The Divorce Act in South Africa makes provision for the maintenance of dependent and minor children of divorcing husbands and wives. A court granting a decree of divorce can make any order which it considers appropriate in regard to the maintenance of a child of the marriage. This particular power of the court does not substitute or change a parent’s common law and statutory responsibility to maintain a child.
It does not follow that simply because there is a responsibility to maintain there should be an award against the non-custodian parent. In view of the absence of an enabling statutory provision in the Divorce Act or the Children’s Act, a parent of an adult child lacks the necessary locus standi in divorce proceedings to claim an order on behalf of such adult child, that the other parent pay certain allowances directly to the child or certain expenses on his or her behalf. Only if the children on their own have the standing to obtain such claim against the other parents. Nevertheless, in terms of section 7(2) of the Divorce Act, a court, when determining a spousal maintenance claim, need to take into account, amongst other factors, the parties’ respective financial needs and obligations, as well as their standard of living during the marriage.
Where the parties have separated and the adult child of the marriage has carried on to live with one parent who has had to use his or her household budget to run the family home and provide groceries for the household, such parent’s responsibility to provide the child with a home, with all that this entails, constitutes an ‘obligation’ within the meaning of section 7(2) of the Divorce Act which can be taken into account in determining the quantum of his or her interim maintenance claim.
If a parent has to pay maintenance for a child in terms of a court order, the fact that the child is visiting him temporarily does not entitle him to suspend or reduce the payment during that period, unless the order contains a specific provision to that effect.
In the assessment of maintenance for children their needs and the parents’ ability to pay are the primary factors but the criterion of the “best interests of the child” must also be considered.
The Maintenance Act provides that a court that convicts a person of an offence in terms of section 31(1) of the Maintenance Act, shall make an order directing any person, obliged under a contract to pay any money to the offender, to make such periodical payments from that money as may be required by the maintenance order. The use of the word “shall” showed that upon conviction a court is obliged to make the order provided that the contractual relationship exists, and the evidence shows that the order will not be impracticable. Such an order is enforceable against a state pension fund.
Compiled by Divorce and Family Law Attorney – Bertus Preller
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Divorce Attorney Cape Town 
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