In the midst of a divorce, discussions about the child maintenance of shared children is expected. But what happens when said children are no longer minors? Paying the child maintenance of a major dependant (an adult child that is over the age of 18), has always been a thing of contention in South African divorce courts. Neither side knows whose favour the judgement would fall upon. Then a landmark case in the Eastern Cape caused the Supreme Court of Appeals to set a precedent. Rules of paying child maintenance to a major dependent have been solidified. Mbebe Fuba-Marais Attorneys breaks down these changes and makes things easy.
The case of child maintenance
In Port Elizabeth, a mother initiated divorce from her husband with whom she shared two adult children. In the midst of the divorce proceedings, she attempted to claim child maintenance for these two major dependents. Her husband rebutted her, alleging that she had no right to claim maintenance on behalf of major dependents. His locus standi (right or capacity to bring an action or to appear in a court) plea was successful. This was not surprising. The Eastern Cape Division of the High Court had a history of handing out conflicting judgements when it came to this matter. Deciding not to back down, she took matters to the Supreme Court of Appeals (SCA) in Bloemfontein, using section 6 of the Divorce Act of 1970 to plead her case.
The ruling and what it means
With the matter now in the hands of the SCA under Z v Z, the mother claimed that the Divorce Act gave her the capacity to claim child maintenance on behalf of the major dependents. After hearing her case, the SCA ruled in favour. They stated that section 6 of the Divorce Act serves as a clear safeguard to the welfare of both minor children and major dependents of a marriage. They went on to stipulate that locus standi was not needed. The guardians of major dependents could stand in place of their adult children when filing a case for child maintenance. The court order for divorce proceedings is only binding to the parents. Furthermore, the door is still open for adult children to file their own case for maintenance against any parent of their choosing in terms of Section 6 of the Maintenance Act 99 of 1999.
In light of these new rulings, it has never been more important to seek appropriate legal counsel when faced with the rocky road of divorce looming ahead. At MFM Attorneys., our lawyers that are proficient in family law are well-equipped to guide clients through what can be a confusing and stressful time. The law can be a tricky maze, but it doesn’t have to be that way. Contact us for more information.
