If adult dependent children must bring maintenance claims on their own behalf when their parents’ divorce, the court of appeal warns of “unthinkable emotional consequences.”
A divorce action was paused by the high court when the husband argued a preliminary point. The wife could not bring a maintenance claim on behalf of their two young, adult, dependent children, the husband said: because they were over 18, they had to bring their own separate claim against him for maintenance. A judgment on that question was given by the high court, with a finding in support of the husband. The wife then decided to test the outcome at the Supreme Court of Appeal. Here’s an explanation of what happened when the appeal judges gave their decision in this important case.
Read the judgment here:
http://www.saflii.org/za/cases/ZASCA/2022/113.html
Many people reading or hearing about this judgment, Z v Z, will focus on one thing: the fact that the court says adult dependent children of divorcing parents are entitled to claim maintenance in their parents’ divorce action. That’s true enough. But it’s not actually new.
In this case, the Supreme Court of Appeal points out that there are several previous decisions, some dating as far back as the 1940s and 1950s, that already make this clear.
What is important, though, is the court’s answer to the divorcing father in this case. He brought a preliminary point, in the form of a special plea, before the divorce action was finalised, in reaction to his wife’s claim for a maintenance order.
She brought a maintenance claim for herself and on behalf of their adult, dependent children. But, according to the father, this wasn’t the right way to proceed. Instead, he wanted the children, since they were old enough to act in a legal matter, to bring their own maintenance claim against him. Themselves. Rather than tucked in behind the action of their mother, he claimed that the mother didn’t have legal standing to bring a claim on behalf of an adult, dependent child.
Double disadvantage for mothers
Was he right? And what does it matter anyway?
The five-member court gave a hint of its thinking right at the start of the judgment when it quoted a 20-year-old decision by the constitutional court (CC). That earlier decision noted that when relationships break down, it is usually mothers who become the custodial parent and must care for the children.
This puts an additional financial burden on the mother and prevents mothers from finding better-paid work. Such mothers suffer a “double disadvantage”: they are overburdened in terms of responsibilities and under-resourced in terms of means. Fathers, however, generally stay economically ahead of the game by comparison. “Maintenance payments are therefore essential to relieve this financial burden,” the CC wrote.
Crucial part that maintenance plays
That quotation alerts the reader to the fact that the court would look at the case and decide the father’s challenge in light of the “double disadvantage” experienced by most divorcing mothers and considering the crucial part that maintenance plays in helping these mothers cope with their financial burden.
The divorcing couple had married in 1995 and had two children, R and B, who were over 18 but were still financially dependent.
There is no dispute between the parents that the children are still financially dependent and need maintenance from their parents. But who should bring the claim for a maintenance order for them, the mother or the children themselves?
Welfare of the children
Quoting section 6 of the Divorce Act, the mother argued that one parent is authorised to claim maintenance from the other parent on behalf of an adult dependent child in a case like this.
In at least two places, that section distinguishes between a minor child and a dependent child and makes clear that a court must be satisfied that the divorce arrangements are “satisfactory” or as good as possible, in relation to the welfare of the children concerned. Otherwise, it will not grant the divorce.
Given these provisions, there have been two schools of thought to emerge from the high courts. Some judges have held that one divorcing parent may claim maintenance from the other parent on behalf of an adult dependent child; others have held that this is not so (and that a parent can’t bring a maintenance claim on behalf of a child who is old enough to bring such a claim on their own behalf).
Inescapable fact of modern life that marriages end in divorce
In the Z case, the judge in the high court found that the mother did not have the standing to bring a claim on behalf of the adult dependent children. Instead, the high court ordered that the two children were to be joined “as parties” to the divorce action and that the hearing of the divorce could only begin after that had happened.
Was that correct?
The appeal judges said that it is an inescapable fact of modern life that marriages often end in divorce. But the courts have made it clear that “both divorced parents” have a duty to maintain a child from a dissolved marriage.
No intrinsic magic in the age of 18
How that plays out financially obviously depends on the parents’ “relative means and circumstances and the needs of a child from time to time.” This parental duty doesn’t end when a child reaches a particular age but may continue even after the child reaches the age of majority.
The court is the upper guardian of the children involved and usually regulates this part of the parents’ duty at the time when it grants a divorce. It does so through its order for maintenance. And a decree of divorce between the parents won’t be granted “until the court is satisfied that the provisions made with regard to the welfare of any minor or dependent child of the marriage are satisfactory” or “the best under the circumstances.”
Important to note here is that, when it comes to the question of payment for maintenance, the wording of the law doesn’t make a difference between a minor child and an adult dependent child. This is because, as the CC said in another case, “there is no intrinsic magic in the age of 18.”
Disclose to the court relevant factors
When it comes to divorce, the law is clear that either parent could claim or counterclaim for maintenance “for and on behalf of an adult dependent child”, as the appeal judges pointed out. The parents will have to disclose to the court relevant factors like the comparative means and circumstances of the spouses, the needs of the adult dependent child, the most fitting method of payment (whether directly to the parent or to the adult dependent child, for example, or to an educational institution, or via a lump sum or through periodic payments), along with any other information needed to help the judge decide what is best under the circumstances.
As for the question asked initially by the divorcing husband, the court said that the words used in the Divorce Act supported an interpretation that “a parent is allowed to claim maintenance on behalf of adult dependent children upon divorce”.
The court needs first to be satisfied that maintenance for the minor or adult dependent children is satisfactory; otherwise, the marriage “shall not” be dissolved. And there is no legal requirement in the Divorce Act for the adult dependent child to be party to, or joined to, the divorce proceedings between his or her parents.
Maintenance case against the “errant parent”
In any case, a court order would only bind the parents, and the adult dependent child would be “free” to bring his or her own maintenance case under the Maintenance Act against “an errant parent.”
If the law were interpreted to mean that a claim for maintenance by a parent on behalf of an adult dependent child could not be brought by that parent, it would result in “absurdity,” the court held. It would affect such fundamental rights as the right to dignity, emotional wellbeing, and equality.
It could mean that a parent in a divorce case could claim maintenance for a school-going child under 18 but not for a child, also still at school, who has already turned 18.
Removed from the conflict
Why should this matter to the courts?
“Dependent children should remain removed from the conflict between their divorcing parents for as long as possible” unless they want to get involved in a maintenance claim for themselves, said the appeal judges.
“It is undesirable that they should have to take sides” and bring their own claim against a parent who was also being sued by the other parent. They should “preferably maintain a meaningful relationship with both parents after the divorce.”
Forcing a child to file a separate maintenance claim would result in more “piecemeal” adjudication of issues arising from the same divorce, and the “invidious position” into which this would place an indigent adult child “is clearly evident.”
“Already vulnerable position” of many women
Among a raft of other problems that would be caused if the law were interpreted to mean that maintenance claims for an adult dependent child could only be brought by the child themselves, the court quoted academic family law experts as saying that some adult dependent children would refuse to bring their own maintenance claims. This puts an even heavier burden on the parent with whom the adult child lives, “usually the mother,” and exacerbates the “already vulnerable position” of many women after divorce.
Other experts agree, and the courts have also warned, in earlier judgments, that while adult dependent children may be majors in law “yet they still need the financial and emotional support of their parents.” The power imbalance between parent and child would often make it difficult for the child to access the support he or she needed. “It is unimaginably difficult for a child to have to sue a parent for support; the emotional consequences are unthinkable.”
The appeal judges said their analysis therefore led to the “inevitable conclusion” that parents had the necessary legal standing to claim maintenance for and on behalf of their dependent adult children.
Mentally impaired adult children
That’s clear enough. But there’s an important question that wasn’t raised by the facts of the case and thus wasn’t considered by the appeal judges: how should the maintenance question be approached when the child of the divorcing parents is a mentally impaired dependent adult?
The court in Z v Z clearly contemplated a situation in which the adult dependent children would become independent of their parents, only needing a couple of years of further support to complete their tertiary education, for example. But what legal steps must be considered when independence isn’t a possibility?
At a recent conference on family law, University of South Africa law professor Hanneretha Kruger discussed this conundrum, among others. Kruger, whose specialties include the law of persons and child law, talked about how the interests of adults with impaired decision-making capacity can be best managed.
Impaired decision-making capacity
At divorce, would the courts follow the approach in Z v Z when impaired adult dependent children were involved? There are several differences, starting with the fact that in Z v Z, the children did not have impaired decision-making capacity. In a case where the dependent adult children of divorcing parents had impaired decision-making capacity, they may well never become independent.
Should impaired adult dependent children be treated differently from able-minded adult dependent children, she asked. Would it amount to unfair discrimination on the grounds of disability to do so?
In terms of the Convention on the Rights of Persons with Disabilities (CRPD), paternalistic relationships between parents and their adult dependent children with disabilities should not be perpetuated.
Principle
One implication of this principle is that courts should avoid continuing to classify adults with disabilities as “children” for longer than adult children who don’t have impaired decision-making abilities.
The SA Law Reform Commission (SALRC) has considered this question and issued a paper dealing with it, proposing several possible solutions.
These have not yet been accepted, however, and it is still too early to say how the parliament will approach the issue. If you need to discuss these or related questions, however, don’t hesitate to contact us.
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