In the case of Z v Z 2022 (5) SA 451 (SCA), the applicant, Mrs Z (the mother) married the respondent Mr Z (the father) on 10 January 1995, and two major children were born from that marriage: A son, R (born 21 May 1997) and a daughter, B (born 13 March 1999).
Over time, Mr and Mrs Z’s marriage deteriorated to the point that the respondent moved out of the matrimonial home in April 2018.
A year later, on 9 April 2019, Mrs Z filed divorce proceedings in the Eastern Cape Local Division of the High Court in Gqeberha (Port Elizabeth) seeking a decree of divorce, and maintenance for herself, as well as for R and B.
Although both R and B were still dependent on their parents and because they were above the age of 18 years, the law considered them to have majority status, with full legal status as adults.
Mr Z filed a special plea, a preliminary defence in a case that, if upheld has the effect of removing one of the grounds of the legal claim, or the legal claim entirely. In his special plea, Mr Z objected to Mrs Z claiming maintenance on behalf of both R and B as they were now above the age of 18 and of majority status. This new legal status, he argued, meant that Mrs Z does not have the authority to claim maintenance on their behalf and they must do so themselves.
In response to this special plea and to support her claim for maintenance on behalf of her children, Mrs Z relied on s 6 of the Divorce Act 70 of 1979, which provides:
‘A decree of divorce shall not be granted until the court
(a) is satisfied that the provisions made … with regard to the welfare of any minor or dependent child of the marriage are satisfactory or are the best that can be affected in the circumstances.’
The issue before the High Court was whether, properly interpreted, Mrs Z could claim maintenance on behalf of her son and daughter. The High Court upheld Mr Z’s special plea, finding that s 6 does not allow Mrs Z to claim maintenance on behalf of her children, and therefore, dismissed Mr Z’s case on this issue.
Mrs Z took the case on appeal to the Supreme Court of Appeal (SCA).
In its judgment, the SCA noted that there are several conflicting judgments on whether, during divorce proceedings, a parent is allowed to claim maintenance on behalf of financially dependent children aged 18 and above. Some judgments have said they can, while others have said they cannot. It was, therefore, important for the SCA to resolve the issue, particularly because divorced mothers often carry the financial burden of parenting alone.
Writing for the unanimous court, Meyer AJA emphasised that a parent’s duty to maintain a child does not end at the termination of a marriage through divorce or when a child reaches a certain age, and that both parents share the duty equally.
Meyer AJA explained that a parent’s locus standi (legal standing) to claim maintenance on behalf of their children in divorce cases is linked to the power s 6 gives the court to make any order it deems fit. For the court to carry out this power and make the maintenance order, the parent will have to put facts before the court about the child’s needs and circumstances, the best method of paying the maintenance (eg, to a school, directly to the parent, in a lump sum or instalments).
The SCA also held that the ordinary grammatical meaning of ‘child’ and ‘dependant’ support an interpretation of s 6 that allows a parent to claim on behalf of dependent children, even if they are over the age of 18. A contrary interpretation would result in an absurdity, as the onus is on the parents to satisfy the court that the maintenance needs of the children are taken care of before a divorce order is granted.
The court also referred to the practical reality that most children above the age of 18 would still not have completed their education, many would still not have found employment, and they would still be dependent on their parent, often the mother. Furthermore, most adult children refuse to institute legal action to claim maintenance from their fathers, further burdening the mother.
An interpretation of s 6 denying the mother legal standing to claim maintenance would also implicate the child’s right to human dignity.
Despite finding that s 6 of the Divorce Act allows a parent to claim maintenance on behalf of a child above the age of 18, Meyer AJA emphasised that there is still no legal impediment preventing the child from claiming maintenance against an errant parent in terms of the Maintenance Act 99 of 1998.
Ultimately, the SCA upheld Z’s appeal and set aside the High Court order on the special plea. That means that the case will proceed to determine the divorce and the maintenance of the two children.
The immediate impact of the SCA’s judgment is a development of the law by clarifying that s 6 of the Divorce Act allows a parent of dependent children to claim maintenance in divorce proceedings despite them having reached the age of 18. This is a great relief to thousands of women who find themselves alone in taking care of their children during a divorce. It also relieves children of the burden of a perception that they are taking a stance against the other parent.
Minenhle Nzimande is a final year LLB student at Nelson Mandela University and a volunteer at Annali Erasmus Incorporated Attorneys, which represented Mrs Z in the case. Mr Nzimande writes in his personal capacity.
This article was first published in De Rebus in 2023 (Jan/Feb) DR 10.
