Maintenance claims, specifically in respect of children, are quite common during divorce proceedings, and our law recognises that both parents have an obligation to support their children financially. In South Africa, children are deemed to be majors when they reach the age of 18, which provides them with the required legal capacity to, inter alia, institute or defend legal proceedings in their own name and on their own behalf.
Reaching the age of majority (i.e 18 years of age) does not automatically mean that a child is self-supporting. While legally considered an adult, many major children are still in the process of completing their matric, or are commencing with their tertiary studies, which more often than not requires at least 3 years of dedication. Some children may have additional challenges, such as mental health issues or learning disabilities, which may affect their ability to support themselves. It is important to consider each individual case on its own merits, and take into account the child’s specific circumstances and needs when determining their level of financial dependency.
Once a child reaches the age of 18 years, the Court requires that child to institute maintenance proceedings in their own name against their parents’, should he/she not yet be self-supporting or financially independent. This made divorce proceedings particularly difficult when parties’ to divorce proceedings had major children, who were still in need of financial support.
Recently, however, the Supreme Court of Appeal (SCA) in South Africa handed down a judgment that has brought about a change in respect of maintenance claims for children over the age of 18 during divorce proceedings. The Supreme Court of Appeal has ordered that parties may now claim maintenance on behalf of major children in divorce proceedings, despite these children having already reached the age of majority. It is important to bear in mind that this applies only to the major children of parties to divorce proceedings. A major child seeking maintenance from his/her divorced parents would still be required to approach the Maintenance Court in their own name for assistance.
Eligibility requirements for adult child maintenance
In South Africa, the law maintains that a parent may be obliged to pay maintenance for their adult child if the child is unable to support themselves due to factors such as illness, disability, or unemployment. In order to be eligible for maintenance, the child must not be able to support themselves financially and must show a need for financial assistance.
When determining what order would be appropriate in respect of maintenance, the Court will consider various factors, including the financial needs of the child, the financial resources of the parents, and any other relevant factors which the Court deems fit, such as the child’s tertiary education or ability to obtain gainful employment.
When determining the amount of maintenance that should be paid, the Court will take into account the financial needs of the child, the financial means of the parent, whether the child is able to contribute any portion to their own financial needs, as well as the standard of living of the child.
As mentioned above, Maintenance matters require consideration of the facts and circumstances of each individual case, and no general “blanket” provision can be applied in maintenance matters.
In conclusion, South African maintenance laws for adult children of parties to divorce proceedings are complex and require careful consideration of various factors. That being said, the position has changed for parents in divorce proceedings to be in a position to request the Court for this type of relief. It is important to consult with a qualified and experienced family law attorney who can provide guidance and advice on your specific situation. By working with an attorney, you can ensure that your rights and interests are protected.
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