Maintenance After Majority: A South African Perspective

INTRODUCTION 

There is a misconception that the duty of parents to maintain their children ends when a child reaches the age of majority. According to societal norms, maybe. But according to South African law, the legal duty to maintain one’s child extends beyond that. While this principle serves an important protective function, its practical application raises difficult legal, social, and psychological questions that are increasingly relevant in a country facing persistently high unemployment, economic inequality, and rising living costs. Maintenance disputes involving adult children often extend parental conflict long after childhood has ended. For many families, this conflict becomes a source of ongoing financial strain, emotional distress, and fractured relationships. The availability of robust enforcement mechanisms ensures that maintenance obligations are more than merely aspirational. However, these same mechanisms may also prolong litigation and intensify conflict where parties dispute an adult child’s genuine dependency or efforts toward self-sufficiency. This article examines the legal principles governing adult child maintenance while considering the broader policy implications that arise from their enforcement in contemporary South Africa.

THE CONTINUED DUTY OF SUPPORT AFTER MAJORITY 

Since the adoption of the Constitution of South Africa in 1996, it became the supreme law of the land, meaning that any piece of legislation which is inconsistent with it is invalid. S28(2) of the Constitution says that ‘a child’s best interests are of paramount importance in every matter concerning the child’. Further stating explicitly, in S28(3), that a ‘child’, in that specific section refers to anyone under the age of majority.

Bursey v Bursey, however held that the duty of parents to financially support their children is not terminated merely by the children in question reaching 18 years of age. Alongside S15(1) of the Maintenance Act 99 of 1998, this essentially extends the duty of support up until an adult child can financially support themselves; which states that in relation to ‘…children who are unable to support themselves…’ there exists a ‘… common law duty of the child’s parents to support that child’. Further stating that the duty to support a child rests equally on both parents, according to their respective means. Ultimately, it is in the best interests of young adults to be financially supported by their parents until such a time where this support is no longer needed for them to live their lives.

At first glance, this position may appear capable of producing inequitable outcomes, especially because it might seem unfair that very capable young adults, who deliberately refrain from seeking employment, could take advantage of the continued duty of support and seek to rely upon it to sustain whatever lifestyle they have chosen to lead, rather than taking reasonable steps to become financially self-sufficient. However, the law ensures that the system isn’t exploited in this manner. An adult who is filing a maintenance claim against their parent(s) ought to furnish proof that they have been actively searching for employment but have been unable to secure it. The current unemployment rate is 32.7%. Given that there are just over 63 million people in the country, this means that more than 8 million of them are unemployed. Of those 8 million, the unemployed youth that forms part of this large figure makes up more than 40% of the youth in general. A judicial officer hearing a maintenance matter will consider the adult’s efforts towards self-sufficiency against the backdrop of these statistics. 

In order to institute a claim, applicants bear the evidentiary burden of demonstrating that they remain genuinely dependent and are unable to maintain themselves, through no fault of their own. This requires more than a bare assertion of financial need. Courts will only have regard to the applicant’s age, educational qualifications, state of health, employment history, efforts to secure gainful employment and the reasonableness of any continued dependence on their parents. Equally, the Maintenance Court is vested with extensive powers to investigate these matters, subpoena witnesses, compel the production of financial records and conduct comprehensive enquiries into the financial circumstances of the parties before making an appropriate order. Once granted, a maintenance order is enforceable through several statutory mechanisms, which are stipulated in S27, S28, S30 & S40 of the Maintenance Act respectively. These measures underscore the seriousness with which the law treats the parental duty to support. They will be discussed in more detail shortly.

MAINTENANCE THROUGH THE LENS OF A SOUTH AFRICAN SOCIETY

For South Africans belonging to Generation X (people born between 1965 & 1980) and even some older Millennials (people born between 1981-1996), the age of majority has been traditionally associated with independence, self-sustenance and the freedom to live independently. Some might say this is attributed to how many of the people born between these times had to fend for themselves – or even support their families – by 18. That perception is understandable; especially given the fact that it is particularly conducive to progress to be willing to achieve such autonomy at an early age. When such ideas are passed down to younger family members, they inspire confidence. Another reason why older generations have these expectations is that many black South Africans were deliberately denied meaningful educational opportunities during apartheid, forcing them to find employment in the mines, fields or homes of their white employers. In such circumstances entering the work force at a young age was often a matter of necessity, rather than personal choice. For many, numerous aspects of life existed within the constraints of apartheid, which systematically restricted access to quality education and economic opportunity.  

Nevertheless, the value of education – especially tertiary education – has shifted. In today’s economic climate, obtaining a qualification is frequently a prerequisite for employment, rather than a guarantee of securing it. 

It would be rather shocking to a parent that their own child would have the audacity to initiate a court process which would hold them legally liable for their financial needs at a time when they could get a job and support themselves, particularly with the abovementioned observations in mind. However, context is a very important consideration in this regard. For instance, if an adult child who lives with both his parents and siblings in a family home were to claim maintenance, this would likely be viewed differently, and the court might be reluctant to grant it – mostly because he has continued to receive support from his parents throughout his whole life. Things change though, when an adult child who lives with her mother, files a maintenance claim against her father who is based in another province with his wife and other children. 

In the second instance, the court would be inclined to grant the maintenance order if the mother had been the child’s main pillar of financial support from birth until majority, especially if she had been unable to finance her daughter’s tertiary education. The obligation to maintain a child rests equally between both parents. Meaning that, where it is justified, a court can even go as far as ordering the one parent (the father) to bear a substantially greater share of the costs than the other (the mother) in relation to the child’s tertiary education.

It is very important to note that maintenance is enforced prospectively, not retrospectively, so nobody can retrospectively claim maintenance for a child’s childhood. This means that a parent cannot, in a new claim, be ordered to ‘pay back’ the amounts of money which were spent in the past for the upbringing of the child in question. On the contrary, should there be a valid court order, which was granted in the past, that would permit the enforcement mechanisms which are discussed below, to be explored. 

But then again, the scenarios described above do not account for the many different combinations of sophisticated dynamics which may exist in every single family in the country. It’s not that simple. 

THE CLAIM AND ITS PRACTICAL & PSYCHOLOGICAL CONSEQUNCES 

Although the law regards maintenance proceedings as a mechanism to protect vulnerable children and ensure that both parents contribute to their child’s livelihood, the institution of such proceedings often has consequences extending far beyond the courtroom. In practice, a maintenance application is rarely experienced as a purely legal process. It is frequently perceived as a deeply personal dispute that exposes unresolved conflict, reopens old emotional wounds and alters family relationships in ways that may endure long after the litigation has ended. 

For many parents, particularly those against whom a claim is instituted by their own adult child, the proceedings may be interpreted as a profound act of disloyalty or betrayal. This is mostly true where the parent believes they have contributed meaningfully to the child’s upbringing or where communication between the parties has already deteriorated. What the law characterises as the enforcement of an existing legal duty may, within the family context, be perceived as the rejection of the moral and emotional relationship between parent and child. In many cases, the litigation itself becomes the catalyst for permanent estrangement. Given the fact that family events, like weddings, birthday celebrations or even funerals tend to bring family members together, the claimant might be ostracised from these functions as a direct result of consulting the courts to enforce their parent’s duty to support them. 

These difficulties are often compounded by the diverse family structures that exist within contemporary South African society. Maintenance disputes seldom arise in isolation. They frequently involve divorced parents, blended families, remarriages, half-siblings and households with competing financial obligations. A maintenance order in favour of one adult child may inevitably reduce the financial resources available to younger children, a new spouse, or other dependants. While the legal duty to support all qualifying children remains unchanged, the practical consequences of enforcing that duty may create tension across multiple households and place considerable strain on already fragile relationships.

The financial implications of litigation should likewise not be underestimated. Although Maintenance courts are designed to provide an accessible forum in which parties may represent themselves, the complexity of disputed matters often necessitates legal representation. Attorney fees, consultations with advocates, the preparation of financial documentation and repeated court appearances may significantly increase the cost of the dispute. In some instances, the legal expenses incurred during the proceedings may approach or even exceed the value of the maintenance being claimed. Consequently, litigation should ordinarily be regarded as a measure of last resort after genuine attempts have been made to resolve the matter amicably. 

Ultimately, the maintenance proceedings illustrate the distinction between legal rights and healthy family relationships. The law can compel financial support, but it cannot compel trust, forgiveness or reconciliation. A successful maintenance application may secure the resources for an adult child’s education or livelihood, yet it may simultaneously leave divisions that no court can ever be capable of repairing. 

INITIATING THE CLAIM & ENFORCING IT 

The effectiveness of the maintenance system lies not merely in recognising a legal duty of support, but in providing effective mechanisms through which that duty may be enforced. Because magistrates’ courts function as maintenance courts, an applicant can go to one – or a court which deals with maintenance inquiries – within their jurisdiction and request for a maintenance order application.  At which point the relevant details like the names, ID numbers, phone numbers and addresses of both the applicant and the parent they seek to claim maintenance from, as well as a breakdown of the expenses of the applicant can be filled out. S15(2) of the Act says applicants can claim for whatever amounts are reasonable for ‘proper living’, which includes ‘food, clothing, accommodation, medical care and education’. It is very important to note that, for subsequent stages of the proceedings, whatever amounts stipulated in the application need to be able to be evidenced by grocery slips, fee statements from learning institutions, medical insurance quotes, cell phone contracts and any other form of proof that the expenses actually exist. 

From that point onwards the court will provide a maintenance acknowledgement letter, which will stipulate the date the applicant ought to return to the court for the matter to be discussed with a mediator to establish whether the parties can agree on a monthly payable amount; to eradicate the need for the matter to be heard and settled in front of a judge. If an agreement isn’t reached, the matter will be heard in a court room.

The Maintenance Act equips courts with the extensive powers to ensure compliance once a maintenance order has been granted. These include the attachment of emoluments, the attachment of the judgement creditor’s debts to the judgement debtor, warrants of execution against movable and immovable property and, in appropriate circumstances, criminal prosecution for the wilful failure to comply with a maintenance order. 

Put differently, just ten days after the judgement debtor defaults, the judgment can creditor can request enforcement. At which point a court can, based on the circumstances, choose to either 

• attach any movable or immovable property of the judgement debtor to realise the amount owed to the judgement creditor;
• compel the judgement debtor’s employer to deduct the amount stipulated in the maintenance order directly from the judgement debtor’s salary on a monthly basis;
• attach whatever debt the judgement creditor has accumulated (as a direct or indirect result of the judgement debtor’s non-payment) to the judgement debtor, with interest; or  
• imprison the judgement debtor for a period no longer than 36 months after compelling them to pay the amount which is in arrears.

These enforcement mechanisms demonstrate that maintenance obligations are not merely moral responsibilities. They are legally enforceable financial obligations. Equally, they inevitably implicate property rights and the financial security of the maintenance debtor, the attachment and sale of property, deductions from salaries and restrictions upon a person’s income, which represent significant intrusions into an individual’s autonomy. Although these measures are constitutionally justifiable where they give effect to the legal duty to support, they nevertheless illustrate the delicate balance that the law seeks to maintain between protecting vulnerable dependants and respecting the proprietary interests of those against whom maintenance orders are granted. 

The exercise becomes particularly difficult where financial resources are limited. Courts must balance the reasonable needs of the adult child against the parent’s ability to contribute without imposing an unsustainable financial burden. The parental duty of support is substantial, but not unlimited. Maintenance cannot be ordered in amounts which exceed a parent’s means or disregard competing legal obligations towards other dependants. In this respect, each matter ultimately turns upon its own facts, requiring the court to evaluate both the genuine needs of the applicant and the realistic financial capacity of the respondent. 

The law therefore recognises that maintenance is neither punitive nor compensatory. Its purpose is not to punish a parent for past failures or to redistribute wealth between former partners. Rather, it exists to ensure that a child who remains genuinely dependant receives reasonable financial support from both parents until self-sufficiency can reasonably be achieved. The strength of the South African maintenance system lies in its ability to enforce this obligation while simultaneously requiring courts to exercise their powers with fairness, proportionality and sensitivity to distinct circumstances of every family. 

Maintenance litigation is seldom the first step in resolving family disputes. More often than not, it is preceded by unsuccessful attempts to resolve the matter informally through discussion or negotiation. Although litigation may ultimately become unavoidable, parties should ensure that they understand both the legal principles and the procedures governing maintenance claims before embarking upon that course. An informed appreciation of one’s rights, obligations and the practical implications of the process not only promotes more effective participation in the proceedings, but also reduces the likelihood of misunderstanding or exploitation.

CONCLUSION 

Every family presents a unique set of financial, interpersonal and social dynamics. It is precisely this complexity that makes maintenance disputes among adult children some of the most difficult matters to determine. The law provides the framework but ultimately, fairness depends upon its application to the particular facts of each case.

Single mothers and fathers, who are having trouble single-handedly bearing the emotional and financial burden of taking care of their children, should consider approaching the nearest Maintenance Court to file a maintenance claim against the other parent. Not only because there are mechanisms in place to hold both parents financially liable for a child’s upbringing or because the law encourages both parents to be involved in this way, but because irrespective of the relationship between the parents, a child, even as an adult, should not be deprived of the financial support to which they are legally entitled. Let the youth not suffer due to the acrimonious relationships of the people who brought them into the world. 

If the youth are indeed the future of South Africa, then the law’s recognition of the parental duty of support is not merely a private obligation between parents and children – it is an investment in the country’s future. Maintenance is about more than meeting immediate financial needs; at its best it equips young people with the opportunity to become self-sufficient, productive members of society. That is a responsibility shared not only by parents, but by a legal system committed to fairness, dignity and the best interests of children.