Maintenance Issue 5

Maintenance Issue 5

Tertiary education

The duty to maintain children in certain circumstances include the duty to provide tertiary education.  Whether this will fall under the head of ‘necessaries’ will depend on, amongst other things, the parent’s financial circumstances and social status and the children’s academic aptitude and achievements.  The fact that children are capable of supporting themselves does not preclude the duty.

Duration of duty to support children

A parent’s duty to support a child does not cease when the child reaches a particular age, but it usually does so when the child becomes self supporting.

Where there is no existing order and maintenance is sought for major children, the onus is on those children to show their need for maintenance and how much is required.

A major is not usually supported on as lavish a scale as a minor.  In B v B 1997 (4) SA 1018 (SE) at 1021 it was stated that although the duty of support persists into the child’s majority, its nature changes and it is then confined to necessaries: “In other words, the child must be in indigent circumstances in the sense that he or she is in need of a contribution towards his or her maintenance.

“Indigent” meaning destitute, needy, and poor.

Can a child’s conduct relieve a parent of the duty to support?

Voet 25 3 18 states that the duty ceases when the person to be maintained is guilty of ingratitude of a degree that would justify disinheritance.

  

Court Cases

Beukes v Beukes 1995 (4) SA 429 (O)

Variation of a maintenance order.

At a maintenance enquiry the presiding officer must play an active role to ensure that the necessary evidence is obtained even where the parties are represented.

Where important evidence is lacking, such as, in casu, evidence of the income and financial position of the party having the duty to pay maintenance, the presiding officer must ensure that that evidence is adduced.

A change in the financial position of the applicant in such an application is not required before a variation of the existing maintenance order can be granted.

It appears clearly from the provisions of section 4 of the old Maintenance Act that the maintenance court can substitute or suspend the maintenance order only if there is ‘sufficient cause’.

Sufficient cause does not necessarily means changed circumstances only.

The maintenance officer must be present throughout the enquiry even if the parties are legally represented.

The new Maintenance Act refers to ‘good cause’.