SCA Rules That A Parent Can Claim Maintenance For Adult Dependent Children From The Other Parent Upon Divorce

1. On 21 July 2022 the Supreme Court of Appeal (SCA) set aside an order of the Eastern Cape Division of the High Court, Port Elizabeth in the matter of Z vs Z (556/2021) [2022] ZASCA 113, which held that a parent lacks legal standing (locus standi) to claim maintenance for and on behalf of the parties’ adult dependent children from the other parent. This emanates from the Respondent’s special plea, which it dismissed with costs, averring that the two children have acquired the status of a majority and accordingly have the necessary locus standi to pursue maintenance claims against him in their own names, and that the Appellant lacks the requisite capacity to do so on their behalf.
2. The issue before the SCA had been the interpretation of section 6(1)(a) and section 6(3) of the Divorce Act which had resulted in conflicting High Court decisions on whether a parent has legal standing to act on behalf of adult dependants, or whether the children have to make the claim for themselves.
3. Section 6 provides as follows: (1)(a) 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; and
   (3) A court granting a decree of divorce may, in regard to the 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 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. Section 15 of the Maintenance Act provides as follows:
   (1) Without derogating from the law relating to the liability of persons to support children who are unable to support themselves, a maintenance order for the maintenance of a child is directed at the enforcement of the common law duty of the child’s parents to support that child, as the duty in question exists at the time of the issue of the maintenance order and is expected to continue.
   (2) The duty extends to such support as a child reasonably requires for his or her proper living and upbringing, and includes the provision of food, clothing, accommodation, medical care and education.
   (3) (a) Without derogating from the law relating to the support of children, the maintenance of Court shall, in determining the amount to be paid as maintenance in respect of a child, take into consideration –
   
   • That the duty of supporting a child is an obligation which parents have incurred jointly;
   • That the parents’ respective shares of such obligation are apportioned between them according to their respective means; and
   • That the duty exists, irrespective of whether a child is born in or out of wedlock or is born of a first or subsequent marriage.
   (b) Any amount so determined shall be such amount as the maintenance court may consider fair in all the circumstance of the case.
   (4)As from the commencement of this Act, no provision of any law to the effect that any obligation incurred by a parent in respect of a child of a first marriage shall have priority over any obligation incurred by that parent in respect of any other child shall be of any force and effect.
5. In its judgement the Court through an interpretive analysis ruled that the High Court erred in interpreting and applying the provisions of Section 6 of the Divorce Act, to the extent that it infringed on the constitutionally entrenched fundamental rights to human dignity, emotional wellbeing and equality of the dependent child. The sole purpose of section 6 is to preserve the interests of both adult dependent children and minor children of the marriage of the divorcing spouses. ‘Any other interpretation would not be constitutionally valid and would result in ‘an absurdity’.
6. In addition, the Court held that parents are under a common law and statutory duty to support their minor children and their adult dependent children in accordance with their respective means. Furthermore, it is important to note that such duty is not discarded by the dissolution of the spouse’s marriage. A maintenance order does not alter a divorced parent’s common-law duty to maintain.
7. The Court held that ‘There is no intrinsic magic in the age of 18, except that in many contexts it has been accepted as marking the transition from childhood to adulthood’. Attaining the majority age does not necessarily imply that the dependent child is financially steady. Worth noting that majority of these young children are school – going, unemployed and yet to commence their careers. Inevitably the status change from minor to major does not dissipate the constant need for financial and emotional support from both parents. Further, it does not denote that the needs of the minor child are of importance as opposed to the needs of the major child, whilst both children’s rights are equal before law. The parental conflict brought by divorce can be profoundly stressful for young adult children more especially when the one parent is recalcitrant, and the child needs financial and emotional support. Therefore, it becomes arduous for the child to access the necessary support required from both parents whilst both parents remain responsible for the upkeep of their children during and after the divorce. A common factor known in society is that the mother of the child will become the custodial parent therefore, she will bear all the financial burden to support and maintain the child. Implementing effective mechanisms for maintenance payments would uphold the dignity of the women and promote gender equality and non-sexism. Henceforth it becomes arduous for the child to access the necessary support required from both parents. Notably, both parents remain responsible for the upkeep of their children during and after the divorce.
8. Thus, the SCA concluded that section 6(1) (a) and 6(3) of the Divorce Act vest parents with the requisite legal standing to claim maintenance for and on behalf of their adult dependent children upon their divorce. The Court upheld the appeal with costs and dismissed the Respondent’s special plea.

Analysis of the SCA finding:

The finding in this case raises several issues that the SCA did not address amongst others are the following:

Does the finding of the SCA imply that adult dependent children of unmarried parents are excluded from the ruling of the SCA and will not be able to claim maintenance from their parents as opposed to adult dependent children of divorcing parents?

The ruling is preferential to adult dependent children of divorcing parents and raises constitutional issues of equality and dignity. The exclusion of children of unmarried parents would be discriminatory and violate the provisions of sections 9 and 10 of the Constitution which provides that: everyone is equal before the law and has the right to equal protection and benefit of the law; and that everyone has inherent dignity and the right to have their dignity respected and protected. In its ruling the SCA ought to have observed the fundamental rights vested in the Constitution so as to make a judgment that is fair, equal and non-discriminatory. The Constitution and its values provide a framework for determining the scope and parameters of public policy. Public considerations in this context would include the values of equality and non-discrimination and the obligation of parents to maintain their children in accordance with their ability, as well as the needs of the children.

In accordance with section 15 of the Maintenance Act, parenthood automatically results in the obligation of a parent to support a child; this obligation is a common law duty that arises upon the child’s birth. This duty of support is applicable to married and unmarried parents of children who are born in and out of wedlock. The parent’s primary duty to support the child is an obligation expected to continue until the child becomes self-supporting and not necessarily when the child attains majority. Realistically, children between the ages of 18 and 21 are unable to earn a sufficient income to pay their tuition fees or to support themselves and they remain financially dependent on their parents.

Does the SCA overrule the right of an adult dependent child to claim maintenance directly from the errant parent? The Court a quo argued that a child who has attained the age of majority has the locus standi to bring a claim for maintenance against the other parent in divorce proceedings. The SCA substantiated that “the fact that adult dependent children’s general reluctance to get involved in litigation against one of their parents and institute their own separate maintenance claims upon their parents’ divorce may perpetuate and exacerbate women’s social and economic subordination to men and real inequality of the sexes; the fact that the duty to support their minor children should be borne equally by both parents; and possibly the fact that it could have negative repercussions for adult dependent children if their maintenance claims were to be adjudicated in isolation or after the date of their parents’ divorce”.

The involvement of adult dependent children in the litigation process of a divorce proceeding will cause conflict between children and their parents. It is prejudicial or undesirable for children to become involved in the conflict between their divorcing parents by being joined as parties in divorce proceedings, whether these children are minors or young adults. As children should preferably maintain a meaningful relationship with both their parents after the divorce, it is undesirable that they should have to take sides and institute a claim together with one parent against the other.

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By Nkateko Ndukula, Candidate Legal Practitioner, Mphela and Associates Attorneys, Pretoria
Checked by Pule Kekana, Attorney, Mphela and Associates Attorneys, Pretoria