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Family and Divorce law in South Africa - A Comprehensive Guide
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Can I Sue the Grandparents for Child Maintenance?


Grandparents Child Maintenance

The grandparents’ duty of support was not too long ago considered by the Western Cape Division of the High Court in N v B case no 6573/14. The case involved a maintenance officer’s directive that sought to keep a grandparent liable for maintenance in the absence of a prior maintenance order against the minor child’s parent.

Duty to support

It is trite that being a parent instantly gives rise to the parental obligation to maintain children . It is a common law duty which starts on the child’s birth and in regard of which, both parents are duty-bound to maintain their own children pro-rata and in accordance to their individual means. This duty has been included in s 15(3)(a) of the Maintenance Act 99 of 1998 (the Act), which provides the following:

(3)(a) Without derogating from the law relating to the support of children, the maintenance court shall, in determining the amount to be paid as maintenance in respect of a child, take into consideration –

(i) that the duty of supporting a child is an obligation which the parents have incurred jointly;

(ii) that the parents’ respective shares of such obligation are apportioned between them according to their respective means; and

(iii) that the duty exists, irrespective of whether a child is born in or out of wedlock or is born of a first or subsequent marriage.

In terms of the common law, the obligation of support is founded on notions of ‘piety or affection’, arising by reason of respect or out of fairness and the affection of a blood relationship and for natural reasons. The common law duty of support is moreover based on the concept that family ties involve responsibilities.

As identified in s 15(3)(a) of the Act, it is moreover trite that a parent’s duty to support develops, despite whether the child is born in or out of wedlock, and it subsists up until the child turns out to be self-supporting, regardless of the child’s attainment of the age of majority. Nevertheless, a major child is not entitled to support on as generous a scale as a minor child of the same parent and the onus will rest on the child to demonstrate their maintenance requirements.

When a parent passes away, this primary responsibility to maintain the child will not end or be extinguished, but will rather lie against the estate of the deceased parent . Where a deceased parent’s estate is inadequate to cover the child’s support, or if there is no estate leftover to meet the maintenance requirements of the child, the duty to support will be expanded to the child’s maternal and paternal grandparents jointly.

Grandparents’ duty to support

The common law recognises a hierarchical responsibility of support. The hierarchy of the duty of support lies with the grandparents, and failing them, great-grandparents in that ascending order prior to considering relatives in the collateral line such as brothers and sisters.  Failing parents, grandparents are jointly liable to maintain grandchildren. 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 paternal and maternal grandfather and the rest of the ascendants; with the reservation that much is left to the discretion of the judge. It follows from this that by the customs of today the giving of maintenance to needy grandchildren, just as it is deemed a common burden on father and mother, so also is the burden deemed to be common to grandfather and grandmother.

In the case of Barnes v Union and South West Africa Insurance Co Ltd 1977 (3) SA 502 (E) the court confirmed that there is an ‘order of priority’ and that if parents are not able to maintain their children, the duty to support falls on paternal and maternal grandparents. In Petersen v Maintenance officer, Simon’s Town Maintenance Court and Others 2004 (2) SA 56 (C), the court recognized that paternal grandparents have actually a duty of support towards a grandchild regardless whether the child were born out of wedlock.

These cases relating to the grandparents’ duty to support are consistent with the Supreme Court of Appeal’s (SCA) case of FS v JJ and Another 2011 (3) SA 126 (SCA). In that case the SCA in essence determined that a parent’s rights and responsibilities ‘outrank’ those of grandparents and on that basis, it overruled a ‘care order’ that had been issued in the grandparent’s favour. 

Apart from the child becoming self-supporting as previously mentioned, the duty to support is only terminated:

  • in principle upon the child’s own death;
  • where the child marries, in event of which the duty to support will then rest primarily on their spouse and only if the spouse cannot support can one’s parents be called on to support. Nevertheless, parents would have a right to recover their maintenance against the spouse.

It is obvious from the above that there is no presumption with regards to the maintenance needs of the claimant, nor is there one relating the defendant’s means to support. This justifies the legislative scheme of the Act and regulations, which of necessity facilitate and empower the maintenance officer to issue reg 3(1) directives to  investigate or inquire into aspects of the –

(a) maintenance needs of the claimant on the one hand; and on the other

(b) the maintenance obligations and means of the defendant.

Regulation 3(1) provides the following:

A maintenance officer may, in investigating a complaint and with due consideration to expediting the investigation of that complaint, direct the complainant and the person against whom a maintenance order may be or was made to –

(a) appear on a specific time and date before him or her; and

(b) produce to him or her on the date of appearance information relating to the complaint and documentary proof of the information, if applicable.

The regulation thus unmistakably confers a discretion on the maintenance officer, that allows him or her to investigate a maintenance complaint. Therefore, ‘information relating to the complaint’ always includes evidence refuting maintenance accountability. In the framework of the hierarchy of the duty of support, such evidence will for instance include a grandparent’s proof absolving them from paying maintenance on the basis that a maintenance order could first be sought against a parent or that the parent has means to support.

Regulation 3(1) and the powers it provides to a maintenance officer to exercise a discretion in calling grandparents to establish their maintenance liability is essential as there are various duties to support categories recognised by the law and the maintenance officer must be afforded the procedural means to investigate what will yet be placed before a Maintenance Court, where defendants will still be able to oppose the claim before the court makes a determination on their maintenance liability. Therefore, when the maintenance officer issued the directive against a grandparent in N v B, the grandparent could have made legal representations to the maintenance officer that a claim against the parent, be first pursued, before invoking the grandparent’s duty to support. For it is implicit in the maintenance officer’s discretion and powers under the regulation that he or she duly takes into account any such representations in the proper exercise of such discretion and powers.

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Email: familylaw(@)mpw.co.za​


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  • Home
  • Divorce
    • The Reasons for 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 >
        • Understanding Post-1984 Marriages
      • Marriage out of community with the inclusion of the accrual
      • Anti-Dissipation Interdicts Divorce
      • Universal Partnerships
      • Antenuptial Contracts
      • Register Antenuptial Contract Online
      • Changing your matrimonial regime.
      • Postnuptial Contracts
    • 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
    • Divorcing a Narcistic Spouse
    • 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
    • Ingredients of a successful relationship
    • What are the elements of a successful marriage?
    • Uncontested Divorce
    • Uncontested Divorce - What Happens on the Court Day?
  • Maintenance
    • 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
    • Variation of Maintenance due to loss of employment
    • Contempt of Court Maintenance
  • Children
    • Section 28 of the Children's Act
    • Relocation and Child Abduction >
      • Frequently Asked Questions about Child Relocation
      • Child Relocation to New Zealand
    • The Hague Convention >
      • Child Participation in South African Family Law and the Hague Convention
      • International Child Custody Law South Africa
      • Hague Applications and Domestic Violence
      • Mirror Orders and the Hague Convention
      • Tips on international child custody
    • Unmarried Parents and the Law
    • Unmarried Fathers Rights
    • Parenting Plans >
      • Parenting Plan
      • 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
    • Suspending Parental Rights
    • The Law on Grandparents Rights over Children
    • Parental Alienation >
      • Alienating Children
      • Parental Alienation Imprisonment
      • What is the effect of Parental Alienation on children?
    • Living Arrangements
    • What effect does divorce have on children?
    • The Voice of the Child in Divorce
    • Facilitation
    • Joint decisions about your child
    • Paternity Disputes
    • The Family Advocate
    • Parenting during separartion
    • Children's Act 38 of 2005
  • Abuse
    • South Africa GBV Bail Law Changes 2021-2025 Complete Guide
    • Domestic Violence Legislation and Case Law
    • The New Domestic Violence Act 14 of 2021
    • Gender Based Violence in South Africa
    • Domestic Abuse Forms
    • Evicting a Spouse
    • Being married to a Narcissist.
    • 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 >
      • Harassment Forms
  • Cohabitation
    • Universal Partnerships in South African Cohabitation
    • Maintenance and Cohabitation
    • Interim Maintenance and Cohabitation
    • Sample Cohabitation Agreement
    • Engagement and the law
  • Formalities for marriage in south africa
    • South Africa's New Marriage Bill: A Step Towards Equality and Inclusion
    • 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
    • Register for the Online Family Law Course
  • About the Author
  • Contact
  • Charities