N.M v B.M and Others

The applicant (N.M.) and the first respondent (B.M.) were married on 27 April 2018 out of community of property, with the inclusion of the accrual system. Both had been previously married and each had two children from those prior marriages; no children were born of their marriage. The applicant's children were still minors and lived primarily with the parties. The respondent's children (one minor, one adult) lived primarily with their mother but regularly spent time at the matrimonial home. The family lived a luxurious lifestyle: the matrimonial home (owned by the second respondent company) was valued at a minimum of R10 million, they went on overseas holidays, drove luxury cars, and the children attended private schools. The respondent provided financial support for the applicant and her children, including paying medical aid, rental, and other expenses. In December 2023 the parties agreed on a trial separation. The applicant moved to Paarl with her children, while the respondent remained in George. In March 2024 the respondent began an affair with another woman. The respondent thereafter withdrew emotional and financial support from the applicant's children abruptly. The applicant discovered, during failed mediation, that the respondent had a complex financial structure involving trusts and companies—including trusts where she was named as trustee and beneficiary without her knowledge, and a company where she was listed as co-director and then removed without her knowledge. The respondent was the CEO of F[...] and had previously been CEO of T[...] which was sold to S[...] Group, reportedly receiving a settlement of R500 million plus R29.5 million in shares. The respondent claimed his net monthly income was R184,797.93 with a shortfall of R15,732.91, while the applicant believed his income was approximately R500,000 per month. The applicant was a dietician in private practice earning a net average of R35,073.16 per month plus R7,202.00 maintenance from her children's biological father.

• Whether a stepparent has a legal duty to maintain stepchildren during divorce proceedings pending finalisation.
• Whether the respondent had assumed the role of parent (in loco parentis) in respect of the applicant's children such that he was liable for their maintenance.
• Whether the respondent could unilaterally terminate a parental relationship he had voluntarily assumed when the marital relationship ended.
• Whether the applicant and her children were entitled to interim maintenance pendente lite commensurate with the lifestyle enjoyed during the marriage.
• Whether the applicant was entitled to a contribution to legal costs to enable her to place her case before court adequately, given the complexity and secrecy of the respondent's financial structure.

The court ordered: (1) payment of R40,000 per month maintenance to the applicant by the first day of each month; (2) the respondent to keep the applicant and her children on his comprehensive medical aid and pay all premiums; (3) payment of all medical expenses not covered by medical aid; (4) monthly payments for the applicant's rent (limited to R35,000), water and electricity, wifi, security, domestic worker and gardener salaries, Toyota Cross vehicle instalment, and golf club membership fees at Fancourt and Oubaai; (5) all payments to be made without deduction or set-off, with reimbursement within 5 days for expenses paid by the applicant; (6) a contribution of R1,000,000 towards the applicant's legal costs, payable in five equal monthly instalments of R200,000; (7) return and delivery of specified furniture and household goods within 30 days; (8) payment of R102,597 for electronic appliances; and (9) costs to be paid by the first respondent.

The basis of a stepparent's liability for maintenance of stepchildren is the children's constitutional right to parental care under section 28(1)(b) read with section 28(2) of the Constitution of the Republic of South Africa, 1996, which extends to stepparents. A stepparent attracts section 28(1)(b) liability when he or she assumes the position in loco parentis to the children by exercising parental responsibilities and rights as defined in section 18(2) of the Children's Act 38 of 2005. The assumption of such liability arises from a conscious decision at or during the marriage, and a stepparent who has through representations held themselves out as a parent—upon which the child, the biological parent, and others have relied—cannot unilaterally withdraw that support based merely on changed feelings at the end of the romantic relationship.

The court observed that 'in contemporary South Africa, the politics of the birth of the child yields to what is in their best interests' and that it is not in children's best interests for a stepparent to abruptly abandon them when they fall out of love with their parent. The court remarked that 'children are too precious to be left to chance' where a stepparent made representations upon which the child and others relied. The court also suggested it would be 'good practice in this Division for parties in a Rule 43 application to file their papers including a completed Financial Disclosure Form.' The court noted that the question of whether the respondent took a properly informed and deliberate intention to assume liability to maintain the children permanently is best left for the trial court, including whether the children should continue to benefit from 'a double portion' from both their biological father and the respondent.

This judgment clarifies and develops South African law on the duty of stepparents to maintain stepchildren during divorce proceedings, grounding that duty in the children's constitutional right to parental care under section 28(1)(b) rather than in common law. It confirms that the constitutional right to parental care extends to stepparents who have assumed a parental role (in loco parentis), and that such liability cannot be unilaterally terminated based on the stepparent's changed feelings towards the biological parent. The case emphasises the paramountcy of children's best interests over the biological parentage politics, and provides guidance on when a stepparent's conduct amounts to an assumption of parental responsibilities. It also addresses the practical challenges of determining a spouse's true financial position where complex trust and company structures are used, and signals the court's willingness to order substantial contributions to legal costs to level the playing field in such cases.