Alexandra Shardlow, of Di Siena Attorneys, explains this complex issue based on the recent judgement by Honourable Justice Edwin Molahleni.
At the beginning of July 2020, Honourable Justice Edwin Molahleni handed down a reportable judgment out of the Gauteng Local Division of the High Court of South Africa in terms of which he provided some clarity regarding the position of a step-child’s rights to maintenance, more particularly in the present circumstances where the mother claimed maintenance for herself and her minor child from a previous relationship based on a 'customary adoption' of the minor child by the Respondent.
The Respondent contended that no customary adoption took place because the customary requirements for adoption were not satisfied.
The facts in this case comprised amongst other things, a marriage of a relatively short duration, approximately two years, before the marriage broke down and the respondent issued an action commencing divorce proceedings.
However, during the course of the marriage, the Respondent had assumed financial responsibility for his wifes’ child.
The mother stated in her founding papers that she had always been the minor child’s primary caregiver and prior to the Respondent’s relocation from the marital home, he was responsible for payment of the minor child’s private school education, hostel fees as well as all of his educational and school related activities.
The mother contended that the Respondent was responsible for the maintenance of the minor child because he has customarily adopted the said child.
- Has the divorce rate spiked during the lockdown?
- #DignifiedDivorce: Everything you need to know about divorce
The Respondent contended that there is no merit in the contention that the minor child was customarily adopted as he had never introduced the minor child to the Respondent’s family as a pre-requisite in the Setswane culture.
During the argument, the court referred counsel to the decision in Motsepe vs Kosa which stated and loosely translated, "To take a child born of another man into your marriage with its mother".
For all intents and purposes it is equal to the customary adoption of a child.
The requirements of a customary adoption largely depend on the customs and practices of a particular culture. Further factors which the court took into consideration were that the children stayed with the parties concerned and not any relatives.
Not only was the court concerned with the issue relating to the customary adoption but rather the contents of the parental responsibility which has widened in recent years to include parental responsibility on even persons other than the biological parents.
This shift was influenced by various factors, more importantly by the recognition that traditional family form based on the relationship of a married man and woman and the reality of modern South African society.
In terms of the development of the statutory framework, a 'parent of a child' may even be any other person with whom the child has developed a significant relationship, based on psychological or emotional attachment which resembles a family relationship.
Finally, the court found that the applicant and the respondent are still married to each other despite the tensions in the marriage and the respondent having left the matrimonial home.
- The different types of divorces in South Africa
- What are the grounds for divorce in South Africa?
- How to get a DIY divorce in South Africa
However, the breakdown in the marriage does not detract from the responsibility of the family towards the minor child who is one of the children in that family and thus deserve equal treatment like all other children in the family.
It follows therefore that as a 'parent', the respondent is responsible for the maintenance of the minor child pending the outcome of the divorce proceedings.
I believe this to be an incredibly important decision, more particularly having regard to the complex and intricate family dynamics which exist in a modern South African context and is a judgment which is welcomed.
Share your stories and questions with us via email at chatback @ parent24.com. Anonymous contributions are welcome.