Maintenance Issue 3

Influence of remarriage on parent’s duty to support

A parent’s duty of support is in no way affected by remarriage after divorce.

A stepparent is under no obligation to support a stepchild, but if, for example, a mother remarries in community of property, her proportionate contribution to her children’s support comes out of the joint estate.

Theoretically the establishment of a second family ought not to prejudice the children of the first marriage, but in practise it often does – Prophet v Prophet 1948 (4) SA 325 (O) at 331.

Naturally the children of the second marriage must be considered too.

The Maintenance Act provides that the duty to support children exists, irrespective of whether a child is born in or out of wedlock or is born of a first or a subsequent marriage.

From an equitable point of view, one must look at what the result of an order is going to be.

A father who has remarried must adjust his own standard of living rather than allow his children to be prejudiced.

In practise this is one of the most vexed questions pertaining to the duty of support.

The problem that arises is of course how to find an equally beneficial solution to this dilemma.  Fact remains that a father and mother who does not have custody of their children, stays responsible for support of his/her children and cannot hide behind remarriage to escape those liabilities.     

Court Cases

Barlow v Barlow 1920 OPD 73

Duty of support based on relationship, a need to be supported and adequate resources on the part of the person who is called upon to provide support.  The quantum does not depend on the desire of the party obliged, but must be determined in accordance with the requirements of the one to be supported and the ability of the one who must pay.

Behr v Minister of Health 1961 (1) SA 629 (SR)

The wife can continue to bind her husband’s credit even when there is no longer a joint household; on the basis of negotiorum gestio according to some sources and of unjust enrichment according to others.

Belford v Belford 1980 (2) SA 629 (C)

Divorced spouses cannot expect to maintain the same standard of living as they enjoyed whilst married to each other.