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Claiming Child Maintenance from Grandparents – What does the law say?

Many people are of the view that child maintenance may only be claimed by the parents of a child. They have that view even in the case where the parents cannot afford to maintain the child, but the grandparents can. At the outset, we state that the latter view is incorrect. If parents cannot afford to maintain a child, a claim for maintenance may be made against both the paternal and maternal grandparents of the child involved. This applies whether or not the child was born in or out of wedlock. Prior to 2004, or before the case of Petersen v Maintenance Officer, Simon’s Town Maintenance Court, and Others 2004 (2) SA 56 (C), the law allowed parents to claim maintenance for their minor children from maternal and paternal grandparents, as long as the child was born within wedlock, or out of a marriage. If the child was born out of wedlock, then in such a case, the parent could only claim from the maternal grandparents. And not the paternal grandparents. This was clearly unfair and unconstitutional and something that many people would have issues with. In 2004, Adv. Muhammad Abduroaf had a client who wanted to claim maintenance from the maternal grandparents of her minor child, but the law did not allow for it. He and his client was not happy with the legal position and took the matter to the Western Cape High Court (the Provisional Division of the Cape). Adv. Abduroaf cited the Maintenance Office of Simon’s Town Maintenance Court and the paternal grandparents. The matter was argued, and the Court found in favour of Adv. Muhammad Abduroaf and his client. The case opened many doors for mothers in similar positions. Below we discuss the case. Due to Adv. Muhammad Abduroaf’s academic background in Constitutional law and willingness to fight for his client, he challenged the legal position.

Petersen v Maintenance Officer, Simon’s Town Maintenance Court, and Others

2004 (2) SA 56 (C)

The well-known case of Petersen v Maintenance Officer, Simon’s Town Maintenance Court, and Others 2004 (2) SA 56 (C) was a special one. Not because Adv. Abduroaf and his client were successful, but the effect of the case meant that children who could never claim maintenance from paternal grandparents if they were born out of wedlock could do so due to the case. The case also brought about widespread attention to the fact that a parent can claim maintenance from grandparents when the parents cannot afford to support the child on their own.

The following is extracted from the case of Petersen v Maintenance Officer, Simon’s Town Maintenance Court, and Others 2004 (2) SA 56 (C) :

[6] The Motan decision is generally accepted as authority for the assertion that the paternal grandparents of an extramarital child do not owe a duty of support to the child. The interpretation of the common law in Motan and the resultant denial of a duty of support by the paternal grandparents of an E extra-marital child has, even prior to the present constitutional dispensation, been widely criticised by South African writers. Van den Heever Breach of Promise and Seduction in South African Law (1954) at 70 says the following: ‘It is submitted that the decision is so patently wrong that it should be reconsidered; for it is based on legislative considerations and methods, which are, moreover, unsound. It is contrary to public policy and humanity and should, if necessary, be rectified by the Legislature.’

This is what Adv. Abduroaf argued:

[7] Mr Abduroaf, who appears for the applicant, submitted that the common-law rule as interpreted in Motan, violates the extra-marital child’s constitutional rights to equality and dignity enshrined in ss 9 and 10 of the Constitution of the Republic of South Africa Act 108 of 1996 (the Constitution) and is contrary to the best interest of the child (see s 28(2) of the Constitution). He accordingly submits that the common-law rule is unreasonable and unjustifiable and should be declared unconstitutional and invalid.

Adv. Abduroaf further submitted:

[14] Mr Abduroaf submitted that the constitutional values embodied in ss 9, 10 and 28(2) of the Constitution, dictate that the common-law rule as enunciated in Motan, be developed by imposing a duty of support upon the paternal grandparents of an extra-marital child in the event of the natural parents of such child being unable to support the child. The said sections of the Constitution provide: ‘9 (1) Everyone is equal before the law and has the right to equal protection and benefit of the law. (2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken. (3) The State may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. (4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of ss (3). National legislation must be enacted to prevent or prohibit unfair discrimination. (5) Discrimination on one or more of the grounds listed in ss (3) is unfair unless it is established that the discrimination is fair. 10 Everyone has inherent dignity and the right to have their dignity respected and protected.   . . . 28 (2) A child’s best interest is of paramount importance in every matter concerning the child.’  

The Ruling in Petersen v Maintenance Officer, Simon’s Town Maintenance Court, and Others 2004 (2) SA 56 (C)

At the end of the matter, the Court made the following ruling: [29] In the result I make the following order:
  1. It is declared that the second and third respondents have a legal duty to support the extra-marital child of the applicant, J, born on 7 January 2003, to the same extent to which the fourth and fifth respondents are liable to maintain the said child.
  2. The first respondent is directed to take the necessary steps for an enquiry to be held in terms of s 10 of the Maintenance Act 99 of 1998, with a view to enquiring into the provision of maintenance by the second and third respondents for the said extra-marital child of the applicant.
  3. No order as to costs is made.
Petersen v Maintenance Officer, Simon’s Town Maintenance Court, and Others 2004 (2) SA 56 (C) [caption id="attachment_10745" align="alignnone" width="300"]Best Attorneys, Advocates, lawyers to assist you in your Court Custody matter. When is the best time to get them involved in your case? Adv. Muhammad Abduroaf[/caption]

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Best Divorce Lawyer Advice – Focus on your case – not the emotions involved

Once upon a time, an individual and their spouse were deeply engaged in a profound romantic relationship, characterized by love and mutual respect. This connection led to the pivotal decision to enter into marriage and embark on a shared life journey. Following their union, they may have welcomed children into their family and created a multitude of cherished memories—celebrations, milestones, and everyday moments that strengthened their bond. However, over time, a significant turning point emerged, one that fundamentally altered the trajectory of their relationship. Disagreements began to surface, leading to a gradual emotional detachment between the partners. Despite their best efforts to restore the affection they once felt for each other, these attempts proved unsuccessful, ultimately culminating in the contemplation of divorce.

Best Strategies for Navigating Divorce for Optimal Outcomes

It is not uncommon to witness clients struggling with the emotional ramifications of divorce as they seek assistance in addressing various legal matters. When clients approach us, they often face challenges that extend beyond emotional distress, including the complexities associated with child custody, division of assets, and personal maintenance. Some clients may operate under the misconception that criticizing their partner or airing grievances will enhance their chances of obtaining a more favorable outcome. However, it is crucial to understand that while these emotions are valid and significant, they do not directly impact the objective issues at hand concerning children, property, and financial support.

Best Legal Strategy to employ in Divorces

As legal professionals, our primary goal is to assist clients in navigating their emotional challenges effectively, allowing us to redirect our focus toward the substantive issues that require resolution. This pivotal transition is essential; it serves as a breakthrough moment that enables both the client and their attorney to approach the case with clarity and a constructive mindset. While we remain empathetic to our clients’ emotional experiences, it becomes evident that managing these emotions better facilitates a more effective and favorable resolution to their legal matters.

Focusing on Relevant Legal Issues

Once we have successfully guided clients beyond the emotional turmoil associated with divorce, a concerted focus can be established on the critical legal issues that need to be addressed. The primary objectives during this phase encompass securing an equitable settlement or achieving a favorable judgment through trial proceedings. It is imperative to recognize that triumph in these legal matters rests on the foundation of factual evidence rather than emotional arguments, leading to improved outcomes for the client. For instance, when determining child support, if the monthly cost of raising a child is established at R 10,000, the court adheres to this figure, irrespective of any negative behavior exhibited by the other parent—such as infidelity or other actions that may have contributed to the marital breakdown. These considerations, while emotionally charged, do not influence the financial outcome in a legal context.

Best way to proceed with your divorce case

Therefore, it is essential for parents involved in divorce proceedings to present comprehensive and accurate evidence that substantiates the actual costs associated with the care of their children. This encompasses not only basic necessities but also additional financial obligations that may arise. Furthermore, it is crucial to clearly outline the financial responsibilities that both parents should assume in relation to these costs. This process emphasizes the necessity of grounding discussions in factual data, thereby highlighting that the legal proceedings should focus on practical issues rather than the emotional narratives surrounding the separation. Such an approach can significantly enhance the likelihood of a favorable resolution that meets the needs of all parties involved. If you wish to consult with us, complete the form below:

Posted on by Telelaw

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