Maintenance Issue 7

Maintenance Issue 7

Children’s duty to support parents

Parents and children have a reciprocal duty of support.  Children have a duty to support their parents and grandparents, but always subject to the rule that support must be claimed from nearer relatives first. The basis of a child’s duty to support parents is the sense of dutifulness or filial piety. 

A parent who claims support from a child must prove his or her need and the child’s ability to support.

In Van Vuuren v Sam 1972 (2) SA 633 (A) at 642 Judge Rabie stressed that the support of parents must be confined to the basic needs:

·         Food;

·         Clothing;

·         Shelter;

·         Medicine;

·         and care in times of illness.

Relying on Surdus at Tractatus de Alimentis 4 18, he stated that in assessing the quality and condition of the person to be supported it is primarily his present situation, not his past one, which is considered and that in assessing these, the judge should exercise his discretion.

Other duties of support

Relations by affinity

As a rule in South Africa a stepfather has no reciprocal duty of support towards his stepson, and a stepson has no reciprocal duty of support towards a step-parent, and of course vice versa.

It must however be stated that where a stepfather is married in community of property to his stepchild’s mother, the mother’s contribution to the child’s support comes out of the joint estate, due to a expected bondless relationship between stepfather and stepson in the sense of dutifulness.  I must admit that in our constitutional development as we progress into the future I cannot see that this status quo will be maintained must longer and we might in the future see a shift to reciprocal support developing under these circumstances taking into regard the “best interest of the child”.

Collaterals

Brothers and sisters and half-brothers and half-sisters have a reciprocal duty of support.

Once again, this is a duty that is much more restricted than that owned by a parent to a child.

There is no duty of support between more remote collaterals such as:

·         uncles;

·         aunts;

·         nephews;

·         and nieces.

Duty of support between grandparents and grandchildren

There is a reciprocal duty of support between grandparents and grandchildren and between ascendants and descendants without end.

However, the usual rule operates here that support must always be sought from the nearer relative and only if it does not come from the nearer relative should it be sought from the more remote relative and one wonders how far our High Supreme Courts will actually take this in terms of the a remote relative, most probably as long as it is in the most minute sense a definite relative, and remember we are discussing grand’s – up and down here, nothing else.

Duty of support between spouses

There is beyond doubt a duty of support between a husband and wife as soon as they become as such.

If income is insufficient to provide support for a spouse, it may be necessary to liquidate assets.  In order to fulfil her duty, it may be necessary for the wife to do unpaid work in her husband’s business or to find employment – I know the ladies won’t appreciate this but this is also applicable to husbands which in today’s economic environment is becoming more and more apparent, especially under white males due to various legislation that is making employment harder and harder for them to obtain.

The case of Reyneke v Reyneke 1991 (3) SA 927 (E), which is fairly new, and by no means an good example as how husbands should act, gives an insight into how the courts deal with these issues.

Here we had a couple that were married in community of property but living apart.  Although the wife needed support, the husband could not work and was unable to support himself; so even though it was found in the maintenance court that the husband had deliberately impoverished himself and the joint estate with the fraudulent intention of frustrating his wife’s claim for maintenance, no order for the payment of maintenance was made against him.  On appeal, the magistrate’s decision was upheld by the Supreme Court.  Even though other common law remedies were not available to the wife, the court held that it could not fictionally attribute to the husband means which he no longer had, sins the whole basis of maintenance awards depends on reality.  It was held that the factual need to be supported and the factual ability to furnish support are as crucial to the duty of support as the relationship between the parties and that what it comes down to is that “the duty to provide support is not an absolute duty and the right to receive maintenance is not an unqualified right”.   

Very important to note furthermore is that in terms of the Matrimonial Act 88 of 1984 section 23 (2) spouses married out of community of property, whether before or after the commencement of the Act, must each contribute to the necessaries for the joint household proportionally according to their means, and they are also deemed to have been liable to do so from the beginning of their marriage until the commencement of the Act.  They are jointly and severally liable to third parties for all the debts incurred by either of them in respect of such necessaries.

Cohabitees

In South African law cohabitees have until recently not been considered to owe each other a duty of support either during the relationship or when it ends, although in Ally v Dinath 1984 (2) SA 451 (T) the plaintiff alleged that she and defendant, who had lived together in an Islamic relationship for about fifteen years, had tacitly or by implication entered into a universal partnership and accumulated a joint estate.  The aim of the partnership was to create a joint household and to accumulate a joint estate for the benefit of both parties.  The court referred to the firmly established principle that any contract can be brought about by conduct and, in respect of the making of a profit, the allegation of the objective of the accumulation of an appreciating joint estate was found to be sufficient, at least for purposes of pleading. 

In Langemaat v Minister of Security 1998 (3) SA 312 (T) it was held that in the light of the Constitution, partners in a long term same sex union owed each other a duty of support.

Both marriage and this type of union were deserving of respect and protection according to the learned judge’s understanding of section 39(2) of the Constitution.

Court Cases

Copelowitz v Copelowitz 1969 (4) SA 64 (C)

The standard at which a divorced spouse is to be maintained must be determined as at the date of divorce, always bearing in mind that the standard drops automatically on divorce.  This drop in standard usually affects both parties to a divorce as well as their children.  An improvement in one’s financial position after divorce is to one’s own benefit since the bonds of marriage no longer exists.

Couper v Flynn 1975 (1) SA 642 (O)

It is generally recognised that on divorce neither spouse is entitled to maintain the same standard of living as during the marriage.  (This means nobody has an enforceable right thereto – not that it cannot in fact turn out like that!)

Maintenance Issue 6

Maintenance Issue 6

Duty of support of child born as a result of artificial fertilisation

In L v J 1985 (4) SA 371 (C) at 377, Berman J held that there is no doubt that where a husband has given no consent to his wife’s resorting to artificial insemination with the sperm of an unknown donor, the child is illegitimate, and no duty is imposed on the husband to provide maintenance for the child born by artificial insemination.  I have to admit that this was in 1985 and I am of the opinion that this might not be so easy as it sounds taking into regard section 28 in Chapter 2 of the Constitution 108 of 1996 on the foundation of the best interest of the child.  There are judgements out there that has disregarded everything just to maintain the status quo in terms of the best interest of the child.  This does not mean that I have not empathy for this father, but the fact remains that this child will have to be maintained and what if the wife is a housewife with no income of her own.  Something to think about despite the fact that if might be in the extreme unfair to this father.

The Children’s Status Act in section 5(1)(b) provides that no right, duty or obligation arises between a child born as a result of the artificial insemination of a woman and

·         A person whose gamete or gametes have been used for the artificial insemination and

·         The blood relations of that person;

unless that person is the woman who gave birth to the child or is the husband of the woman at the time of the artificial insemination.

Extra-marital children

It is today settled law that the ordinary rules relating to a parents’ duty to support his or her child apply in respect of an extra-marital child.  Thus both parents must support any children, and there is no difference in scale; both are responsible for maintenance according to their means.  A woman claiming support for her marital child must prove paternity. 

Both parties must contribute to the lying-in expenses according to their means.  These include maintenance for the mother immediately before, during and immediately after birth.  These expenses are considered to be in the child’s interest as against damages for seduction, which are considered to be for the benefit of the woman.  Whether loss of earnings is claimable as part of lying-in expenses is controversial, and there are judgements therefore as well as against such claims.

 Adopted children

According to the Child Care Act, “an adopted child shall for all purposes whatsoever be deemed in law to be the legitimate child of the adoptive parents”.  Thus in regard to the reciprocal duty of support between parent and legitimate child it makes no difference whether the child is adopted or not.  Upon adoption, the reciprocal duty of support between the adopted child and his or her natural parents ceases to exist.  

Court Cases

Buch v Buch 1967 (3) SA 83 (T)

There should be full disclosure of the financial position of the parties.  Even where the parties are represented the maintenance and presiding judicial officers share with the parties the responsibility of gathering evidence.

Chizengeni v Chizengeni 1989 (1) SA 116 (ZHC)

It would be superficial and unrealistic to suggest that the first wife must be maintained at the same standard even though the husband has subsequent commitments.

Roels v Roels [2003] 2 All SA 441 (C)

Whether “good cause” exists for the variation of a maintenance order must be assessed on the particular facts of each case.