The Thorny Issue of Paying Maintenance to Adult Dependent Children

The issue of maintenance for an adult dependent child has been in the spotlight on our family law landscape in recent months. Up until July 2022 in the case of Z v Z which went to the Supreme Court of Appeal, there were many conflicting case law as to whether it was the right of a parent (invariably the mother) who could claim maintenance on behalf of the adult dependent child or whether it was only the dependent child who could do so.

In Z V Z the SCA ruled that the mother had the right to claim maintenance even though the children were no longer minors but where nevertheless still dependant on the parents for their financial support, for example when pursuing studies at a tertiary level or involved in some or other vocational training.

In 2022 in the George Magistrates' Court, a woman brought an application to attach the funds of her ex-husband's pension pay-out which were held in his bank account. She asked for the funds to be paid to her for the arrear maintenance which the man owed to his children.

In that case the parties had divorced some years ago and had agreed that the man would pay maintenance to the children up until they were self-sufficient. When two of the three children turned 18, the man did not pay maintenance to them. He opposed the application for his bank account to be frozen, saying that the maintenance order terminated automatically once minor children turned 18. Thus that the mother did not have the legal capacity to bring the application, saying the children should have brought the maintenance application themselves. He also disputed the amounts owed by him and said he could not afford to pay any maintenance.

The magistrates' court rejected the father's reasoning. The man then took that decision on appeal to the High Court and lost. In October 2022, the Western Cape High Court delivered its reasons for the judgment in dismissing the appeal.

The High Court quoted with approval the case of Z v Z saying that it was "almost always mothers who become the custodial parent and have to care for the children and because of this responsibility it placed a greater financial burden on mothers and inhibited their ability to obtain an income.

Divorced or separated mothers accordingly face the double disadvantage of being overburdened in terms of responsibilities and under-resourced in terms of means. Fathers, on the other band, remain actively employed and generally become economically enriched. Maintenance payments are therefore essential to relieve this financial burden."

The court went on to state that one needed to consider the vulnerable position of young adult dependents of parents going through a divorce. "They may be majors in law, yet they still need the financial and emotional support of their parents.

The parental conflict wrought by divorce can beprofoundly stressful for young adult children, andit is particularly awkward for the adult child wherethe parents are at odds over the quantum of supportfor that child. Moreover, where one parent isrecalcitrant, the power imbalance between parentand child makes it difficult for the child to accessthe necessary support. It is unimaginably difficultfor a child to have to sue a parent for support, theemotional consequences are unthinkable.'

As in the case of Z v Z, the court said that it wouldbe undesirable for a child to have to take sides betweenthe parents and institute a claim together with oneparent against the other. It was important and preferablefor the dependent child to maintain a meaningfulrelationship with both parents after the divorce. Thecourt was also mindful of the fact that some adultdependent children refuse to institute their ownmaintenance claims which then places an even heavierburden on the parent with whom they reside, who isusually the mother, which further exacerbates thealready vulnerable position many women findthemselves in after divorce. The court also quotedvarious other leading family law authorities withregard to policy considerations which must be takeninto account and these include the values of equalityand non-discrimination and the obligation of parentsto maintain their children in accordance with theirability, as well as the needs of the children.

Know your rights! The Law Desk of FawziaKhan and Associates. Giving YOU the Power ofAttorney. Email fawzia@thelawdesk.co.za or call (+27)31 502 5670 for legal assistance at competitive rates.