In terms of section 18(2)(d) of the Children’s Act 38 of 2005, parents have a responsibility to contribute to the maintenance of their children, however, the duty to maintain extends beyond this section. Section 6(1)(a) of the Divorce Act 70 of 1979 provides that a decree of divorce shall not be granted until the court is satisfied that the provisions made or contemplated with regard to the welfare of any minor or dependent child of the marriage are satisfactory or are the best that can be effected in the circumstances. Section 6(3) takes it further and provides that a court granting a decree of divorce may make any order which it may deem fit in respect of maintenance of a dependent child of the marriage.
Where there is no maintenance court order which makes provision for the parents to pay maintenance up until the child becomes self-supporting, a major dependent child is not left without recourse. In this instance, the child as an adult, is deemed to be old enough to bring an application for maintenance in his or her own name. It has been held, that the wording of a court order regarding the responsibility of maintenance is the deciding factor as to when the maintenance obligation will lapse.
Nothing prohibits a major dependent child from approaching a maintenance court in his or her individual capacity. To what extent such an application would be successful and the duration of parents’ duty of support are often difficult questions to answer.
The onus shifts to the adult child to prove how much maintenance he or she needs. While case law sets out certain guidelines, the maintenance that an adult dependent child is entitled to, is to be determined on a case-by-case basis.
If however a major child ceases to be self-supporting for reasons such as ill-health or disability, the duty to maintain may be revived. The interpretation of self-sufficiency is in the courts’ discretion and is also dealt with on a case-by-case basis. It is important to note that adult children are not maintained as extensively as minor children and the reasonableness of the parent’s duty to maintain such a child is an essential factor which must be considered in these cases.
by Kim David
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)