Major change for maintenance and divorce in South Africa

·30 Jul 2022

A new Supreme Court of Appeal (SCA) ruling has changed the way in which children over the age of 18 are considered in maintenance claims during divorce proceedings in South Africa.

Before the ruling, there were various judgments regarding whether a parent may claim maintenance for their major dependent children (adult children) during divorce proceedings, says Natasha Truyens, a senior associate at Barnard Incorporated Attorneys.

However, a new divorce case recently considered by the SCA has solidified the court’s position.

In the case, the court had to determine whether a parent had the right to claim maintenance from the other parent on behalf of their adult child during divorce proceedings.

Taking section 6 of the Divorce Act into consideration, the SCA ruled that an adult dependent child is not automatically joined to divorce proceedings.

Section 6 of the Divorce Act relates to the safeguarding of interests of dependent and minor children as well as the major children’s constitutional rights to human dignity, emotional wellbeing and equality.

In terms of the section, parents of a minor or adult-dependent child have a statutory and common law duty to maintain their children in accordance with their respective means, and this duty is not terminated by way of a divorce, said Truyens.

However, the SCA said that maintenance for an adult child is not a given and that parties to divorce proceedings have to satisfy the court that maintenance is required for them.

There is no legal requirement that the adult dependant child is joined in the proceedings, the court said.

Under the South African Children’s Act of 2005, a child reaches ‘majority’ status at 18 years old, not 21, and entitles the teenager to contract and conduct their own affairs without the assistance of a guardian.

While a court order issued in divorce proceedings is binding between the parents, an adult dependent child still has the capacity to institute their own maintenance proceedings against any parent in terms of the Maintenance Act.