Introduction
It is trite in law that both biological parents have the duty to maintain their minor child. It is often believed that this maintenance obligation only exists until a child attains majority. We consider this misnomer and explore the mandatory maintenance obligations that may exist towards a child beyond majority.
Background
Under South African law majority is attainted at the age of eighteen years. In terms of the Children’s Act 38 of 2005, the age of majority was reduced with effect from 01 July 2007, from twenty-one to eighteen.
It has been widely and unequivocally held that a parent’s duty to support a child does not cease when a child reaches a particular age, but usually only does so when the child becomes self-supporting. (In re Estate Visser 1948 (3) SA 1129 (C) at 1133-4; Kemp v Kemp 1958 (3) SA 736 (D & CLD) at 737 in fine; Lamb v Sack 1974(2) SA 670 (T); Hoffmann v Van Herdan NO and Another 1982 (2) SA 274 (T) at 275A.) Majority is thus not the determining factor here, and any misconception that may exist in this regard, has been done away with by the courts.
Legislation
Parents’ have a duty to financially support their child until their child becomes self-supporting. The duty to maintain extends beyond majority and has even been enacted in legislation. Section 6 (1) (a) of the Divorce Act 70 of 1979 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. (Our emphasis.) Section 6(3) takes it further and provides that a court granting a decree of divorce may make any order which it may deem fit in respect of maintenance of a dependent child of the marriage. It is furthermore settled law that the legal position pertaining to parents’ duty to support a child born out of wedlock is analogous to that of a child born of a marriage.
Locus Standi
Upon the attainment of majority of the child, the custodial parent no longer has the locus standi to claim the payment of maintenance on behalf of the
child. In Smit v Smit 1980 3 SA 1010 (O) Flemming J stated that it is the child itself who henceforth must claim directly against one or both parents to the extent that he may have a claim for support with effective content.
If a maintenance court order is silent as to the duration of the parents’ maintenance obligation, the maintenance order would ipso jure lapse upon the child attaining majority (Richter v Richter 1947 (3) SA 86 (W)).
It is therefore important to explicitly stipulate in a maintenance application that financial assistance is sought up until the child becomes self-supporting, alternatively to incorporate same into a settlement agreement or consent order if the parties are ad idem about the duration of their maintenance obligation. It can even be stipulated that the maintenance obligation will cease upon the child attainting a specific age such as twenty-four or when the child marries. Such a major dependent child can at any time during the operation of the order enforce his or her common-law right to an upward variation of the maintenance payable by his or her parents upon proof of the requisites for such a variation.
In the absence of a maintenance court order stipulating that the parents are to pay maintenance up until the child becomes self-supporting, a major dependent child is not left without recourse.
The maintenance claim must now be made by the child in person (who is now an adult) and not by the custodial parent. Nothing prohibits a major dependent child to approach a maintenance court in his or her individual capacity. To what extent such an
application would be successful and the duration of parents’ duty of support are often difficult questions to answer. In the maintenance court this is often were the waters get muddled. Case law does, however, provide some guidance in this regard.
Written by Nicola du Toit and Jeannique Booysen
