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Do parents have a duty to pay maintenance for their children after they have reached the age of majority, but still cannot support themselves?

In short, yes.

LEGISLATION

In terms of section 18(2)(d) of the Children’s Act 38 of 2005 (hereinafter referred to as “the Act”) parents have a responsibility to contribute to the maintenance of their children. In terms of section 17 of the Act and as defined in the Act, children are seen as adults (reaches the age of majority) at the age of 18 years. A parent’s right to apply for maintenance for children usually end when a child reaches 18 years (majority), however, this does not mean that a parent’s responsibility to maintain their child ceases when they reach 18 years.  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.

Furthermore, note that section 6(1)(a) of the Divorce Act 70 of 1979 (hereinafter referred to as “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) 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 maintenance of dependent children. The court therefore has the discretion to make an order which it deems fit under the relevant circumstances, including that a parent needs to support their dependent children until they are self-supporting.

The question that arises is what is meant with ‘self-supporting’ and the exact extent of a parent’s duty to maintain his/her children. Section 8(1) of the Divorce Act provides that “…. In the case of a maintenance order …, such order may be suspended by a court if the court finds that there is sufficient reason therefore…”. A court will make an order that it deems fit, which includes suspending an order in certain circumstances, for example, if a parent is not able to maintain a child after they reach majority. In Bursey v Bursey and Another 1999 (3) SA 33(SCA) at 38 D, the court considered whether the major child was “conceivably … [become] capable of supporting himself”. In this case, the child was not. 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”.

WHAT CAN BE DONE IF A PARENT DOES NOT COMPLY WITH A MAINTENANCE ORDER?

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 emoluments, attachment of debts or even execution against property in terms of the Maintenance Act 99 of 1998.

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 manner in which 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.

Maintenance remains the responsibility of parents until that child can support themselves. The outcome of each maintenance application will depend on the facts of each case.

Contact Cavanagh & Richards Attorneys for all maintenance-related matters at any of our branches and we will assist you.

Written by Zané van Wyk

076 192 9746

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