R.S v J.S

The appellant and the first respondent were married in 1991. In 2014, the appellant met an abandoned orphaned child, LX (born March 2012), while volunteering at a care centre. The couple decided to adopt LX. They commenced adoption proceedings, signing Form 60 in February 2016, and obtained a foster care order in November 2014. They raised LX as their daughter, with the first respondent taking on parental rights and responsibilities. Before the adoption could be finalised, the marriage broke down. In his divorce summons and a signed settlement agreement (August 2018), the first respondent explicitly undertook to pay R5,000 monthly maintenance for LX, plus half her educational and medical costs, until she reached majority or became self-supporting. The divorce was granted in May 2019, but the settlement agreement was not incorporated into the court order. The first respondent continued paying maintenance (reduced to R4,000) until January 2023, when he stopped. The appellant approached the maintenance court. The magistrate found the first respondent had no legal duty to maintain LX because the adoption was not finalised.

• Whether the first respondent has a legal duty to maintain the minor child LX, despite the fact that formal adoption proceedings were never completed.
• Whether the child's best interests require recognition of a duty of support arising from the first respondent's conduct and express undertakings.
• Whether the common law should be developed to recognise a duty of support in circumstances of de facto adoption where a parental obligation was voluntarily assumed.

The appeal was upheld. The decision of the court a quo was set aside and replaced with an order declaring that the first respondent is legally liable to support LX. The matter was referred to the Maintenance Court for a maintenance enquiry. Pending the outcome, the first respondent was ordered to pay R5,000 per month as interim maintenance from 30 June 2024. No order as to costs.

Where a person has voluntarily and expressly assumed a legal duty to support a child — evidenced by signing adoption papers, undertaking maintenance obligations in divorce proceedings and settlement agreements, and performing parental functions over a sustained period — a legally binding duty of support is established, regardless of whether formal adoption was completed. The child's best interests, as enshrined in section 28(2) of the Constitution, are paramount and require that a party who has de facto adopted a child and promised to support her be held to that promise.

The court noted that while it is mindful that the duty of support for adoptive parents arises from de jure adoption and does not ordinarily flow from de facto adoption, on the particular facts of this case, the child's best interests demand that the duty be extended. The court expressed concern that the foster care order extension granted by the Children's Court (from 2018 to 2030) without the first respondent's knowledge or consent was legally incompetent under section 159, but acknowledged it lacked jurisdiction to set it aside in this appeal.

This case develops South African common law by extending the duty of support to de facto adoption relationships where a parental obligation has been voluntarily and expressly assumed, reinforcing that the child's best interests are paramount over formalism. It aligns with the line of cases (such as Paixao v RAF and NB v MB) that have recognised duties of support in non-traditional family structures, and confirms that a person cannot renege on maintenance undertakings made during divorce proceedings simply because adoption formalities were not completed.