“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,” noted the Supreme Court of Appeal”.

Can Parents Claim Maintenance for Adult Dependent Children During Divorce?

The Supreme Court of Appeal has ruled that a parent can claim maintenance for their adult dependent children from the other parent during a divorce. The judgement passed down has resolved the long outstanding question in our law of whether a parent was entitled to claim for maintenance for their adult dependent children. 

Children rely on their parents for emotional and financial support, which aids in the child becoming a productive member of society in adulthood.

However, when a child reaches the age of 18, they are often still reliant on their parents for such support, but whether one parent can claim for maintenance on behalf of their adult dependent child has long been a question within South African law. 

Whether a parent can claim maintenance on behalf of their adult children who are still dependent on their parents has been a contention for several years. 

This was due to conflicting South African court judgements, which created uncertainty on whether a parent lacked the necessary legal standing to represent an adult-dependent child in such matters.

In late July 2022, the Supreme Court of Appeal addressed this legal uncertainty in the case of Z v Z (556 /2021) [2022] ZASCA 113 by ruling that a parent can claim maintenance for their adult dependent children from the divorce partner, effectively ensuring that an adult dependent child would not be required to be a part of the divorce legal proceedings.   

During this judgment, the Court noted that many children are not financially independent at the age of 18 and that the parents have to support these dependent children. The Court further pointed out that children should not be required to enter the conflict between parents during their divorce.  

In reaching its decision, the Court had to determine whether a parent had the necessary legal standing to act on behalf of adult dependent children to claim for maintenance on their behalf or whether the adult dependent children would have to claim maintenance themselves. 

This was due to the appeal being brought to the Supreme Court of Appeal by a mother against a decision reached by the Eastern Cape High Court which was in favour of the father.

During the initial matter, the father raised a special plea that his two children, who were now adults, were required to pursue their maintenance claims against him in their own name and not by the mother, who had claimed maintenance for herself and their two adult children.

During the matter, the mother relied on the provisions of the Divorce Act [70 of 1979], which she contented authorised her to claim maintenance on behalf of their adult dependent children.

In reaching its decision the Supreme Court of Appeal noted the past conflicting judgments which indicated that on the one hand the parent had the necessary legal standing to claim for maintenance on behalf of their adult dependent children while other cases did not and that the children would have to be joined as parties to the divorce proceedings. This was the stance taken by the lower Court in this matter.   

The Supreme Court of Appeal indicated that parents of minor children and of adult dependent children had a duty to support such children in accordance with their financial means, which is included in common law and statute.

The Court noted “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”.

The Court also highlighted that in terms of the Divorce Act, a Court would not grant a divorce if it was unsatisfied that the welfare of any minor child or dependent child was provided for. In this regard, the Court noted that it would make any order it deemed fit and necessary to ensure that parents provided for a child in respect of maintenance.

It further noted that the act, when adequately contextualised, would support an interpretation that a parent can claim maintenance on behalf of their adult-dependent children.

The Court indicated that this section was clear in that it served to safeguard the welfare of both minor children and adult-dependent children and that any other interpretation would be unconstitutional.

The Court stated, “It would implicate the constitutionally entrenched fundamental rights to human dignity, emotional wellbeing and equality.”

The Court further acknowledged that dependent adult children should also remain removed from the conflict between their divorcing parents for as long as possible, just like minor children, unless these dependent adult children specifically elect themselves to assert their rights to the duty of support.

The Court indicated that these dependent adult children shouldn’t have to take sides in their parents’ divorce proceedings and be required to institute a claim together with one parent against the other.

In reaching its ruling, the Court expressed that these adult-dependent children should preferably maintain a meaningful relationship with both parents even after their parent’s divorce.

As a result, the Court upheld the mother’s appeal with costs. It dismissed the father’s special plea, effectively entrenching in our law the ability of a parent to claim for maintenance on behalf of their adult dependent child during divorce proceedings.