15 September 2022
“It has been a well held view in our law that a parent cannot claim maintenance for an adult dependent child from their divorced spouse. But is this still the case or has a recent Supreme Court of Appeal finding changed the position?”
It is generally understood that parents have a duty to support their minor children and that a parent can claim for maintenance from the other parent on behalf of the minor children. In our law, a minor child is viewed as any person below the age of 18.
Our Supreme Court of Appeal (SCA) in a very recent case had opportunity to consider this position. In the matter in question, a mother had instituted divorce proceedings and claimed maintenance for herself and her two adult dependent children who were still in need of maintenance from their parents. The father argued that the position that the children had reached the age of majority and were able to claim for maintenance themselves and accordingly the mother was not eligible to claim for maintenance on their behalf.
The SCA considered that divorced parents both have a duty to maintain a child of a divorce and that this duty is dependent on their relative means and the needs of the child and that this duty does not terminate when a child reaches a particular age. As a majority of children are not financially independent by the time they attain an age of majority, with many still in school or beginning their tertiary education or struggling to find work. Accordingly, the SCA found that it is possible for a parent to claim for the maintenance of a child that had reached majority where such a child remained dependent on the parents. A welcome judgment strengthening the scope of protection afforded to the children of divorced parents.
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