
Criminal prosecution. Failure to comply with a maintenance order is a criminal offence. Since the Maintenance Amendment Act of 2015, the maximum sentence is three years' imprisonment.
An emoluments attachment order. The court can order your employer to deduct the maintenance directly from your salary until the arrears are settled.
A warrant of execution. The sheriff can attach and sell your movable property, and if that doesn't cover the arrears, your immovable property.
Attachment of debt. The court can order anyone who owes you money to pay it towards your arrears instead.
Being reported to a credit bureau. The Maintenance Amendment Act allows maintenance defaulters to be reported to credit bureaus, which damages your credit record and your ability to access credit.
Being traced. The court can direct electronic communication service providers to disclose your contact details and address if you cannot otherwise be located.
Maintenance is one of the highest-stakes obligations you can fall behind on, which is why it should never be the payment you skip when money is tight.
Child support and debt counselling
Debt counselling, also known as debt review, is a legal process that helps overindebted people manage their debt by restructuring their repayments and negotiating with creditors on their behalf.
How maintenance is treated under debt counselling
A maintenance order is not a credit agreement, so it cannot be restructured or reduced through debt counselling in the way a personal loan or credit card can. Our guide on debt counsellors sets out which debts do and don't qualify.
What debt counselling does do is account for your maintenance obligation as a necessary monthly expense in your budget. That means the amount available for your creditors is calculated after your maintenance is provided for, rather than competing with it. Your maintenance continues to be paid directly as ordered, separately from the single monthly payment you make to the payment distribution agency.
Tell your debt counsellor upfront
Open communication is essential. Declare your maintenance obligation to your debt counsellor at the assessment stage, along with proof of the court order, so it is built into your budget from the start. If it is left out, your restructured repayment plan will be based on income you don't actually have available.
Balancing maintenance and debt repayment
Maintenance takes priority
Your child's wellbeing comes first, and consistent maintenance payments are essential to it. Unlike most other obligations, non-payment of maintenance carries criminal consequences, so it should be treated as non-negotiable in your budget.
Managing your other repayments
While maintenance is fixed by court order, your other debt repayments can be restructured based on your financial situation. A debt counsellor can help you find the right balance so you can keep up with your child's maintenance payments while working through your debt.
What to do if your circumstances change
Applying to vary your maintenance order
If your financial circumstances change significantly, you can apply to the maintenance court to have the order substituted or discharged. You cannot simply reduce the amount you pay: until the court varies the order, the original amount remains legally due, and arrears will build up.
Acting quickly after a change in income
Unexpected changes such as retrenchment or a drop in income affect your ability to pay. Approach the maintenance court as soon as it happens, rather than waiting until you are in arrears, and seek legal advice about your options. Legal Aid South Africa can assist if you cannot afford an attorney.
Regain financial control with DebtBusters
Struggling to balance your maintenance obligations with the rest of your debt? DebtBusters can help you navigate debt counselling while continuing to meet your responsibilities to your child. Our experienced advisers build your maintenance obligation into your budget from the outset, then negotiate with your creditors to reduce what you pay them.
Don't let financial pressure affect your ability to provide for your child. Contact us today to schedule your consultation and take the first step towards financial freedom.
FAQs
What happens if I can't afford my maintenance payments during debt counselling?
Speak to your debt counsellor and apply to the maintenance court to vary the order. Maintenance remains legally due at the ordered amount until a court changes it, so simply paying less will put you in arrears and expose you to enforcement action. Seek legal advice as soon as your circumstances change.
Can maintenance orders be changed later on?
Yes. If your financial situation changes significantly, you can apply to the maintenance court to have the order substituted or discharged. The court will reassess both parents' income and expenses, and the child's needs, before making a new order.
Is maintenance included in debt counselling?
Not as a debt to be restructured. A maintenance order is not a credit agreement, so it cannot be reduced through debt counselling. It is, however, included in your debt counselling budget as a necessary monthly expense, and you continue paying it directly as ordered.
What happens if I stop paying maintenance?
Failure to comply with a maintenance order is a criminal offence carrying a maximum sentence of three years' imprisonment. The court can also order your employer to deduct the money from your salary, attach and sell your property, and report you to a credit bureau.
How can I protect my child's wellbeing while under debt counselling?
Declare your maintenance obligation to your debt counsellor at the start so it is built into your budget, keep paying it directly and on time, and get legal advice promptly if your income changes.
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