A parent can claim maintenance for adult dependent children from the opposite parent upon divorce, the Supreme Court of Appeal (SCA) has dominated.
The judgment, penned by Acting Judge Pieter Meyer (with 4 judges concurring), has resolved the query of legislation – and the correct interpretation of sections of the Divorce Act – which has beforehand resulted in conflicting High Court choices.
The difficulty to be decided by the SCA was whether or not a parent has authorized standing to behave on behalf of adult dependent children to claim maintenance on their behalf, or whether or not the children should make the claim for themselves.
The matter earlier than the SCA was an enchantment by a mom in opposition to a ruling within the Eastern Cape High Court in favour of the daddy. The father had entered a “special plea” that their two children have been now adults, so they need to pursue their maintenance claims in opposition to him in their very own names.
Detailing the litigation historical past of the case, Judge Meyer stated the mom had initiated divorce proceedings in 2019, claiming maintenance for herself and her two adult children.
The decide stated it was frequent trigger that the children have been financially dependent on their mother and father on the time.
The mom, in her claim, relied on provisions of the Divorce Act, which, she contended, authorised her to claim maintenance on behalf of the children.
Referring to earlier conflicting judgments, Judge Meyer stated some had held {that a} parent had the authorized standing to claim maintenance and others had not.
The decide within the decrease court had taken the second view, ruling that that the children have to be joined as events to the divorce motion.
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Judge Meyer stated the mother and father of a minor youngster or an adult dependent youngster had an obligation to help them in accordance with their means, beneath each frequent legislation and statute.
“It is an inescapable fact of modern life that marriages end in divorce … The parents’ duty to support their children is not terminated by the dissolution of their marriage,” he stated.
In phrases of the Divorce Act, a court wouldn’t grant a divorce except it was glad that the welfare of any minor youngster or dependent youngster was offered for, and the court might make any order it deemed match as regards maintenance.
Judge Meyer stated that correctly contextualised, the phrases within the act supported an interpretation {that a} parent can claim maintenance on behalf of adult dependent children.
The goal of the related part was “crystal clear”, he stated. It served to safeguard the welfare of each adult dependent children and minor children.
Any different interpretation wouldn’t be constitutionally legitimate and would lead to “an absurdity”.
“It would implicate the constitutionally entrenched fundamental rights to human dignity, emotional wellbeing and equality.”
“Most children are not financially independent by the time they attain majority age 18. Many have not even concluded their secondary education … a further reality is that it often takes time for young adults to obtain employment,” Judge Meyer stated.
“Dependent children also needs to stay faraway from the battle between their divorcing mother and father for so long as doable, except they elect themselves to claim their rights to the obligation of help.
“It is undesirable that they should have to take sides and institute a claim together with one parent against the other. They should preferably maintain a meaningful relationship with both parents after divorce.”
The court upheld the enchantment with prices and dismissed the daddy’s particular plea.
This article first appeared on GroundUp and was republished with permission. Read the unique article here.
