What Are Grandparents’ Legal Duty To Pay Child Maintenance In South Africa?

Written by Nadine Roesch
22 February 2022

“There’s birth, there’s death, and in between, there’s maintenance” – a quote by Tom Robbins.

It is trite that being a parent instantly gives rise to the parental obligation to maintain your child pro-rata and in accordance to both parents’ individual means. If a parent cannot adequately maintain a child, the law can force grandparents to assist. This includes both paternal and maternal grandparents.

When will grandparents be liable to pay maintenance?

Where a parent is not financially able to support their child, the duty of support can fall on the grandparents and, failing them, great-grandparents in the ascending order prior to considering other relatives such as brothers and sisters.

Where both parents are unable to provide support, the paternal- and maternal grandparents will be jointly responsible for child maintenance.

When will grandparents be obliged to pay maintenance?

The minor child’s grandparents will be obliged to pay maintenance in the following instances, namely:-

  • The parents of the minor child are minors themselves or where the parent(s) can prove that they are unable to support the child;
  • The grandparents stand in loco parentis, which means “in the place of a parent”;
  • One of the parents cannot be found, but the grandparents can be;
  • The estate of a deceased parent is inadequate to contribute to the child’s support;

Can grandparents be forced to pay maintenance if the grandchild is an extramarital child?

Petersen v Maintenance Officer and Others 2004 (2) SA 56 (C) confirmed that the grandparents are obliged to pay maintenance even though the grandchild is an extramarital child.

How will the maintenance contribution be determined?

It is important to keep in mind that the person requiring maintenance must need financial help, whilst the person liable to pay the maintenance must be in a financial position to do so. This will be determined by the Maintenance Officer of the Maintenance Court.

The contribution of the biological maternal and paternal grandparents will be determined pro-rata to their respective incomes.

Although the Maintenance Officer has the discretion to decide whether the party can afford to contribute to the wellness and upbringing of the minor child or not, the following will be taken into consideration, viz:

  • Fair and reasonable costs of the child. This could include food, housing, clothing, and proper education;
  • The respective earnings of both the mother and father;
  • The financial obligations of each parent towards the minor child, and whether the parent and/or grandparents which are sued for maintenance can afford the amount being claimed; and
  • The lifestyle to which the parent claiming for maintenance and the child has
    become accustomed to.

Who is liable to maintain a child if one or both of the biological parents die?

When a parent passes away, the primary responsibility to maintain the child will not end or be extinguished but will rather lie against the deceased parent’s estate. If the deceased parent’s estate is inadequate to cover the child’s support, or if there is no money in the estate left to meet the maintenance requirements of the child, the duty to support will be expanded to the child’s maternal and paternal grandparents jointly.

In terms of the common law, however, the duty to support a grandchild is not enforceable against the deceased estate of a grandparent.

In conclusion, maternal and paternal grandparents should be aware that a maintenance order can be granted in instances where their children cannot provide for their own children. Burger Huyser Attorneys specialise in maintenance law in South Africa, contact our professional child maintenance lawyers in Johannesburg today for expert, sound guidance on your matter.

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