In many broken marriages the parties elect to remain married until their children have reached the age of majority or left the matrimonial home to obtain a tertiary education. The reality of the situation is, however, that many children between the age of 18 and 22 or even older in some instances, are still in the process of obtaining their tertiary qualification and are financially dependent on their parents.
In this day and time, it has become an inescapable fact that marriages often end in divorce, however, the dissolution of a marriage does not terminate a parent's common law and statutory duty to support their minor or major dependent children.
Many of our High Courts have handed out conflicting judgments when it comes to the issue of whether a parent can claim maintenance on behalf of a child who has reached the age of majority but is still financially dependent on his or her parents.
The Supreme Court of Appeal ("the court") in Bloemfontein has given clarity to the issue in the case of Z v Z and ruled that a parent can claim maintenance for an adult dependent child from the other parent upon divorce.
In the matter before the court the mother (Appellant) and the father (Respondent) were married to each other and at the time of divorce had two major children born of the marriage. The mother initiated divorce proceedings against the father and claimed, inter alia, maintenance for the major children. The father raised a special plea (Locus standi), alleging that the mother lacked capacity to lodge the claim for maintenance or to appear on behalf of the major children.
The mother approached the Supreme Court of Appeal, appealing against an order of the Eastern Cape High Court, relying on section 6 of the Divorce Act which she contended gives her the capacity to claim maintenance of behalf of the major dependent children.
The Supreme Court of Appeal held that section 6 of the Divorce Act is clear and should be read as is, as it serves as a safeguard to the welfare of both major dependent and minor children of a marriage. The court further stated that there is no requirement for a major dependent child to be joined as a party to the divorce proceedings, since the court order will only be binding on the parents.
The court gave an order, were by the appeal was upheld and the order of the Eastern Cape High Court set aside.
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