Does a mother have the right to institute proceedings against her former husband on behalf of adult children who are not self sufficient?

An appeal to the Full Bench in the Western Cape High Court answered this question with a resounding no, when it delivered its judgment on 12 December 2025. In this case a mother brought an application for contempt of court against her former husband for arrear maintenance as well as additional maintenance for the parties' two adult dependent children.

The parties divorced in 2019. They signed a settlement agreement in which the father agreed to be responsible for the maintenance of two adult dependent children, who were students at the time.

Years later the mother brought contempt of court proceedings against the father for failing to abide the terms of the divorce order, saying that the father was solely liable for the dependent children's maintenance. In his opposition the father claimed that the mother had nolocus standito bring the contempt of court application on the children's behalf.

He also said he was not opposed to paying maintenance but disputed that he was solely responsible for the maintenance. He also disputed what constituted their reasonable maintenance needs, arguing that the dependent children's maintenance needs should be determined through an enquiry in the Maintenance Court.

The parties also disputed the interpretation of a clause in the settlement agreement as it was silent on how much maintenance was to be paid by the father. In support of her right of locus standi, the mother relied on case authorities where the courts warned against instituting separate maintenance claims by dependent children against a parent, on the basis that "it would lead to a piecemeal adjudication of issues arising from the same divorce".

The mother also said that it was irrational to say that a parent could claim maintenance on behalf of their dependent major child but was not allowed to enforce the order in the form of a contempt application and claim for arrear maintenance. In delivering its judgement the High Court pointed to Section 6(1)(a) of the Divorce Act which allows a divorcing parent the right to ask for an order for maintenance of a major, dependent child during or upon divorce and Section 6(3) of the Divorce Act which allows the court to make any order it may deem fit regarding the maintenance of a dependent child.

The court emphasized that according to the common law, both divorced parents have a duty to maintain a dependent child. The amount of maintenance is dependent on the needs of the child and the means of the parents.

The court differentiated between the situation when the parties have already obtained a divorce, as was in this case. The court said that post-divorce, the dependent children's rights to claim and enforce the order vests directly with them not with the parent.

The court dismissed the mother's appeal with costs.

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