MAINTENANCE OF MAJOR CHILDREN

In a recent High Court judgment of CL v CJL 3437 / 2022, the court had to determine whether maintenance could be claimed for a major child. The parties in this matter were amidst a divorce. They have one adult-dependent daughter. The applicant, the mother of the child, contended that the father still had the duty of support towards their daughter as she was not yet self-sustaining. Another core issue for determination in this matter was also whether the applicant, in her name, was possessed of the necessary capacity to apply for an order that the respondent, the father of the child, maintains their adult-dependent child to the full extent prayed for in the notice of motion.

The Position Adopted by the Applicant

The applicant made various requests in the application (on behalf of her adult-dependent child) against the respondent, including equestrian lessons, tertiary education, and accommodation fees as well as a new vehicle to the value of R420 000, for the adult-dependent daughter.

The applicant took the position that under common law, both divorced parents have a duty to maintain a child of a dissolved marriage or a yet-to-be-dissolved marriage. The incidence of this duty in respect of each parent depends on the relative means and circumstances of each parent, and the needs of the child.

It was argued that such a maintenance claim is ancillary to the common law duty of support. Further, by way of elaboration, it was submitted that there is no distinction between amounts claimed by a parent in their own right for shared expenses of an adult-dependent child, and any amounts claimed in respect of the adult-dependent child’s expenses, which the claiming parent would otherwise have to bear.

It was submitted that this was so because both parents have a duty to support their adult-dependent child and accordingly each parent, therefore, has an interest in securing an appropriate contribution from the other parent, failing which the entire burden of support would fall on him or her. Viewed in this way, it was contended that the parent is not so much claiming on behalf of the adult-dependent child, but in his or her own interest to make sure that he or she does not foot the entire bill alone.

The Position Adopted by the Respondent

The respondent took the position that the applicant’s claim was limited to only a claim for increased household expenditure incurred by her because of the adult-dependent child living with the applicant from time to time. The respondent further argued that the mother of the child had no locus standi to bring this application as their daughter was a major and should apply in her personal capacity. Put in another way, it was argued that no other claims may be instituted on behalf of the adult-dependent child, as the adult-dependent child was possessed of her own locus standi (capacity) to do so.

He further added that their daughter showed no positive sign of wanting to pursue tertiary education and he therefore disputed the maintenance he had to pay towards this. He added that the child already had access to a vehicle and did not need an additional one. The respondent contended that the claim for a new vehicle for his adult-dependent child for the sum of R 420 000,00 was exorbitant and was unnecessary.

Considerations made by the court

In terms of section 18(2)(d) of the Children’s Act, parents have a responsibility to contribute to the maintenance of their children. In terms of section 17 of this legislation, as defined, children are seen as adults when they reached the age of majority at the age of 18 years old.

A parent’s right to apply for maintenance for their child is usually terminated when the child reaches majority. This does not mean that a parent’s responsibility to maintain their child ceases when the child reaches majority. No doubt, if either of the parents or both, were historically supporting their child as a minor, a court may order them to continue maintaining that child until the child is self-supporting.

In such a case, the court usually considers the wording of the extant divorce or maintenance order. If the order states that a parent needs to pay maintenance until the child reaches the age of majority, it would then mean that the major child would then be obliged to approach the court to apply for a maintenance order whereby the responsible parent or parents, would have to pay maintenance until that child is no longer dependent and self-supporting.

By contrast, if the extant order states a specific age, such as 21 years old, it will mean that the responsible parent would have to maintain such a child until he or she reaches the age of 21 years, even if they were self-supporting. The wording of the extant order is therefore particularly important when a court makes an order regarding maintenance.

Section 6(1)(a) of the Divorce Act, provides that a decree of divorce shall not be granted until the court is satisfied that the provisions made in respect of minor or dependent children are acceptable under the relevant circumstances. Section 6(3) further makes provision that a court, when granting a decree of divorce, may make any order that it deems fit in respect of the maintenance of dependent children.

Accordingly, the court has the discretion to make an order that it deems fit under the relevant circumstances, including that a parent or both parents need to support an adult-dependent child until he or she becomes independent or self-supporting.

A court may make any order that it deems fit, which includes the suspending of an extant order if a parent is not able to maintain a dependent child after they reach the age of majority. In such a case, the court is enjoined to consider whether the adult child is capable of supporting himself or herself and whether he or she is not doing so out of convenience. In the latter case, a court may, in addition, make an order to suspend any maintenance.

Judgement

The court granted some of the relief contended for by the applicant on behalf of the parties’ adult-dependent child and dismissed some of the relief contended for by the applicant on behalf of the parties’ adult-dependent child.

The judge held that:

‘…That the respondent shall maintain the applicant (and the parties’ major child) pending the determination of the divorce action, as follows:

That the respondent shall pay an amount of R25000,00 per month by way of cash maintenance to the applicant (and the parties’ major child), on or before the first day of every month, as from the 1st of July 2022, free of set-off or deduction, by way of a debit order or direct electronic transfer, into such bank account as the applicant may specify from time to time. The maintenance payable in terms of paragraph 1.1 shall be increased annually on the anniversary date of this order, by the percentage change in the Headline Inflation Rate (also known as the Headline Consumer Price Index), as notified by Statistics SA in respect of the Republic of South Africa for the preceding twelve months. Such percentage change shall for convenience be deemed to be equal to the latest index available from Statistics SA on the anniversary date.

That the respondent shall bear the costs of all expenditure in respect of medical, dental, surgical, hospital, orthodontic, and ophthalmological treatment required by the applicant (and the parties’ major child), any sums payable to a physiotherapist, practitioner of holistic medicine, psychiatrist/psychologist and chiropractor, the cost of prescribed medication and the provisions where necessary of spectacles and/or contact lenses (the “medical expenses”).

That the respondent may elect to accept responsibility for all these medical expenses specified above by paying the monthly premiums required to keep the applicant (and the parties’ major child) covered as his dependents on the respondent’s current medical aid scheme, or a scheme with similar benefits with the proviso that respondent shall bear the responsibility for all the costs of these medical expenses and, the respondent shall pay the monthly contributions, and any escalations thereon in respect of his current medical aid scheme or a scheme of similar benefits, timeously on the due date.

That the respondent shall be liable for all medical expenses not covered by the respondent’s medical aid and shall pay all these medical expenses promptly within seven days of invoice and/or shall reimburse the applicant for any expenses she may have paid within seven days of her having provided him with copies of the relevant invoices of any medical expenses incurred as set out in paragraph 1.2 above.

That the respondent shall pay all expenses in respect of the vehicle which the applicant drives including the monthly payments due, if any, in terms of the existing credit agreement as well as licensing fees, short-term insurance, the replacement of tires, and costs of services and reasonable repairs.

That respondent shall pay the applicant the sum of R50 000,00 for the relocation expenses and other expenses as set out in paragraph 1.6 of the notice of motion. This payment shall be free of set-off or deduction, by way of a debit order or direct electronic transfer, into such bank account as the applicant may specify from time to time and shall be paid on or before the last day of August 2022.

That the respondent shall pay an initial contribution of R100 000,00 to the applicant's costs in the divorce action, payable on or before the last day of September 2022 and directly to the applicant's attorney of record.

That the further claims at the instance of the applicant (on behalf of the parties’ major child) are hereby dismissed.

That the costs of and incidental to this application shall stand over for determination at the trial action…’

In summary, it was held that a parent’s right to apply for maintenance for their child usually terminates when the child reaches the age of majority. However, the responsibility to maintain their children does not. If either or both the parents were supporting their child as a minor, the court may order the parents to continue to support the child until the child is self-sustaining. Section 6(3) of the Divorce Act further makes provision that a court, when granting a decree of divorce, may make any order that it deems fit in respect of dependent children. The Court went on to define ‘self-supporting’ as conceivably capable of supporting himself/herself and concluded that a parent or both parents needed to support an adult-dependent child until he/she becomes independent or self-supporting.

The final consideration of the Court was that a parent does have the locus standi to bring a maintenance application pendente lite as it is in line with Rule 43(1) of the Uniform Rules of Court and common law.

The High Court then dismissed the application with costs.

As can be seen from this judgment, maintenance and Rule 43 applications should be carefully considered especially where dependent children are involved. All relevant factors should be included in such applications, having regard to guidelines contained in legislature and it is highly recommended that a family law specialist is consulted in such applications. Rudolf Buys & Associates Attorneys can assist in these types of applications having considerable experience therein and having successfully dealt with these types of applications in the past.