“My husband and I are currently engaged in divorce proceedings. We have a major son who is currently studying and who is not self-sufficient. My son is aged 21 and I am made to understand that he must claim for maintenance himself. Is this so or can the issue of his maintenance be included in the divorce matter?”

It was previously understood that a parent of an adult child lacked the necessary locus standi in divorce proceedings to claim an order on behalf of such adult child, that the other parent pay certain allowances directly to the child or certain expenses on his or her behalf and the matter of Butcher v Burcher was used in support of this view. It was trite that only children themselves have the standing to pursue such claims against the other parents.

However, in section 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 child of the marriage has continued to live with one parent who has had to use his or her household budget to run the family home and provide groceries for the household, such parent’s responsibility to provide the child with a home, with all that this entails, constitutes an obligation within the meaning of section 7(2) of the Divorce act, which can be taken into account in determining the quantum of his or her interim maintenance claim.

This view was once again confirmed in a recent matter before the Supreme Court of Appeal, the Acting Judge Pieter Meyer (with four judges concurring), has resolved the question of law – and the proper interpretation of sections of the Divorce Act – which has previously resulted in conflicting High Court decisions.

The issue to be determined by the SCA was whether a parent has legal standing to act on behalf of adult dependent children to claim maintenance on their behalf, or whether the children have to make the claim for themselves. The matter before the SCA was an appeal by a mother against a ruling in the Eastern Cape High Court in favour of the father. The father had entered a ‘special plea’ that their two children were now adults, so they should pursue their maintenance claims against him in their own names. Meyer said the parents of a minor children, or an adult dependent child had a duty to support them in accordance with their means, under both common law and statute.

In terms of the Divorce Act, a court would not grant a divorce unless it was satisfied that the welfare of any minor child or dependent child was provided for, and the court could make any order it deemed fit as regards maintenance. Meyer said that properly contextualized, the words in the Act supported an interpretation that a parent can claim maintenance on behalf of adult dependent children.

A parent can claim maintenance for adult dependent children from the other parent upon divorce, the SCA has ruled.

Reference List:

• The Divorce Act
• Schäfer, Family Law Service, Butterworths
• Butcher v Butcher 2009 (2) SA 421 (C)
• Z v Z (556/2021) [2022] ZASCA 113 (21 JULY 2022)