Not many individuals are financially independent by the time they attain majority and turn 18 years old. Most 18 year-olds are, in fact, only just commencing their tertiary education and are in no position to support themselves financially. There are several conflicting High Court judgements pertaining to the question of whether or not a parent can claim maintenance for and on behalf of their major children. The recent judgement of Z v Z (556/2021) [2022] ZASCA 113 has resolved this long-standing question of law.
A mother initiated divorce proceedings against her husband in 2019 in the Eastern Cape Division of the High Court, Port Elizabeth (“High Court”). Therein, she claimed maintenance from her soon to be ex-husband for both herself and her two adult children aged 23 and 25. It was common cause that the children were still financially dependent on their parents.
The father of the individuals filed a special plea, arguing that the mother had no legal standing (locus standi in judicio) to claim maintenance for and on behalf of the adult children and that the children would have to pursue a maintenance claim against him in their own names. The mother was unsuccessful in her claim and the High Court ruled in favour of the father.
On appeal, the issue to be determined by the Supreme Court of Appeal (“SCA”) was whether or not a parent has legal standing to act on behalf of their adult dependent children to claim maintenance or whether the children have to make the claim for themselves.
On 21 July 2022, acting Judge Pieter Meyer and four other concurring judges of the SCA ruled in the mothers favour and held that parents can claim maintenance from their partners in respect of their major children.
In its ruling, the SCA referred to sections 6(1)(a) and 6(3) of the Divorce Act 70 of 1979 (“the Act”) and stated that these sections, on an interpretative analysis, lead to the conclusion that parents can claim maintenance for and on behalf of their adult dependent children.
Section 6(1)(a) of the Act provides that “a decree of divorce shall not be granted until the court 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.”
Section 6(3) provides, inter alia, that “a court granting a decree of divorce may, in regard to the maintenance of a dependent child of the marriage or the custody or guardianship of, or access to, a minor child of the marriage, make any order which it may deem fit.”
The SCA remarked that the Act served to protect the welfare of all children and did not differentiate between minors and majors. The Court further acknowledged that most individuals are not financially independent by the time they turn 18 years old.
The SCA emphasised how parents are under a common law and statutory duty to support their children in accordance with their respective means. Further, that dependent children should remain removed from the conflict between their divorcing parents.
This judgement is a win for both major dependent children and divorcing parents as said children no longer have to institute a claim themselves or be joined as parties to their parents’ divorce action. This also relieves mothers of the added financial burden that comes with divorce.
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