Recent developments in the South African maintenance laws: A comparative discussion through the prism of Australian experience

Paper presented at the 2013 CLEA Conference in Durban

Marita Carnelley
Professor
University of KwaZulu-Natal

The duty to maintain another has undergone subtle changes over the past few years in South Africa. The first development relates to the parties involved in the maintenance dispute of a dependent adult ‘child’; the second, to the possible extension of the maintenance duty to include stepparents and unmarried cohabitants; and third, the duty of parties to mediate maintenance disputes rather than to resort to litigation. Each of these issues, set out in more detail hereunder, will be compared to the Australian legal experience.
Although the age of majority is not a defining moment in the duty to maintain, it affects the locus standi of parties to a maintenance dispute. Most ‘children’ over the age of 18 are still at secondary school and thus not generating income. With the decrease of the age of majority from 21 to 8 years, the question arose whether the dependent adult ‘child’ should not be the litigant in any new claim for the increase / decrease of the maintenance amount – as opposed to the parent with whom the child resides. Neither the Divorce Act 79 of 1979 nor the Children’s Act 38 of 2005 expressly authorises a parent with whom an adult dependent ‘child’ resides to claim maintenance on his/her behalf from the other parent. In JG v CG 2012 (3) SA 103 (GSJ) and Butcher v Butcher 2009 (2) SA 421 (C) the courts noted that to demand that the dependent adult ‘child’ be the litigant against a parent would put him/her in an invidious position. Both judgments allowed the primary residence parent to include the costs of the adult dependent ‘child’ in their claim. These decisions will be compared to s 66L of the Family Law Act 53 of 1975 of Australia and its application in the courts.
Traditionally the duty to maintain a child rested only on the biological parents. In MB v NB 2010 (3) SA 220 (GSJ) the court recognised the obligation of a husband (stepfather) to contribute to the schooling of the wife’s minor child from previous marriage. The stepfather did not legally adopt the child. The court nevertheless found that he was responsible for one third of the school fees based on his undertaking to treat the child as his own. The obligation of stepfathers will be compared to s 66D(1)-(2) as read with ss 66M-66N of the Family Law Act 53 of 1975 of Australia as applied by their courts.
In Mcdonald v Young 2012 (3) SA 1 (SCA) the court recognised that there could be a duty of support between unmarried cohabitants. Although such a duty does not arise by operation of law, it may arise by agreement between parties. Proof of the tacit agreement must be presented to the court and the conduct of the parties must justify the inference (see also Butters v Mncora 2012 (4) SA 1 (SCA)). These decisions will be compared to the position of unmarried cohabitants in Australia before and after the implementation of the Family Law Amendment (De Facto Financial Matters and Other Measures) Act, 2008 (Cth).
Both the Children’s Act (s 6(4)(a)) and a number of cases have stressed the importance of mediation in settling disputes relating to children. In MB v NB the court stated that the parties have a duty to attempt to mediate a dispute and that their legal representatives are obligated to encourage such mediation before litigation. The cost order of the court reflected this view by capping the fees of the attorneys to a party-and-party scale. The emphasis on mediation in Australia is set out in Part VII of the Family Law Act 53 of 1975 and the obligations in Australia will be compared to the new focus in South Africa.

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