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Divorce & maintenance considerations for a handicapped child : J v J (2013)

The responsibility placed on courts by Section 6(3) of the Divorce Act No 70 of 1979 to issue a maintenance order for any dependent children born of that marriage when issuing a final decree of divorce. - J v J (2011/46076) [2013] ZAGPJHC 53 (28 March 2013)

This section of the Divorce Act provides that a Court which orders a final decree of divorce may make an order in respect of maintenance of a dependent child born of the marriage. This section empowers a Court to order parents who are going through a divorce to make maintenance payments for major children. The age of majority in South African Law used to be 21 years, but now it is 18 years in terms of the new Children’s Act.

This case was heard in the South Gauteng High Court in Johannesburg. This action also involved an application for an appointment for a legal representative for the physically and mentally handicapped child born of the marriage. She was a daughter aged 35. In this application, the parties were still married to each other, and the plaintiff claimedL

redistribution of the defendant’s assets in terms of section 7 of the Divorce Act,
maintenance for herself, and maintenance for the dependent daughter.

Children have the right to a legal practitioner

The Court looked at Section 28(1)(h) of the Constitution which provides that every child has the right to a legal practitioner assigned to the child by the state and at state expense, in civil proceedings affecting the child, if substantial injustice would otherwise result. The Court also looked at Section 14 of the Children’s Act No 38 of 2005, which provides that every child has the right to bring, and to be assisted in bringing a matter to Court, provided that matter falls within the jurisdiction of that Court.

Maintenance considerations for a handicapped child

In terms of South African Law the Courts when working out how much maintenance should be paid in respect of a child who is not handicapped, look at what each party earns, as well as what the monthly expenses are of that child. In this case the Court was of the view that the same principles must apply when dealing with a child who is physically and mentally handicapped. The Court in this case looked at what the needs of the dependent daughter were, as well as what the ability of each party is to meet those needs. The assets and liabilities, as well as income and expenses of each parent must be investigated.

Girl in wheelchair

Redistribution of assets irrelevant to child

The Court was of the view that its consideration of the assets and liabilities of both parties must be done with foresight of the order it proposes making effecting the redistribution of such assets. When considering the amount of maintenance, if any, a court is required to consider the position of each party after the redistribution that it directs. The Court found that it was irrelevant to the dependent daughter what assets are redistributed and what the value of those assets are. The Court was of the view that there was no reason to appoint anyone to care for the interests of the child. The application was dismissed.

Onerosity of caring for a handicapped child

Parents who have to look after a major child who is physically and mentally handicapped no doubt face a very challenging financial situation, as there is a lifelong duty sometimes on them to maintain such a child, who will never be capable of working in a lot of circumstances. Such a child often lives with the parents or one of the parents for the rest of his or her life. This could in certain instances also place a lot of financial strain on the marriage, and may even lead to the irretrievable breakdown of the marriage.

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