A child becomes a major in the eyes of our law when he or she turns 18. When can a minor (a child under 18) be liable for contracts that he or she enters into?
The only consequence of emancipation for the minor is that he or she can contract independently. However, the minor cannot conclude a marriage, alienate or encumber immovable property or litigate, without assistance from a parent.
Tacit emancipation occurs when the capacity of a minor to act without parental consent is ‘enlarged’ to encompass certain key areas that will enable him or her to be viewed by the law as a major.
If a minor enters into a contract, as a general rule, the creditor cannot sue the minor if he or she defaults, unless the creditor can show that he or she is tacitly emancipated.
A court order or any other form of application is not needed for a minor to become tacitly emancipated. Each case is decided on its merits, taking into account factors such as age and occupation (especially the type of work and the length of time the minor has been involved in it). Therefore, a job that lasted only a few weeks or isolated business transactions will not give rise to emancipation.
The prime consideration is the degree of financial independence that the minor has achieved. In this respect, ownership of a business or an occupation that brings in a salary is crucial. Residence outside the parental home will be regarded as further proof of emancipation. However, a student who lives in digs but who continues to be supported by parents has not achieved financial independence and will not be regarded as emancipated. A minor living with parents must show some economic independence by, for instance, paying a reasonable sum for board and lodging. Stronger evidence will, however, be required to prove tacit emancipation where the minor lives with his or her parents than where he or she lives apart from them.
· At common law a father had to consent to the emancipation of his child.
· A mother could emancipate her child born of married parents if she had sole guardianship of the child, or if natural guardianship had passed to her after the child’s father’s death. However, where the mother had custody of the minor and the father guardianship it was still the father who had to emancipate the minor.
· The Children’s Act expressly provides that either parent with guardianship may exercise guardianship independently. Whether a minor will be emancipated if one parent emancipates the minor while the other parent refuses to allow the minor to be emancipated, is unclear.
· Where a minor has no parents he or she can be emancipated by his or her legal guardian.
· Tacit emancipation can be effected only by the express or implied consent of the parent. Mere carelessness on the part of the parent does not result in the emancipation of the minor.
Effect of emancipation
The question of the effect of emancipation on the minor’s capacity to act has not been authoritatively decided. As far as modern practice is concerned, the degree of legal independence a minor has acquired is a question of fact that depends on all the circumstances of the case. If the minor’s parent has given the minor “complete freedom of action with regard to his mode of living and earning his livelihood”, the minor is emancipated to all intents and purposes. On the other hand, the minor’s capacity to act will be restricted to matters connected with his or her business if his or her father has only emancipated him or her for the purpose of that particular business “without otherwise relinquishing the reins of the paternal power”.