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Maintenance - Parents, Children and Grandparents

11/5/2016

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Child Support Maintenance
Is there a duty on children to support their parents?
 
Children have a responsibility to support their parents and grandparents, but always subject to the rule that support must be claimed from closer relatives first.

The basis of a child’s duty to support parents is the sense of dutifulness or filial piety.  In certain circumstances, even a minor child may have to support parents. As always, the criteria of need on the part of the person to be maintained and ability to support on the part of the person from whom support is claimed, must be present.

A parent who claims support from a child must prove his need and the child’s ability to support but a more stringent criterion of need is applied to parents than to children – indigence on the part of the parent is stated to be a condition.

In the case of Smith v Mutual and Federal Co Ltd 1998 4 SA 626 (C) the court emphasized that, to prove need, a stringent criterion of need must be established. For the claimants to succeed, they are required to prove not only that the deceased had provided support, but also their own indigence and inability to support themselves. Indigence is defined as extreme need or lack of the basic necessities of life.

In Oosthuizen v Stanley 1938 AD 322 328 the court referred to “the quality and condition of the persons to be supported”. In the same case, it was pointed out that where a parent must be supported it is not only his own needs but also those of his dependents that must be considered. In Van Vuuren v Sam 1972 2 SA 633 (A) 642 Rabie JA referred to the same criterion, but stressed that the support of parents must be confined to the basic needs, namely food, clothing, shelter, medicine and care in times of illness.
 
Is there a duty on grandparents to support their grandchildren?
 
The maintenance obligation towards a child is primarily the burden of the parents of the child. However, if the parents are not capable of meeting this obligation, it is inter alia transferred to the grandparents.

In Barnes v Union and South West Africa Insurance Co Ltd the court ruled:

“It seems clear that there is an order of priority under the common law. ‘If father and mother are lacking or are needy the burden of maintaining grandchildren and other further descendants has been laid by the civil law on the parental and maternal grandfather and the rest of the ascendants.”

Per this text there is a priority upon whom the burden to maintain children falls if the parents cannot maintain them. The burden first falls upon the grandparents, and if they cannot pay, the burden is transferred to the great-grandparents, before brothers or sisters are called on to pay maintenance. It would seem as if the direct line must first be exhausted before the collateral line is engaged for support.

Compiled by: Bertus Preller - Family Law Attorney
Bertus Preller & Associates Inc.
Ground Level, The Chambers, 50 Keerom Street, Cape Town, 8000
Telephone: +27 21 422-2461 or +27 21 422-2573 or +27 21 422-2597
Facsimile: +27 086 572 8373
E-mail: info(@)preller.co.za
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Twitter: @bertuspreller

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  • Home
  • Divorce
    • The Divorce Process in South Africa
    • Rule 41A Mediation
    • The Marital Property Regimes >
      • Marriage out of Community of Property, new case
      • Marriage in Community of Property
      • Marriage out of community without accrual
      • Marriage out of community with the inclusion of the accrual
      • Universal Partnerships
      • Register Antenuptial Contract Online
      • Changing your matrimonial regime.
    • Division of Assets at Divorce >
      • Forfeiture of Assets in a Divorce
    • Evicting your spouse divorce
    • Retirement Funds and Divorce
    • Living Annuities
    • Hiding Assets in a Divorce
    • Trusts and Divorce >
      • Can I hide assets in Trust?
    • Divorce a Missing Spouse
    • Adultery and Suing a Third Party
    • Domicile in Divorce Cases
    • International Divorces in South Africa
    • Expat South African Divorce
    • International Jurisdiction
    • Spousal Visas
    • International Divorce Law >
      • UK Divorce Laws
    • Choosing a Divorce Attorney
    • On-line Divorce
    • Lawyer Fees and Costs
    • Important Aspects of a Divorce
    • Dealing with Emotions During Divorce and Separation
    • Divorce Statistics
    • Divorce Therapy and Counselling >
      • Marriage and Relationship Therapists
    • Rebuilding Your Financial Life
    • Divorce Attorney Cape Town
    • Divorce Polls
    • Ingredients of a successful relationship
    • Uncontested Divorce
    • Uncontested Divorce - What Happens on the Court Day?
  • Maintenance
    • Maintenance Child COVID19
    • Spousal maintenance
    • How to calculate Child Maintenance?
    • Maintenance Defaulters
    • What Happens if you don't pay child maintenance
    • Child Maintenance Frequently Asked Questions
    • Rule 43 Interim Maintenance Pending Divorce >
      • Can I appeal a Rule 43 Order
      • Apply for Costs in Rule 43
      • Financial Disclosure Rule 43
      • Rule 43 Maintenance
    • The Maintenance Manual
    • Grand Parents and Maintenance
  • Children
    • Relocation and Child Abduction >
      • Frequently Asked Questions about Child Relocation
      • Child Relocation to New Zealand
      • International Child Custody Law South Africa
      • Tips on international child custody
    • Unmarried Parents and the Law
    • Parenting Plans >
      • Conflict and dispute-resolution mechanisms
    • The non-custodian parent and contact
    • Appointing a Guardian in a Will
    • Introducing a new partner to your child
    • Refusal of Contact
    • Vaccinating Children Covid-19
    • Suspending Parental Rights
    • Parental Alienation >
      • Alienating Children
      • Parental Alienation Imprisonment
    • Facilitation
    • Living Arrangements
    • Joint decisions about your child
    • Paternity Disputes
    • The Family Advocate
    • Parenting during separartion
    • Children's Act 38 of 2005
  • Abuse
    • Domestic Violence Amended Bill
    • Gender Based Violence in South Africa
    • Domestic Abuse Forms
    • Evicting a Spouse
    • Domestic Violence Corona Virus
    • Divorcing an Abusive Spouse
    • What is Coercive Control?
    • What is Emotional Abuse
    • What is Sexual Abuse
    • What is Financial Abuse >
      • Economic Abuse
    • What is Stalking
    • What is Verbal Abuse
    • What is Spiritual Abuse
    • What is Social Abuse
    • Revenge Porn
    • Interdict Intimate photos
    • Steps to obtain a Protection Order
    • Domestic Violence eBook
    • The Protection Order
    • Who Qualifies for a Protection Order
    • Breaching a Protection Order
    • Questions on Domestic Abuse
    • Signs of an Abusive Relationship
    • Domestic Violence Information
    • Harassment
  • Cohabitation
    • Maintenance and Cohabitation
    • Sample Cohabitation Agreement
    • Engagement and the law
    • Formalities for marriage in south africa
  • Same Sex
  • Family Law eBooks
  • Family Law Links
    • The South African Court System
    • Court Rolls
    • Family Law Legislation
    • Family Law Blog
    • New Family Law Cases
    • Family Law Matters
    • Register for the Online Family Law Course
    • Online Family Law Education
  • About the Author
  • Contact
  • Charities