South African law places strong emphasis on the best interests of the child principle, as entrenched in section 28 of the Constitution of the Republic of South Africa. Together with the Maintenance Act 99 of 1998, the Children’s Act 38 of 2005, and the Divorce Act 70 of 1979, this framework recognises and enforces the legal duty of support owed to children.
Maintenance agreements are flexible and can be tailored to suit the specific needs of the parties and the minor child(ren) involved. Common provisions include:
- Monthly monetary contributions toward day-to-day living expenses
- Direct payments to third parties for expenses incurred on behalf of the child(ren)
- Payment methods and due dates
- Contributions toward education, medical care, and extramural activities
Parties may also include customised clauses, such as:
- Annual escalation of maintenance
- Dispute resolution mechanisms
- Procedures for reviewing and adjusting maintenance obligations over time
However, there are clear legal limitations on what may be included in maintenance agreements. Provisions will be unenforceable if they are:
- Unlawful or contrary to public policy
- Intended to exclude the jurisdiction of the courts
- Designed to limit or waive a child’s right to maintenance
- An attempt to alter a parent’s legal duty of support
For example, parties cannot validly agree that a child will not be entitled to maintenance after reaching the age of 18, as the duty of support may continue beyond majority depending on the child’s needs and circumstances. Such a clause would be inconsistent with established legal principles and therefore unenforceable.
Maintenance agreements are not limited to parents who are separated or divorced. They may also be concluded by:
- Married parents
- Cohabiting partners
- Unmarried parents
These agreements may be entered into either verbally or in writing. However, verbal agreements are not advisable, as they often undermine certainty and create evidentiary challenges. It is strongly recommended that maintenance agreements be reduced to writing and signed by both parties.
For greater legal certainty and enforceability, it is preferable to have the agreement made an order of court. Doing so allows parties to enforce its terms through mechanisms provided under the Maintenance Act, including maintenance court proceedings or, where applicable, contempt of court proceedings.
If an agreement is not made an order of court, it may still serve as evidentiary support in subsequent maintenance disputes, but it will not carry the same enforceability.
Maintenance agreements reflect a growing trend toward resolving legal obligations through consensual arrangements, thereby avoiding lengthy and costly litigation. While they offer flexibility and autonomy, parties must remain mindful of their legal limitations.
Obtaining appropriate legal advice is essential to ensure that a maintenance agreement is valid, enforceable, and aligned with the best interests of the child, and that a well-drafted agreement provides clarity and reduces the potential for conflict.
Disclaimer: This article is the personal opinion/view of the author(s) and does not necessarily present the views of the firm. The content is provided for information only and should not be seen as an exact or complete exposition of the law. Accordingly, no reliance should be placed on the content for any reason whatsoever, and no action should be taken on the basis thereof unless its application and accuracy have been confirmed by a legal advisor. The firm and author(s) cannot be held liable for any prejudice or damage resulting from action taken based on this content without further written confirmation by the author(s).
