Peter had been paying child maintenance towards a child who was believed to be his. He has paid the maintenance for 11 years without a maintenance order in place. He just supported the child under the impression that he was the father. After a paternity test, Peter discovered that he is not the biological father of the child and now wants to claim all the child maintenance money back from the mother of the child. 


Can Peter legally claim back the child maintenance, and if so, who can he claim the child maintenance from?


What is maintenance?


Maintenance is an amount of money that a person has to pay towards another person based on a legal duty to support that person. A legal duty to support a person is based on the relationship between the persons, the need to be supported and the ability to support. For example, the biological or adoptive father of a child has a legal duty to support his child, if the child needs to be supported and he is able to support the child. For more information about maintenance, click here.


Can you claim back child maintenance after a negative paternity test?


The issue about whether maintenance can be claimed back after a father finds out that the child is not his has been dealt with by courts in the past. However, these types of claims do not easily succeed.


In South African law, when money is transferred by one person to another person without there being a legal reason/cause for such transfer, it is called an unjustified enrichment. For example, after finding out that he is not the biological father, Peter can argue that there was technically no legal reason to have paid the child maintenance all these years and that the mother was unjustifiably enriched through this. 


What are the requirements for unjustified enrichment?


There are certain essential requirements that must be met before it can be said that a person has been unjustifiably enriched by another person. There are four essential requirements for claiming unjustified enrichment.


  1. One person (defendant) must be enriched by receiving the money.

  • The transfer or payment must have been made in good faith and under a mistaken belief that it was owed.

  • In Peter’s case, the mother of the child and to some extent the child themselves, must have received the maintenance in good faith or had a belief that they are entitled to receive maintenance as part of Peter’s parental duties/obligations.


  1. The other person (plaintiff) must be impoverished by paying the money.

  • The transfer must have been made without a legal obligation.

  • The error in paying must have been reasonable. This means that the mistake must be excusable in the circumstances of the case.

  • In Peter’s case, he needs to prove that he paid the child maintenance while under the impression that he had a legal duty to support the child.


  1. The defendant’s enrichment must be at the expense of the plaintiff.

  • The enrichment must have been at the expense of the plaintiff and not of some third party.

  • In Peter’s case, he was the one making the payments himself. 


  1. The enrichment must be unjustified or without a legal obligation.

  • In Peter’s case, there was a belief that he must pay the child maintenance, but it soon became clear after the paternity test that there never has been a legal obligation to pay.


What did the courts say?


Although it seems that Peter has ticked all the requirements for a claim of unjustified enrichment in this scenario, the courts have had quite a lot to say about one of the requirements in the past. The requirement being focussed on is whether the person (generally the mother of the child) was indeed enriched.


In the case of ER v LB (2013) ZAWCHC 161 (“ER case”), the father demanded repayment of maintenance from the mother. The mother submitted that payment was made in respect of maintenance of the children and not for her own benefit, accordingly, it would be the children who are enriched and not her. 


The court held in the ER case that it is not enough for the father to show that money was paid into the bank account of the mother. The father must be able to prove that the mother’s estate was enriched by the payments made. 


The court underscored the discussion in another court case of MN v AJ 2013 (3) SA 26 (WCC) (“MN case”), where the following was held:


“…Given the fact that the money that was paid was for the maintenance of a child (and there is no suggestion that the defendant did not use it for that purpose), it would not be fair to the defendant to now order her to restore either the entire amount or a part thereof to the plaintiff…”

The court in the ER case finally held that there was no basis for finding that the mother was unjustifiably enriched and the claim did not succeed. 


In a more recent case, the court in MN v BN (2023) ZAFSHC 236 confirmed the legal position and the judge remarked as follows:


“…courts may in the future be wary of recognising claims in circumstances such as the present which necessitate an enquiry into paternity and which may have the tendency to destroy an otherwise loving and caring parental relationship with a child whose rights to family and parental care are protected under Section 28 of the Constitution.”


The courts touched on the important aspect of public policy in claiming back child maintenance and the judge in the MN case made the following remark:


“…Considerations of public policy must be viewed through the prism of constitutionalism. Public policy represents the legal convictions of the community; it represents those values that are held most dear by the society. Since the advent of our constitutional democracy, public policy is now deeply rooted in our Constitution and the values that underlie it. The Bill of Rights, as the Constitution proclaims, is a “cornerstone” of that democracy; “it enshrines the rights of all people in our country and affirms the democratic founding] values of human dignity, equality and freedom.”


In the ER case the court held that “the applicant’s claim for repayment of the maintenance amount offends public policy”. The court did not agree with an argument made that fathers would be unequally treated if they are not allowed to reclaim maintenance in these scenarios. The court held that the rights of the fathers in these instances must be considered in the context of public policy and the Constitution. It further held that a fundamental right of children is that the best interests of children must be considered to be paramount in matters that impact them. 




While nothing bars Peter from bringing an unjustified enrichment claim in court, it is important to note that the merits of each case will determine its outcome. 


In terms of case law, if it can be proven that the maintenance went towards the support of the minor child, it cannot be said that the mother was enriched by the father, as the maintenance was for the benefit of the child. Technically, the claim would then have to be against the child, not the parent that received the maintenance on behalf of the child.


As Peter is not the biological or adoptive father of the child, his legal duty to support/maintain the child falls away automatically. However, it appears that he will have a difficult time trying to convince a court to award him the amount he paid in child maintenance due to public policy and the stance in all matters pertaining to children is that their best interests and constitutional rights are of paramount importance.