Maintenance application checklist

A maintenance application is decided on paper far more often than on argument. The magistrate has to work out what the child reasonably needs each month, and what each parent can afford. Both are questions of proof. This checklist is the folder you build before you walk into the building, so that when the clerk or the maintenance officer asks for something, you hand it over instead of promising to bring it next time.

What this document does and when to use it

This is not a court form, and nothing on it gets lodged anywhere. The Maintenance Court gives you the actual application form at the counter, free, and the clerk will help you complete it. What the court cannot do is assemble your evidence, and that is what this checklist is: every document, figure and personal detail the process under the Maintenance Act 99 of 1998 will ask for, in the order you will need it.

Use it when there is no maintenance order yet and the other parent pays nothing, pays too little, or pays only when it suits them, whether or not you were ever married to them. The duty to maintain a child comes from parenthood, not marriage.

Two situations call for something else. If an order already exists and is not being paid, you are enforcing rather than applying, and the route is a complaint of default. Start with the letter demanding unpaid maintenance. If an order exists but the amount no longer fits either parent's circumstances, you are varying it, and how to change a maintenance order sets out that process.

Before you start: get these facts straight

Sit down with a pen before you tick anything.

Who the children are, and who they live with. Full names, dates of birth, and where each one sleeps most nights.

Whether an order already exists. Any court, any date, including a maintenance clause buried in a divorce order. People forget these, and an existing order changes what you are asking for entirely.

What the child actually costs. Not what you wish you could spend, but what leaves your account. This is the number you will be questioned on.

What you earn, all of it. Salary, grant, rent, a side business, help from family. If something you left out comes out at the enquiry, everything else you said becomes suspect.

Which court. The Maintenance Court at the Magistrates' Court in the district where you live or where the child lives, not where the other parent lives.

Walking through it, step by step

Part 1 asks for identity and the children. Every line says "Original plus a copy" for a reason: the court keeps copies and you keep the originals, and a family that hands over its only birth certificate spends the next month at Home Affairs. The unabridged birth certificate matters more than the abridged one because it shows the parents' details, which is what links the other parent to the child.

Part 2 is your own income and expenses. The instruction to print full bank statements, "not a screenshot of the balance", is there because screenshots get rejected. Your fixed expenses go in too, because the magistrate splits the child's costs in proportion to each parent's means.

Part 3 is the monthly budget for the child, and it is the heart of the application. Nothing else in the folder replaces it. Every line has an amount and a column headed "Proof I have". Fill that second column in. The warning that "Round figures without receipts are the ones that get argued about" is the most useful sentence on the page. R2 000 for food, evenly, in a household where the till slips say R1 780, invites the other parent to attack every figure you gave.

Several lines say "the child's share". Food, rent and electricity are household costs, so you have to apportion them, and you have to say how. Three people in the house, one is the child, so a third, is a method a magistrate can follow. Averaging works for the lumpy items: divide the annual uniform cost by twelve and say that is what you did. The maintenance estimator will help you structure the table.

The last tick in Part 3 is the one people skip. "I have noted what I contribute myself, so the court can see the shortfall" turns a wish list into a claim. You are not asking the other parent for the total. You are asking for their share of it, and showing that you already carry yours.

Part 4 is about the other parent. Their employer's name and physical address is the most valuable line in the checklist, because it is what makes a salary deduction possible later. The line about messages "where they say what they earn, what they will pay, or that they cannot pay" is worth an hour of scrolling. People admit their income in WhatsApp long before they admit it in court. If you do not know where they are, go anyway and write down everything you do know, "including the names of relatives, their last known workplace and their social media handles". A maintenance investigator can start from that.

Parts 5 and 6 cover the court itself. They are things you confirm you understand rather than documents you carry: that the court is free, that a maintenance officer investigates first, that an agreement between the parents can be made an order without a full enquiry, and that otherwise a magistrate holds an enquiry and decides. Part 6 is short and practical. Folder, printed budget, identity document, pen and paper, arrive early.

A worked example

This example is illustrative only.

Nomsa Dlamini lives in Tembisa with her two children, aged nine and four. Their father moved to another province two years ago and has sent money three times. Nomsa works in a call centre.

Her Part 3 table is where she spends her weekend. Rent is R4 200 for a home holding three people, so she puts down R2 800 as the children's share and writes the arithmetic in the proof column next to her lease. Groceries come to about R3 600 a month on her bank statement, and she claims two thirds. School fees, aftercare and creche fees are invoices, so those lines are exact. Uniforms cost R2 400 last year, so she enters R200 and notes that it is an annual figure divided by twelve. Her total is R6 940 for both children.

She then writes what she pays herself, R4 100, and asks for the balance. In Part 4 she lists the father's last known employer, his brother's phone number, and a January WhatsApp message in which he says he is now earning "about twelve" at a new job. She takes the folder, in duplicate, to the Maintenance Court in her own district.

The mistakes that make one of these useless

Guessing the budget. A round, unsupported figure is the easiest thing to attack, and once one line collapses the magistrate doubts the rest. The cost is a lower order than the child needs.

Waiting. An order can generally be backdated to the date of your application, not to the date the other parent stopped helping. Every month you delay is money you will never see.

Leaving out your own income or your own contribution. The court is dividing a cost between two people. Without your side of the picture it cannot do the division, and the matter is postponed while you fetch it.

Bringing copies instead of originals, or originals with no copies. The court needs both, and the cost is a wasted day and a second trip.

Not attending. The matter can be struck from the roll and you begin again from nothing, losing the backdating advantage of your original application date.

Treating maintenance and contact as one bargain. They are separate legal duties, and a parent who links them looks worse in front of the magistrate.

Lodging it properly

Go in person to the Maintenance Court in the district where you or the child lives, and tell the clerk you want to apply for a maintenance order. There is no fee, no attorney is needed, and the staff assist people who represent themselves every day.

Complete the application form there, with the clerk's help if you want it, and sign it. Before you leave, have three things written down: your case number, the date you must return, and the name or extension of the person handling the file. Ask for a stamped copy of what you handed in.

The maintenance officer then opens a file and the other parent is summoned to attend with proof of their income and expenses. If they cannot be traced, ask specifically about a maintenance investigator. If the two of you reach agreement, it can be made a maintenance order on the spot, which is what makes it enforceable. Read it before you agree to it. Otherwise the magistrate holds an enquiry, hears both sides, and makes an order or dismisses the claim. Ask for a certified copy of any order before you go home.

If it does not work, or what happens next

If the order is made and then not paid, go back to the same court and lodge a complaint of default. That is also free. The court can order an employer to deduct the money from a salary, attach and sell property through the sheriff, and prosecute, because failing to pay maintenance under a court order is a criminal offence. The law also provides for defaulters' details to go to credit bureaus, but the Minister of Justice has told Parliament this has not been put into practice, so do not count on it. An order stands until a court changes it, and arrears do not quietly disappear the way an ordinary debt can. Read what to do if maintenance is not being paid and work out what is owed with the maintenance arrears calculator.

If the amount was too low, or circumstances change on either side, apply to vary it. If you need representation, Legal Aid South Africa on 0800 110 110 applies a means test, and university law clinics help for nothing.

If there is any history of violence, threats or control, deal with safety first. A protection order is free at any Magistrates' Court. The GBV Command Centre is on 0800 428 428, and the police are on 10111 in an emergency.

LawMatch is not a law firm and this is not legal advice.

Frequently asked questions

Do I need an attorney to apply for maintenance?

No. The clerk helps with the form and the maintenance officer investigates the complaint. An attorney is worth considering if the other parent is self employed, hides income, or is legally represented.

What if I do not know where the other parent works or lives?

Apply anyway, and write down everything you do know. The court has maintenance investigators who can trace people and obtain financial information.

How much should I ask for?

What the budget supports, minus what you already contribute. Do not inflate the figure to leave room for bargaining, because that damages your credibility on every line. See how child maintenance is calculated.

Can I claim for months that have already passed?

An order can generally be backdated to the date of the application. That is why the date you walk into the court matters.

What if the other parent says they will pay if I let them see the child?

Contact and maintenance are separate duties, and neither is payment for the other. Do not agree to that trade, and do not withhold the child to force payment. A parenting plan is the right place to settle contact.