Can You Claim Maintenance on Behalf of Adult Children?
If you’re getting divorced, then you might have wondered whether its possible to claim maintenance for children older than 18. On the surface, this may not seem like a typical question raised in divorce matters, but in a case where an adult child is still dependent upon a parent which is very often the case if a child is still finalising their secondary or tertiary education, it’s a very real consideration.
Maintenance for Adult Children: The Facts
Many people are under the mistaken impression that once a child reaches the age of majority (18 years of age), they’re automatically excluded from a maintenance claim by a parent in the case of a divorce. However, a recent ruling by the Supreme Court of Appeal has cemented the rights of a parent, during the course of divorce proceedings, to claim maintenance on behalf of an adult dependent child.
In the landmark case of Z vs Z, the judgement read:
“The parents of a minor child or of an adult dependent child are both under a common law and a statutory duty to support their minor children and their major dependent children in accordance with their respective means.”
The judgement was delivered in terms of section 6 of the Divorce Act (https://www.justice.gov.za/legislation/acts/1979-070.pdf). The broader conditions legislating divorce can be found in the Divorce Act, but it is in section 6 of this act that the Court highlighted the distinction between ‘minor’ children and ‘dependent’ children.
A Ruling Founded Upon Definitions
The facts of the case, in brief:
The father in a divorce proceeding argued that his wife should not be allowed to institute proceedings on behalf of their major dependent children. Whilst it was not disputed that the children were dependent, but because they had both reached the age of majority, it was argued that they should rather have instituted a claim of their own against him in respect of their maintenance needs.
The wife in turn relied on section 6 of the Divorce Act, contending that the Act allowed her to make a claim on behalf of a child who was dependent, albeit that they were a major.
The court which first heard the matter found in the husband’s favour, and the matter was referred to the Supreme Court of Appeal for adjudication.
Section 6 is entitled: Safeguarding of interests of dependent and minor children (emphasis added).
(1) A decree of divorce shall not be granted until the court-
a. 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;
The Court noted that there have been numerous opposing judgements, historically and across various jurisdictions. While some Courts have held that the parent with whom the child lives is entitled to claim maintenance on behalf of a dependent major child, others have found to the contrary.
However, there is both a common law and statutory obligation to support minor and major dependent children based on the parents’ means, and the child’s needs. The court very aptly pointed out that the parent’s duty to support their children is not terminated by the dissolution of marriage by divorce
In 2007 the age of majority changed from 21 to 18. The Court quotes Centre for Child Law v Minister of Justice and Constitutional Development and Others (National Institute for Crime prevention and the reintegration of offenders) as stating that there is “no intrinsic magic in the age of 18, except that it is a marker as the transition from childhood to adulthood”.
The judgment considered the dictionary definition of ‘minor’, ‘dependent’, and even ‘child’, and found that none of these definitions exclude major dependent children from the same definition. The Court observed that when interpreting the legislation using ordinary grammar, the interpretation that a parent of a dependent adult child is allowed to claim maintenance on behalf of the child is supported.
This is not just an arbitrary argument based on abstract definitions. The very real – and practical – reason for this is to safeguard the welfare of all dependent children born of a marriage. A Court cannot grant a divorce until it is demonstrated that dependent children’s requirement for maintenance has been satisfied. To accomplish this, the Court is empowered to order any necessary investigations to be undertaken, and to order either or both parties to pay for such maintenance.
Listen to Attorney Claire Thomson discuss this ruling on 702's Legal Matters.
Separate – But Still Affected
The court notes that there is no legal requirement for adult dependent children to be a party to or be joined to the divorce proceedings between their parents. However, this in no way obviates the claim that a major dependent child may have against their parents.
This interpretation supports the dignity, emotional wellbeing, and equality of major dependent children. Given current societal norms, most children are not financially independent at 18 and have often not even completed secondary school. In addition, it is commonly difficult for young people to find employment. A comparison is made here between two children – one who is a minor and still in school, and the other, a major who is also in school. To prevent a parent from claiming maintenance on behalf of the major child would be logically absurd - and would infringe on the major dependent child’s right to equality.
In most cases, it is also usually mothers in divorce proceedings who claim maintenance for school-going minor children from the other divorcing parent, and who should be protected. Understandably, children are very often reticent to institute their own claims, which places an even higher burden on their mothers, if they are their primary carers.
As far as possible, dependent children should also remain excluded from the conflict between their parents who are divorcing, unless they choose to become involved. It is unfair and undesirable for them to have to choose between their parents, and to be drawn into the divorce proceedings. They should be protected from the animosity between their parents as much as possible, while still being enabled to maintain a meaningful relationship with both parents after divorce.
Divorce is very often a traumatic and complex experience. Because of this, dealing with issues in stages is also not preferable – the divorce on one hand and the maintenance of the minor children on another. Neither should it be expected that an adult child be obliged to pay maintenance over to his or her mother when it is received by the child.
It stands to reason that the least traumatic process is one where all aspects of the divorce – including child maintenance – are handled directly by the parents.
A Parent’s Duty to Take Responsibility
Whilst young adults are majors in the eyes of the law, they very often still require the emotional and financial support of their parents. This support is not only confined to material needs, either – there is an emotional component insofar as a parent should try to maintain a measure of domestic stability throughout an often-contentious divorce process.
Under these circumstances, it can be extremely difficult for an adult dependent child to independently enforce a court order against a non-compliant parent responsible for payment, and any situation like this unfairly pits a child against their own parent. Because of this, there are considerations of equality and non-discrimination that should inform and underscore a parent’s right to intervene on behalf of a child in such a situation.
When all is said and done, two things become clear: first, that children should not be drawn into the mechanics of a divorce proceedings as far as possible, and second, that one or both of the parents need to be prepared to support an adult dependent child, should this be warranted.
Are you in the process of a divorce, or would like to find out more about your options?
Contact our Family Law Department today for information and to arrange a confidential appointment with an empathetic attorney who has your best interests at heart.
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LINK INDEX
https://www.justice.gov.za/legislation/acts/1979-070.pdf