Your children are technically adults, but they’re still dependents. What now?

28 Feb 2023Family Law, General

Your children are technically adults, but they're still dependents. What now?
Let me tell you about a recent court case that went all the way to the Eastern Cape Division of the Supreme Court of appeal in Port Elizabeth. Specifically, the case dealt with maintenance claims for adult dependent children in divorce proceedings.

The couple who had been married for over two decades had two children, a son and a daughter, who were still financially dependent on their parents. The marriage fell apart, and the mother filed for divorce, asking for maintenance for herself and the children. The father argued that the children, who had reached the age of majority, should pursue their maintenance claims themselves and that the mother didn’t have the legal right to do it for them. There is conflicting case history on the topic. Some courts have ruled in favour of the custodial parent, and other rulings have gone the other way, saying that technically adult children should pursue maintenance in their own right.
In this case, the mother relied on Section 6 of the Divorce Act 70 of 1970, which allows a parent to claim maintenance from the other parent on behalf of a major dependent child in divorce proceedings between the two parents. The court recognised that mothers are usually the custodial parents after a divorce, which puts a sometimes double financial burden on them as not only are their expenses higher but having two adult dependents to care for makes it harder for them to even find work. On the other hand, fathers usually remain employed and financially stable. Maintenance payments in this case are crucial to help relieve this burden.

The court in Port Elizabeth ultimately held that Section 6 of the Divorce Act authorised a parent to claim maintenance for an adult-dependent child in divorce proceedings, and the mother had the legal right to do so on behalf of her children. The father’s argument was rejected, and he was ordered to pay maintenance to the mother for the children.

This case shows how important maintenance payments are for custodial parents, who are usually mothers, and the recognition of the role they play in caring for dependent children. It also emphasises the need for legal frameworks to protect the interests of minor and dependent children in divorce proceedings.

It’s important to note that this decision may vary depending on the specific circumstances of each case, and seeking legal advice is essential to ensure that all parties involved are protected and their interests are safeguarded. My team of top divorce lawyers have successfully dealt with many of these kinds of cases over the years. If you’re worried that you’re in a similar situation, please call us right away. Your first consultation is always free and you will have the peace of mind that comes with having the top family law firm in Cape Town in your corner.

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