Show me the money – maintenance for dependent children

November 1st, 2021

Picture source: Gallo Images/Getty

This article reflects on circumstances where persons who have reached age of majority, but are still dependent on their parents can claim financial support from them. Most children when they reach 18 years of age are still financially dependent on their parents and may have legitimate claims for maintenance against them. This article illustrates how the courts – correctly in our view – have interpreted the law in a way, which ensures that while dependent children have lost the protection ordinarily associated to children by virtue of attaining the age of majority, they are not prevented from claiming financial support from their parents when they are not yet self-sufficient.

Generally, parents have a common law duty to maintain their children in conjunction with their respective means (Lamb v Sack 1974 (2) SA 670 (T) at 671F). The ‘duty of supporting a child is a duty common to both parents, according to their respective means, and it makes no difference whether such child is born in or out of wedlock’ (Lamb at 671F). In terms of common law, this ‘duty does not terminate when the child reaches … majority’ (Bursey v Bursey and Another 1999 (3) SA 33 (SCA) at 36D). Courts have always realised that attainment of majority does not automatically render children financially independent. Further, that even after reaching the age of majority, there are children who may still need financial support of their parents. This is also true in modern times where children who attain the age of majority have not attained the necessary skills that would enable them to be economically active. They may need to study further or receive training that would enable them to find employment and subsequently be self-sufficient.

While it appears to have been accepted that dependent children do have a right to claim maintenance from their parents, the nature and extent of the maintenance that can be claimed has been somewhat contentious. In this respect, neither the legislature nor the courts have laid down the test that should be used to determine the maintenance that should be awarded. However, it does not mean that parents are obliged to maintain the kind of status children may wish to preserve and the luxuries to which they became accustomed. In Gliksman v Talekinsky [1955] 4 All SA 306 (W) at 309, the court held that:

‘A child who is a major and who has gone out into the world and established his or her own home and mode of life is not entitled to come back to the parent at any time in life and say, “I am your child and when I lived with you as a minor I lived in a rich home where I had everything provided, and in as much as you are still rich and able to support me on the basis, the legal position is that what you must pay me must be decided in accordance with your station in life, your standard of living and your means”. In my view the parent’s means are a factor to be taken into consideration, but it is not the only factor; the child’s position in life and its standard of living are of equal importance’.

The parental responsibility to maintain children who have attained the age of majority, but not yet self-sufficient appears limited to the means available to parents and the actual needs of their children who are in need of financial support. For example, there are children who may need financial assistance for the payment of their education, which can increase their chances of success in life. The extent to which parents can pay for such education, they will be obliged to shoulder that responsibility. Thus, parents cannot unreasonably refuse to financially assist their children when they have the means to do so. In the context of divorce, s 6(1) of the Divorce Act 70 of 1979 enjoins the court granting a decree of divorce to be satisfied that provision has been made for dependent children of the marriage, which it is about to dissolve. Courts are further enjoined to make orders they deem fit in respect of the maintenance of dependent children (s 6(3) of the Divorce Act and AF v MF [2020] 1 All SA 79 (WCC) at para 74).

In terms of s 15(1) of the Maintenance Act 99 of 1998, ‘a maintenance order for the maintenance of a child is directed at the enforcement of the common law duty of the child’s parents to support that child, as the duty in question exists at the time of the issue of the maintenance order’. It can be argued that, by incorporating the phrase ‘common law duty’, which can last until the child is self-sufficient, dependent children can rely on this provision to claim maintenance directly from their parents. The challenge, however, is that the word ‘child’ in s 1 of the Children’s Act 38 of 2005 is defined to mean ‘a person under the age of 18 years’. The Maintenance Act does not define the word ‘child’ for the purposes of this Act but in its preamble recognises that ‘the Republic of South Africa is committed to give high priority to the rights of children, to their survival and to their protection … as evidenced by its … accession … to the Convention on the Rights of the Child’. Article 1 of this Convention also defines a child as ‘every human being below the age of eighteen years’. As such, it is not clear whether an argument that a dependent child can rely directly on s 15 of the Maintenance Act can be sustained. Thus, there is a need for either judicial or legislative guidance on this issue.

Another contentious issue relates to who should claim maintenance on behalf of a dependent child. Given the fact that dependent children have reached the age of majority, they do not need to be represented by any ‘adult’ in court proceedings. These children have standing on their own right to bring maintenance claims directly against their parents (see generally Smit v Smit 1980 (3) SA 1010 (O)). Dependent children may be placed under some emotional burden when forced to institute legal proceedings against their parents. Nonetheless, as was held in Butcher v Butcher 2009 (2) SA 421 (C) at para 15, there is no enabling statutory provision in the Divorce Act and the Children’s Act that gives the parent of an adult child locus standi in divorce proceedings to claim interim maintenance on behalf of such adult children. Further that only adult children have the standing to pursue the claim against one of their parents and can bring a separate claim for maintenance before the court. This case raises some important issues that should be engaged, namely:

  • Is the court suggesting that parents generally do not have a right to claim maintenance on behalf of their children against other parents?
  • Are there circumstances where parents may have standing to claim maintenance on behalf of their dependent children, particularly when residing with and regularly incurring expenses in relation to such children?

In JG v CG 2012 (3) SA 103 (GSJ), the court considered these issues and followed a different approach to that adopted in Butcher. In JG v CG, the court was of the view that ‘when the facts justify it, an order directing payment to be made directly from one spouse to another pendente lite in respect of expenses incurred in regard to a major, but dependent, child, living in the matrimonial home with both parents, is competent’ (para 55).

In the JG v CG case, the court recognised the wide discretionary powers afforded by ss 6 and 7 of the Divorce Act in ensuring that expenses incurred in respect of the adult but dependent child are well taken care of, whether as expenses forming part of the common home or expenses specific to the adult child (para 3, see also B v B (GP) (unreported case no 98328/2015, 23-3-2018) (Strijdom AJ) at para 11). In particular, the court was of the view that the parent who has brought interim maintenance proceedings does have standing to also claim maintenance on behalf of the dependent child where that child currently resides in the same household with both parents (para 55). The same argument appears to hold where the parent claiming maintenance resides with the child and incurs expenses in relation to the child. However, it is not clear whether during a divorce, a parent claiming interim maintenance will have standing to also claim maintenance on behalf of the dependent child with whom they do not reside or should that child bring the maintenance claim separately as was held in Butcher. It is also not clear whether the dependent child can independently bring an interim maintenance order during the divorce proceedings involving any or all of their parents or whether this should be done separately. The procedure involved in bringing maintenance claims against their parents may be challenging for some dependent children. The difficulty that children may experience when litigating with their parents should never be downplayed. In AF v MF 2019 (6) SA 422 (WCC) at para 75, the court highlighted that it is ‘unimaginably difficult’ for a child to have to sue their parent for support.

In conclusion, we are of the view that the dependent children should retain their locus standi and be joined to the interim maintenance proceedings to which their parents may be involved. This will enable courts to finalise interim maintenance claims for all the parties concerned which will prevent these children having to bring separate maintenance claims against their parents. Waiting for the divorce to be finalised while in need of immediate financial support or bringing a separate maintenance claim against any of the parents might be prejudicial to the dependent child who may not have the financial resources to sustain maintenance claims in court. This approach is in line with that adopted in AF v MF, where it was held ‘courts should be alive to the vulnerable position of young adult dependents of parents going through a divorce. They may be majors in law, yet they still need the financial and emotional support of their parents’ (para 75). We are of the view that courts dealing with applications for maintenance should be satisfied that dependent children are properly provided for having regard to their immediate and pressing needs to the extent to which their parents can meet them.

Clement Marumoagae LLB LLM (Wits) LLM (NWU) Dip Insolvency Law and Practice (UP) PhD (UCT) is a practising legal practitioner at Marumoagae Attorneys and an Associate Professor at the University of Witwatersrand. Mr Marumoagae is also a council member of the Legal Practice Council. Refilwe Tsatsimpe LLM (NWU) is a lecturer at the North West University’s Faculty of Law at the Mahikeng Campus.

This article was first published in De Rebus in 2021 (Nov) DR 18.

De Rebus