28 July 2022

The Supreme Court of Appeal Confirms Locus Standi for Parents in Maintenance of Adult Children

Submitted by SchoemanLaw Inc

By Kavita Kooverjee

On 21 July 2022, the Supreme court of Appeal confirmed that parents may claim maintenance on behalf of their adult child; no separate application would need to be made by the adult child. But this does not bar an adult child from doing so independently. 

In addition, a child would not need to be joined as a party in their parents' divorce proceedings, as it was decided in the High Court Judgment, which led to the matter being appealed to the Supreme Court of Appeal. 

In Z v Z, a mother initiated divorce proceedings against the father. Apart from applying for the Divorce decree, she applied for maintenance for herself and her two adult children. The father then filed a special plea that the mother does not have loci standi to apply for maintenance for the children and that the children should apply for maintenance in their names. 

The SCA looked at Section 6 of the Divorce Act 70 of 1970, :Safeguarding of interests of dependent and minor children Cases:

(1) A decree of divorce shall not be granted until the court-

(a)  is satisfied that the provisions made or contemplated with regard to

the welfare of any minor or dependent child of the marriage are satisfactory or are the best that can be effected in the circumstances; and

(b)  if an enquiry is instituted by the Family Advocate in terms of section 4 (1) (a) or (2) (a) of the Mediation in Certain Divorce Matters Act, 1987, has considered the report and recommendations referred to in the said section 4 (1).

[Sub-s. (1) substituted by s. 6 of Act 24 of 1987.]

(2) For the purposes of subsection (1) the court may cause any investigation which it may deem necessary to be carried out and may order any person to appear before it and may order the parties or any one of them to pay the costs of the investigation and appearance.

(3) A court granting a decree of divorce may, in regard to the maintenance of a dependent child of the marriage or the custody or guardianship of, or access to, a minor child of the marriage, make any order which it may deem fit, and may in particular, if in its opinion it would be in the interests of such minor child to do so, grant to either parent the sole guardianship (which shall include the power to consent to the marriage of the child) or the sole custody of the minor, and the court may order that, on the predecease of the parent to whom the sole guardianship of the minor is granted, a person other than the surviving parent shall be the guardian of the minor, either jointly with or to the exclusion of the surviving parent.

(4) For the purposes of this section, the court may appoint a legal practitioner to represent a child at the proceedings and may order the parties or any one of them to pay the costs of the representation.

The Supreme Court of Appeal (SCA), after reviewing previous conflicting High Court decisions on whether a parent has locus standi in judicia to claim maintenance from the other parent on behalf of their adult dependent child in divorce proceedings, noted that some decisions allowed for parents having loci standi while others had disagreed. 

With regard to the Special Plea filed by the father, the High Court, in this matter, decided that the mother has no locus standi to claim maintenance for the adult children. 

The SCA mentioned that concerning Section 6 of the Divorce Act 70 of 1979, the duty to maintain a child does not end when a child reaches a particular age but continues after the child has attained majority.

The judgment further noted that one has to look at the literal meaning of the words used in Section 6 of The Divorce Act; and that the duty to maintain a child extends beyond the majority, as recognised by Section 6 of the Divorce Act. Nor does it excuse a parent's common law duty to support a child. 

Acting Judge P A Meyer also mentioned that Section 6(1)(a) and S6(3) does not differentiate between a minor child or a major dependent child of the marriage regarding the payment of maintenance. 

When one looks at the Divorce Act, there is no legal requirement for an adult child to be a party to or be joined to the divorce proceedings between their parents, as was decided in this matter's High Court Judgement. 

"An interpretation of s 6 of the Divorce Act that excludes a claim for maintenance by a parent on behalf of a dependent child who has attained majority would not preserve its constitutional validity and result in absurdity. It would implicate the constitutionally entrenched fundamental rights to human dignity, emotional wellbeing and equality. "

It was further noted: "Most children are not financially independent by the time they attain majority at age 18. Many have not even concluded their secondary education and only commence their tertiary education or vocational training after they have attained the age of majority. A further reality is that it often takes time for young adults to obtain employment." 

Conclusion

The Supreme Court of Appeal upheld the Appeal and confirmed that Section 6(1)(a) and 6(3) of the Divorce Act grant parents the requisite legal standing to claim maintenance on behalf of their adult children. 

Contact an attorney at SchoemanLaw Inc for your family law needs.

Kavita Kooverjee
SchoemanLaw Inc – www.schoemanlaw.co.za

Z v Z (556/2021) [2022] ZASCA 113 (21 July 2022).

Z v Z (556/2021) [2022] ZASCA 113 (21 July 2022).

Z v Z (556/2021) [2022] ZASCA 113 (21 July 2022).

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