We often focus our compassion on vulnerable children and their needs, but what about the elderly? In South Africa, too many parents spend their final years in destitution while their adult children live in comfort. This raises a difficult but important question: can parents claim maintenance from their children?

The Law: A Reciprocal Duty of Support
Under South African common law, the duty of support between parents and children is reciprocal. Just as parents must support their children when they are unable to provide for themselves, children have a legal duty to maintain their indigent parents, if they are financially able to do so. 

What Must a Parent Prove?
For a parent to succeed with a maintenance claim, four key requirements must be established:

1. Indigency: The parent must be in extreme need or want, and unable to meet the basic necessities of life (such as food, clothing, shelter and medical care). This is more than simply being poor. The parent must demonstrate a genuine lack of basic necessities. In Smith v Mutual & Federal Insurance Co Ltd 1998 (4) SA 626 (C), the court held that a parent must demonstrate a stringent need for the basic necessities of life, not just that they are living on very little. 

2. Legal Duty: A familial relationship must exist between the parent and the child, thus creating a duty of support in law. In the case of adopted children, the legal duty of support rests with their adoptive parents, as adoption terminates the parental rights and responsibilities of the biological parents. With extra-marital children, they must support their mothers, but it remains uncertain whether they have a similar duty towards their fathers. In writer’s view, their duty extends to their fathers, but the courts are yet to decide on this issue. 

3. Lack of Alternatives: The parent must be unable to support themselves through work or other means. Simply having little income is not enough, unless such income is insufficient to meet the basic necessities of life. 

4. Ability to Pay: The child must have the financial means to provide such support without neglecting their own legal obligations, such as maintaining their spouse and minor children.

Limitations on Maintenance 
1. In Van Vuuren v Sam 1972 2 SA 633 (A), the court highlighted that the support of a parent must be confined to the basic necessities, such as food, clothing, shelter, medicine and care in times of illness. The court may also consider the parents’ quality of life when determining the appropriate level of support. For example, if a parent previously lived independently in a modest retirement facility but can no longer afford it, the court may order maintenance sufficient to allow them to return to that environment, provided the child has the means to pay. 

2. Parental maintenance claims are considered secondary in nature, meaning children are first legally obliged to support their minor children and spouses before any duty to assist their parents is entertained. It is, however, to be noted that the court will assess what constitutes reasonable maintenance for the spouse and children, to ensure this obligation is not exaggerated or misused as a means to avoid supporting an indigent parent.

How to Claim Maintenance
A parent seeking maintenance must lodge a claim with the Maintenance Court in the district where they reside, in terms of Section 6 of the Maintenance Act 99 of 1998. The court will conduct an inquiry into:

1. The parent’s needs and financial status.
2. The child’s income, expenses, and ability to pay.

If the above-mentioned requirements are met, a maintenance order may be issued compelling the child to support the parent.

The law recognises that support is a two-way street. If a parent is genuinely in need and a child is financially able to assist, the child may be ordered to maintain their indigent parent. As a society facing growing inequality, recognising and enforcing this legal obligation may restore dignity to our elderly and bring balance to intergenerational responsibility.


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