Functions of the maintenance court

What is maintenance?

Commonly referred to as ‘alimony’ outside of South Africa, maintenance pertains to the legal obligation of one person to care for another. In the legal sense, maintenance mostly sounds in money – the most common form being monthly instalments being paid to the person who requires maintenance. This person may be an ex-spouse, minor child or even a child older than 18 who cannot yet support themselves.

In divorce proceedings, the duty of a parent to support their child does not cease when the marriage between the parties is terminated. The parent of a child will have a duty of support until the child is old enough and capable of supporting themselves.

Furthermore, in some cases even death will not extinguish this duty – as Section 2(1) of the Maintenance of Surviving Spouses Act 27 of 1990 provides:

“If a marriage is dissolved by death after the commencement of this Act the survivor shall have a claim against the estate of the deceased spouse for the provision of her reasonable maintenance needs until her death or remarriage in so far as she is not able to provide therefor from her own means and earnings”.


Which court can I approach?

Every District Court is empowered through the Maintenance Act 99 of 1998 (“the Maintenance Act”) to also function as a Maintenance Court. Therefore, any person who seeks to be maintained, may approach the magistrate’s court that has jurisdiction over the area that they reside in. Furthermore, if the person seeking maintenance is still under the care of their parent or guardian, the magistrate’s court which presides over the area in which the carer stays may be approached.


Who can claim maintenance?

A claim for maintenance is based on the duty of support owed to one party by another. This duty may exist on the basis of:

·        The parties being or having been married to each other;

·        The blood relationship between the parties;

·        The status of one party as the adopted child of the other.

Another important consideration for those who seek to lodge a maintenance claim, is the so-called ‘means test’ employed by Maintenance Court. Before granting a maintenance order, the Court will ponder whether the maintenance claimed is reasonable; and whether the person who maintenance is claimed from will have the means to pay it.

The factors considered by courts will differ on a case-to-case basis, especially in light of the relief sought by the claiming party – as will be discussed hereunder.


Relief granted by Maintenance Courts

The Maintenance Court can be approach for the granting of an initial maintenance order, or for the variation of an order already in existence. Such a ‘maintenance order’ is defined in Section 1 of the Maintenance Act as “any order for the payment, including the periodical payment, of sums of money towards the maintenance of any person issued by any court in the Republic, and includes, except for the purposes of section 31, any sentence suspended on condition that the convicted person make payments of sums of money towards the maintenance of any other person”.

In this regard, Section 16 of the Maintenance Act stipulates which orders the court may grant. These orders include, but are not limited to, the following:

·        For the maintenance of a child who is still under the care of the parent claiming maintenance;

·        To have the maintained person registered as a dependant on the medical aid scheme of the person from who maintenance is claimed;

·        To cover medical expenses incurred by the mother in relation to the birth of her child.

It is important to note that the above points are merely orders that are generally claimed for and that specific relief may be granted by the Court on the basis of the findings of the Maintenance Officer and Maintenance Investigator.


Where do I start with my maintenance claim?


It is advised that any person who wants to lodge a claim for maintenance, to obtain legal representation. At Heyns & Partners, we specialise in family law matters and take pride in producing effective legal solutions for our clients. If you feel that you may qualify for a maintenance claim, feel free to contact our offices to book an appointment with one of our expert attorneys.