It often happens that a man cannot afford to pay maintenance or is an inconsistent maintenance payer. Sometimes that man has wealthy parents. Can the grandparents in such situations successfully be taken to the Maintenance Court?
Newspaper headlines recently involved a case where our former President, F.W. De Klerk, is allegedly being taken to the Maintenance Court by his daughter-in-law, Nicole (Noordier) De Klerk. She is currently going through a divorce from F.W. De Klerk’s son, Willem.
According to reports, the maintenance claim is for R33 000 per month in respect of the two children the couple have together. There is currently an amount being paid by a family trust in the sum of R10 900 per month towards maintenance and school fees of these two children.
According to Nicole, Willem is an unreliable maintenance payer and due to inconsistent maintenance payments the two daughters had to give up extramural activities.
F.W. De Klerk according to reports successfully applied to the Court for an urgent application that his financial position remains confidential. He says that no Court has even made a finding that the parents cannot support the children themselves. He says that the publication of his financial position would infringe his right to privacy and dignity.
The maintenance matter is allegedly being heard in the Randburg Maintenance Court. De Klerk according to reports said that until his son can afford proper maintenance, the Fredek-Trust would continue as usual to contribute R10 900 per month to the maintenance and school fees of the children.
In our Law the duty to maintain children falls upon the direct biological parents of the children. This duty according to the new Children’s Act is enforceable until the children reach the age of 18 years or until a child becomes self-supporting, whichever event first occurs.
In certain instances however other parties can also be found to be liable for maintenance. A stepfather can be liable for maintenance for example if he has been supporting his stepchild(ren) and no maintenance is forthcoming from the biological father.
Grandparents can also be liable for maintenance in certain instances too. If your child cannot afford to pay maintenance and you as a grandparent have substantial wealth, the Court may hold the grandparent liable.
In the case of Willem De Klerk, the Court must first establish that the biological parents cannot afford to support the children. If there is no proof of that, F.W. De Klerk cannot be found liable to pay maintenance.
If however it is proven that the biological parents cannot afford to support the children, F.W. De Klerk may be found liable to pay maintenance. That of course would depend on his financial position. He may be subpoenaed and called upon by the complainant in certain instances to disclose his income, expenses, assets and liabilities. That would be the only way to determine if he can afford maintenance or not.
The duty to maintain at the end of the day is firstly the direct responsibility of the biological parents. If they cannot afford to support their children they too can be requested to furnish proof of why they cannot afford to support their children.
This article was written by Cape Town divorce lawyer, Peter M Baker
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