Major change for maintenance and divorce in South Africa

In a recent Supreme Court of Appeal (SCA) judgement, Z v Z (556/2021) [2022] ZASCA 113 (21 July 2022) case, the appellant (the mother) initiated divorce proceedings against her husband and claimed, inter alia, maintenance for herself and their two adult, financially dependent children. The father’s special plea that the mother lacked locus standi to claim maintenance on behalf of the adult children, was upheld. The mother appealed, contending that s 6 of the Divorce Act authorizes a parent to claim maintenance from the other parent on behalf of a major dependent child in divorce proceedings.

Meyer AJA noted that there are conflicting decisions on a parent’s locus standi in judicio to claim maintenance on behalf of an adult dependent child in divorce proceedings between the parents and confirms regarding linguistic, contextual, purposive, and constitutional interpretative analysis of statutes. Confirming parents’ common law and statutory duty to maintain their adult dependent children, he referred inter alia to s 6(1) of the Divorce Act which provides that a decree of divorce may not be granted until a court is satisfied that provisions made in respect of the welfare of a minor or dependent child born of the marriage are satisfactory or the best that can be made in the circumstances. He also referred to s6(3) which empowers a divorce court to make any order it deems fit regarding the maintenance of a dependent child of the marriage. He found that, given their ordinary grammatical meaning, properly contextualized, the words in ss 6(1)(a) and 6(3) of the Divorce Act support an interpretation of s 6 that a parent is allowed to claim maintenance on behalf of adult dependent children upon divorce. Meyer pointed out that there is no legal requirement in the Divorce Act for the adult dependent child to be a party or to be joined to the divorce proceedings and found that an interpretation of s 6 that excludes a claim for maintenance by a parent on behalf of a dependent child who has attained majority, would not preserve its constitutional validity, and would result in absurdity.

The court ordered that the appeal be upheld, and the ex-husband’s special plea be dismissed.