Picture source: Gallo Images/Getty
In my observations of maintenance courts, I observed that maintenance officers opt for the discharge of maintenance orders when minor children turn 18 years old and are deemed as young adults in terms of s 17 of the Children’s Act 38 of 2005. The recent Supreme Court of Appeals (SCA) decision of Z v Z 2022 (5) SA 451 (SCA) is discussed in line with the National Strategic Plan on Gender-Based Violence and Femicide (NSP on GBVF) pillar five governmental policy and the recent South African Law Reform Commission (SALRC) Discussion Paper 157 on the Review of the Maintenance Act 99 of 1998.
The SCA on 21 July 2022 in a unanimous decision of Z v Z dispelled the notion that mothers cannot apply for maintenance on behalf of their young adult children above the age of 18. It is trite law that the duty of a parent to support a dependent child does not come to an end at any particular age, even the attainment of majority, but continues until the child becomes self-supporting or independent as was found in Bursey v Bursey and Another 1999 (3) SA 33 (SCA), Ex parte Jacobs 1982 (2) SA 276 (O) and Lambrakis v Santam Ltd 2000 (3) SA 1098 (W).
In the Eastern Cape Local Division, Port Elizabeth decision the High Court upheld a special plea entered by a respondent during divorce proceedings that young adults aged 25 and 23 respectively should claim maintenance on their own behalf. This notion is still upheld by maintenance courts in South Africa (SA) where young adults reached the magical age of majority, as noted in s 17 of the Children’s Act, that they should enter the maintenance courts on their own behalf to claim maintenance.
The SCA unanimous decision is welcomed considering the SALRC Discussion Paper 157 where the Commission in ch 5 discussed the locus standi of major children. During three days of vigorous debate, it seems as if an amendment to the Maintenance Act 99 of 1998 will soon be introduced by the SALRC to Parliament’s Portfolio Committee on Justice and Correctional Services.
In the Z v Z case the mother of two adult children, aged 25 and 23, applied for maintenance in divorce proceedings. The father did not dispute the divorce claim but entered a special plea against the maintenance claim stating that the adult children can claim maintenance on their own behalf and should not be included in the divorce proceedings. The Port Elizabeth High Court upheld the special plea that led to the appeal to the SCA.
Meyer AJA in the unanimous judgment referred to the s 6 of the Divorce Act 70 of 1979 provision that provides for mothers to safeguard the interest of dependent and minor children. Nowhere in s 6 does the Act discriminate between major and minor children but uses the word ‘dependent’ children. The Maintenance Act does not define an applicant or who should be maintained but states in s 2 that: ‘The provisions of this Act shall apply in respect of the legal duty of any person to maintain any other person’ (my italics). Despite the s 2 provision it has become a custom among maintenance staff in SA to ex lege discharge divorce maintenance order in an interpretation of divorce clause providing for maintenance until the minor children becomes adults or self-sufficient – whichever comes first – which means where a child turns 18, a non-custodial parent will approach the maintenance courts with discharge orders. In some cases, attorneys advise their clients to stop payments without a court order that directs the discharge of such divorce maintenance orders.
The SCA noted the ‘conflicting High Court decisions on the question of whether a parent has locus standi in judicio to claim maintenance’ (para 6). The apex court referred to cases where the High Courts upheld custodian parents do have the right to claim maintenance on behalf of young dependent adult children in JG v CG 2012 (3) SA 103 (GSJ); AF v MF 2019 (6) SA 422 (WCC) and SJ v CJ 2013 (4) SA 350 (GSJ). The court also referred to conflicting cases where High Courts found custodian parents do not have the right to claim maintenance on behalf of young dependent adult children in Smit v Smit 1980 (3) SA 1010 (O) and Butcher v Butcher 2009 (2) SA 421 (C).
The court further considered the case of Bursey that provides that the duty to maintain does not terminate when the child reaches a particular age but continues after the attainment of the age of majority.
The SCA found in its ‘interpretation of s 6 of the Divorce Act that [excluding] a claim for maintenance by a parent on behalf of a dependent child who has attained majority would not preserve its constitutional validity and result in absurdity. It would implicate the constitutionally entrenched fundamental rights to human dignity, emotional wellbeing and equality’ (para 16). The court addressed the South African reality of 18-year-old young adults still being at school and unemployed, and young adults often needing time to obtain employment and financial independence. ‘Such interpretation of s 6 of the Divorce Act would in a given case result in the absurdity that a parent, usually the mother, in divorce proceedings claims maintenance for a school-going minor child from the other divorcing parent but would have no standing to claim maintenance for and on behalf of another school-going child of the marriage, simply because he or she has attained the age of 18’ (para 16). The apex court further found such an interpretation ‘would also implicate the dependent major child’s fundamental right to equality’ (para 16).
Young adults turning 18 do not magically become independent adults by attaining the age of majority as seen in s 17 of the Children’s Act. In the South African context 18-year-olds are still completing their final year of secondary schooling and still dependent on the financial assistance of both parents. The SCA acknowledged ‘most children are not financially independent by the time they attain majority at the age 18: Many have not even concluded their secondary education and only commence their tertiary education or vocational training after they have attained the age of majority’ (para 16). Young adults do not have the psychological maturity or emotional grit to defend the food bill or electricity bill being more than what he or she was used to while being in the communal family home. Children do not have the maturity to explain expenses incurred during the course of a month in the household that a custodial parent can easily explain and verify in bank statements and expenditure receipts.
The SCA noted that ‘dependent children should also 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. It is undesirable that they should have to take sides and institute a claim together with one parent against the other; they should preferably maintain a meaningful relationship with both their parents after the divorce. The institution of a separate claim for maintenance by an adult dependent child against his or her parent or parents would further lead to a piecemeal adjudication of issues that arise from the same divorce and are intrinsically linked to other issues in the divorce action, such as claims for maintenance for spouses and other minor children born from the marriage. Further, the invidious position of an indigent adult child in this situation is clearly evident’ (para 17).
The SCA quoted Professors J Heaton and H Kruger South African Family Law 4ed (Durban: LexisNexis 2016) and ‘summarise the prejudicial position faced by young adult children when s 6 of the Divorce Act is improperly interpreted, thus: “Firstly, it is generally accepted that it is undesirable for children to become involved in the conflict between the divorcing parents by being joined as parties in divorce proceedings. Secondly, the adversarial system of litigation still forms part of the divorce process. Although our courts permit a relaxation of the adversarial approach in cases involving children, this approach does not benefit young adults as they are no longer children. Thirdly, it may be very awkward for the parent with whom the child lives to expect the adult child to pay over some of the maintenance received as a contribution to the child’s living expenses. Further, some adult dependent children refuse to institute their own maintenance claims, thereby placing an even heavier burden on the parent with whom they reside, who is usually the mother. This further exacerbates the already vulnerable position many women find themselves in after divorce’ (para 18).
The apex court concluded the interpretation of s 6 of the Divorce Act by quoting Professor M de Jong who also advocated a similar interpretation of s 6 of the Divorce Act. The court quoted Prof de Jong where she advocates: ‘In the context of family law, policy considerations therefore include the values of equality and non-discrimination and the obligation of parents to maintain their children in accordance with their ability, as well as the needs of the children. Other policy considerations that should accordingly be taken into account are the following: The fact that adult dependent children’s general reluctance to get involved in litigation against one of their parents and institute their own separate maintenance claims upon their parents’ divorce may perpetuate and exacerbate women’s social and economic subordination to men and real inequality of the sexes; the fact that the duty to support their minor children should be borne equally by both parents; and possibly the fact that it could have negative repercussions for adult dependent children if their maintenance claims were to be adjudicated in isolation or after the date of their parents’ divorce’ (para 19).
The NSP on GBVF provides in pillar 5 for ‘strengthened child maintenance and related support systems to address the economic vulnerability of women’. Where adult children do not have a good relationship with the non-custodial parent such strained relationships might lead to resentment and reluctance to enter the maintenance system. Where such reluctance occurs, it might place further financial strain on women and lead to further economic impoverishment of women.
The judgment of Z v Z will go a long way in anticipation of the Parliamentary debate on the Maintenance Amendment Bill B17 of 2022 that might only be introduced into Parliament during the 2023 Parliamentary sessions. Hopefully maintenance officers will be able to use the Z v Z decision to reject non-custodial parent’s applications for discharge of maintenance orders based on the minor child turning 18 and being deemed an adult in terms of s 17 of the Children’s Act.
Natalie Ruiters BA (UWC) Accredited Mediator (ADR Network SA) is a mediator at La Poppie Mediations.
This article was first published in De Rebus in 2023 (Jan/Feb) DR 17.
