How to change a maintenance order

You change a maintenance order by going back to the Maintenance Court and asking a magistrate to substitute it with a new one. You cannot change it yourself, and you and the other parent cannot change it by agreement on WhatsApp. Under the Maintenance Act 99 of 1998, an existing order stays in force exactly as it was made until a court varies or discharges it. If you start paying less because you lost your job, you are in arrears from the first short month, even if the court later agrees that the amount should come down.

This guide is part of our Maintenance in South Africa: the complete guide, which links every guide on the topic.

That is the most important point in this guide. Apply first. Keep paying what you can while you wait.

What counts as a change of circumstances

The court varies an order when the circumstances the original order was based on have genuinely changed. The most common reasons are:

• the paying parent has been retrenched, has had hours cut, or is earning much less
• the paying parent is now earning much more, and the child is not sharing in that
• the child's needs have changed, for example a move to high school, a medical condition, or a new therapy
• the child now lives mostly with the other parent
• either parent has a new dependant, such as a new baby, that affects what is available
• the receiving parent's own income has risen or fallen materially
• the child has become self-supporting and the order should end

What does not count is simply disliking the amount. A court will not reopen an order because you have decided, on reflection, that it was too high or too low. New credit agreements you have signed since the order will rarely help you either, because the child's needs generally rank ahead of your discretionary spending.

How a variation works, step by step

Step one: go to the Maintenance Court. It sits in the Magistrates' Court. Use the court that made the original order, or the court for the district where you or the child now live. Tell the clerk you want to apply to vary an existing maintenance order. There is no fee and you do not need an attorney.

Step two: complete the application. The maintenance officer will give you the form and a fresh statement of income and expenses. This is where your evidence goes. Attach proof of the change: a retrenchment letter, a new payslip, a school fee statement, a medical report.

Step three: the other parent is notified. The maintenance officer arranges for the other parent to be served with notice to attend court. The maintenance investigator can obtain financial information from employers and banks.

Step four: the first appearance. Both of you attend. If you agree on a new figure, the magistrate can make it a consent order that day. If you do not, the matter is set down for a formal enquiry.

Step five: the enquiry. The magistrate hears both parents, looks at the documents, and makes a new order or refuses the application. The new order replaces the old one from the date the magistrate sets, often the date of the new order itself. Backdating is a discretion, so do not assume the reduction runs from the day you lost your job.

A worked example

Take a made-up family. Thabo and Naledi separated four years ago. Their daughter Zanele is twelve and lives with Naledi. The existing order requires Thabo to pay R3 500 a month. The figures below are round numbers chosen to show the method, not a formula, and a court is not bound to reason in this way.

Thabo is retrenched in March. In May he finds new work, but his net salary drops from R22 000 to R9 000. He goes to the Maintenance Court in the same week and applies to vary the order. He keeps paying R1 800 a month, which is what he can manage, and he tells Naledi in writing that he has applied.

At the enquiry, Naledi proves that Zanele's monthly costs are now R7 000, including a share of rent, school fees, transport and medical aid. Naledi's own net income has risen from R10 000 to R15 000. The combined income is R24 000, and Thabo now earns a little over a third of it. Working from proportion to means, Thabo's share of Zanele's costs would be in the region of R2 600. The magistrate substitutes the order at R2 600 from the date of the new order.

Because he applied in the same week his income changed, Thabo's arrears cover only two months of shortfall: R3 500 less R1 800, twice, which is R3 400. Had he waited six months to apply, hoping things would improve, his arrears would be R10 200, and the new order would not wipe them out. Delay is the most expensive mistake in maintenance.

Run your own figures through the maintenance estimator. It is illustrative only, but it shows whether your proposal hangs together before you present it to a magistrate.

What to do this week

1. Write down, in one paragraph, exactly what has changed and when.
2. Gather proof of the change. This matters more than anything you will say in court.
3. Work out what you can genuinely afford now, and start paying that amount every month, on time, with a reference on the payment.
4. Tell the other parent in writing that you are applying to vary the order. Keep it short and civil.
5. Go to the Maintenance Court and open the application. Do not wait for the paperwork to be perfect.
6. If you are the receiving parent and the child's costs have risen, rebuild the child's budget line by line with the new items.

Documents to gather

• your identity document and the child's birth certificate
• a copy of the existing maintenance order
• three months of payslips and bank statements
• proof of the change: retrenchment letter, UIF documents, a new contract of employment, medical reports, or a school fee statement
• your updated monthly budget with receipts and invoices
• proof of every maintenance payment you have made since the order
• anything you know about the other parent's current income, employer or lifestyle, such as a new car or a promotion

A realistic timeline

On the day you apply, the clerk opens the file and you complete your statement. Within a few weeks the other parent is served. The first appearance is usually set a month or two after that. If you agree there, the consent order is made the same day. If the matter goes to a formal enquiry, add another one to three months, longer if either parent asks for a postponement or the court has few sittings. Throughout that time, the old order remains enforceable.

Common mistakes and what they cost

Stopping or reducing payments before you apply. Every short month becomes arrears. Arrears can be recovered by garnishee order against your salary, by attachment of property, and in serious cases by criminal prosecution. See what to do if maintenance is not being paid.

Relying on a verbal agreement. If the other parent says "pay me R2 000 for now, that is fine," that agreement does not change the order. Two years later, the full arrears can still be claimed. Have any agreed change made a consent order.

Arriving without proof. A parent who says "I earn less now" without a payslip is not believed. A parent who says "school is more expensive" without a fee statement is not believed either.

Overstating the crisis. If you claim you cannot afford anything and the investigator finds you bought a car three months ago, you lose the court's trust on every other point.

What the court weighs

The court asks two questions. What does the child reasonably need now, and what can each parent afford now. It then divides the cost in proportion to means, giving weight to the daily care the resident parent provides in kind. See how is child maintenance calculated for the method in detail.

Behind those questions sits the standard in the Children's Act 38 of 2005: the best interests of the child come first. In plain words, the court is trying to protect the child's standard of living, not to punish or reward either parent. A retrenched parent will not be ordered to pay what they cannot earn, but a parent who has chosen to earn less will usually be treated as if they still had their earning capacity. A child whose costs have genuinely risen will not be held to a budget that was drawn up when they were five.

If you cannot afford an attorney

You do not need one for a variation. The Maintenance Court is free, the maintenance officer helps you complete the forms, and the maintenance investigator gathers financial information for you. Most variations are done by parents on their own.

If the matter is complicated, for example the other parent runs a business and hides income, Legal Aid South Africa on 0800 110 110 applies a means test and takes on some maintenance matters. University law clinics in most large centres also help for free. For a sense of what a private attorney might charge if you go that route, see what family law costs.

If the other parent is abusive, do not let that stop you applying. You can ask the maintenance officer to keep you apart at court. A protection order is a separate free process at the same Magistrates' Court, and the GBV Command Centre on 0800 428 428 can help you plan. In an emergency, call SAPS on 10111.

Frequently asked questions

People often ask whether they can reduce payments while the application is pending. The honest answer is that the old order remains in force until the new one is made, so any shortfall is arrears. Paying what you can, consistently and with proof, puts you in the best position to ask the court to deal with those arrears sensibly.

Receiving parents often ask how often they can apply for an increase. There is no fixed limit. Each application needs a genuine change of circumstances, so a yearly application with no new evidence will fail, while an application when the child moves to high school will usually succeed.

Paying parents ask whether a new baby with a new partner reduces what they must pay. A new dependant is a change of circumstances, but it does not automatically cut the existing order. The court weighs the needs of all the children against the parent's means.

Both parents ask whether the order ends automatically at eighteen. It does not. Maintenance continues while the child is not yet self-supporting. If the child is now working and independent, apply to have the order discharged rather than simply stopping.