The Supreme Court of Appeal has ruled that a parent can claim maintenance in the divorce decree for adult dependent children from the divorced spouse. Acting Judge Pieter Meyer delivered this judgement on 21 July 2022 (with four concurring judges).
In the past, there were conflicting High court decisions on whether a parent has the necessary locus standi to claim maintenance on behalf of an adult dependent child from the other parent. Some High Court rulings held that a parent has the required legal standing and in others that the children had to claim the maintenance themselves from the parent. The judgment has now resolved this question in law.
The matter was an appeal by the mother against the Eastern Cape Division of the High Court ruling in favour of the father. The father filed a special plea that the two children have reached the age of majority and accordingly have the standing to pursue maintenance again him in their names, and the mother does not have such standing.
Acting Judge Pieter Meyer held that most children were not financially independent by the time they reached the age of 18. He quoted from case law that “there is no intrinsic magic in the age of 18, except that in many contexts it has been accepted as marking the transition from childhood to adulthood.” Judge Meyer said the parents of an adult-dependent child had a duty to support them per their means until they become self-supporting. It takes time for young adults to obtain employment and conclude their tertiary education.
He also stressed that the child/ren should not have to be placed in an unimaginably difficult position to have to sue a parent for support and enter into a conflict between the parents – the emotional consequences are unthinkable and undesirable to expect child/ren to take sides and institute a claim together with one parent against another.
Judge Meyer referred to and analysed Section 6 of the Divorce Act, wherein it provides at ss 6(1)(a) and (3) that a court would not grant a divorce unless it was satisfied that the welfare of any minor child or dependent child was provided for. The court could make any order it deemed fit as regards maintenance. Given the ordinary grammatical meaning, the words used in Section 6(1)(a) and 6(3) support an interpretation of section 6 that a parent is allowed to claim maintenance on behalf of adult dependent children upon divorce and answered the question in law that the section vests parents with the required legal standing to claim maintenance on behalf of their dependent adult child/ren upon their divorce.
Judge Meyer further stressed that the burden of proof for such maintenance of a dependent child is on the parties to the marriage and to satisfy the court so that the maintenance of the dependent child/ren is satisfactory or to the best that can be effected in the parent’s circumstances. The court is also given extensive discretionary powers to cause any investigation it may deem necessary or to appoint a legal practitioner to represent the adult dependent child at the divorce hearing.
Furthermore, the adult dependent child does not have to be joined as a party to the divorce between their parents as there is no legal requirement in the Divorce Act.
Judge Meyer stated that the purpose of section 6 is crystal clear in that it serves to safeguard the welfare of both adult dependent and minor children of the marriage.
The father’s special plea failed, and the mother’s appeal succeeded and was upheld with costs by the Court.
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