Z v Z (556/2021) [2022] ZASCA 113 (21 July 2022)

Neutral citation: Z v Z (556/2021) [2022] ZASCA 113 (21 July 2022)

Coram: Schippers, Nicholls and Carelse JJA, and Meyer and Matojane AJJA

Heard: 4 May 2022

Delivered: 21 July 2022

Summary: Divorce – Maintenance – Adult dependent child – Divorce Act 70 of 1970 – s 6 – whether parent has locus standi in judicio to claim maintenance from other parent for and on behalf of adult dependent child of their marriage upon their divorce.

ORDER

On appeal from: Eastern Cape Division of the High Court, Port Elizabeth (Zilwa J, sitting as court of first instance):

  1. The appeal is upheld with costs, including those of two counsel.
  2. The order of the court below is set aside and replaced with the following: ‘The defendant’s special plea is dismissed with costs.

JUDGMENT

Meyer AJA (Schippers, Nicholls and Carelse JJA and Matojane AJA concurring)

[1] ‘The material shows that on the breakdown of a marriage or similar relationship it is almost always mothers who become the custodial parent and have to care for the children. This places an additional financial burden on them and inhibits their ability to obtain remunerative employment. Divorced or separated mothers accordingly face the double disadvantage of being overburdened in terms of responsibilities and under-resourced in terms of means. Fathers, on the other hand, remain actively employed and generally become economically enriched. Maintenance payments are therefore essential to relieve this financial burden.’ The issues that arise for consideration in this appeal call to mind these sentiments expressed by Mokgoro J two decades ago in Bannatyne v Bannatyne and Another.

[2] The appeal is against the order of the Eastern Cape Division of the High Court, Port Elizabeth (Zilwa J), upholding with costs a special plea in divorce proceedings that a parent lacks locus standi in judicio to claim maintenance for and on behalf of the parties’ adult dependent children from the other parent. The respondent abides the decision of this Court.

[3] The pertinent facts are neither unusual nor controversial. The appellant, Mrs Z (the mother), and the respondent, Mr Z (the father), married each other on 10 January

  1. Two major, but still financially dependent, children were born from their marriage; a son, R, born on 21 May 1997, and a daughter B, born on 13 March 1999. The marriage relationship between the mother and father deteriorated over time, ultimately resulting in the father moving out of the matrimonial home in April 2018.
[4] On 9 April 2019, the mother initiated divorce proceedings against the father. Apart from claiming a decree of divorce, she inter alia claimed maintenance for herself as well as for R and B from the father. In his counterclaim, the father also inter alia claimed a decree of divorce. It is common cause that R and B are financially dependent and in need of maintenance from their parents. The father filed a special plea, averring that the two children have reached the age of majority and accordingly have the necessary locus standi to pursue maintenance claims against him in their
own names, and that the mother lacks the requisite locus standi to do so on their behalf. The mother relies on the provisions of s 6 of the Divorce Act 70 of 1970 (the Divorce Act), which she contends authorises a parent to claim maintenance from the other parent on behalf of a major dependent child in divorce proceedings between
the two parents.

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