STEP – PARENT’S DUTY TO SUPPORT STEPCHILD(REN).
By Shelton Mahandana
Section 28 of Constitution of the Republic of South Africa
Section 28 of the Constitution deals with children’s rights, and states amongst others: every child has the right to family care or parental care or to appreciate alternative care when removed from family environment to basic nutrition, shelter, basic health care services, to be protected from maltreatment, neglect abuse, or degradation, a child’s best interests are of paramount importance in every matter concerning the child.
Child maintenance the duty to support.
Generally, the obligation to support the child lies on both parents. Step-parents have no legal duty to support a step-child.
Section 18 of the Children’s Act 38 of 2005 deals with parental responsibilities and rights, and it states:
Responsibility and the right:-
- to care for the child;
- to maintain contact with the child;
- to act as guardian of the child; and
- to contribute to the maintenance of the child, which includes but not limited to food, clothing, medical care, medication, extra mural activities.
The case G.R v R.R (38304/21) [2023] ZAGPPHC 111 (21 February 2023), brought some light regarding a step – parent’s duty of support towards step children.
In this case, the applicant brought an application in terms of Rule 43 of the Uniform Rules of Court for interim orders for maintenance for the applicant and the two children, contribution to legal costs and that the primary residence of the parties’ minor child be awarded to the applicant subject to the respondent’s right of reasonable contact with the minor child.
The parties were married to each other in terms of customary rites in 2008 and subsequently entered into a civil marriage. The applicant commenced divorce proceedings and had also brought the Rule 43 application. The maintenance for the children included that of the major child who was born of a relationship between the applicant and the third party (not the biological child of the respondent).
The applicant has been unemployed since 2017, and the respondent has been maintaining her and the children, paying for all household related expenses and also paid to the applicant, funds in an amount of between R28 000 and R32 000 per month for her personal needs. In addition, the respondent gave the applicant Absa credit card for her unrestricted use. The respondent has also paid for the expenses related to the schooling of the children, including the major child.
The court stated that under common law a step-parent has no legal duty of support in respect the step children [see Heystek v Heystek 2002 (2) SA 754 (T) at 756E], that a step-father who is married in community of property has an obligation to maintain the step child in his capacity as administrator of the joint estate and his control of the common purse. The emphasis on the judgments was the fact that the parties are married in community of property, and it follows that such an obligation to pay maintenance may not follow when such parties are divorced.
The judge ordered the husband to continue paying maintenance for the stepchild for a period of six months while the applicant ensures that the biological father pays maintenance.
Further, it was ordered that the respondent pays the applicant R25000 per month, pays R5000 for each of the children, retain his wife and the children or his medical aid, pay the children’s school related expenses, DSTV, Netflix, access gate costs, internet related costs, security services, and car insurance for her two vehicles.
