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Question
Posted by: Emma | 2010-02-03

Maintenance from sons

Hi

How does an elderly lady of 68 go about getting maintenance from her sons? Years ago they were the cause of her losing everything as she baled them out of trouble so lost her pension, her house and all disposable income. They turned their backs on her and she lives with me her daughter. She does get a state pension. I am up to my ears in debt and cannot make ends meet. Our father who was an abusive so and so died in the 80' s. Her brothers (who could) won' t help her or us, they feel that there should be some kind of magical reconciliation. Ain' t gonna happen. So much bad stuff has happened that we just want to move on but with a future of struggling to support her and therefore compromising my own very badly what to do? Laywers were doing a maintenance case pro-bono for us of their own accord and dropped the case without any reason being given. I have no funds to pay lawyers, earn above the minimum for legal aid (funny thing that - it all goes by your pay-slip even if you are in dire straits). Yes I work all day so my poor mother who is not well is going to have to go and try secure maintenance. How and where. Please Help.

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Our expert says:
Expert ImageFamily law expert

Parents and children have a reciprocal duty of support. Children have a duty to support their parents and grandparents, but always subject to the rule that support must be claimed from nearer relatives first. The basis of a child's duty to support parents is the sense of dutifulness of filial piety. In certain circumstanceseven a minor child may have to support parents.

As always, the criteria of need on the part of the person to be maintained and ability to support on the part of the person from whom support is claimed must be present. A parent who claims support from a child must prove his of her need and the child's ability to support.

As mentioned above, a more stringent criterion of need is applied to parents than to children; indigence on the part of the parent is stated to be a reqiurement. Our authorities are not entireley clear on this point. In Oosthuizen v Stanley the court spoke of the "quality and condition fo the persons to be supported". In the same case it was pointed out that where a parent must be supported it is not only the parent's own needs but also those of the parent's dependants which must be considered.

In Van Vuuren v Sam Rabie JA referred to the same criterion, but stressed that the support of parents must be confined to the basic needs, namely, food, clothing, shelter, medicine and care in times of illness. Relying ons Surdus, he said that in assessing the quality and condition of the person to be supported it is primarily his present situation, not his past one, which is considered but that in assessing these, the judge should exercise his distrection. He provided the example that a previously wealthy parent who has fallen on hard times should not be compelled to eat peasants' food.

In Smith v Mutual & Federal Insurance Co. Ltd. Cihwala AJ stated that whether the parent is so indigent that a child will have to support the parent depends on all the circumstances of each case and that the parent must show that he or she is in want of what should, considering his of her station in life, be regarded as necessities. he stated further:

" To be indigent means to be in extreme need or want whereas to be poor means having few things or nothing. Accordingly, when the plaintiff pleads indigence, it is not sufficient to show that the plaintiff lives on very little or nothing...The plaintiff should prove that there is an extreme need or want for the basic necessities of life."

It has been argued that the criterion of need should not be so narrowly interpreted here as to destroy the whole concept of a reciprocal obligation. An extra-marital child has a duty to support his or her mother but perhaps not his of her father, even though the father has a duty to support his extra-marital child. According to the Law Commission, the position remains uncertain until the courts decide the issue.

Hope this helps.

Bertus Preller
www.divorceattorney.co.za
bertus@divorcea

The information provided does not constitute a diagnosis of your condition. You should consult a medical practitioner or other appropriate health care professional for a physical exmanication, diagnosis and formal advice. Health24 and the expert accept no responsibility or liability for any damage or personal harm you may suffer resulting from making use of this content.

1
Our users say:
Posted by: Family law expert | 2010-02-05

Parents and children have a reciprocal duty of support. Children have a duty to support their parents and grandparents, but always subject to the rule that support must be claimed from nearer relatives first. The basis of a child's duty to support parents is the sense of dutifulness of filial piety. In certain circumstanceseven a minor child may have to support parents.

As always, the criteria of need on the part of the person to be maintained and ability to support on the part of the person from whom support is claimed must be present. A parent who claims support from a child must prove his of her need and the child's ability to support.

As mentioned above, a more stringent criterion of need is applied to parents than to children; indigence on the part of the parent is stated to be a reqiurement. Our authorities are not entireley clear on this point. In Oosthuizen v Stanley the court spoke of the "quality and condition fo the persons to be supported". In the same case it was pointed out that where a parent must be supported it is not only the parent's own needs but also those of the parent's dependants which must be considered.

In Van Vuuren v Sam Rabie JA referred to the same criterion, but stressed that the support of parents must be confined to the basic needs, namely, food, clothing, shelter, medicine and care in times of illness. Relying ons Surdus, he said that in assessing the quality and condition of the person to be supported it is primarily his present situation, not his past one, which is considered but that in assessing these, the judge should exercise his distrection. He provided the example that a previously wealthy parent who has fallen on hard times should not be compelled to eat peasants' food.

In Smith v Mutual & Federal Insurance Co. Ltd. Cihwala AJ stated that whether the parent is so indigent that a child will have to support the parent depends on all the circumstances of each case and that the parent must show that he or she is in want of what should, considering his of her station in life, be regarded as necessities. he stated further:

" To be indigent means to be in extreme need or want whereas to be poor means having few things or nothing. Accordingly, when the plaintiff pleads indigence, it is not sufficient to show that the plaintiff lives on very little or nothing...The plaintiff should prove that there is an extreme need or want for the basic necessities of life."

It has been argued that the criterion of need should not be so narrowly interpreted here as to destroy the whole concept of a reciprocal obligation. An extra-marital child has a duty to support his or her mother but perhaps not his of her father, even though the father has a duty to support his extra-marital child. According to the Law Commission, the position remains uncertain until the courts decide the issue.

Hope this helps.

Bertus Preller
www.divorceattorney.co.za
bertus@divorcea

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