Written by Anna-Mi Moorcroft, 6 February 2022 

 

Confusion and animosity seem to exist when it comes to the question of whether a mother or father can claim either arrear maintenance or claim for an increment of an existing maintenance order in South Africa when a child has reached majority. Common law and preceding case law assists in answering this question by clarifying the grey area.

 

What is a maintenance order?

A maintenance order exists once a competent Maintenance Court has made an order in terms of the Maintenance Act 99 of 1998. This order has to reflect a court stamp, signature from the Presiding Officer of the Court as well as the date on which the order was made an order of court. A decree of divorce also constitutes a maintenance order if the decree of divorce (or in the alternative a settlement agreement made an order of court) made provision for child maintenance to be paid.

 

When is my child an adult?

The Children’s Act 38 of 2005 defines a child as a person under the age of 18. A person, therefore, reaches majority on the day of his or her 18th birthday.

 

Does a parent have the right to act on behalf of an adult child in the Maintenance Court?

If a maintenance order was already in place when the child was a minor, but now the child has reached 18, the parent will be able to appear on behalf of that adult child. In the aforementioned case, the parent will have locus standi, meaning the right to appear in court. This was decided in the case of Bursey v Bursey and Another 1999 ZASCA.

 

What can the parent do who opposes the order?

Should the parent against whom the increment is sought or who opposes the maintenance order, be indifferent to the relief sought by the parent acting for the adult child, this parent has the right to apply for a substitution or discharge order of the main maintenance order in terms of section 16(1)(b)(i) and/or section 16(1)(b)(ii). 

 

When must a child apply for maintenance personally?

An adult child, meaning a child above the age of 18 years, must apply for maintenance against both parents in the event where no maintenance order existed before the child reaches majority. Let it be known that the adult child shall have to institute a claim against both his or her parents and cannot decide against who to institute such a claim. This is usually the case where a child requests that parents should assist with his or her tertiary education or where no maintenance is evidenced by a parent. 

 

Burger Huyser Attorneys’ child maintenance lawyers have vast experience in dealing with maintenance matters in South Africa. For assistance regarding your case, contact us for more information or to schedule a consultation.

 

DISCLAIMER: Information provided in this article does not, and is not intended to constitute legal advice. READ MORE