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Are grandparents liable to pay maintenance for their grandchildren?

Are grandparents liable to pay maintenance for their grandchildren?

The responsibility to provide financial support and care for a child is a shared obligation between parents, based on the legal duty established by common law and their respective financial capabilities. This obligation is explicitly stated in Section 13(3)(a) of the Maintenance Act 99 of 1998. This obligation continues until the child becomes self-supporting, even after reaching the age of majority. However, a child who has reached majority is not entitled to the same level of support as a minor child. In such cases, the burden is on the major child to demonstrate their need for support.

In determining the amount of maintenance to be paid for a child, the maintenance court shall consider:
  1. that supporting a child is an obligation shared by both parents;
  2. that each parent's contribution to this obligation is determined based on their respective means; and
  3. that this duty exists regardless of whether the child is born in or out of wedlock, or from a first or subsequent marriage.
In situations where a parent is unable to support their child financially, the duty of support may fall upon the maternal and/or paternal grandparents, depending on which parent lacks the means to provide support. If both parents are incapable of supporting the child, both sets of grandparents will share the responsibility for child maintenance.

The law recognizes a hierarchical order of responsibility, starting with the parents as the primary caregivers. If the parents are unable to fulfil their duty, the grandparents assume the responsibility. If the grandparents are also unable to provide the necessary support, other relatives, such as siblings, may be considered.

According to common law, the duty to support is based on notions of piety, affection, respect, fairness, and the natural bond of blood relations. Furthermore, this duty is rooted in the belief that family ties entail responsibilities.

Grandparents will be obligated to pay maintenance for a minor child in the following situations:
  • When the parents of the minor child are themselves minors or can demonstrate their inability to support the child;
  • When the grandparents have assumed the role and responsibilities of a parent (in loco parentis);
  • When one of the parents cannot be located, but the grandparents are accessible;
  • When the estate of a deceased parent does not have sufficient funds to contribute to the child's support.
It is essential to consider that the person seeking maintenance must demonstrate a genuine need for financial assistance, while the person responsible for paying maintenance must be in a financial position to fulfil this obligation. The Maintenance Officer of the Maintenance Court determines this based on individual circumstances.

While the Maintenance Officer has discretion in assessing a party's ability to contribute to the well-being and upbringing of the minor child, the following factors are taken into account:
  • Reasonable and necessary expenses related to the child, such as food, housing, clothing, and education;
  • The respective incomes of both the mother and father;
  • The financial responsibilities of each parent towards the minor child, as well as the affordability of the claimed amount by the parent and/or grandparents being sued for maintenance;
  • The lifestyle to which the parent requesting maintenance and the child have grown accustomed.
In the case of Barnes v Union and South West Africa Insurance Co Ltd 1977 (3) SA 502 (E) the court confirmed that there is an ‘order of priority’ and that if parents are not able to maintain their children, the duty to support falls on paternal and maternal grandparents.

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