By Melissa Engelbrecht,, Legal Intern – Cape Town
When the word maintenance is mentioned, many often think of a woman claiming maintenance in respect of a minor child or a wife claiming maintenance from her soon to be ex-husband. But too often we overlook the possibility that as one gets older, the role of caretaker is reversed. The question then arises: can parents claim maintenance from their children?
In terms of the Maintenance Act 99 of 1998, parents and children have a reciprocal duty of support and the basis for a child’s duty to support his or her parent(s) is the sense of dutifulness or filial piety.
It is of utmost importance to keep in mind that like any other application made to court there are criteria that need to be met on the part of the person to be maintained and the ability to support on the part of the person from whom support is being claimed. More specifically, a parent would need to prove his/her dependence on the child’s support as well as prove that the child in question has the ability to take on this added responsibility of maintaining the parent.
South African courts have confirmed common law, in so far as that a parent can claim maintenance from his or her child. The aspect that required some clarity was what a parent was entitled to in terms of this support. This question was expressly dealt with in the case of Van Vuuren v Sam, where Rabie JA referred to the same criteria as aforementioned but also emphasised that support of parents must be confined to basic needs, namely food, clothing, shelter, medicine and care in terms of illness. However, this judgment did not create precedent as the same question was addressed in Surdus v Surdus where the court held that the quality of the parent(s) life needed to be
assessed and the support would need to be aligned with that.
When making an application of such a nature, more external factors are taken into consideration such as the issue of siblings, extra income and the quality of the parent(s) life. To discuss this in a practical sense, our courts would not allow parents to target one child because he or she has a slightly better paying job than their siblings. Where parents are working or receive a government grant, this will also be taken into consideration.
The law around the issue of parents claiming maintenance from their son-in-law or daughter-in-law is clear, and a parent cannot claim maintenance from them as a reciprocal duty exists between parents and child/ren and relates to them claiming from the nearest relative first. There are of course exceptions to this general rule – a parent can claim from his/her daughter- or son-in-law if the son or daughter is deceased and they can prove that they were financially dependent on the deceased.
A similar matter was dealt with in Osman v RAF, where Mrs Osman’s son died in a motor vehicle accident. The money claimed from the Road Accident Fund was due to the deceased’s wife, but Mrs Osman submitted a maintenance claim. Her son and his wife lived with her in the same house and he supported her financially as she was divorced and did not work. The court in this case looked at the neediness of a parent. Again, all she needed to prove was that she was dependent on the deceased. In this case the maintenance application was granted due to the fact that while her son was alive he would give her a credit card, buy groceries and pay her mortgage bond and this was enough for the court to establish neediness.
Times have indeed changed and with time the law too has evolved. The area of parental maintenance is still underutilised. At present we do not have a precedent-setting case and these matters are dealt with on a case by case basis where judges may use their discretion and other judgments as case guidelines.