A maintenance order is not necessarily permanent. As life changes, so do financial circumstances. A parent may lose employment, receive a salary increase, or face unexpected expenses. Similarly, a child’s financial needs often increase as they grow older. 

Many people believe that once a maintenance order has been granted, the amount payable can simply be adjusted by agreement or that payments can be reduced if finances become difficult. This is a common misconception. 

South African law provides a legal process for increasing or reducing maintenance where circumstances have materially changed. Understanding when a maintenance order may be varied is essential to protecting both your rights and the best interests of the child. 

What Is a Maintenance Order? 

A maintenance order is a legally binding court order requiring a person to contribute towards the financial support of another person, most commonly a child. 

In South Africa, both parents have a legal duty to maintain their child according to their respective financial means and the child’s reasonable needs. This duty exists regardless of whether the parents were married, divorced, never married, or no longer have a relationship. 

Once granted, a maintenance order remains enforceable until it is lawfully varied or discharged by a competent court. 

When Can Maintenance Be Increased? 

A maintenance order may be increased where there has been a material change in circumstances since the original order was granted. 

Examples include: 

• The child’s educational expenses have increased. 

• Medical expenses have increased due to illness or specialised treatment. 

• The general cost of living has risen significantly. 

• The child now participates in additional educational, sporting or cultural activities. 

• The parent responsible for paying maintenance has experienced a substantial increase in income or financial resources. 

• The original maintenance amount is no longer sufficient to meet the child’s reasonable needs. 

Every application is considered on its own facts, and the court will assess whether an increase is fair and justified. 

When Can Maintenance Be Reduced? 

A maintenance order may also be reduced where the paying parent’s financial circumstances have materially deteriorated. 

Examples include: 

• Loss of employment. 

• A significant reduction in income. 

• Serious illness or disability affecting earning capacity. 

• Retirement results in a substantially reduced income. 

• Increased financial obligations that materially affect the person’s ability to pay. 

However, financial hardship alone does not automatically entitle a parent to pay less maintenance. The court will carefully consider all relevant circumstances before deciding whether a reduction is appropriate. 

Can You Stop Paying Maintenance? 

The simple answer is no. Many people mistakenly believe they can stop paying maintenance if they lose their employment, are unhappy with the other parent, or the child refuses to have contact with them. This is incorrect. 

A maintenance order remains legally binding until it is varied or discharged by a court. Failure to comply with a maintenance order may result in enforcement proceedings, including the attachment of earnings or property, warrants of execution, and, in certain circumstances, criminal prosecution under the Maintenance Act.1  

If your financial circumstances change, you should apply to the Maintenance Court for a variation rather than simply reducing or stopping payments. 

How Does the Court Decide? 

When considering an application to increase or reduce maintenance, the Maintenance Court considers all relevant circumstances. 

These may include: 

• The reasonable financial needs of the child. 

• The income and financial means of both parents. 

• The assets and liabilities of each parent. 

• The child’s age and educational needs. 

• Medical expenses. 

• The standard of living previously enjoyed by the child. 

• Any special circumstances affecting either parent or the child? 

The court’s primary consideration is always the best interests of the child, as protected by section 28(2) of the Constitution of the Republic of South Africa, 1996.2 

What Documents May Be Required? 

When bringing an application to vary maintenance, the court may require supporting documentation, including: 

• Recent payslips or proof of income. 

• Bank statements. 

• A schedule of monthly income and expenses. 

• Proof of educational expenses. 

• Medical accounts. 

• Evidence of any significant change in financial circumstances. 

Providing complete and accurate financial information assists the court in making an informed and fair decision. 

Practical Tips 

If you believe your maintenance order should be increased or reduced, consider the following: 

• Do not stop paying maintenance without a court order. 

• Keep detailed records of your income and expenses. 

• Retain proof of all maintenance payments. 

• Document any significant changes in financial circumstances. 

• Obtain legal advice before applying to vary an existing maintenance order. 

Seeking legal assistance at an early stage may help avoid unnecessary disputes and ensure compliance with the law. 

Conclusion 

Maintenance orders are intended to ensure that children receive appropriate financial support while balancing the financial circumstances of both parents. As those circumstances change over time, the law recognises that maintenance orders may need to be adjusted. 

Whether you are seeking an increase because your child’s needs have grown or a reduction due to genuine financial hardship, any variation must follow the proper legal process. 

Attempting to change maintenance arrangements without a court order may have serious legal consequences. If your circumstances have changed or you are uncertain about your rights and obligations, obtaining legal advice is the best way to protect your interests while ensuring that the child’s needs remain the foremost consideration. For further assistance, consult an attorney at SchoemanLaw.