Maintenance orders are directed at the enforcement of the common law duty to support a child and provide for a proper living and upbringing. In terms of Section 15 of the Maintenance Act 99 of 1998 parents have a duty to maintain and support children who are “unable to support themselves.” In terms of the definition of “child” in the Children’s Act 38 of 2005, a child attains majority at 18. Does this mean that once a child turns 18, a parent is no longer obligated to support him? In modern economic times jobs are hard to come by and tertiary education seems to be a pre-requisite to stand a chance at entering the job market, so where do you draw the line and cut the proverbial apron strings to let your children fend for themselves?
The duty to support generally does extend beyond the age of majority and depends more on whether a child is self-supporting, however there are two ways this obligation comes into being: Firstly, the interpretation of an existing order for maintenance will be interpreted by the court to determine whether the parent should continue paying the monthly contributions after the child has attained majority. Secondly, a major child in need of financial support can bring an application to court for maintenance.
Should an existing divorce order not specify an age upon which the obligation to pay maintenance will cease, the court will have the authority to interpret the order as it deems fit. In various matters the court held that where an order does not specify an age it will continue post majority if the child is not yet self-supporting.
It therefore seems to be the general consensus of the courts that the attainment of majority does not per say terminate the duty of support, it is the child’s ability to maintain himself that is important. The definition of “self-supporting” is interpreted by the courts on a case-to-case basis and will take into consideration the financial circumstances and social status of the family concerned.
Furthermore, just because a child is working does not necessarily mean he or she can be classified as self-supporting either. This is why it is important to be specific in the terms of any maintenance order. The maintenance clause should contain an explicit termination date and/or review option should a child wish to undertake tertiary education and display aptitude for such.
If divorce proceedings have already been concluded and there is no order in place securing support for the major child, he/she has a right to bring an application to the Maintenance Court to claim support from his parent(s). The obligation to pay maintenance for a major is dependent on two factors, the need for assistance and the parent’s ability to assist. The obligation will only arise once the major child has proven to the court how much he reasonably requires the parent to pay, in Hoffman v Herden NO and Another 1982 (2) SA 274 (T) the court confirmed that “a claim for support by a child who has become of age, the onus would be on the claimant to show that she needs the support and the quantum of support required.” In the same case Theron J clarified that a “parent’s obligation to pay maintenance to a major child arises only once the child has discharged the onus of proving such obligation”.
When a court decides how much maintenance the major is entitled to, the scale is far less generous than what is determined for minor children and is confined to necessities. E x parte Jacobs 1982 (3) SA 276 (O)held that“a major child is not entitled to support on as lavish a scale as minor children. The court will consider the parents financial circumstances, social status, standard of living as well as the child’s aptitude and achievements when determining to what extent the duty to pay maintenance will be ordered.”
Enforcing the payment of maintenance is the same whether it is an order for maintenance which was made at the time of divorce, or one which was made upon the major child approaching the court for an order for support. Enforcement of any maintenance order is regulated by Section 26 of the Maintenance Act, where a parent fails to make payment in accordance with a maintenance order it can be enforced by execution against the defaulters moveable property, attachment of any emoluments or attachment of any debt owing to the defaulter.
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