Maintaining Adult Children in South Africa: Legal Principles & Court Considerations

Under section 6 of the Divorce Act 70 of 1979, a court shall not grant a divorce until it is satisfied that arrangements for the welfare of dependent children are satisfactory or are the best possible in the circumstances. This section further empowers the court to make “any order which it may deem fit” regarding the maintenance of dependent children.

Critically, the Divorce Act does not define a rigid age limit for maintenance obligations. The Act uses the terms “dependent” and “child” in a purposive sense to emphasise need and dependency, not merely chronological age. In interpreting these provisions courts employ a contextual and purposive approach aligned with constitutional values such as dignity, equality, and social justice.

Parents have a statutory and common-law obligation to maintain their children, which continues beyond majority where the child remains dependent, whether due to education, disability, unemployment, or other barriers to self-support. 

Historically, there was uncertainty about whether a parent could claim maintenance on behalf of a child who had reached the age of majority (18 years under the Children’s Act 38 of 2005). Some High Court decisions treated adult children as needing to litigate in their own names, leading to inconsistent outcomes.

However, in Z v Z (556/2021), the Supreme Court of Appeal resolved the issue by holding that:

• The Divorce Act must be interpreted literally, purposively, and in a constitutional context, such that it permits maintenance orders for adult dependent children; and
• A parent retains locus standi (legal standing) to claim maintenance on behalf of a dependent adult child in divorce proceedings.

The SCA emphasised that excluding adult dependent children from the scope of section 6 would lead to “absurd results”, for instance, permitting claims for a 17-year-old still in school while precluding similar support for an 18-year-old in the same circumstances.

South African courts assess a range of factors when considering whether to order maintenance for adult children. While each case turns on its facts, the following elements are typically weighed:

1. Dependency and Self-Sufficiency

The core question is whether the child is dependent. A dependent adult child is one who relies on one or both parents for financial support because they are unable to support themselves, for example:

• Current full-time studies or vocational training;
• Disability or serious illness;
• Lack of employment and reasonable prospects of self-sufficiency.

Courts examine financial dependence, not merely age. A child with income or reasonable prospects of self-support may not be considered dependent. Conversely, many children in tertiary education or vocational training remain dependent long after turning 18. 

2. Means and Needs

Maintenance orders are assessed through a balancing test between the needs of the dependent child and the means of the parent called upon to pay:

• The court will require evidence of the adult child’s ongoing expenses (education, housing, food, transport, medical costs).
• The parent’s income, earning capacity, and existing maintenance obligations to other dependants are also considered.

In divorce proceedings, it is not enough to show dependency; the proposed order must be fair and sustainable considering both parties’ financial capacities.

Practical Implications for Divorce Practice

The SCA confirmed that adult dependent children need not be joined as parties to the divorce when maintenance is sought on their behalf. The parent, usually the resident or custodial parent, may present the claim.

Nonetheless, adult children retain the right to independently institute maintenance proceedings against a parent under the Maintenance Act 99 of 1998 if necessary.

The claiming parent must place before the court:

• Clear evidence of the child’s dependency;
• A breakdown of needs and reasonable expenses;
• The parent’s proposals for how payments should be structured, e.g., periodic payments, direct contributions to educational costs, or lump sum contributions.

Failure to provide a solid evidential foundation may lead to orders based on estimated reasonable needs, or a refusal to award maintenance.

Maintenance for adult children is not automatic. Courts retain discretion and may refuse claims where:

• The child earns a stable income;
• The child is reasonably capable of self-support;
• The maintenance sought is extravagant relative to needs and the paying parent’s means.

Additionally, whilst during divorce proceedings a parent may seek such an order, post-divorce enforcement by a parent, especially in contempt applications, has been treated differently in some recent cases. One Western Cape decision suggested that, after divorce, only the adult children themselves may enforce their maintenance rights. 

South African courts have increasingly recognised that parental maintenance obligations extend beyond childhood, provided the child remains genuinely financially dependent. The Supreme Court of Appeal’s decision in Z v Z has been pivotal in affirming that parents may claim maintenance on behalf of adult dependent children within divorce proceedings. This evolving jurisprudence underscores the law’s responsiveness to societal realities, particularly the prolonged financial vulnerability many young adults face in contemporary South Africa.

The content does not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. Kindly contact us on info@cklaw.co.za or 021 556 9864 to speak to one of our attorneys.