Maintenance and major children – when does the duty to support children end?

By Sasha Goldstein Attorney

In South African law, the term maintenance covers a parent’s duty to support their child/children. The responsibility extends to, among other things, accommodation, food, clothes, medical and dental attention, and all other necessities of life on a scale in line with the parents’ social position, lifestyle, and financial resources[1].

South African law defines a child as a minor or a person under 18 years old. Once a child reaches the age of majority, 18 years of age, they are no longer considered a child/minor and are now an adult in terms of the law. However, most parents ask when they must stop paying maintenance for their child. For example, surely a 19-year-old, who is in her first years of studying at a university, taking a gap year, or has just entered the job market, but still living at home, cannot be deemed self-sufficient?

The law says that a parent’s duty to support a child does not cease when they reach a particular age but usually does so when they become self-supporting[2]. What does our law say if there is no current maintenance order in place, and a parent wishes to seek maintenance from the other parent for a child who has reached the age of majority? The major child has the onus to claim maintenance from the non-paying parent. In other words, the adult child must take their parent to court unless there already is a court order in place which the non-paying parent has breached.

Section 6 of the Divorce Act 70 of 1979 concerns safeguarding children’s interests when their parents divorce. It refers to ‘provisions made or contemplated with regard to welfare of any minor or dependent child of the marriage’ and provides that a court granting a decree of divorce may make any order it may deem fit in respect of the maintenance of a dependent child of the marriage[3]

The duty to maintain children may further, in certain circumstances, include the duty to provide tertiary education. However, this will depend on the parents’ financial circumstances and the child’s academic aptitude[4].

Further, the fact that a child may be capable of supporting themselves does not preclude the parent’s duty to still maintain such child. The fact that a child is working does not mean that he or she is necessarily completely self-supporting, in such circumstances continued but reduced support / maintenance may be necessary in accordance with the family’s standard of living.[5]

In addition, when a child ceases to be self-supporting for reasons such as ill health or disability, the duty of support is revived[6]

Thus, in summary, the answer is that a parent’s duty to pay maintenance for their children continues until the child is entirely self-sufficient and not upon the child reaching the age of majority. However, should there be no court order for maintenance already in place, and a child who reaches the age of majority requires maintenance from a parent, the child must claim such maintenance from that parent directly. The other parent, whom the child most likely primarily lives with, cannot apply for maintenance on that major child’s behalf.

A child may approach the grandparents for financial help if his parents can’t pay maintenance.  See this article.

[1] Voet Commentarius ad Pandectas 25 3 4; Van Leeuwen Censura Forensis 1 1 10 5; Du Toit v Du Toit (1991) 4 All Sa 716 (O), 1991 (3) SA 856 (O) 860, 861

[2] Sikatele v Sikatele (1996) 2 All SA 95 (TK)

[3] Clark, D. B. (2016). Handbook of the South African Law of Maintenance. Johannesburg: LexisNexis

[4] Clark, D. B. (2016). Handbook of the South African Law of Maintenance. Johannesburg: LexisNexis.

[5] Gliksman V Talekinsky (1955) 4 All SA 306 (W) 470

[6] Ex parte Pienaar (1964) 2 All SA 62 (T), 1964 (1) SA 600 (T)

Click to view our Website Disclaimer

Leave a Reply

Your email address will not be published. Required fields are marked *