Can a Parent Claim Maintenance from a Major Child?
Generally, the concept of maintenance is only ever thought of where the primary caregiver of a minor child approaches a court to compel the other parent in providing, usually, financial assistance concerning the minor child’s monthly expenses. However, the caretaker roles tend to reverse, whereby reason of age or ill-health and a parent may need to be cared for by their child who has attained majority. The aforementioned begs the question of whether parents can claim maintenance from their children?
In terms of the Maintenance Act 99 of 1998, parents and children have a reciprocal duty of support and the basis on which a child’s responsibility to support their parent arises out of dutifulness or filial piety.
What are the criteria to be met to claim maintenance by a parent?
As in any other application for maintenance, there are requirements that the person claiming maintenance must prove. The person claiming maintenance must also have the ability to support the person claiming maintenance. In other words, a parent would need to prove their dependence on the child and prove that said child can take on the financial responsibility of maintaining the parent.
The courts have confirmed the extent to which a parent may claim maintenance support from a child; however, clarity as to what exactly it was that a parent is entitled to insofar as maintenance is concerned was vague. In the matter of Van Vuuren v Sam, Rabie JA stated that support for parents must be confined to the basic needs of the parents, being food, clothing, shelter, medicine and care where an illness arises. In Surdus v Surdus, the court asked the same question, whereby the court held that the quality of the parents’ lives had to be addressed, whereafter the support would be aligned in accordance with same.
From which child should the parents claim if they have more than one child from whom they can claim maintenance?
Under the ordinary circumstances of a maintenance application, the duty of support is claimed from both of the minor child’s parents. However, in this instance, more external factors, such as siblings, extra income and the quality of the parents’ lives, are taken into account.
In a practical sense, our courts would not allow parents to target one child because they have a slightly better paying job than their siblings. Furthermore, whether the parents are working or receive a government grant will also be taken into consideration.
Can Maintenance Be Claimed from Extended Relatives?
A parent cannot claim maintenance from their son-in-law of their daughter-in-law as a reciprocal duty exists between parents and their children and relates to them claiming from the nearest relative first.
There are, however, exceptions to the general rule: a parent can claim for maintenance from the spouse of their children, daughter-in-law or son-in-law if their child is deceased, and the parent can prove that they were financially dependent on the deceased child.
In the matter of Osman v RAF, Mrs Osman’s son died in a motor vehicle accident. The money claimed from the Road Accident Fund was due to the deceased’s wife, but Mrs Osman submitted a maintenance claim. Her son and his wife lived with Mrs Osman, and they supported her financially. She was divorced and did not work. The court looked at the neediness of a parent. All she needed to prove was that she was dependent on her deceased son. In this case, the court granted the maintenance application because while her son was alive, he would give her a credit card, buy groceries and pay her mortgage bond. This was enough for the court to establish neediness.
Times have indeed changed, and with time the law has evolved to accommodate parents who are neglected by their children. There are systems and procedures in place to ensure that the well-being of the elderly in society is taken care of. Approach our offices today, and one of our family law attorneys specialising in family maintenance will assist you in approaching a court about receiving maintenance as a parent.