Can a parent claim maintenance from their child?

With August being "Women's Month", the focus on many organisations is to shine a light on those societal issues impacting the lives of women by raising awareness and empowering women to do something about it. This year was no different. I was asked to deliver a talk to a group of women, covering the topics of child maintenance and the protection offered to women facing domestic abuse.

After my talk, an elderly woman approached me wanting to know about maintenance. I could sense she was greatly distressed. She told me that she was a widow who was going through an extremely tough time financially but that she received no support either emotional or financial from her family. She said she had an adult daughter who earned well but who refused to communicate with her or help her in alleviating her dire financial situation.

She said the pain she suffered from being abandoned and neglected by her very own child left her devastated. She was heartened to learn that she was eligible to claim maintenance from her daughter. Whilst it is a well-known principle that parents have a legal duty to support their children, many people are unaware that a parent can also claim maintenance from their child.

Apart from the moral duty of support, the common law requires a child to take care of the needs of an indigent parent. In addition, the Maintenance Act 99 of 1998 talks of a reciprocal duty of support between parents and children. To successfully bring an application to the maintenance court, a claimant would need to satisfy to the court that he or she is in need of reasonable maintenance.

They would also need to prove that there is legal duty to do so in that there is a relationship which exists, whether it is a blood relationship, marriage or adoption, with the respondent. The respondent must have the means to provide such financial support. The parent will need to provide the requisite proof of income for example produce copies of his/her bank statements.

The court will take into account whether the parent is genuinely in need of such maintenance. The court will also see if there is a legal duty to maintain the parent and whether the child is financially able to maintain that parent. Hence the parent must prove his/her dependence on the child and must also prove that the respondent has the means to do so.

The parent's right to claim maintenance would not extend to the son in law or daughter in law, but only with their child. The exception to that would be if the child is deceased and the parent would be able to claim from the child's deceased estate. Where there are many siblings, the duty to support an indigent parent sits with all the siblings equally. But the courts will look the factors such as means of the children to share the financial load of caring for the parent.

How much maintenance can be claimed would depend on the specific circumstances of the parent and child. There are differing judgments in this regard. The courts have a discretion and will exercise that discretion in the way they see fit. The basic necessities such as food, clothing, shelter and medical assistance would most likely be granted by the court, if it believes it to be reasonable. Thus a parent who is indigent will certainly be a candidate for maintenance.

Know your rights! The Law Desk of Fawzia Khan & Associates. Giving YOU the Power of Attorney. Email fawzia@thelawdesk.co.za or call 031-5025670 for legal assistance at competitive rates.

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