Tacit emancipation

Source: Reader’s Digest’s: You and Your Rights

Tacit emancipation occurs when the capacity of a minor to act without parental consent is ‘enlarged’ to encompass certain key areas that will enable him or her to be viewed by the law as a major.

A court order or any other form of application is not needed for a minor to become tacitly emancipated. Each case is decided on its merits, taking into account factors such as age and occupation (especially the type of work and the length of time the minor has been involved in it). Therefore, a job that lasted only a few weeks or isolated business transactions will not give rise to emancipation.

The prime consideration is the degree of financial independence that the minor has achieved. In this respect, ownership of a business or an occupation that brings in a salary are crucial. Residence outside the parental home will be regarded as further proof of emancipation. However, a student who lives in digs but who continues to be supported by parents has not achieved financial independence and will not be regarded as emancipated. A minor living with parents must show some economic independence by, for instance, paying a reasonable sum for board and lodging.

Other points to remember are that a minor cannot achieve emancipation by running away from home, that the permission of the guardian must be obtained for the activity he or she is engaged in and that physical appearance will not be a factor in deciding on emancipation.

Case History – Old enough to be responsible

The defendant in a civil case was a minor aged 20, who lived with his mother and stepfather, and who had been employed as a clerk for about four years. About 13 years before the case was heard the parents of the defendant were divorced, after which his father moved to another province. Except for making an affidavit to enable the defendant to obtain a passport, his father had exercised no right or control over him; indeed, the defendant had had nothing to do with his father.

Of his salary of R70 a month, the defendant paid around R20 a month to his mother for board and lodging. For two-and-a-half years he had operated his own banking account. On two occasions he had been overseas to conduct business for his employer.

An action arose over a cheque the defendant had given the plaintiff as rent for the plaintiff’s house, which his mother and stepfather had hired as accommodation for the three of them.

His mother and stepfather having decided subsequently not to take the house, the minor stopped payment of the cheque. The plaintiff, however, refused to cancel the contract.

(Dickens v Daley, 1956)

The effect of emancipation

A minor who is tacitly emancipated does not acquire full legal capacity and cannot, for instance, marry without parental consent. Furthermore, a tacitly emancipated person will need the Supreme Court’s permission to transfer or mortgage any immovable property he or she may own, although if the amount does not exceed R100000 the consent of the Master of the Supreme Court will probably be sufficient.

The law is not clear about whether a tacitly emancipated minor can enter into any kind of commercial contract without parental assistance, or can conclude only those contracts that a guardian specifically intended to authorise, such as those relating to the minor’s business.

The law also does not state clearly whether a guardian who has tacitly emancipated a minor can revoke (cancel) the authority previously granted the minor.