Cape Town - An adult-dependent child embroiled in the divorce of her parents has been discouraged from suing her father for maintenance after the Western Cape High Court ordered him to pay certain maintenance claims to her mother on her behalf.
The issue before the court was whether the mother had the legal right to apply for an order for the father to maintain the full extent of the lifestyle and upkeep of their daughter who is over the age of 18 or whether the child ought to sue the father for maintenance on her own.
Judge Derek Wille had granted an interim order that some of the daughter’s expenses be paid to the mother on behalf of the child but, these excluded claims such as horse-riding, payment for her first car and possible payment for her university education.
The father had argued that by allowing the mother the right to claim on behalf of the child, it would deprive the child of taking the matter on by herself, and approaching the court within her own legal right for maintenance.
The mother on the other hand was of the view that her daughter would be placed in a difficult position if forced to sue her father.
The judge said: “I accept that this may be so, but could this, as a matter of law, be a justification to deprive such an adult-dependent child of his or her rights and simultaneously confer those rights on one of his or her parents?”
In deliberating on the matter, the judge said the procedural foundation and manner of the claims by the daughter should be formulated before the court, giving the exact details of what she needs and stating it out on her own.
The judge said: “This will enable courts to finalise interim maintenance claims for all the parties concerned which will prevent an adult-dependent child from having to bring discrete maintenance claims against his or her parent.
“The latter could have a detrimental effect on the well-being of the adult-dependent child. Further it could complicate and add unnecessary torment to the divorce proceedings.”
He further added that waiting for a divorce to be finalised could prejudice the daughter who might not be of the financial means to pursue maintenance claims in court.
Judge Wille further stated that the adult child should retain her own right to litigate and should be joined by at least a confirmatory affidavit to her parent’s divorce proceedings with regards to her maintenance.
“The financial needs and views of the adult-dependent child would accordingly be squarely and properly before the court for adjudication,” the judge said.