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More often than not during divorce proceedings, spouses find it difficult to communicate effectively. This results in the spouses not finding common ground on issues such as custody of the children, maintenance, division of matrimonial property and so forth. The separation of couples or the divorcing of spouses is largely caused by differences, thereby resulting in an irretrievable breakdown of the union. With frustrations, disappointments and feelings of betrayal abound, spouses often find it hard to resist the urge of walking away without a fight in revenge hence why numerous divorces are coupled with time-consuming, costly, strenuous tussles which are, avoidable. It is usually a good idea to seek the services of a family law attorney to assist spouses through divorce proceedings in a manner that is cost efficient, expeditious and less strenuous. Mediation firms specialising in family law are also recommended in this regard.

Children are often caught up in these tussles, leaving them battered by ripple effects of the actions and inactions of their divorcing parents. In the case of Z v Z [2022] ZASCA 113 the appellant had instituted proceedings against the respondent for a decree of divorce, spousal maintenance as well as maintenance for their adult dependent children. The respondent raised a special plea, arguing that the appellant lacked locus standi to bring a claim for maintenance on behalf of their adult children, albeit they being still dependent. This argument was premised on the legal principle that a child who has reached majority age is accorded legal recognition to act in their own capacity and behalf. The Eastern Cape division of the High Court found in favour of the respondent, upholding the special plea.

On appeal to the Supreme Court of Appeal (SCA) against the decision of the Eastern Cape division of the High Court (upholding the special plea), the issue rested on the interpretation of section 6 (1) (a) and 6 (3) of the Divorce Act 70 of 1979. The former provision provides that a decree of divorce shall not be granted unless the Court is satisfied that the provisions made or contemplated with regard to the welfare of a minor or dependent child of the marriage, are either satisfactory or the best that can be effected under the circumstances. The latter provision provides for the court, if in the interests of a dependent child, to grant any order it may deem fit including with regard to, maintenance.

The SCA found that read in their ordinary grammatical formulations, contextualised and purpose analysed, the provisions led to the conclusion that they preserve their constitutional validity and vest the right of parents to claim maintenance on behalf of their dependent children upon divorce, despite them being adults at law. The appeal was upheld and the special plea was dismissed.

In conclusion, there are a few things which we find it necessary to comment on in this case. Some people might be of the view that there was no difference between the appellant seeking a maintenance order on behalf of the adult children and, the adult children claiming on their own behalf. This is because the respondent would still be required to pay the maintenance regardless of who had instituted the maintenance proceedings. However it is important to note that firstly, for reasons of principle, legal certainty and the rule of law, it was beneficial for this aspect to be brought before the court as it is trite in law that adult children ought to bring claims for maintenance in their own right and on their own behalf. Secondly it was pertinent for the court to rule on whether there was any difference between adult children claiming maintenance in divorce cases and adult children claiming maintenance where there are no divorce proceedings. Thirdly, there have been conflicting High Court decisions regarding the locus standi of one parent claiming maintenance from the other parent on behalf of an adult dependent child, a situation which does not pull in favour of legal certainty.

We assist in a wide range of legal services including family law, and we are available to consult with parties in order to receive their full instructions in this respect. Contact us for comprehensive assistance.


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