MAINTENANCE AND MAJOR CHILDREN

When does a parent’s duty to financially support a child end?

It is common in law that both biological parents have the duty to maintain their minor child. It is often believed that this maintenance obligation only exists until a child attains majority (under South African law, majority is attainted at the age of 18 years) but most children when they reach the age of 18 years, they are still financially dependent on their parents and may have legitimate claims for maintenance against them. This article illustrates how the courts have interpreted the law in a way, which ensures that while dependent children have lost the protection ordinarily associated to children by virtue of attaining the age of majority, they are not prevented from claiming financial support from their parents when they are not yet self-sufficient.

Generally, parents have a common law duty to maintain their children in conjunction with their respective means. In terms of common law, this ‘duty does not terminate when the child reaches majority’ (Bursey v Bursey and Another 1999 (3) SA 33 (SCA). Courts have always realized that attainment of majority does not automatically render children financially independent. Furthermore, that even after reaching the age of majority, there are children who may still need financial support of their parents. This is also true in modern times where children who attain the age of majority have not attained the necessary skills that enables them to be economically active. They may need to study further or receive training that would enable them to find employment and subsequently be self-sufficient.

While it appears to have been accepted that dependent children do have a right to claim maintenance from their parents, the nature and extent of the maintenance that can be claimed has been somewhat controversial. In this respect, neither the legislature nor the courts have laid down the test that should be used to determine the maintenance that should be awarded. However, it does not mean that parents are obliged to maintain the kind of status children may wish to preserve and the luxuries to which they became accustomed. In Gliksman v Talekinsky [1955] 4 All SA 306 (W) at 309, the court held that:

‘A child who is a major and who has gone out into the world and established his or her own home and mode of life is not entitled to come back to the parent at any time in life and say, “I am your child and when I lived with you as a minor I lived in a rich home where I had everything provided…”. In my view the parent’s means are a factor to be taken into consideration, but it is not the only factor; the child’s position in life and its standard of living are of equal importance’.

The parental responsibility to maintain children who have attained the age of majority, but not yet self-sufficient appears limited to the means available to parents and the actual needs of their children who are in need of financial support. For example, there are children who may need financial assistance for the payment of their education, which can increase their chances of success in life. Thus, parents cannot unreasonably refuse to financially assist their children when they have the means to do so.

Legislation Section 6 (1) (a) of the Divorce Act 70 of 1979 provides that a decree of divorce shall not be granted until the court is satisfied that the provisions made or contemplated regarding the welfare of any minor or dependent child of the marriage are satisfactory or are the best that can be effected in the circumstances. Section 6(3) takes it further and provides that a court granting a decree of divorce may make any order which it may deem fit in respect of maintenance of a dependent child of the marriage.

In terms of s 15(1) of the Maintenance Act 99 of 1998, ‘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’. It can be argued that, by incorporating the phrase ‘common law duty’, which can last until the child is self-sufficient, dependent children can rely on this provision to claim maintenance directly from their parents. The challenge, however, is that the word ‘child’ in s 1 of the Children’s Act 38 of 2005 is defined to mean ‘a person under the age of 18 years’.

Article 1 of the Convention on the Rights of the Child this Convention also defines a child as every human being below the age of 18 years. As such, it is not clear whether an argument that a dependent child can rely directly on s 15 of the Maintenance Act can be sustained. Thus, there is a need for either judicial or legislative guidance on this issue.

Locus Standi

Another disputable issue that can come up in relation to maintenance of major children relates to who should claim maintenance on behalf of a dependent child. Given the fact that dependent children have reached the age of majority, they do not need to be represented by any ‘adult’ in court proceedings. Upon the attainment of majority of the child, the custodial parent no longer has the locus standi to claim the payment of maintenance on behalf of the child. These children have standing on their own right to bring maintenance claims directly against their parents. In Smit v Smit 1980 3 SA 1010 (O) Flemming J stated that it is the child itself who henceforth must claim directly against one or both parents to the extent that he may have a claim for support with effective content.

If a maintenance court order is silent as to the duration of the parents’ maintenance obligation, the maintenance order would lapse upon the child attaining majority. It is therefore important to explicitly stipulate in a maintenance application that financial assistance is sought up until the child becomes self-supporting. It can even be stipulated that the maintenance obligation will cease upon the child attaining a specific age such as twenty-four or when the child marries. Such a major dependent child can at any time during the operation of the order enforce his or her common-law right to an upward variation of the maintenance payable by his or her parents upon giving proof that necessitates for such a variation.

If parents supported their child as a minor, a court may order them to continue maintaining that child until they are self-supporting. A court will usually consider the wording of a divorce or maintenance order, if the order states that a parent needs to pay maintenance until their children are 18 years, it would mean that the major child will have to approach a Maintenance Court to apply for a maintenance order whereby the responsible parent or parents will have to pay maintenance until that child is self-supporting. If a maintenance order states a specific age, such as 21 years, it would mean that a responsible parent will have to maintain such children until they reach the age of 21 years, even if they are self-supporting. The wording of a maintenance order is therefore very important when a court makes an order regarding maintenance.

If children are however capable of supporting themselves and are not doing so out of convenience, a court may make an order to suspend such maintenance. The case of M v M (0042146/17) [2018] ZAGPJHC 506 is another example of where the court decided to cease the payment of maintenance and held that “…the two adult children’s predicament…was self-created. It can hardly be expected of the applicant, in the circumstances of this case, and no matter how wealthy, to maintain his adult children ad infinitum”.

Tertiary Education

Maintenance in respect of children includes education. Our courts will consider the parent’s financial circumstances, social status and the child’s academic aptitude and achievements to determine whether there is a duty to provide tertiary education in a particular case. A major child who wishes to further his or her studies or has no other form of income, must be maintained by both parents, until such a child earns an income and becomes self-supporting, should the parents be in the financial position to do so.

Whether a parent can be held liable to pay for university education should be judged considering the standard of living and income of the parents. If parties have the financial means, it is generally accepted that parents could be held financially liable for their major child’s tertiary education. Such costs can include university fees and/or fees for any institution of higher learning attended by the child, accommodation and travel/transport expenses, and any books and equipment required.

If a major child ceases to be self-supporting for reasons such as ill-health or disability, the duty to maintain may be revived. The interpretation of self-sufficiency is in the courts’ discretion and dealt with on a case-by-case basis. It is important to note that major children are not maintained as extensively as minors and the reasonableness of the parent’s duty to maintain such a child is an essential factor which must be considered in these cases.

What can be done if a parent refuses to pay maintenance?

There are both criminal and civil remedies available for the non-compliance of maintenance orders. Courts may order offenders to pay a fine or even consider jail time (not exceeding three years, in terms of Maintenance Amendment Act, 9 of 2015). There are also civil remedies available, such as attachment of salary, attachment of debts or even execution against property in terms of the Maintenance Act 99 of 1998.

It is becoming increasingly important for parties to be aware of their maintenance rights and obligations. Considering recent legislative changes to maintenance law, it is apparent that no tolerance is going to be afforded towards maintenance defaulters. On 5 January 2018, the Maintenance Amendment Act came into effect. Sections 2, 11 and 13(b) of the Maintenance Amendment Act drastically changed the way non-compliance with maintenance orders would be approached.

A short summary of some of these changes include:

• If parties verbally (or in writing) agreed on maintenance, a court may make an order to add it or discharge it;

• You may complain to a Maintenance Court in your area where you are employed, do business, or reside;

• Court may direct an electronic communication service provider (Vodacom, MTN etc.) to provide relevant information regarding the offender;

• Courts may grant an order even if the opposing party does not agree to it;

• Maintenance Courts may make details available to credit bureaus of the person against whom an execution of maintenance order was granted.

This is a very progressive piece of legislation which will prevent maintenance defaulters from continuing to receive credit while owing maintenance and will assist in tracing defaulters, who often do everything in their power to circumvent their maintenance obligations. This would furthermore serve as a deterrent to those defaulting on their maintenance obligations.

Thus, in summary, a parent’s duty to pay maintenance for their child continues until the child is entirely self-sufficient and not upon the child reaching the age of majority. Once the child reaches the age of 18 years, the onus shifts onto the child to prove how much maintenance he or she needs. Whilst case law sets our certain guidelines, the maintenance that a major dependent child is entitled to, is to be determined on a case to case.

However, should there be no court order for maintenance already in place, and a child who reaches the age of majority requires maintenance from a parent, the child must claim such maintenance from that parent directly. The other parent, whom the child most likely primarily lives with, cannot apply for maintenance on that major child’s behalf.

Contact Rudolf Buys & Associates Attorneys for all maintenance-related matters and we will assist you.