Can Maintenance Be Claimed on Behalf of Adult Dependent Children?

In a recent judgment by the Supreme Court of Appeal, the case of Z v Z examined whether a parent has the legal standing to claim maintenance for adult dependent children from the other parent. This ruling emphasises the responsibilities of parents even after their marriage has ended.

The court relied on Section 6 of the Divorce Act of 1979, which outlines the conditions under which a divorce may be granted. Specifically, it states:

1. Welfare of Children: The court must ensure that provisions for any minor or dependent child of the marriage are satisfactory before granting a divorce.
2. Investigation and Costs: The court may conduct investigations as deemed necessary and can order parties to bear related costs.
3. Maintenance Orders: The court can issue orders regarding the maintenance of dependent children and may grant sole guardianship or custody if it serves the child’s best interests.
4. Legal Representation: The court may appoint legal practitioners to represent children in proceedings and assign related costs.

In the case of Bursey v Bursey, the court reinforced that both divorced parents remain responsible for financially supporting their children after separation. Importantly, this responsibility continues even after children reach adulthood, contingent upon their ongoing needs and the parents’ financial capabilities. According to the Divorce Act, a divorce will not be finalised until the court is satisfied with the arrangements made for any minor or dependent children.

The court also noted that turning 18 does not automatically mean one is no longer a child. As highlighted in Centre for Child Law v Minister of Justice, this age simply signifies a transition to adulthood. Similarly, in the case of Smit, a 21-year-old university student was deemed a child in his father’s home, as he still shared in the family lifestyle and support.

Under Section 6(3) of the Divorce Act, the court has the authority to make decisions regarding financial support for adult dependent children. This means that one spouse can seek maintenance for their adult child, while the other spouse may present counterclaims regarding the same support.

When a parent seeks maintenance for an adult dependent child, they must provide relevant information, such as their financial situation and the child’s needs. The court will consider how maintenance payments should be structured—whether paid directly to the parent, the adult child, or even an educational institution.

It is crucial to note that while Sections 6(1)(a) and 6(3) refer to “minor” and “dependent” children, Section 6(4) simply uses the term “child.” This broader term encompasses individuals of any age, including adult dependents. Thus, Section 6(4) applies to adult dependent children when the court assesses support obligations during a divorce.

The Divorce Act’s language strongly supports a parent’s right to pursue financial support for adult dependent children, reinforcing that the divorce case fundamentally concerns the parents but also aims to protect the welfare of their children.

Adult dependent children do not need to be directly involved in divorce proceedings, as court orders will apply only to the parents. However, they retain the right to pursue their own maintenance claims against a parent under the Maintenance Act if necessary. Any interpretation of Section 6 that prevents parents from claiming maintenance for adult dependent children would not stand up constitutionally. Such an interpretation could infringe on fundamental rights related to dignity, emotional well-being, and equality.

Many young adults are not financially independent by age 18; some are still completing high school or just beginning higher education or vocational training. A narrow interpretation of the law could lead to absurd situations where a parent may seek maintenance for a younger child still in school but be unable to do so for an older child in a similar situation simply because they turned 18. This discrepancy would undermine the rights of the older child and violate their right to equality.

In conclusion, an analysis of Sections 6(1)(a) and 6(3) of the Divorce Act confirms that parents have the legal right to seek maintenance for their adult dependent children during a divorce. Thus, a reasonable and constitutionally valid interpretation of these provisions is not only possible but necessary.

Reference list:

1. Z v Z(556/2021) [2022] ZASCA 113 (21 July 2022)

While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes.