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Parents have a legal duty to financially support the children born of their marriage. This duty does not terminate by way of divorce and the relevant Court will ensure that provision is made for maintenance of the parties’ minor children before granting an order of divorce. 

What happens when your child turns 18 (age of majority)? Can you claim maintenance for your 21-year-old daughter during divorce proceedings? Are you or your ex-spouse still liable to make monthly maintenance payments? This article aims to provide a brief understanding of maintenance payments for children over the age of 18 years old. 

Legal Framework: What does legislation say? 

The Children’s Act 38 of 2005 (hereinafter referred to as ‘the Children’s Act’) defines a child as a person under the age of 18 years old. The Children’s Act further states in section18(2)(d) that parents have the responsibility to contribute towards the maintenance of their child. At face value, one would think that the obvious answer is that parents’ maintenance obligations only continue until the clock strikes midnight on the minor child’s 18th birthday. 

Not quite. 

Section 6 of the Divorce Act 70 of 1979 (hereinafter referred to as ‘the Divorce Act’) expressly states that the Court may grant a decree of divorce if the relevant Court is satisfied that sufficient provision is made for the financial support of the children as well as dependents born of the marriage between the parties. The Divorce Act does not differentiate between a minor child and a dependent child when it comes to financial support.  

Section 15 of the Maintenance Act 99 of 1998 (hereinafter referred to as ‘the Maintenance Act’) follows a similar narrative by stating that parents have a duty to pay maintenance to their children who are unable to support themselves.

The reality is that many 18-year-olds are not in the position to support themselves financially and are either in the process of completing high school or are only at the starting blocks of their tertiary education. 

What is our Courts approach on this subject? 

The Supreme Court of Appeal (SCA) in Bursey v Bursey & Another (611/97) [1999] ZASCA 25; [1999] 2 All SA 289 (A) (30 March 1999) held that parents’ duty to financially support their child does not terminate once their child reached the age of 18, but rather once the child becomes self-supporting. Many succeeding court cases followed the same standing as Bursey which aligns with section 6 of the Divorce Act and section 15 of the Maintenance Act. Factors such as the major child’s health, earning capacity and education ought to be considered when determining whether the child is self-supporting. 

It is, however, the recent groundbreaking Supreme Court of Appeal judgement, Z v Z (556/2021) [2022] ZASCA 113; 2022 (5) SA 451 (SCA) (21 July 2022), that ultimately resolved the question of whether a spouse could claim maintenance for children over the age of 18 (major children) during divorce proceedings. 

By way of a unanimous decision, the SCA confirmed that a spouse, usually the primary care giver, has the necessary legal standing to claim maintenance on behalf of the major yet dependent children born of the marriage. 

Such spouse will be required to outline the major child’s current needs and circumstances as well as present to the Court how the necessary maintenance should be paid (i.e. monthly payments or a lump sum payment). 

For more information on this topic, contact Christine Nell on christine@curranattorneys.co.za