A grown son asks if he can legally be made to support his mother financially – a legal expert responds

"What are my rights? I have told her I cannot help her."
"What are my rights? I have told her I cannot help her."

A reader recently approached us with a rather interesting question: "Do I have to pay maintenance to my mother?" 

 Also read: The wrong way to cope with empty nest syndrome (and the right way)

'My mother wants maintenance from me and is taking me to court'

I am retired. I do not work so do not earn a salary. I receive no pension. I support my wife, she does not work.

I support my youngest son who lives in the UK, studying and training. I assist my eldest son, partner and granddaughter with food and fuel. He has his own business but he is struggling.

I am also in debt.

I have worked hard all my life and have saved, this is where I draw my living allowance. I am drawing more than interest I earn. I am digging into my capital. I am unable to pay off my debt at this stage because I am supporting my sons. This I do because I want to.

My mother wants maintenance from me and I am unable to help her due to my financial situation. She is taking me to court, and I don’t see how I can afford any more financial commitment.

What are my rights? I have told her I cannot help her.

Please advise,

A concerned son

 Also read:'Can I recoup the maintenance money my father never paid my mother?' A legal expert responds

Do adult children have a duty to support their parents?

Attorney Deborah Di Siena responds: 

Our law recognises a child’s duty to maintain his or her parents. 

The child’s duty to support a parent arises in circumstances where the parent is indigent and is unable to support themselves, but subject to the rule that support must be claimed from nearer relatives first. Furthermore, the child or the children must be capable of providing support in proportion to their own financial means.

In the matter of Smith v Mutual & Federal Insurance Co 1998 4 SA 626 (C) at 632 D-E, the Judge defined indigent to mean "extreme need or want for the basic necessities of life." 

Therefore, a parent cannot simply claim support as a means to supplement their lifestyle and would in likelihood only succeed if they were for instance on the brink of starvation, homelessness or required chronic medication that is not available at a state hospital, which goes further than mere poverty and is more in line with a life or death situation.

Once the parent has passed the first hurdle, they would then need to show that their child is capable of supporting them.

In this regard, the court will take into consideration the child’s means, including their ability to provide for themselves and their dependents. In circumstances where the child is in debt, supports his/her dependents and has little to no disposable income, there is very little chance that the parent will overcome the second hurdle.

The question of lifestyle must be considered, which is a factor specific to each individual.

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The parent wishing to claim maintenance from their child would bear the onus of proving firstly, that they are indigent and secondly, that their child has the means to support them. The parent would need to prove both points in order to be successful in their claim. Accordingly, a court will not easily order a child to maintain their parents.

However, where a child has voluntarily assumed the duty to support a parent, it will be difficult for them to rebut this duty without a change in either his or her circumstances or those of the parent. 

Therefore, based on the facts provided by you, it is unlikely that your mother will succeed in her claim for maintenance against you.

All the best,

Deborah Di Siena

Di Siena Attorneys 

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