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FAMILY LAW | Maintenance for Major Dependent Children – Recent Case Law

Updated: Feb 8, 2023

A recent decision by the Supreme Court of Appeal changed the manner in which major dependent children may claim maintenance from their parents in divorce proceedings.

A decision made in the Eastern Cape Division of the High Court, Port Elizabeth, was recently taken on appeal to the Supreme Court of Appeal, dealing with a claim for maintenance by major dependent children in divorce proceedings. The Court duly considered Section 6 of the Divorce Act 70 of 1970, and the appeal was upheld with costs.

The Supreme Court of Appeal (“SCA”) recently had to consider a judgment from the Eastern Cape Division of the High Court, Port Elizabeth regarding whether a parent has locus standi to claim maintenance from the other parent for and on behalf of a major dependent child of their marriage during divorce proceedings (Z v Z (556/2021) [2022] ZASCA 113). To date, there were various judgments regarding whether a parent may claim maintenance for their major dependent children during divorce proceedings, and the SCA has now solidified the position.

The SCA took Section 6 of the Divorce Act 70 of 1970 into consideration, which reads as follows:

“Safeguarding of interests of dependent and minor children”

  1. A decree of divorce shall not be granted until a 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; and If an enquiry is instituted by the Family Advocate in terms of section 4(1)(a) or 2(a) of the Mediation in Certain Divorce Matters Act, 1987, has considered the report and recommendations referred to in the said section 4(1).

  2. For the purposes of subsection (1) the Court may cause any investigation which it deems necessary, to be carried out and may order any person to appear before it and may order the parties or any one of them to pay the costs of the investigation and appearance.

  3. A Court granting a decree of divorce may, in regard to 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, and may in particular, if in its opinion it would be in the best interests of such minor child to do so, grant to either parent the sole guardianship (which shall include the power to consent to the marriage of the child) or the sole custody of the minor, and the Court may order that, on the predecease of the parent to whom the sole guardianship of the minor is granted, a person other than the surviving parent shall be the guardian of the minor, either jointly with or to the exclusion of the surviving parent.

  4. For the purposes of this section the Court may appoint a legal practitioner to represent a child at the proceedings and may order the parties or any one of them to pay the costs of the representation.”

The age of majority was reduced from 21 years to 18 years in terms of section 17 of the Children's Act 38 of 2005, which came into effect on 1 July 2007. Parents of a minor- or major dependent child have a statutory and common law duty to maintain their children in accordance with their respective means, and such duty to support is not terminated by way of divorce.

Parties to divorce proceedings now have to satisfy the Court that maintenance is required for major dependent children, and there is no legal requirement that the adult dependent child are to be joined to the divorce proceedings. A Court order issued in divorce proceedings are binding between the parents, and a major dependent child still has the capacity to institute his or her own maintenance proceedings against any parent in terms of Section 6 of the Maintenance Act 99 of 1999.

The SCA also considered major children's constitutional rights to human dignity, emotional wellbeing and equality when it made its decision.

A parent with a major dependent child, wishing to claim maintenance for such child in divorce proceedings from the other parent, is therefore advised to approach an attorney to assist in the formulation of such a claim against the other parent in light of this recent decision.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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John Comninos

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