South Africa has one of the highest divorce rates in the world.
A claim for the maintenance of a minor child is generally brought by the parent in whose care the child is. Section 17 of the Children’s Act 38 of 2005 came into effect on the 1st of July 2007. According to Section 17, the age of majority was lowered from 21 to 18. This reduction in the age of majority had several repercussions for young dependent adults between the ages of 18 and 20. Typically, children between the ages of 18 and 21 are unable to earn sufficient income to pay their tuition fees or to support themselves and they remain financially dependent on their parents. This group of young adults now have the required capacity to litigate and upon their parents’ divorce, they can personally claim for maintenance against his or her parents. This was then also the court’s argument in the matter of Smit v Smit 1980 (3) SA 1010 (O) at 1018B – C, that:
When the child turns 21 … 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.
On this interpretation the parent who has care of the major child does not have locus standi to bring a claim for maintenance relating to that major child and the “child” will have to be joined as a party to the divorce action. The alternative would be that the “child” institute a claim for maintenance in the maintenance court, which would inter alia require the child to be absent from school or from class for several days. First a complaint has to be lodged with the maintenance clerk and then the “child” has to appear at the initial informal enquiry before the maintenance officer and later at the formal enquiry in the maintenance court, which could be postponed several times, as often happens in practice.
Apart from being absent from school or class, another dilemma the “child” has is that he or she has to litigate against a parent with whom he or she has to maintain a meaningful relationship after the divorce. Another consideration is that if the “child’s” maintenance claim is granted and paid by one parent, it might be very awkward and undesirable for the parent with whom the “child” lives to look to the “child” to pay over some of the maintenance he or she received as a contribution towards the “child’s“ living expenses.
Many adult children find it awkward to engage in litigation against one of his or her parents. This often has the result that these “children” flatly refuse to institute their own maintenance claims, thereby placing an unbearable burden on the parent with whom they reside.
In two recent judgments our courts came to the assistance of the parent with whom the adult dependent child resided at the time of divorce. In these cases, JG v CG 2012 (3) SA 103 (GSJ) and Butcher v Butcher 2009 (2) SA 421 (C), the courts allowed the primary residence parent to include the costs of the adult dependent “child” in their claim for maintenance. The argument in Butcher was the following:
Placing this burden on an adult dependent child who still lives at home in most circumstances puts him/her in an invidious position. Also, where an adult dependent child still lives at home and the primary residence parent requires a contribution in respect of his living costs, it is undesirable that such a parent should look towards the adult child to pay over a contribution from an amount received as maintenance from the other parent.
The court went further:
In terms of s 7(2) of the Divorce Act a court, when determining a spousal maintenance claim, must take into account, amongst other factors, the parties’ respective financial needs and obligations, as well as their standard of living during the marriage. Where the parties have separated and the adult children of the marriage have continued to live with the mother who has had to use her household budget to run the family home and provide groceries for a three-member household, such parent’s responsibility to provide the children with a home, with all that this entails, constitutes an ‘obligation’ within the meaning of s 7(2) of the Divorce Act which can validly be taken into account in determining the quantum of her interim maintenance claim.
In JG, the Judge said that:
In my opinion, the discretionary and empowering provisions of these sections of the Divorce Act [sections 6 and 7] are sufficiently wide to enable a court, on divorce, to make an order directing the one spouse to pay amounts to the other spouse in respect of expenses incurred to maintain the major, but dependent, child.
This approach would ensure that the parent with whom the adult dependent child resides, is not prejudiced upon divorce and that both parents fulfil their common law duty of support in respect of their children. It would also save school-going adult children or students from the negative repercussions of having to institute their own maintenance claims upon their parents’ divorce.