Duty of support

This article explores the duty of support

Duty to support a child after turning 18

In terms of the Children’s Act, a child becomes a major when he or she turns 18. Does a parent’s duty of support end then?

In Bursey v Bursey & Another, the Appellate Division found that according to our common law, both divorced parents have a duty to maintain a child of the dissolved marriage. The incidence of this duty in respect of each parent depends upon their relative means and circumstances and the needs of the child from time to time. The duty does not terminate when the child reaches a particular age but continues after majority i.e. until he or she becomes self-supporting.

A child cannot be self supporting, if for example, he or she is still studying or is mentally or physically challenged and can’t work.

Child’s duty to support parents

A parent and child owe each other a reciprocal duty of support. The test is the need of the person seeking support and the ability of the other to pay, provided that a more stringent criterion of need is applied to parents than to children. Also the support of parents must be confined to the basic needs, namely, food, clothing, shelter, medicine and care in times of illness. Basically, a parent must be indigent before he or she can turn to a child for support.

A child born out of wedlock has a duty to support his or her mother but perhaps not his or her father, even though the father has a duty to support the child born out of wedlock.

Duty of support between grandparents and grandchild

There is a reciprocal duty of support between grandparents and grandchildren.

It is clear law that maternal grandparents owe a duty of support to a grandchild born out of wedlock. It is presently uncertain whether the paternal grandparents owe a similar duty. One judge argued that a father need not support his son’s illegitimate child, because of doubt whether the child is indeed related to him. Another court ruled that this was unconstitutional as violating the equality provisions of the constitution and moreover the rule failed to give effect to the constitutional imperative that the child’s interests are paramount.

I would submit that paternal grandparents of an illegitimate grandchild do owe a duty of support but could insist on a paternity test to clear up any doubt. See Are you my daddy?

Duty of support of a grandchild by a grandparent’s estate

This is presently an open question. One court held a grandfather’s estate is liable to support grandchildren on the basis that if the grandfather had been alive, he would have had the duty of support. Another court refused to follow this case.