Can tertiary education be included in child maintenance?

Introduction

In a society where divorce and children born out of wedlock are prevalent, our law must play a role in order to ensure that children’s rights and interests are protected. When parents are at odds relating all other aspects of the relationship, they also likely will not agree on the amount of the maintenance payable by either parent. It often happens that a child reaches the age of 18 and are majors but are still cared for and supported financially by his or her parents. A child may require assistance of his or her parents to pay for tertiary education and living expenses whilst studying. Therefore the question, “is it fair to refuse maintenance once a child reaches majority?”

The answer is no. Education is a priority and a right that needs to be protected in this country. The below article explores on which basis a major child may claim maintenance from his or her parents.

Can tertiary education be included in child maintenance?

The answer is yes. A parent has a legal obligation to maintain a child until they reach an age where they are able to provide and take care of their own needs. Maintenance is often claimed and paid to the parent with whom the child or children resides. The parent of the child or children may make application to court to claim maintenance from the other parent, who may or not have care and contact with the child. The common misconception is that it is only fathers who are obligated to pay maintenance; however, this is false, a father may also claim maintenance from the mother. The maintenance amount is often paid into the bank account of the parent with whim the child resides and is managed by that parent in order to provide for the needs of the child. However, a person over the age of 18 in South Africa is no longer considered a minor, but a major.

How does this affect child maintenance?

When having regard to a major dependent, the position changes.  Although the law regards them as adults with full legal capacity, they may be still in a position where they are unable to provide for themselves and, in this case, the parents must fully provide for their needs if they are in a position to. In instances where the parents are unable to provide, the legal obligation shall fall onto the grandparents and maintenance may be claimed from them.

However, the rules change with regards to a major dependent. The child may bring an application for maintenance themselves without any of the parents’ involvement. The child may claim from either one or both parents. The child may than make application to court for the parents to pay for his or her educational needs. Education is a Constitutional Right and therefore no person may be unfairly deprived of that right. The child remains the responsibility of the parent until they are self-sufficient or are working.

Maintenance for major dependents is not necessarily paid into the account of the parent but may be paid into the child’s banking account.

A parent may however prevent the above process by making prior arrangements to include tertiary education fees in their current agreement.

When is the obligation of maintenance in respect of a major child not applicable?

As mentioned above, where the adult child can provide for their own financial needs, the parent may not be required to pay his or her for tertiary education. In the instance where the adult child is of a working age, which will be determined on the merits of the circumstances, the parent may also be relieved of the legal obligation.

There are often circumstances where the parent may not be able to afford to pay for tertiary education. In this instance the parent will not be expected to do so if they are able to prove that they do not have the financial capacity to. The obligation falls away from the parent and the child would have to consider alternative options to pay for the fees. This may be done by either claiming maintenance from the grandparents or considering obtaining a study loan provided for by the Government or banks.

There is a responsibility and obligation on the child to reasonably pass or perform in University and if they do not, the legal obligation may fall away from the parent that pays for such education. This means that the parent will not be obligated to pay the said fees anymore.

Conclusion

Tertiary education fees may be included in maintenance. This can be done through prior agreement between parents, or the child may bring an application to this effect. A child’s interests and rights will always be protected by the law even when they reach the age of 18. As long they are incapable of providing for their own financial needs, it will remain the parents’ responsibility to ensure that they are provided for to the best of their abilities. Therefore, a child’s tertiary fees may be included in maintenance amounts payable.