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Can grandparents sue for maintenance?

I was on a radio talk show on 702 and Cape Talk dealing with maintenance recently. Callers called in asking me various maintenance related questions. Some of the callers had been divorced and in other matters a child had been born "out of wedlock", as they refer to it.

It is not always that easy to answer a maintenance-related query when I haven't seen the court order, if there is a court order. Over the radio I no doubt hadn't seen any court orders. I always urge my clients when phoning me in my practise to make an appointment to see me to please bring along the court order, if they have one, and not to forget it. I however answered the questions as best I could.

One query I received was particularly interesting. A lady from Durban called and advised me that she had been looking after her granddaughter since she was thirteen years old. Her daughter had passed away. Before her daughter had passed away she had divorced her husband.

In terms of the divorce order the deceased was awarded custody (now referred to as "care") of the child and the father had to pay maintenance of R1000.00 per month. The father however lost all interest in his child, and hardly ever saw her. He also never paid maintenance.

The grandmother who had looked after her granddaughter all the years now advised me that the child had now finished school, and was eighteen years old, and wanted to study at university. She asked me who would now have to claim maintenance from the father – her or the child.

My advice was that the age of majority is no longer 21 but is now 18 and that in such a situation the child would have to take both her grandmother and the father to the maintenance court. A full inquiry would then have to be done to determine how much each would have to contribute financially to the child's studies.

As far as the failure to pay maintenance was concerned, the grandmother would have the right to open a criminal case against the father. All of his arrears up until age 18 of the child would be added up. He would have to come to court to explain why he never paid. He would also possibly be incarcerated for his failure to pay maintenance.

In this case the grandmother wasn't party to or mentioned in the divorce order. She was however certainly an interested party as she had "stepped into the shoes" of her daughter who had passed away, and taken over the duty of looking after her grandchild.

Unfortunately now that the child was over the age of 18, in order for the grandmother to get the father to help pay, the child would have to take both the father and the grandmother to the maintenance court. Post the age of 18 the grandmother wouldn't be able to take the father to the maintenance court herself. Her granddaughter would have to do that.

During my telephonic discussion with the grandmother she also mentioned that she had reason to believe that the father had taken out an education policy years earlier for the child to cover post-high school education. I advised her that different policies work differently and that at any maintenance inquiry she would no doubt be allowed to request proof of the policy and what exactly it entails.

Related Articles

Children suing for maintenance

Divorce and the role of grandparents

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