In terms of the new Children’s Act, maintenance is payable until the age of 18 years. Before the new Children’s Act came into effect, maintenance was payable by the parent in respect of the minor child until the minor child was 21 years of age or self-supporting, whichever event should occur first.
I recently had a case where a lady had two children with her husband. The couple were separated from each other. The two children were 16 and 19 years of age. The 19 year old was a student at a college in Cape Town, and was unemployed. Her mother earned R7000,00 gross and her father earned R18 000,00 gross per month. Before my client, the female, had consulted me, she had on her own taken the father of the child to the maintenance court, and requested that he pay maintenance for the 19 year old who was still a student. The court quite correctly dismissed the application on the grounds that once a child turns 18, it is their duty to apply to court for maintenance, and that one of their parents cannot do so on their behalf against the other parent.
In another one of my cases the parties had been divorced for quite some time. The one child lived with his mother in Somerset West, and his father stayed in Cape Town itself. The boy had enrolled to study at Stellenbosch University, and had moved into a flat there. The mother also took the father of the child to the maintenance court. She wanted him to pay amongst other things for his accommodation, as well as his university fees and also to purchase a new motor vehicle for him. The court also decided here that it had to be the son taking his father to the maintenance court, as the child was above the age of 18, and that the mother could not do so on his behalf.
In both of the abovementioned cases when the child eventually took the father to the maintenance court for maintenance, they were successful in their actions. The court would however take into account whatever the reasonable expenses of the child are. For example in the case where the boy was studying at Stellenbosch University, and his mother lived in Somerset West, which was just 20 minutes away, there would be no duty on the father to pay for his son to rent out a flat in Stellenbosch when he could quite easily live with his mother in Somerset West, and travel daily to and from the university to attend classes. There is also no duty on a father to purchase a brand new motor vehicle for their child, or any other motor vehicle for that matter. A student could quite easily make do with using a bicycle as a means of transport. The court was of the opinion in the abovementioned cases that the father would have to pay the actual educational expenses, as well as contribute to basic necessities, such as the child’s groceries and medical expenses.
So in actual fact a child above the age of 18 does in certain situations have a legally valid claim for maintenance, even though the Children’s Act stipulates that maintenance is payable until the age of 18 to an ex-spouse in respect of a child. The courts do however urge children over the age of 18 to at least try and find some kind of casual employment to help contribute towards their monthly expenses.
Somebody who is over the age of 18 and is not a student will have to show good cause in a maintenance application against his or her parent as to why he or she should get maintenance. He must prove that he is at least trying to find employment, if he or she is unemployed that is. If he cannot show proof to the court in the form of job applications, the court may not award maintenance to that child.
This article was written by Cape Town divorce lawyer, Peter M Baker
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