The Covid-19 lockdown led to several changes in family dynamics, and this reader is not alone in having his mother move in to assist with the kids during the pandemic.
But now it seems she isn't willing to leave.
He asks Parent24 what his responsibilities towards her are, and what he can do to get his family back to normal.
We spoke to Anastasia Gungapursad, Candidate Attorney at Di Siena Attorneys, who provided some assistance.
Read the letter below:
My elderly mother moved in with us at the start of lockdown. She is frail but was able to assist us with caring for the children while we worked.
Now, months later, she has become an unwelcome presence in our home, but she is refusing to move out. It seems she gave notice on her previous home without our knowledge and as such now has nowhere to go.
She claims she has no finances to support herself any longer and that as her son – and daughter-in-law – we can be held responsible for her upkeep.
Please advise on what our responsibilities are and what steps we can take to get her back into her own place?
A parent's duty
Candidate Attorney Gungapursad gave us some advise on this matter, reminding us that, generally, it is a parents duty to maintain their children.
"However, children not only have a moral duty to support their parents but a legal duty too," she adds.
The Maintenance Act, Act 99 of 1998 makes provision for parents to claim maintenance from adult children. Section 2 (1) of the Act says that "the provisions of this Act shall apply in respect of the legal duty of any person to maintain any other person, irrespective of the nature of the relationship between those persons giving rise to that duty."
A parent who claims support from a child must prove his/her need and the child’s ability to support but a more stringent criterion of need is applied to parents than to children.
"Being destitute on the part of the parent is a condition and subject to the rule that support must be claimed from closer relatives first," Gungapursad says.
The parent claiming maintenance from the child needs to prove on a balance of probabilities:
(a) that he or she is destitute;
(b) that a duty rests on the child to support him or her;
(c) that he or she is unable to support him or herself and
(d) that the child is able to support him or her.
Apportioned pro rata
All children have an obligation to maintain their parents, taking into account their financial circumstances.
"There may be cases where one child is in a better financial position than the other. Each child’s obligation to pay maintenance towards their parents, may be apportioned pro rata according to that child’s means," she says.
If the above four requirements are established, you have the duty of support your mother.
"You cannot evict her from your home and force her to move into her own home if she does not have the financial means to do so," Gungapursad says.
She does however suggest that "You, and your siblings if you have any, could however tender payment of her rent in alternative accommodation."
Do you have a legal question you need help with? Share your questions via email at firstname.lastname@example.org and we may speak to a legal professional on your behalf. Anonymous contributions are welcome.
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