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1900

Claiming Maintenance for Adult Children Who Are Not Yet Financially Independent

Claiming Maintenance for Adult Children Who Are Not Yet Financially Independent

Author: Fawzia Khan
Date: 2022-07-28

On 21 July 2022 the Supreme Court of Appeal in Bloemfontein delivered a watershed judgment on the issue of whether or not a parent was allowed to claim maintenance on behalf of his or her adult (but not financially independent) children. Up to that point there were differing rulings on the matter, with some judgments ruling that adult, not self­supporting, children had to institute their own separate maintenance application against the parent who owed them a duty of support.

This could not be done by the other parent on behalf of the adult child. In terms of common law both divorced parents have a duty to maintain their children. How much maintenance and for how long it must be paid will depend on the facts of each case, as well as the means and circumstances and the needs of the "child" from time to time.

A mother of two children, both of whom were over 18 instituted divorce proceedings against her husband. In her divorce action, she claimed maintenance for herself as well as two children. The father raised a special plea saying that as his two children were no longer minors, a mother lacked the necessary "locus standi" capacity to claim maintenance on behalf of the children and the children had to do so in their own names.

The high court in Port Elizabeth accepted that argument and ruled in favour of the father. It held that the mother lacked the capacity to claim maintenance on behalf of the children that she be ordered to join the two adult children as parties to the divorce action.

The mother appealed against that decision. The Supreme Court of Appeal agreed that in terms of Section 6 of the Divorce Act, a court must be satisfied that the welfare of any minor child or dependent child was provided for, failing which the court would not able grant the divorce. It said that most children were not financially independent by the time they turned 18 and many may not even have completed high school.

Often children start their tertiary education or vocational training after they have attained the age of majority. Their ability to easily obtain employment was also not guaranteed. The SCA held that regardless of whether or not they were adults or minors, children should preferably maintain a meaningful relationship with both their parents after the divorce.

A child should not be expected to have to take sides in their parents' divorce proceedings and therefore should not institute a claim together with one parent against the other. The SCA was thus not in favour of having the children being joined as parties to their parents' divorce proceedings, saying that "dependent children should remain removed from the conflict between their divorcing parents for as long as possible, unless they elect to themselves assert their rights to the duty of support".

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