South African court: a parent’s duty to support children does not stop when they become adults
The Eastern Cape High Court has handed down an order upholding a special plea with costs in divorce proceedings. While married, the appellant and respondent were the parents of two children who they financially supported well into adulthood. When the children were adults, the marriage broke down, resulting in the mother moving out of the matrimonial home in April 2018.
On 9 April 2019, the mother initiated divorce proceedings against the father. She also claimed maintenance for herself and the children. In response, the father instituted a counterclaim for a decree of divorce too. Further, the father filed a special plea contending that the two children were adults and therefore could bring a maintenance claim in their own names. The father argued that the mother had no right to claim maintenance on behalf of the children. It was well known that both children were financially dependent and in need of maintenance from their parents.
The mother relied on the Divorce Act, 1979, which she argued authorised her as a parent to claim maintenance from the father on behalf of dependent adult children.
The Divorce Act provides:
“(1) A decree of divorce shall not be granted until the court-
(a) is satisfied that the provisions made or contemplated with regard to the welfare of any minor or dependent child of the marriage are satisfactory or are the best that can be effected in the circumstances; and
(b) if an enquiry is instituted by the Family Advocate in terms of section 4(1)(a) or 2(a) of the Mediation in Certain Divorce Matters Act, 1987, has considered the report and recommendations referred to in the said section 4(1).
(4) For the purposes of this section the court may appoint a legal practitioner to represent a child at the proceedings and may order the parties or any one of them to pay the costs of the representation.”
The High Court noted that there had been conflicting judgments about whether a parent has any legal standing to bring a maintenance claim for an adult child. The High Court ruled that a parent does not have the legal standing to pursue maintenance claims on behalf of their adult children. Accordingly, the special plea was upheld by the High Court. An appeal against the High Court’s judgment proceeded in the Supreme Court of Appeal (“SCA”).
In reaching its decision, the SCA considered the common law and statutory duty parents have in relation to supporting their minor children and their major dependent children, in accordance with their respective means. This duty exists even after the marriage ends. The SCA pointed out that in the interpretation of statutes what “needs to be undertaken is a linguistic, contextual, purposive and constitutional interpretative analysis”.
The SCA held that the duty to maintain children extends beyond the age of 18 according to the Act. This section states that a decree of divorce shall not be granted unless provisions have been made for the welfare of any minor or dependent child of the marriage.
In addition, the Act states that a court granting a decree of divorce may make an order it deems fit in regard to the maintenance of a dependent child of a marriage. The SCA also remarked that a claim related to a decree of divorce was between the parties to a marriage but would not be granted until the court is satisfied that provisions have been made for the welfare of any minor or dependent children.
The SCA highlighted the fact that the Act did not differentiate between a minor child and a dependent adult child of the marriage in regard to the payment of maintenance. Therefore, a court may make an order it deems fit in respect of the maintenance of an adult dependent child of the marriage. The SCA stated that by virtue of the power provided by the Act, a spouse in divorce proceedings has the right to bring a claim for the maintenance on behalf of adult dependent children of a marriage.
In pleading the case on behalf of dependant adult children, one parent would set out their means, circumstances, and expenses likely to be incurred, in order to persuade the court regarding what will be satisfactory maintenance payments. The court can also order any investigation to be conducted in order to determine if the welfare of any minor or dependent children will be adequately addressed.
The SCA also considered the definition of the word dependent and found it to mean someone that depends on another for support. Consequently, it found that the Act was applicable in cases of support of major dependent children, where a divorce was to be granted.
The SCA concluded that the ordinary grammatical meaning of the Act supports an interpretation that allows a parent to claim maintenance on behalf of a dependent adult child upon divorce. The SCA remarked that the Act is clear in its purpose, which is to ensure and safeguard the welfare of both dependent adult and minor children of the marriage, and shall not grant the divorce unless this has been satisfied.
The SCA further stated that there was no provision in the Act that required a dependent adult child to be a party to the divorce proceedings. Further, it held that a court order issued upon a divorce was only binding on the parents.
In closing, the court also pointed out that it would be absurd to interpret the Act in a manner that excludes maintenance orders for adult dependent children considering that they are normally still in school when they reach adulthood. These children are also likely not to be employed immediately after school. Consequently, they will still be dependent on their parents.
According to the SCA, it would not be ideal for a dependent child to be forced to have to pick a side and institute proceedings against one of their parents. The SCA highlighted that it was not ideal to have children involved in conflicts between divorcing parents, that the adversarial system of litigation which adult dependent children face is also not ideal and that some adult dependent children also refuse to institute their own maintenance claims, which increases the pressure on the one parent.
The SCA held that it was clear that the Act empowers both parents to have the right to bring a claim of maintenance for and on behalf of their dependent adult children. The special plea by the father was accordingly dismissed with costs.
This judgment settles a common misconception that children who reach adulthood either have no right to maintenance or that a parent cannot bring a claim for maintenance on their behalf.
Executive | Dispute Resolution
Candidate Legal Practitioner | Dispute Resolution