The Facts: Post-Divorce Enforcement of Maintenance for Adult Dependent Children
The appellant and respondent were married in community of property for thirty years before divorcing in the High Court on 6 September 2019. At the time of their divorce, all four of their children had already attained the age of majority. The two youngest children, referred to throughout the proceedings as adult dependent children, were still pursuing their tertiary studies and remained financially dependent on their parents.
The parties, both legally represented during the divorce proceedings, concluded a settlement agreement which was incorporated into the final decree of divorce. Clause 2.4.4 of this settlement agreement constituted a maintenance order in terms of section 6(3) of the Divorce Act 70 of 1979. The clause provided that the respondent (the father) would be responsible for the maintenance of the children, which included a rental contribution of R3,000 per month to the appellant in respect of her rental shortfall for their son at her Stellenbosch property, for as long as he occupied it as a student.
Two years after the divorce, the daughter applied for maintenance against the respondent at the Hopefield Magistrates’ Court. This maintenance application was initially removed from the roll and was thereafter unilaterally withdrawn at a stage when the High Court application had already commenced but before it was argued.
The appellant approached the High Court seeking three categories of relief: firstly, a declaration that the respondent was in contempt of court for breaching the maintenance provisions in the settlement agreement; secondly, additional maintenance for the two adult dependent children in the form of orders compelling the respondent to pay all medical, educational, and living expenses, alternatively specific monthly amounts of R25,966 for the daughter and R10,173 for the son; and thirdly, arrear maintenance in the amount of R535,600.50, which the appellant claimed she had paid in lieu of the respondent’s maintenance obligations.
The appellant’s case rested on the contention that the maintenance order rendered the respondent solely liable for the adult dependent children’s maintenance, but that due to inadequate payment contributions by him, she was forced to maintain them herself. She alleged having made various payments from September 2019 to December 2022 totalling over R453,000, covering the daughter’s medical expenses, accommodation, rental deposits, stationery, pocket money, and clothing, as well as R5,500 per month from May 2021 for the son’s maintenance needs.
The respondent opposed the application on several grounds. His primary defence was that the appellant lacked locus standi to bring the application for maintenance and contempt of court against him on behalf of adult dependent children. He did not dispute his obligation to pay maintenance but queried the reasonableness of the children’s claimed expenses. His position throughout was that the children’s reasonable maintenance needs should be determined through an enquiry instituted by the maintenance officer in the Maintenance Court in terms of section 6(2) of the Maintenance Act 99 of 1998.
The respondent’s version was that each of the four children had received R210,000 paid into their bank accounts for day-to-day expenses while studying. He had paid for two of his daughter’s tertiary courses and questioned why she required R9,000 more maintenance than the amount she had sought in the Magistrate’s Court. He took issue with her unilateral decision to embark on a third three-year course after he had already financed two courses at the Animation Studio. In respect of the son’s medical studies, he questioned why bursaries or loans had not been pursued, and expressed the view that the children could obtain part-time work while studying.
The court a quo dismissed the application, holding that the divorce order was silent on the amount of maintenance payable and that what constituted reasonable maintenance still had to be determined. It found that the respondent could not be held in contempt where he disputed the amounts claimed, and that the maintenance issues should proceed in the Maintenance Court rather than the High Court.
The appellant appealed to the Full Court with leave on 8 March 2024. The Full Court invited supplementary written submissions on the locus standi issue, drawing the parties’ attention to recent authorities not initially considered. This procedural step proved decisive, as the central issue crystallising on appeal was whether a divorced parent has the necessary locus standi to enforce a maintenance order granted in terms of section 6(3) of the Divorce Act on behalf of adult dependent children after the divorce has been finalised.
The Locus Standi Question: Can a Parent Enforce a Section 6(3) Order Post-Divorce?
The respondent raised the lack of locus standi as a point in limine in his answering affidavit, arguing that only the adult dependent children themselves could enforce the maintenance order. The court a quo omitted to rule on this preliminary point before proceeding to consider the merits, an approach the Full Court found to be incorrect. The locus standi issue remained alive throughout the proceedings and became the decisive question on appeal.
The Full Court emphasised that locus standi is not merely procedural but a matter of substance, concerning the sufficiency and directness of a person’s interest. The court accepted the respondent’s submission that the terms of the settlement agreement would be the determining factor in establishing whether the appellant had standing to enforce the maintenance order.
Central to the court’s analysis was the distinction between a parent’s standing to claim maintenance on behalf of adult dependent children during divorce proceedings and a parent’s standing to enforce such orders post-divorce. The Full Court examined the principle established in Richter v Richter 1947 (3) SA 86 (W), where Price J held that maintenance money ordered to be paid to a mother would only be payable until the children pass out of her natural guardianship at the latest. The Richter case emphasised that if a claim were preferred against a father by a destitute major daughter, it would have to be preferred by the daughter herself and not by the mother as her natural guardian, for she would no longer be the natural guardian of such daughter.
This principle was echoed in the recent Gauteng High Court decision AJN v WLN [2023] ZAGPPHC 341, where Collis J found that major children’s entitlement to receive and enforce rights to claim maintenance vested in them personally upon attaining majority. The AJN case dealt with a divorced mother who obtained a writ of execution against her ex-husband for non-payment of maintenance where the children were minors at the time of the divorce order but had reached majority when she applied for the writ. The court held that the execution creditor had no locus standi as the children had passed from the natural guardianship of their parents, and the underlying causa had fallen away.
Similarly, in OV v CMV [2024] ZAGPPHC 1150, Scheepers AJ drew a careful distinction between principles in the AJN case and those established by the Supreme Court of Appeal. The OV case involved a mother seeking post-divorce enforcement of a maintenance order on behalf of adult children, two of whom had reached majority after their parents’ divorce. The court found the mother had no locus standi to claim payment on behalf of the adult children as they were personally entitled to receive and enforce maintenance rights, having passed from the natural guardianship of their parents.
The Full Court agreed with these authorities, relying particularly on Smit v Smit 1980 (3) SA 1010 (O), which confirmed that major children have standing in their own right to apply for maintenance against their parents. The Smit case established at page 1018 that once a dependent child reaches the age of majority, the major children’s entitlement to receive and enforce rights to a maintenance claim against a parent vest in them personally.
The appellant had sought to rely on Bursey v Bursey and Another 1999 (3) SA 33 (SCA) and Z v Z 2022 (5) SA 451 (SCA) for the proposition that she had the necessary locus standi to institute the application and seek enforcement of the maintenance order. However, the Full Court found these authorities addressed a different question entirely: whether a parent has standing to claim maintenance on behalf of adult dependent children during or upon divorce, not post-divorce enforcement.
The court confirmed that the distinction drawn in some judgments between a parent seeking maintenance for an adult dependent child at the time of divorce and the locus standi of a parent seeking post-divorce enforcement was not artificial. The terms of the parties’ settlement agreement in respect of maintenance for a dependent adult child must be carefully considered when dealing with the locus standi issue.
Distinguishing Z v Z: Maintenance Claims During Divorce vs Post-Divorce Enforcement
The appellant’s primary reliance on Z v Z 2022 (5) SA 451 (SCA) required careful analysis by the Full Court. The Z v Z case dealt specifically with whether a divorcing parent has locus standi to seek an order for maintenance of a major dependent child during or upon divorce. The Supreme Court of Appeal in that matter found its foundation in section 6 of the Divorce Act, holding that sections 6(1)(a) and 6(3) do not differentiate between a minor child and a major dependent child in regard to the payment of maintenance.
The Z v Z judgment established that upon an ordinary grammatical meaning, properly contextualised, sections 6(1)(a) and (3) support an interpretation that a parent may claim maintenance for their adult dependent child upon divorce. The Supreme Court of Appeal held that the concomitant of the court’s power to grant maintenance for an adult dependent child upon divorce is the legal standing of a spouse or both spouses to claim and counterclaim the payment of maintenance for and on behalf of an adult dependent child of the marriage.
Importantly, the Z v Z case emphasised that in claiming such maintenance, the parent would plead the necessary facta probanda, including the parties’ relative means and circumstances, the needs of the adult dependent child, and the most fitting method of payment, whether directly to a parent, to the adult dependent child, to an educational institution, or through lump sum or periodic payments. The court in divorce proceedings would determine what is most satisfactory or best to be effected in the circumstances regarding the payment of maintenance.
However, the Z v Z judgment specifically noted that such an order binds the parties to the marriage and that the adult dependent child would be entitled to institute maintenance proceedings against a parent in terms of the Maintenance Act. The Supreme Court of Appeal did not address the distinct question of post-divorce enforcement by a parent on behalf of adult dependent children.
The Full Court in the present matter found that while the Z v Z case finally laid to rest the issue of the standing of a parent to claim maintenance on behalf of an adult dependent child against the other parent upon divorce, it did not extend to post-divorce enforcement scenarios. The court emphasised that there is no requirement in the Divorce Act that the dependent child should be joined as a party to the divorce action of their parents, but this did not resolve whether a parent could enforce such orders after divorce on the children’s behalf.
The Full Court drew on the earlier judgment from the Western Cape Division, AF v MF 2019 (6) SA 422 (WCC), which was decided before the Z v Z case. Davis AJ held that inasmuch as section 6 of the Divorce Act enjoins a divorce court not to grant an order until the welfare and maintenance of an adult dependent child is catered for, so too should a court in a Rule 43 application be satisfied that such child is properly provided for. The AF v MF case emphasised the vulnerable position of young adult dependents in the midst of their divorcing parents’ conflict and recognised the difficult position such children face were they to institute maintenance applications against their parents.
The Full Court also considered DWT v MT and Another [2022] ZAWCHC 203, another Western Cape Division appeal from a Maintenance Court, where the court found that the distinction which an appellant sought to draw between the Bursey case and provisions of the Divorce Act and the Maintenance Act was without merit. The DWT case found the respondent mother’s locus standi was established as the consent order granted in terms of section 17 of the Maintenance Act was granted in her favour on behalf of the adult dependent children, with reference to section 26(2)(a) and (b) of the Maintenance Act.
The Full Court distinguished the DWT case from the present matter on several critical grounds. The order in the DWT case was one made in the name of the mother in terms of section 17 of the Maintenance Act and was granted in her favour. By contrast, the maintenance order in the present case did not indicate that the appellant was the children’s primary caregiver and could not do so as they were already majors at the time of divorce and no longer under their parents’ guardianship. The reference to section 26(2) of the Maintenance Act in the DWT case, which deals with enforcement of a maintenance order by the person in whose favour such order was made, had no application where the order was not made in the parent’s favour.
The appellant’s counsel submitted that the debate as to whether a parent of an adult dependent child has locus standi to enforce a maintenance order granted in a divorce action does not come into the picture. The Full Court respectfully disagreed with this view, finding that the distinction between claiming maintenance during divorce and enforcing such orders post-divorce was neither artificial nor irrelevant. The court held that while generally contempt and arrear maintenance are matters arising from a maintenance order, the facts and circumstances of each matter must be considered, along with the terms of the maintenance order and the status of the dependent children.
Interpreting Settlement Agreements Incorporated into Divorce Orders: Who Has the Right to Claim?
The Full Court applied the well-established interpretive approach set out in Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA), where Wallis JA stated that interpretation is the process of attributing meaning to words used in a document, having regard to the context provided by reading the particular provision in light of the document as a whole and the circumstances attendant upon its coming into existence. The Endumeni case requires consideration of the language used in light of ordinary rules of grammar and syntax, the context in which the provision appears, the apparent purpose to which it is directed, and the material known to those responsible for its production.
Applying this standard, the Full Court examined the precise wording of clause 2.4.4, which referred to an agreement that the plaintiff (the respondent father) would be responsible for the children’s maintenance. Objectively considered, no reference was made to the defendant (appellant mother) as also being responsible for the children’s maintenance. While the respondent argued that the order did not state he was solely responsible for maintaining the children, the clause plainly read that the respondent would be responsible for the children’s maintenance, which included the son’s rental contribution.
The court acknowledged the common law duty of support resting on both parents, which continues after divorce, but emphasised that section 6(3) of the Divorce Act grants the court in divorce proceedings the authority to grant a maintenance order for dependent children as that court sees fit. The affidavits before the court a quo contained no evidence of issues with the maintenance order at the time the divorce was granted. Subsequent to the divorce, the respondent neither applied to vary the terms of the order in terms of section 8 of the Divorce Act nor approached the Maintenance Court for substitution of the order, lending credence to the view that the parties had agreed he would be responsible for the children’s maintenance.
The Full Court turned to Bursey v Bursey and Another 1999 (3) SA 33 (SCA), which involved divorced parents with a settlement agreement incorporated in their divorce order requiring the father to pay maintenance for two minor children until they were self-supporting. The Bursey case established that according to South African common law, both divorced parents have a duty to maintain a child of the dissolved marriage. The incidence of this duty in respect of each parent depends upon their relative means and circumstances and the needs of the child from time to time, and this duty does not terminate when the child reaches a particular age but continues after majority.
Crucially, the Bursey judgment held that a maintenance order does not replace or alter a divorced parent’s common law duty to maintain a child. Rather, as a matter of expediency, the court as upper guardian of the child usually regulates the incidence of this duty as between the parents when it grants the divorce, and its order for maintenance is ancillary to the common law duty to support. This principle is echoed in section 15(1) of the Maintenance Act, which provides that an order for maintenance of a child is directed at enforcing the common law duty of the parents to support the child, and such duty exists at the time of issuing of the order and is expected to continue.
The Full Court found that the maintenance order granted at the time of divorce was ancillary to the parties’ common law duty of support of the dependent children and sought to regulate the incidence of their duty. The legislature granted to a court hearing a divorce the authority in section 6(3) of the Divorce Act to make any order which it may deem fit in respect of the maintenance of a dependent child of the marriage, and the terms of such order must be given effect to.
The court considered the context in which clause 2.4.4 occurred, applying the Endumeni approach. The maintenance order was clearly granted pursuant to the parties’ agreement during divorce relating to the two dependent children. The prevailing circumstances at the time of divorce were that the son was still living in his mother’s accommodation but the daughter was not. The purpose of the agreement was to provide for the maintenance of the dependent children at the time of divorce and beyond, until they became self-supporting, with the motivation being section 6(3) of the Divorce Act sanctioning an order at divorce for maintenance payable to the parties’ dependent children.
The Full Court examined PL v YL 2013 (6) SA 28 (ECG), where the Eastern Cape Full Court considered the practice in divorce actions of incorporating settlement agreements into final divorce orders. The PL v YL judgment recognised that a settlement which disposes of issues between parties is in most instances a compromise (transactio), which is an agreement between parties to an obligation or lawsuit that settles the issues in dispute and in terms of which each party concedes something. The law of contract applies to a compromise, and any enforcement and withdrawal from a contract may be based on the same grounds as in contract.
The PL v YL case distinguished between issues which a divorce court is required to determine, such as maintenance for minor and dependent children in terms of section 6, and those issues referred to in section 7, namely personal maintenance and the proprietary consequences of the marriage which divorcing parties are entitled to agree to in terms of a written agreement. The court granting the divorce plays a mandated role in ensuring that the maintenance of major dependent children has been taken care of and thereupon grants an order it deems fit in terms of section 6. In such circumstances, notwithstanding the agreement or compromise regarding maintenance for the children, the intervention of the court is not dispensed with.
Following the PL v YL analysis, the Full Court was satisfied that the court granting the divorce and incorporating the settlement agreement terms in the final divorce order was satisfied that the agreement in clause 2.4.4 was satisfactory or the best for the dependent children in the circumstances, and in incorporating it, granted an order it deemed fit in terms of section 6(3) of the Divorce Act.
Critically, the Full Court examined to whom maintenance was payable under the order. The court noted that ordinarily, when an order relates to maintenance of a minor child, maintenance pursuant to a divorce order would be paid to the primary carer or primary residence parent on behalf of that minor child, according with the parent’s role as the child’s guardian. However, the children in this matter were already majors at the time of their parents’ divorce.
The court turned to the question of whether the appellant represented the adult children at the time of divorce and to whom maintenance was payable. While accepting that at the time of the divorce the appellant was a party to those proceedings and a spouse in the marriage, and that both parties were aware of their common law duty of support which continued post-divorce, the court saw the ancillary nature of the maintenance order and how it sought to regulate the incidence of the parents’ duty to support their dependent children.
The Full Court held that while the legislative authority in section 6(3) of the Divorce Act and the common law granted the parents locus standi to claim and counterclaim maintenance for the major dependent children in the divorce proceedings, the situation is different post-divorce, as the children’s rights to claim and enforce the order vest directly in them. The fact that at the time of divorce they had already moved out of their parents’ guardianship must be seen against the provisions of section 6, the pertinent point being that maintenance for major dependent children may be agreed upon and is allowed in their parents’ divorce.
The court examined the payment patterns under the maintenance order. The respondent did not directly pay money to the appellant in lieu of maintenance and ancillary expenses of the children. Rather, the respondent made direct payments to the children and to institutions or service providers on their behalf. Between 2018 to 2021, the daughter received approximately R857,046 from the respondent, comprising payment of a motor vehicle, film production course, rental deposit, rent, pocket money, Vega course, laptop, cell phone, car insurance and more. Payments were similarly made directly to the son.
On an ordinary reading of clause 2.4.4, the payment of the appellant’s shortfall of rental for the son was due to be paid directly to the appellant for as long as he occupied the property as a student. However, aside from this rental shortfall payment to the appellant, there was no reference that the maintenance and ancillary payments were to be paid to the appellant. The payments were made to the children and institutions directly.
The Full Court relied on Coopers and Lybrand v Bryant 1995 (3) SA 761 (A) for the proposition that as the order did not state that the mother would be the children’s primary caregiver, it follows there was never the intention that the appellant would have legal standing to act as such. The order did not indicate that the appellant was the children’s primary caregiver and could not do so as they were already majors at the time of divorce and no longer under their parents’ guardianship.
All these factors informed the Full Court’s view that maintenance was not due to be paid to the appellant and was not granted to her on behalf of the children. The terms of the settlement agreement and the order were the determining factors, and the order was silent on to whom payment must be made. These aspects led the court to conclude that the appellant never had the intention at the time of concluding the settlement agreement to enforce maintenance obligations upon the respondent.
While the appellant was a party in the divorce, the Full Court was not convinced that the section 6(3) order was granted in her name. In a divorce, the lis is between the parties to the marriage. The legislative authority and common law granted the parents locus standi to claim and counterclaim maintenance for the major dependent children in such proceedings. However, post-divorce, the children’s rights to claim and enforce the order vested directly in them, and these were the circumstances prevailing at the time of the High Court application. The causa had fallen away, and the adult children’s entitlement to enforce and receive rights to claim maintenance vested in them and not in a parent.
Practical Implications for Family Law Practitioners: Drafting Settlement Agreements and Advising Clients on Adult Dependent Children
The Full Court’s analysis of the relief sought in the Notice of Motion provides critical guidance for family law practitioners in drafting settlement agreements and advising clients. In respect of prayers 3 to 6, which sought orders compelling the respondent to pay all medical, educational and related expenses of the children, the court found these prayers amounted to a duplication of what was already contained in the maintenance order. The court held it was unclear why these prayers were sought in the first place, given the finding that the order already required the respondent to pay all the maintenance needs of the children.
The Full Court emphasised that no case was made out in the court a quo that prayers 3 to 6 amounted to clarification of the maintenance order granted in the divorce. The court noted that maintenance does not only constitute a cash component to support a child but includes, as referred to in sections 15(2) and (3) of the Maintenance Act, provision for food, clothing, accommodation, medical care, education, a proper living and upbringing. Absent a case made out for clarification of the order, prayers 3 to 6 were unnecessary in the circumstances.
Prayer 7 sought specific amounts payable to each child per month, as an alternative to prayers 3 to 6. The Full Court found the appellant had no locus standi to seek an order for payment of specific amounts to each of the children into her bank account. The right to claim maintenance vested with the adult dependent children themselves, and only they could seek such relief.
The court considered whether prayer 7 constituted a variation of the maintenance order which would have triggered section 8(1) of the Divorce Act, finding this issue arguable but not a consideration on appeal. However, the court highlighted potential hurdles the appellant would have faced even if such relief amounted to a variation application. First, the claim for maintenance vested in the major dependent children and not in the appellant. Second, an application in terms of section 8(1) would have affected the rights of the adult children, requiring them to be joined to the application as interested and affected persons. Third, a determination of their reasonable and necessary expenses would have been required for the court a quo to determine whether the amounts sought were reasonable and fair.
In respect of prayer 8 for arrear maintenance, the Full Court held it was highly questionable that the appellant would be at liberty to claim arrear maintenance when the order was not granted in her name and no maintenance payments were made to her. The fact that she was a party to the divorce action and subsequent order did not entitle her to claim what she clearly referred to as arrear maintenance in respect of the children. The appellant’s motivation was that she made payments in respect of the children in lieu of maintenance which the respondent should have paid. The court held that at best, she may have a civil claim for amounts expended for the children in the absence of the respondent’s maintenance payments to them, but the claim in paragraph 8 was not arrear maintenance payable to her arising out of the order nor did it constitute enforcement of the order on behalf of the children.
The court applied the Plascon-Evans rule to the respondent’s version that he disputed the reasonable needs of the children and questioned whether their expenses as alleged by the appellant were reasonable, necessary and fair. His issue was not that he was required to pay until the children became self-supporting, but rather that he queried their needs. In such circumstances in Motion Court proceedings where final relief is sought, the respondent’s version would be preferred unless it was inherently unacceptable.
Regarding contempt of court proceedings, the Full Court confirmed that Bannatyne v Bannatyne 2003 (2) BCLR 111 (CC) is authority that non-payment of maintenance can lead to contempt proceedings in the High Court. The court agreed with the appellant’s submissions that an order ad factum praestandum, which is an order to do something, is capable of being the basis of contempt proceedings, relying on Burchell v Burchell [2005] ZAECHC 35. However, the locus standi issue proved fatal to the contempt application in prayers 1 and 2.
The Full Court declined to refer the maintenance dispute to the Maintenance Court. While acknowledging that in other circumstances such a referral may have been a competent order or remedy, the court noted that it had been informed on appeal that the daughter had concluded her third course, meaning there may be a number of variables, such as the very real possibility that the adult children may no longer be dependent and may well be self-supporting.
On section 28(2) of the Constitution, the Full Court held that the rights to claim maintenance and enforce the order lie with the adult children themselves, vesting in them on reaching the age of majority. While mindful that litigation between a parent and child has real problems as recognised in the AF v MF case, the court found the argument that the children’s rights were infringed was questionable if not unconvincing, given that the daughter had commenced exercising her rights by approaching the Maintenance Court but then withdrew her application.
Practitioners must pay careful attention to the wording of maintenance clauses in settlement agreements when adult dependent children are involved. The Full Court’s judgment demonstrates that vague or ambiguous provisions regarding to whom maintenance is payable, the method of payment, and the duration of the obligation can create significant enforcement difficulties post-divorce. Clause 2.4.4 was silent on the duration of payment, the manner of payment, the monthly amounts per child, and aside from the son’s rental shortfall payable to the appellant, silent as to the recipient of the maintenance.
When drafting settlement agreements involving adult dependent children, practitioners should expressly state whether maintenance is payable directly to the adult dependent child, to a parent on their behalf, to educational institutions, or through a combination of these methods. Where maintenance is to be paid to a parent on behalf of an adult dependent child, the settlement agreement should explicitly grant that parent enforcement rights post-divorce, including the right to claim arrear maintenance and institute contempt proceedings. Without such express provisions, the default position following this judgment is that enforcement rights vest solely in the adult dependent children themselves.
Practitioners should also clearly specify the quantum of maintenance payable, whether as a fixed monthly amount or by reference to specific categories of expenses. The agreement should address whether both parents remain liable for maintenance in proportion to their respective means, or whether one parent assumes sole responsibility. Ambiguity on this point can lead to disputes about the incidence of the common law duty of support, notwithstanding that the order is ancillary to and regulates that duty.
The duration of the maintenance obligation should be expressly addressed, particularly whether it continues until the child becomes self-supporting, completes a first degree, or some other defined event. The judgment confirms that where the order is silent on duration, maintenance continues until the child becomes self-supporting, but practitioners should make this explicit to avoid future disputes.
Where a divorcing parent intends to retain post-divorce enforcement rights on behalf of adult dependent children, the settlement agreement must clearly state this intention, and the divorce order should reflect it. The agreement should specify that the parent has standing to claim arrear maintenance, institute contempt proceedings, and apply for variation of the maintenance order on behalf of the adult dependent children. Without such express provisions, the adult dependent children themselves must institute such proceedings in their own names.
Practitioners should advise clients that once children attain majority, they pass from the natural guardianship of their parents and their rights to claim and enforce maintenance vest in them personally. Where a divorce order provides for maintenance of adult dependent children but does not expressly grant enforcement rights to a parent, that parent will lack locus standi to enforce the order post-divorce. The adult dependent children would need to institute their own proceedings, either in the Maintenance Court or by way of variation application in the High Court.
The judgment highlights the importance of joining adult dependent children as parties to any post-divorce application affecting their maintenance rights, particularly variation applications under section 8(1) of the Divorce Act. The non-joinder of adult children to such applications, in the absence of unequivocal consent or waiver by them, would be fatal to the application.
Practitioners should carefully distinguish between the position during divorce proceedings, where parents have clear locus standi to claim maintenance for adult dependent children under section 6(3) of the Divorce Act, and the post-divorce position, where enforcement rights vest in the adult dependent children themselves unless the order expressly provides otherwise. This distinction is neither artificial nor academic but has significant practical consequences for enforcement proceedings.
The judgment serves as a reminder that settlement agreements incorporated into divorce orders are subject to contractual principles of interpretation as set out in the Endumeni case, with the court examining the language used, the context, the apparent purpose, and the circumstances surrounding the agreement’s conclusion. Practitioners must ensure that settlement agreements accurately reflect their clients’ intentions regarding enforcement rights and payment mechanisms for adult dependent children’s maintenance.
A Critical Evaluation: Legal Rigour versus Practical Justice
While the Full Court’s judgment in R.L v J.F.D.L is legally rigorous and applies established principles of standing and contractual interpretation with commendable thoroughness, the decision invites thoughtful critique on several grounds that warrant careful consideration by the family law profession and may merit judicial or legislative reconsideration in future cases.
The court insists that the distinction between claiming maintenance during divorce proceedings and enforcing such orders post-divorce is not artificial. However, this conclusion merits closer examination. The Z v Z case recognised that parents should have standing to claim maintenance for adult dependent children during divorce precisely because of the vulnerable position such children face and the difficulty of requiring them to sue their own parents. The AF v MF case similarly acknowledged these practical and emotional barriers. The question arises: why do these same difficulties suddenly disappear the moment the divorce order is granted? The adult child remains in an identical vulnerable position post-divorce, still caught between parents and still facing the unpalatable prospect of instituting legal proceedings against a parent. The practical and emotional realities that justified parental standing during divorce persist unchanged after divorce.
The judgment’s treatment of section 28(2) of the Constitution, which enshrines the principle that a child’s best interests are of paramount importance, deserves closer scrutiny. The court dismissed this constitutional argument as unconvincing partly because the daughter had commenced Maintenance Court proceedings but then withdrew them. With respect, this reasoning may underestimate the significance of that withdrawal. The daughter’s decision to abandon her maintenance application likely demonstrates precisely the problem requiring judicial attention: adult dependent children face enormous emotional and practical barriers to suing their parents. While forcing them to do so may be legally correct under a strict interpretation of standing principles, it raises the question whether this approach adequately serves their best interests or the broader constitutional imperative to protect children, even when those children are legally adults but remain practically dependent.
The court’s reliance on the exact wording of clause 2.4.4, particularly the finding that because it did not expressly state maintenance was payable “to” the mother (except for the rental shortfall), she had no standing to enforce it, may be criticised as placing form over substance. The Endumeni approach to interpretation requires consideration not merely of literal wording but of purpose and context. The purpose of the maintenance provision was clearly to ensure the children were maintained. Both parents were legally represented and understood their common law duty of support. The context demonstrates that the mother did in fact pay for the children’s expenses when the father allegedly failed to do so. A more purposive interpretation might have found that the parties intended the mother to have enforcement rights, even if not expressly stated, given that she was a party to the divorce action and the order sought to regulate both parents’ continuing common law duty of support.
The court’s suggestion that the mother might “at best” have a civil claim for amounts she expended on the children in lieu of the father’s maintenance payments raises more questions than it answers. What would be the legal basis for such a claim? Unjustified enrichment? Negotiorum gestio? The judgment provides no guidance on this critical point. If the mother has no standing to claim arrear maintenance under the divorce order, and the children themselves did not request her to pay their expenses (eliminating any mandate), the legal foundation for recovering these amounts remains unclear. This ambiguity leaves parents who step in to support their children in legal limbo, having financially shouldered obligations the other parent should have borne without any clear remedy.
The judgment creates potentially problematic practical consequences. A parent who fails to pay maintenance as ordered now has a technical defence if the other parent steps in to support the children: the supporting parent has no standing to recover those amounts as arrear maintenance or enforce the order. This arguably rewards non-compliance while penalising the parent who acts in the children’s best interests. It also places adult dependent children in an invidious position where they must choose between maintaining relationships with both parents or instituting legal proceedings against one of them. Experience suggests that many will simply endure financial hardship rather than sue a parent, leaving them without effective protection.
The court distinguished the DWT v MT case on the basis that the order there was made “in the mother’s name” under section 17 of the Maintenance Act with reference to section 26(2). However, this distinction invites scrutiny. In both cases, parents sought to enforce maintenance obligations for adult children post-divorce. In both cases, the orders arose from agreements between parents regarding children’s maintenance. Whether the order arose under the Maintenance Act or the Divorce Act appears to be a distinction without a meaningful difference in terms of the underlying policy question: should parents be able to enforce maintenance obligations for their adult dependent children when those children face practical barriers to doing so themselves?
The judgment relies substantially on older authorities like the Richter case from 1947, which held that once children pass from natural guardianship at majority, mothers are no longer their natural guardians and cannot claim on their behalf. While legally sound, this principle may not adequately reflect contemporary family realities. Adult children in their early twenties pursuing tertiary education often remain highly dependent on their parents and are frequently in no position, practically, financially, or emotionally, to institute legal proceedings against a parent. As family structures and educational patterns have evolved significantly since 1947, the question arises whether the law should similarly evolve to recognise these changed realities.
From a policy perspective, the judgment will likely affect settlement practices in divorce matters involving adult dependent children. Parents and their legal representatives must now draft far more detailed and explicit settlement agreements, specifically addressing enforcement rights, payment mechanisms, recipients of payments, and post-divorce standing. While this promotes clarity and may prevent future disputes, it increases complexity. It may also influence settlement dynamics, as parties recognise that vague or silent provisions will likely be interpreted strictly against the enforcing party.
The court’s dismissal of the contempt application partly on the basis that the father disputed the reasonableness of the amounts creates a precedent worth examining. If a parent can avoid contempt proceedings by disputing the quantum of expenses, even where the order makes them responsible for “maintenance” generally, this may weaken the enforcement mechanism for maintenance orders. A distinction might usefully be drawn between bona fide disputes about reasonableness and disputes raised as litigation tactics to avoid compliance.
The Full Court might have considered alternative approaches that could have balanced legal principle with practical justice. For instance, the court could have found that where a parent has actually paid expenses on behalf of adult dependent children in circumstances where the other parent was obliged to pay under a maintenance order, the paying parent has standing to claim reimbursement based on the other parent’s breach of the order, even if not characterised strictly as arrear maintenance. Alternatively, the court might have interpreted the settlement agreement more purposively to find that the parties intended the mother to have enforcement rights, given that she was a party to the divorce and the order regulated both parents’ common law duty of support. Section 28(2) of the Constitution might also have been applied more robustly to find that the best interests of adult dependent children require their parents to have standing to enforce maintenance orders, given the practical and emotional difficulties children face in suing parents.
While the judgment applies established principles of standing and contractual interpretation with legal rigour and represents binding authority that practitioners must follow, it invites thoughtful professional debate about whether the law in this area adequately serves the interests of adult dependent children and the broader policy objectives of maintenance law. The distinction between during-divorce and post-divorce standing, though legally sustainable, may be questioned from a policy perspective. At minimum, the judgment demonstrates the critical importance of precise drafting in settlement agreements and highlights gaps in the current legal framework that may leave vulnerable dependents without effective remedies when parents fail to meet their maintenance obligations.
Questions and Answers from the judgement
What is the legal basis for a parent to claim maintenance for an adult dependent child during divorce proceedings?
The legal basis is found in section 6(1)(a) and section 6(3) of the Divorce Act 70 of 1979. Section 6(1)(a) provides that a decree of divorce shall not 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 are the best that can be effected in the circumstances. Section 6(3) grants the court the authority to make any order which it may deem fit in regard to the maintenance of a dependent child of the marriage. These provisions do not differentiate between minor children and major dependent children.
Does a maintenance order granted under section 6(3) of the Divorce Act replace the parents’ common law duty of support?
No, a maintenance order does not replace or alter a divorced parent’s common law duty to maintain a child. According to the Bursey case, as a matter of expediency the court, as the upper guardian of the child, usually regulates the incidence of this duty as between the parents when it grants the divorce. The order for maintenance is ancillary to the common law duty to support. Both divorced parents continue to have a duty to maintain a child of the dissolved marriage, with the incidence of this duty depending upon their relative means and circumstances and the needs of the child from time to time.
At what age does the common law duty of support for children terminate?
The common law duty of support does not terminate when a child reaches a particular age but continues after majority. The duty extends beyond the age of eighteen and continues until the child becomes self-supporting. The fact that a child has attained majority does not relieve parents of their obligation to maintain that child if the child remains dependent.
What happens to a child’s legal status when they attain the age of majority in relation to their parents’ guardianship?
Upon attaining the age of majority, children pass from the natural guardianship of their parents. At this point, the major children’s entitlement to receive and enforce rights to claim maintenance against a parent vests in them personally. While parents retain a common law duty to support their major dependent children, the children are no longer under their parents’ guardianship and can exercise their own legal rights independently.
Can an adult dependent child institute their own maintenance proceedings against a parent?
Yes, adult dependent children have standing in their own right to apply for maintenance against their parents. According to the Smit case, major children can institute maintenance proceedings against a parent in terms of the Maintenance Act 99 of 1998. The fact that a maintenance order may have been granted in the parents’ divorce proceedings does not preclude the adult dependent child from instituting their own proceedings if necessary.
What is the distinction between a parent’s locus standi to claim maintenance during divorce and to enforce such orders post-divorce?
During divorce proceedings, parents have clear locus standi under section 6(3) of the Divorce Act to claim and counterclaim maintenance for adult dependent children. This standing arises from the legislative authority granted to courts hearing divorce matters and the parents’ position as parties to the marriage. Post-divorce, however, the children’s rights to claim and enforce the maintenance order vest directly in them, as they have passed from the natural guardianship of their parents. Unless the divorce order expressly grants enforcement rights to a parent, that parent will lack locus standi to enforce the order on behalf of adult dependent children after the divorce is finalised.
What factors determine whether a parent has locus standi to enforce a maintenance order post-divorce?
The terms of the settlement agreement and the maintenance order itself are the determining factors. The court must examine whether the order was made in the parent’s name, whether it designates the parent as primary caregiver, to whom maintenance payments are to be made, and whether the order expressly grants the parent enforcement rights. Where the order is silent on these matters and the children have attained majority, the default position is that enforcement rights vest in the adult dependent children themselves.
What interpretive approach does courts apply when interpreting settlement agreements incorporated into divorce orders?
Courts apply the approach set out in the Endumeni case, which requires interpretation to be the process of attributing meaning to words used in a document, having regard to the context provided by reading the particular provision in light of the document as a whole and the circumstances attendant upon its coming into existence. Consideration must be given to the language used in light of ordinary rules of grammar and syntax, the context in which the provision appears, the apparent purpose to which it is directed, and the material known to those responsible for its production. The process is objective, not subjective, and a sensible meaning is to be preferred to one that leads to insensible or unbusinesslike results.
What is the nature of a settlement agreement that is incorporated into a divorce order?
According to the PL v YL case, a settlement which disposes of issues between parties is in most instances a compromise (transactio), which is an agreement between parties to an obligation or lawsuit that settles the issues in dispute and in terms of which each party concedes something. The law of contract applies to a compromise, and any enforcement and withdrawal from a contract may be based on the same grounds as in contract. The settlement agreement is subject to contractual principles of interpretation.
What is the significance of section 6 of the Divorce Act in relation to maintenance for dependent children?
Section 6 mandates that the court granting the divorce must ensure that the maintenance of major dependent children has been taken care of before granting a decree of divorce. The court is legislatively required to be satisfied that provisions made with regard to the welfare of dependent children are satisfactory or are the best that can be effected in the circumstances. In such circumstances, notwithstanding any agreement or compromise regarding maintenance for the children, the intervention of the court is not dispensed with. The court must grant an order it deems fit in terms of section 6(3).
Can a parent claim arrear maintenance on behalf of adult dependent children where the maintenance order was not granted in that parent’s name?
No, where a maintenance order was not granted in a parent’s name and no maintenance payments were made to that parent, it is highly questionable that the parent would be at liberty to claim arrear maintenance. The fact that the parent was a party to the divorce action and subsequent order does not entitle that parent to claim arrear maintenance in respect of the children. At best, the parent may have a civil claim for amounts expended for the children in the absence of the other parent’s maintenance payments to them, but this would not constitute arrear maintenance payable under the divorce order.
What requirements must be met for a parent to successfully bring contempt of court proceedings for breach of a maintenance order?
The parent must have locus standi to enforce the maintenance order. According to the Bannatyne case, non-payment of maintenance can lead to contempt of court proceedings in the High Court. An order ad factum praestandum is capable of being the basis of contempt proceedings. However, where the parent lacks locus standi because the adult dependent children’s rights to enforce the order vest in them personally, the parent cannot institute contempt proceedings. Additionally, where the respondent disputes the reasonableness of claimed expenses, this may defeat a contempt application.
What is the effect of an adult dependent child instituting their own maintenance application in the Maintenance Court while the parent’s High Court application is pending?
Such concurrent proceedings may raise the defence of lis alibi pendens, meaning that there is another matter pending elsewhere. Where the adult dependent child withdraws or abandons their Maintenance Court application, this defence falls away. However, the existence of such concurrent proceedings may indicate that the adult dependent child is exercising their own enforcement rights, which supports the position that they, rather than their parent, have the standing to claim and enforce maintenance.
Under what circumstances would a variation application in terms of section 8(1) of the Divorce Act be required rather than a fresh maintenance application?
A variation application under section 8(1) of the Divorce Act would be required where a party seeks to alter the terms of an existing maintenance order granted in the divorce proceedings. Such an application would affect the rights of the adult dependent children and would require them to be joined as interested and affected persons. A determination of the children’s reasonable and necessary expenses would be required for the court to determine whether the varied amounts sought were reasonable and fair. The non-joinder of adult children to such applications, in the absence of unequivocal consent or waiver by them, would be fatal to the application.
What constitutes reasonable maintenance for an adult dependent child and how is this determined?
Reasonable maintenance includes provision for food, clothing, accommodation, medical care, education, a proper living and upbringing, as contemplated in sections 15(2) and (3) of the Maintenance Act. Maintenance does not only constitute a cash component but encompasses all these elements. Where there is a dispute about what constitutes reasonable expenses or reasonable maintenance needs, such determination may require a maintenance enquiry in the Maintenance Court. The respondent’s querying of whether expenses are reasonable, necessary and fair does not amount to a refusal to pay maintenance but rather a legitimate dispute requiring proper determination through evidence.
Written by Bertus Preller, a Family Law and Divorce Law attorney and Mediator at Maurice Phillips Wisenberg in Cape Town and founder of DivorceOnline and iANC. A blog, managed by SplashLaw, for more information on Family Law read more here. For free and useful Family Law tech applications visit Maintenance Calculatorand Accrual Calculator.
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