Mrs Z (the mother/appellant) and Mr Z (the father/respondent) married on 10 January 1995. Two children were born of the marriage: R (born 21 May 1997) and B (born 13 March 1999). The marriage deteriorated and the father moved out of the matrimonial home in April 2018. On 9 April 2019, the mother initiated divorce proceedings, claiming a decree of divorce and maintenance for herself and the two children (both now adults but still financially dependent). The father counterclaimed for divorce and filed a special plea that the mother lacked locus standi to claim maintenance on behalf of the adult dependent children, asserting that the children themselves would need to pursue their own maintenance claims. The mother relied on section 6 of the Divorce Act 70 of 1970, which she contended authorised a parent to claim maintenance on behalf of major dependent children in divorce proceedings. The high court (Eastern Cape Division, Port Elizabeth) upheld the father's special plea and ordered the mother to join the adult dependent children as parties to the divorce action.
1. The appeal was upheld with costs, including those of two counsel. 2. The order of the high court was set aside and replaced with: "The defendant's special plea is dismissed with costs."
Section 6 of the Divorce Act 70 of 1970 vests parents with locus standi in judicio to claim maintenance for and on behalf of their adult dependent children upon divorce. The words "dependent child" in sections 6(1)(a) and 6(3) include children who have attained majority but remain financially dependent. The concomitant of the court's power under section 6(3) to make any order it deems fit regarding maintenance of a dependent child is the legal standing of a spouse to claim such maintenance on behalf of an adult dependent child. There is no legal requirement in the Divorce Act for adult dependent children to be joined as parties to divorce proceedings for maintenance orders to be made in their favour. The parental duty to support children, which exists at common law and under statute, continues after children attain majority and is not terminated by divorce.
The Court observed that there is no intrinsic magic in the age of 18 marking the transition from childhood to adulthood, particularly as many young people at that age have not completed education or become self-supporting. The Court noted that an adult child subject to a maintenance order made in divorce proceedings between parents would still be free to institute their own separate maintenance proceedings against an errant parent under section 6 of the Maintenance Act 99 of 1999. The Court emphasized policy considerations including: the undesirability of involving children in parental conflict; the need to prevent piecemeal adjudication; the reality that many adult dependent children refuse to institute maintenance claims against parents; the vulnerable position of women after divorce who face double disadvantage of increased responsibilities and reduced means while fathers generally become economically enriched; and the need to uphold constitutional values of dignity, equality, non-sexism and children's rights. The Court approved academic commentary advocating this interpretation and noted that courts should be alive to the vulnerable position of young adult dependants of divorcing parents who need financial and emotional support despite being legal majors.
This case authoritatively settles a conflict in high court jurisprudence regarding parents' standing to claim maintenance for adult dependent children in divorce proceedings. It provides important protection for young adults who have reached majority but remain financially dependent on their parents, particularly those completing education or unable to find employment. The judgment promotes constitutional values of dignity, equality and children's rights by preventing young adults from being forced into adversarial litigation against their own parents. It recognizes the gendered reality of divorce, where mothers typically bear disproportionate caregiving responsibilities and financial burdens. The case emphasizes purposive and constitutional interpretation of family law statutes to promote the welfare of dependent children regardless of whether they have attained technical majority. It affirms that the parental duty of support does not terminate at age 18 but continues as long as a child remains dependent. The judgment facilitates comprehensive resolution of all maintenance issues in a single divorce proceeding rather than requiring piecemeal litigation.
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