Maintenance court ruling a step in the right direction for parent-child relationships post-divorce

"The Supreme Court of Appeal has ruled on maintenance for adult dependent children on divorce."

“The Supreme Court of Appeal has ruled on maintenance for adult dependent children on divorce.”

Daniel Hunt of Di Siena Attorneys unpacks the recent Supreme Court of Appeal ruling that parents can claim maintenance for their adult dependent childrenPrevious, conflicting, judgements held that a parent had the standing to claim maintenance while others did not.

On 21 July 2022, the Supreme Court of Appeal in Bloemfontein ruled that parents can claim maintenance for their adult dependent children.The issue which was to be adjudicated was whether a parent could seek maintenance for an adult but financially dependent child or whether the claim was to be instituted by the dependent child.

Previously, conflicting judgements held that a parent had the standing to claim maintenance while others did not.

Where no maintenance order existed before a child turned 18, a major dependent child would have had to apply for maintenance against both parents and not only against a chosen parent.

This is common when an adult dependent child requires financial assistance from their parents or no maintenance has been provided, and they are not yet self-supporting.

Read: A parent can claim maintenance for adult dependent children from a divorced partner, court rules

The Supreme Court of Appeal has now held that the Divorce Act 70 of 1979 vests parents with the requisite legal standing to claim maintenance for and on behalf of their dependent adult children upon their divorce.

As such, no existing maintenance order is now required for a parent to appear on their adult child’s behalf to claim maintenance for them from the other parent.

In the current economic climate, many children are not self-supporting or even employed upon turning 18 and require financial assistance with expenses such as tertiary education tuition from their parents, should their parents have the means to do so.

In the court’s judgment, it was further held that the responsibility of both parents to provide for their children did not end when their marriage ended in divorce.

It is a common misconception, especially among fathers engaged in divorce proceedings, that their obligation to maintain their children ends when the children turn 18, alternatively when their marriage ends in divorce.

The court’s decision is welcome, especially for financially vulnerable divorced or separated mothers, recognised as carrying the financial burden of caring for and providing for their children during a divorce.

The decision can also be said to have the children’s best interests in mind in that a dependent child, whether adult or not, should be removed from the conflict and divorce proceedings between their parents as far as possible.

The court stated that children “should preferably maintain a meaningful relationship with both parents after divorce”.

This judgment goes some way to ensuring that by preventing a child from having to ‘take sides’ and institute a claim in their capacity unless they choose to assert their rights to the duty of support.