Parenthood automatically results in the obligation of a parent to support a child, this obligation is a common law duty that arises on the child’s birth and is also provided for in s 15(3)(a) of the Maintenance Act 99 of 1998, regardless of whether the child is born in or out of wedlock.
The parent’s primary duty to support the child is an obligation expected to continue until the child becomes self-supporting. When one of the child’s parents passes away, the primary obligation to maintain the child will rest with the surviving parent. However, if both parents cannot support the child, this obligation will extend to the grandparents of the child. This obligation will pass on to the siblings of the child only if the grandparents have passed away or if they do not have sufficient means to provide support.
In principle, the obligation of a parent to support a child can only be terminated by the child’s death and not by the parent’s death, since in the latter case the child has a right to claim maintenance from the deceased parent’s estate (Ex Parte Insel and Another 1952 (1) SA 71 (T)).
Principles of maintenance
Parents – In terms of the common law and the Maintenance Act (s 15), the primary responsibility to support, a child is vested in the parents. On the death of either one or both parents, the legal remedy under South African law is to render a deceased parent’s estate liable for a child’s maintenance regardless of whether the child’s parents were married or not. The obligation on the estate of a deceased parent to support the child takes priority over all bequests.
Grandparents – If the deceased parent’s estate is insufficient to cover the child’s support, or if there is no estate at all and the remaining parent is unable to support the child, the duty of support will be extended to the child’s maternal and paternal grandparents. However, the position is still unclear in South African law whether the estate of the deceased grandparent may be liable to support the grandchild.
Siblings – There is an obligation in South African law on siblings to support each other. This means that if the remaining parent, the deceased parent’s estate or the grandparents are unable to support the child, the obligation to support will rest with the child’s siblings – siblings who claims maintenance must be indigent and that this duty exists in accordance with siblings’ respective means.
Although the primary responsibility to support a child is placed on parents for the upbringing and development of the child (see article 27(2) of the Convention on the Rights of the Child, 1989), South Africa is a democratic state that recognises the right of every child to an adequate standard of living. This quantifies the state’s commitment to taking appropriate measures to assist parents and other people responsible for the maintenance of the child in the implementation of the right to an adequate standard of living. This notion is also applicable in cases where either one or both parents have passed away and there is no other responsible person who is financially able to support the child. Visibly the child is in need of support and such child may be eligible for maintenance grants provided by the state.
Maintenance Act 99 of 1998 – The Maintenance Act secure the recovery of maintenance for children from parents or other persons with a financial responsibility for the child. This obligation should be apportioned between the parents in accordance with their respective financial means. Children whose parents have passed away will find no protection under the Act. These children will, however, be accorded protection automatically by operation of the law in that, according to South African law, the duty to support a child is an obligation that continues until the child becomes self-supporting. This duty exists irrespective of whether a maintenance order has been issued or not and it exists from the child’s birth. The rescue provisions for children who have not approached the maintenance court for a maintenance order will therefore take place automatically by operation of law. In other words, they can lodge their maintenance claim against the executor of the deceased parent’s estate.
Children’s Act 38 of 2005 – The Children’s Act sets out the parental responsibilities and rights a person may have in respect of the child. This includes the responsibility and the right to care for the child and to contribute to the maintenance of the child. This Act read with the Maintenance Act produces the result that both parents have an obligation to support their children in accordance with their respective financial means. Even in the situations where a child is claiming maintenance from a deceased parent’s estate, in the case of a dispute between the surviving parent and the executor representing the deceased parent’s estate, the matter will have to be referred to an independent professional to be resolved in accordance with the provisions of the Children’s Act prior to the matter being referred to trial.
Case law – South African case law also provides for a remedy where a duty of support is extended to the grandparents of the child, regardless of whether the child was born in or out of wedlock. The courts in South Africa do grant orders authorising a maintenance claim from the deceased parent’s estate. However, they fail to provide for a maintenance remedy in situations where the estate is too small or is burdened with debts or where there is no estate at all. However, in many decisions, it emerged that even though a child’s maintenance claim enjoys preference over the claims of heirs and legatees, it cannot enjoy same over the estate’s creditors. It remains unclear whether the estate of the grandparents should be liable for a child’s maintenance.
Constitutional law – The Constitution provides, in s 28(1)(b) and (c), that every child has the right to family or parental care or to appropriate alternative care when removed from the family environment, and has the right to basic nutrition, shelter, basic health care services and social services. It further provides, in s 28(2), that the best interests of the child are of paramount importance in every matter concerning the child. This provision envisages that the best interests of the child criterion should determine the outcome of every matter pertaining to a child and this includes a child’s right to maintenance since it is in the best interests of every child.The Convention on the Rights of the Child was ratified by South Africa in 1995. Article 3 provides that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. Ratification by a state means that children who are in need of support may be eligible for special maintenance grants from the state.
Parental death has a great impact on the maintenance of a child. The parental estate may therefore be considered for possible settlement of a child’s maintenance.
However, the duty of support may extend to the nearest blood relations, including grandparents and siblings, after the death of either one or both of the parents.