CAN A PARENT CLAIM MAINTENANCE ON BEHALF OF AN ADULT CHILD WHO IS STILL DEPENDENT?

Both divorced parents have a duty to maintain a child of the dissolved marriage. This duty is dependant on the means of each parent and the needs of a child.

One issue which has been the subject of differing court judgments is whether one parent can claim maintenance from the other parent on behalf of an adult dependent child.

The Supreme Court of Appeal recently settled this debate. The facts were that the parents married in 1995. Two children were born out of the marriage, in 1997 and 1999 respectively. At the time that divorce proceedings were instituted the two children were adults (over the age of 18), but still financially dependent.

The mother claimed maintenance for herself as well as for the two children. The father did not dispute that the children required maintenance. However, he argued that the children ought to claim maintenance in their own names as they were adults.

The key issue for the court to decide was whether the mother could claim maintenance from the father on behalf the two adult children. The Court interpreted section 6 of the Divorce Act 70 of 1970 and concluded that the mother could claim maintenance on behalf of the children. In coming to this conclusion, the Court commented that it was undesirable for a child, even one who over the age of 18, to litigate against a parent for maintenance for some of the following reasons:

• Dependent children should remain removed from the conflict between the divorcing parents for as long as possible.
• There would be negative emotional consequences for a child to litigate against a parent.
• There would be a power imbalance between the child and the parent.
• Litigation would result in a child taking sides with one parent against another.
• A child may be unwilling to litigate against a parent, thereby resulting in a heavier burden on the parent with whom the child is staying.

Case information: Z v Z (556/2021) [2022] ZASCA 113 (21 July 2022)
Added 1 year ago