My Child is 18, but still needs maintenance and my ex refuses. How can I force him/her?
Both parents are obliged to maintain their children until they have either reached the age of majority or become self-sufficient. However, as the child is 18 or over: he or she is now an adult for purposes of the law. This creates problems for many children who turn 18 but are still in school or at university.
However, the fact that they are considered adults at 18 and older means that their parent can no longer fight their battles for them in a court of law. The child (in this instance, more correctly an adult who cannot maintain him/herself) must sue both parents via the Maintenance Court. The adult (child 18 or older) cannot simply choose that one parent must carry all the financial burden and the other not.
The adult (child 18 or older) must inform the Court of his/her maintenance needs. The Court will then determine in which proportion the parents should contribute towards these needs, given the parties’ financial means.
Often times this may be unfair towards the parent with whom the dependent adult resides or is paying for most of the dependent adult’s expenses as the dependent adult is reluctant to approach the Court for assistance against their parents. As unfortunate as this situation is, it unfortunately does not negate the fact that the child is no longer a child, but a dependent adult. Should the dependent adult not receive the maintenance they require from both parents and yet still refuses to approach the Court for assistance themselves, than the one parent cannot do so on the dependent adult’s behalf.
An adult (even if still financially dependent on their parents) is nevertheless an adult and is treated like one for purposes of the law. The adult (even if still financially dependent on their parents) may smoke, drink, vote, drive, marry, enter into contracts and so forth. There is nothing the parent of such dependent adult can do about the fact that their child votes for a political party the parent doesn’t like or punish a dependent adult for smoking, drinking etc. The child is now an adult. End of story.
Generally, one of the few times an adult can litigate on behalf of another adult is when such adult has been declared mentally unfit to handle their own affairs. This may be due to a low IQ, brain injury or other medical reason. In this instance, a concerned adult (such as the person’s parent) may approach the Court with proof (such as Doctor’s reports etc) and request that a Curator be appointed for the person in need. Should the Court be satisfied on the evidence before it, the Court may appoint a curator for the person in need. The Curator would then from thereon be responsible for that person in need’s best interests. This does not mean that the Curator suddenly moves in with their ward, but that the Curator ensures that funds left to the ward (eg in a Will) are utilized on behalf of the ward’s best interests. If the ward requires maintenance from their parents, then the ward may approach the Court on behalf of the ward and sue for the required maintenance. The same Rules apply. The needs of the ward would be placed before a court and the parents ability to pay same will be placed before the Court. The Court will then make a decision as to how much funds each party must contribute towards the well-being of their child.
Please note that above is not intended to be an exhaustive discussion of the topic and you should always obtain adequate legal advice prior to simply embarking upon any action.
Contact us today to assist with all your maintenance related inquires at https://www.hamelattorneys.co.za/contact/