Who exactly is responsible for child maintenance? This question come sup all too often, unfortunately.
The point of departure is that all parents have a duty to maintain their children. Regardless of whether they are married, divorced, living together, separated or are the adoptive parents of the children.
And, apart from the child becoming self-supporting, the duty to support terminates upon the child’s death, when the child gets married or is adopted.
But what happens when the parent's are unable to support their children who are not yet self-supporting?
We asked Deborah Di Siena of Di Siena Attorneys for clarity of the topic.
The biological grandparents
Where parents are unable to maintain their children, the duty of support may pass to the biological grandparents, both maternal and paternal, she says.
It is important to mention that maintenance must first be claimed from the children’s parents before a claim lies against grandparents.
"If neither the parents nor the grandparents can support the child, the duty of support will then shift to the child’s siblings, including brothers, sisters, half-brothers and half-sisters, according to their respective means," she told Parent24.
This will only apply in cases where the child is in absolute need of support.
Generally no duty on a step-parent
Generally, there is no duty on a step-parent to support or maintain a stepchild.
However, in the case of MB v NB 2010 (3) SA 220 (GSL), a stepfather was ordered to pay school fees for his stepson.
The court found that the stepfather had a contractual obligation to pay the school fees. The court did not have to determine whether the stepfather legally adopted the child.
As it was enough for the court to conclude, as it did, that the stepfather held himself as the child’s father and both the child and his mother relied on this representation.
In this case, the stepfather and the child’s mother decided together which private school to place the child at and undertook to pay the school fees for the child.
Shift to their spouse
In the event of a dependant (major) child’s marriage, the duty of support will shift to their spouse.
Parents’ duty may be revived
In circumstances where the spouse can no longer afford to support his or her spouse, and the (major) child is also unable to support himself/herself, the child’s parents’ duty may be revived.
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