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Stepchildren & maintenance

Is there a duty on me to maintain my ex’s child from a previous marriage? This exact question came up in our case- law in MB v NB 2010 (3) SA 220 (GSJ).

In the above case the man married a lady who had a son from a previous marriage. As often happens in a case like this, the man had developed a strong bond with the boy and had agreed to pay for him to attend a private school as a boarder. This is quite a costly expense, but the man felt he could afford it, and accepted the child as his own.

The man had had an affair during the course of the marriage and the woman instituted a divorce action against him. The issue of the payment of the school- fees of the stepchild then became a big point of argument in the divorce.

The man had not legally adopted his stepchild when the parties had gotten married. He now claimed that he was no longer liable for the school fees of that child. The wife argued in the divorce case that he was, and that the man had implicitly consented to mantain the stepson as a result of his undertaking to pay the school fees.

The court, in arriving at their decision, looked at the relationship between the husband and the stepchild. The court recognised that the man held himself as the boy’s father. The court found no real relevance in the fact that the man had not actually gone as far as legally adopting the boy.

The court also looked at how the Constitution of our country could or should influence the outcome of the case. Section 28 (1) of our Constitution deals with the rights of the minor children and how minor children should be protected. The man had made a promise to mantain that child, and the court could now not just merely turn a blind eye on that promise.

The court also looked at the costs aspect. The court found the exorbitant legal costs to have been unnecessary. The court was of the view that the matter could and should have been sent to mediation at an earlier stage. The legal fees had now run into hundreds of thousands due to the failure to have the matter mediated.

The court found that the duty of the man towards his stepchild should be the same as that which he would owe to a biological son. There had to be such a duty as he had accepted his stepson as his own.

The court also stated that it appeared that the school fees had become unaffordable. The court found that an option here was that the stepchild becomes a day- scholar, as opposed to a boarder. This would reduce the financial burden on the man.

Issues related to maintenance of stepchildren often come up in divorce matters. The reality of the matter is that when you marry someone with a stepchild you are well aware of what you are letting yourself in for. The courts are often reluctant to let a stepfather walk out of the marriage with no maintenance order in favour of his stepchild.

This article was written by Cape Town divorce lawyer, Peter M Baker

Related articles

Binding of your spouse's estate in the event of death

Spousal maintenance

Maintenance in a polygamous marriage

Maintenance when your spouse remarries

Maintenance for a child aged over 18

Divorce rule fourty three

Application for maintenance reduction


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