Parent can claim maintenance for adult dependent children on divorce

Jul 22, 2022 | , , , , , | News

Supreme Court of Appeal rules that a parent can claim maintenance for adult dependent children on divorce.

There are conflicting Court judgements as to whether a parent has the legal standing to claim maintenance, or that the children has to do so themselves.

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In the recent case of Z v Z [2022] ZASCA 113 (follow this link for the full case Z v Z (556/2021) [2022] ZASCA 113 (21 July 2022) (saflii.org)), a mother had initiated divorce proceedings in 2019, claiming maintenance for herself and her two adult children. The children were financially dependent on their parents at the time. The mother, in her claim, relied on provisions of the Divorce Act, which, she contended, authorised her to claim maintenance on behalf of the children. The father had entered a “special plea” that their two children were now adults, so they should pursue their maintenance claims against him in their own names. The Eastern Cape High Court found in favour of the father.

The mother appealed the ruling to the Supreme Court of Appeal before Acting Judge Meyer.

Judge Meyer said the parents of a minor child or an adult dependent child had a duty to support them in accordance with their means, under both common law and statute.

“It is an inescapable fact of modern life that marriages end in divorce … The parents’ duty to support their children is not terminated by the dissolution of their marriage,”

In terms of the Divorce Act, a court would not grant a divorce unless it was satisfied that the welfare of any minor child or dependent child was provided for, and the court could make any order it deemed fit as regards maintenance.

Judge Meyer held that properly contextualised, the words in the Divorce Act supported an interpretation that a parent can claim maintenance on behalf of adult dependent children. It served to safeguard the welfare of both adult dependent children and minor children. Any other interpretation would not be constitutionally valid and would result in “an absurdity”:

“It would implicate the constitutionally entrenched fundamental rights to human dignity, emotional wellbeing and equality.”

“Most children are not financially independent by the time they attain majority age 18. Many have not even concluded their secondary education … a further reality is that it often takes time for young adults to obtain employment,” Judge Meyer said.

“Dependent children should also remain removed from the conflict between their divorcing parents for as long as possible, unless they elect themselves to 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 parents after divorce.”

The court upheld the appeal with costs and dismissed the father’s special plea.

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