In South Africa, the law recognises that parents have a legal duty to support their children. This duty to support extends to adult children, notably when they cannot support themselves due to, for example, disability, illness, or unemployment.
Maintenance refers to a person's financial support to someone who requires such support. For parents and their children, maintenance refers to the financial support parents provide to their children.
There may be entitled to claim maintenance in respect of a child over the age of 18 (eighteen) years in the following circumstances:
- Disability or illness: If an adult child cannot support themselves due to disability or illness, they may be entitled to claim maintenance from their parents. The maintenance awarded will depend on the needs of the adult child and the ability of the parents to provide such support.
- Unemployment: If an adult child is unemployed and unable to support themselves, they may be entitled to claim maintenance from their parents. However, the Court will consider the efforts made by the adult child to find employment and the ability of the parents to provide such support.
- Education: If an adult child is still studying, they may be entitled to claim maintenance from their parents. This applies to both tertiary education and vocational training. However, the Court will consider the course's nature and the parent's ability to provide such support.
Before the recent court case of Z v Z (556/2021) [2022] ZASCA 113 (21 July 2022), there were conflicting high court decisions on whether a parent has locus standi to claim maintenance from the other parent on behalf of an adult dependent child in divorce proceedings between the two parents. This has now been affirmed.
As for whether adult children are entitled, in the case of Bursey v Bursey and Another,1 the court stated the following:
"According to our common law, both divorced parents have a duty to maintain a child of the dissolved marriage. The incidence of this duty in respect of each parent depends upon their relative means and circumstances and the needs of a child from time to time. The duty does not terminate when the child reaches a particular age but continues after majority."
Moreover, section 6(1)(a) provides that a decree of divorce shall not be granted until the Court is satisfied that the provisions made or contemplated concerning the welfare of any minor or dependent child of the marriage are satisfactory or are the best that can be effected in the circumstances. Finally, section 6(3) provides that a Court granting a decree of divorce may make any order it deems fit regarding the maintenance of a dependent child of the marriage.
Unsurprisingly, section 6(1)(a) and 6(3) do not differentiate between a minor child and a major dependent child of the marriage concerning the payment of maintenance.
Conclusion
In conclusion, sections 6(1)(a) and 6(3) of 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. Given the words used in their ordinary grammatical meaning, properly contextualised, and the manifest purpose of section 6, an interpretation that preserves its constitutional validity is reasonably possible.
Written by Nicolene Schoeman-Louw, Specialist Commercial Litigation, Civil Litigation and Alternative Dispute Resolution, SchoemanLaw Inc