It is trite in law that both biological parents have the duty to maintain their minor child. It is often believed that this maintenance obligation only exists until a child attains majority. We consider this misnomer and explore the mandatory maintenance obligations that may exist towards a child beyond majority
Under South African law majority is attainted at the age of eighteen years. In terms of the Children’s Act 38 of 2005, the age of majority was reduced with effect from 01 July 2007, from twenty-one to eighteen.
It has been widely and unequivocally held that a parent’s duty to support a child does not cease when a child reaches a particular age, but usually only does so when the child becomes self-supporting. (In re Estate Visser 1948 (3) SA 1129 (C) at 1133-4; Kemp v Kemp 1958 (3) SA 736 (D & CLD) at 737 in fine; Lamb v Sack 1974(2) SA 670 (T); Hoffmann v Van
Herdan NO and Another 1982 (2) SA 274 (T) at 275A.) Majority is thus not the determining factor here, and any misconception that may exist in this regard, has been done away with by the courts.
Parents’ have a duty to financially support their child until their child becomes self-supporting. The duty to maintain extends beyond majority and has even been enacted in legislation. Section 6 (1) (a) of the Divorce Act 70 of 1979 provides that a decree of divorce shall not be granted until the court is satisfied that the provisions made or contemplated with regard to the welfare of any minor or dependent child of the marriage are satisfactory or are the best that can be effected in the circumstances. (Our emphasis.) Section 6(3) takes it further and provides that a court granting a decree of divorce may make any order which it may deem fit in respect of maintenance of a dependent child of the marriage. It is furthermore settled law that the legal position pertaining to parents’ duty to support a child born out of wedlock is analogous to that of a child born of a marriage.
Upon the attainment of majority of the child, the custodial parent no longer has the locus standi to claim the payment of maintenance on behalf of the child. In Smit v Smit 1980 3 SA 1010 (O) Flemming J stated that it is the child itself who henceforth must claim directly against one or both parents to the extent that he may have a claim for support with effective content.
If a maintenance court order is silent as to the duration of the parents’ maintenance obligation, the maintenance order would ipso jure lapse upon the child attaining majority (Richter v Richter 1947 (3) SA 86 (W)). It is therefore important to explicitly stipulate in a maintenance application that financial assistance is sought up until the child becomes self-supporting, alternatively to incorporate same into a settlement agreement or consent order if the parties are ad idem about the duration of their maintenance obligation. It can even be stipulated that the maintenance obligation will cease upon the child attainting a specific age such as twenty-four or when the child marries. Such a major dependent child can at any time during the operation of the order enforce his or her common-law right to an upward variation of the maintenance payable by his or her parents upon proof of the requisites for such a variation.
In the absence of a maintenance court order stipulating that the parents are to pay maintenance up until the child becomes self-supporting, a major dependent child is not left without recourse.
The maintenance claim must now be made by the child in person (who is now an adult) and not by the custodial parent. Nothing prohibits a major dependent child to approach a maintenance court in his or her individual capacity. To what extent such an application would be successful and the duration of parents’ duty of support are often difficult questions to answer. In the maintenance court this is often were the waters get muddled. Case law does, however, provide some guidance in this regard.
Scale of Support
In today’s day and age income earning capacity often directly correlates with tertiary education. Moreover, the social economic reality is that many children have not even concluded their secondary education when they turn eighteen. Consequently, very few eighteen-year-olds earn an income and major children are often reliant on the financial support of their parents until they are well within their twenty’s.
A major is, however, not usually supported on as lavish a scale as a minor and has to be in indigent circumstances in the sense that he or she is in need of a contribution towards his or her maintenance. In B v B 1999 2 All SA 289 (A) it was stated that although the duty of support persists into the child’s majority, its nature changes and it is then confined to necessaries. Whether an expense falls within the ambit of ‘necessaries’ seems to be a subjective test.
Maintenance in respect of children includes education. Whether or not this extends to tertiary education will depend on the parents’ financial circumstances and social status as well as the child’s academic aptitude and achievements.
Whether a parent can be held liable to pay for university education should be judged in light of the standard of living and income of the parents. If parties have the financial means it is generally accepted that parents could be held financially liable for their major child’s tertiary education. When a major dependent child shows trends of failure or negligence, then it is no longer the parents’ responsibility to pay for tertiary education.
Tertiary education is not a right. Where it is within the parents’ means, parents are obliged to pay all or part of the reasonable costs of the child’s tertiary education, for as long as the child shows due diligence, aptitude and continues to make satisfactory progress. Such costs can include university fees and/or fees for any institution of higher learning attended by the child, accommodation and travel/transport expenses, and any books and equipment required.
This begs the question whether parents’ duty to support extends even further, and whether parents could be held liable for post graduate studies and perhaps even indefinitely. The question that is often grappled with in practice, is where to draw the line.
This evokes a further question: is there a reciprocal duty on major children to limit their financial dependence, and to take up employment as soon as possible, albeit part time. It would seem that the fact that a child is capable of supporting him or herself does not always preclude a duty to provide higher education. In Smit v Smit 1980 3 SA 1010 (O) 1019 Fleming J held that “because of the elasticity inherent in the concepts of “necessaries” and “indigence”, the duty of support is not limited to a low level of education.
Older authorities seem to suggest that the provision of higher education to be within a parents’ discretion. It was also held that the custodian parent would be tasked with the decision whether or not a child should attend university. Times have clearly changed and parents’ discretionary powers are diminishing. These days it has even been held that the fact that a major child works does not mean that he or she is necessarily self-supporting. Continued but reduced support by parents may be necessary in accordance with the family’s standard of living.
Duration of the Duty to Support
It is also important to bear in mind that the duty to support a child ends at the child’s death but not at the parent’s death. In the event of the parent’s death and if the Last Will and Testament does not adequately provide for maintenance, the child may lodge a claim for future or even respective maintenance against the deceased parent’s estate.
Parents maintenance obligations may also revive in certain circumstances. The unfortunately reality is that certain major children will never have the ability to earn an income or it may diminish due to changed circumstances. The duty to support revives if a child ceases to be self-supporting for reasons such as ill-health or disability.
If there are adequate resources on the part of the parent who is called upon to provide support, a parent will be required to fulfil his or her maintenance obligation. Parents must use their income, and also their capital, if necessary. If a parent is genuinely indigent and unable to work, or able to provide limited support only, he or she is not under an obligation to support the child and the maintenance obligation may cease prematurely.
A parent cannot, however, evade the duty to support by giving up work and, for example, embarking on full time studies.
In certain circumstances a child’s conduct can relieve a parent of the duty to support. Parents’ duty to support ceases when the person to be maintained is guilty of such a degree of ingratitude that it would justify disinheritance.
When a child marries, the duty of support rests primarily on the spouse and only if the spousal maintenance is insufficient can parents be called upon to make a maintenance contribution. In these circumstances, the parents would have a right of recovery against their married child’s spouse.
In the ordinary course the duty to support will cease to operate when the child marries, alternatively becomes self-supporting, or conceivable when the child becomes capable of supporting him or herself. Whether that event has indeed occurred may be the subject of dispute but it is often an objective fact capable of being established with sufficient certainty. The test whether a major dependent child is entitled to maintenance, and the amount of maintenance payable, is ultimately subjective and boils down to the financial means and standard of living of the parents.
It is becoming increasingly important for parties to be aware of their maintenance rights and obligations. In light of recent legislative changes to maintenance law, it is apparent that no tolerance is going to be afforded towards maintenance defaulters. On 05 January 2018 key sections of the Maintenance Amendment Act, 2015 (Act No. 9 of 2015) came into effect. The new law gives maintenance officers power to track down defaulters through information obtained from cell phone service providers and blacklisting defaulters with credit bureaus. This is a very progressive piece of legislation which will prevent maintenance defaulters from continuing to receive credit while owing maintenance and will assist in tracing defaulters, who often do everything in their power to circumvent their maintenance obligations. This would furthermore serve as a deterrent to those defaulting on their maintenance obligations.
Biological (or adoptive) parents’ duty to maintain continues regardless of the child’s age, and endures until the child is self-supporting. Once the child reaches the age of eighteen years, the onus is shifts onto the child to prove how much maintenance he or she needs. Whilst case law sets our certain guidelines, the maintenance that a major dependent child is entitled to, is to be determined on a case to case
By Nicola du Toit, Associate and Jeannique Booysen,Candidate Attorney
01 October 2019