A lot of mothers might assume that just because the fathers of their children are financially unable to support their children there is no other remedy to rectifying same, which is legally the wrong assumption....

In the following blog, I will only be one-sided in my scenario and examples as I will be only referring to the father of the child being unable to maintain the child for ease of portraying a more realistic picture to the readers.

The law places a duty on the parents of a child to financially maintain the child until he/she can do same for him/herself. A lot of people are of the impression that once the biological parents of a child cannot financially maintain the child, there is no other remedy available for same to be rectified. However, that is not the position as our common law goes as far as ensuring that the best interest of the child comes before anything else as a legal duty is placed upon maternal and paternal grandparents of a child to maintain their grandchildren should their respective child fail to do so.

The information mentioned supra has been the position in South African law, but the High Court in the Petersen v Maintenance Officer and Others matter stretched the customary law even wider as the court found that it does not matter whether the child was born out of wedlock or not, both the paternal and maternal grandparents of a child is legally obligated to maintain the child only if the parents of the child are in a financial which disables them to do so.

Fathers who tend to incur debts and fabricate other expenses in order to strain themselves financial to deviate from themselves away from the duty of taking care of their children may do more harm than good. Section 2(1) of the Maintenance Act explicitly states that the Act applies and places a legal duty on any person to maintain any other person irrespective of the nature of the relationship between those persons giving rise to that duty. The Act also goes further to state that it shall not be interpreted so as to derogate from the law relating to the Iiability of persons to maintain other persons. Therefore, the court does not place a non-existent legal duty on people who have no obligation to take care of other people, however taking into consideration that grandparents are also biologically linked to grandchildren makes it clear that they have a duty upon their grandchildren. If the court finds that the grandparents are also unable to financially maintain a grandchild, the siblings of the parents may also be subpoenaed to court to provide reasons why they should not be ordered to maintain their sibling’s child.