Foster parent is obliged to pay maintenance, court rules

The Western Cape High Court has set aside a maintenance court order dismissing a foster mother’s claim against her ex-husband for the maintenance of their foster child.

The wife, who is the appellant in this matter, and her husband, the first respondent, were married in community of property in February 1991 and the marriage subsequently ended in divorce in May 2019. During their marriage, particularly in 2014, RS volunteered at the Heidedal Child and Youth Care Centre, where she met an abandoned and orphaned 18-month-old child. The couple decided to adopt the child and commenced the process of adopting her at the Bloemfontein Children’s Court.

The couple were, however, advised that they first needed to foster the child to monitor if they were suitable parents before the adoption could be finalised. An initial foster care order was therefore issued by the Bloemfontein Children's Court in November 2014.

While the adoption process was pending, the parties took in the minor child as foster parents with the intention of continuing the adoption process until it was completed. The parties undertook parental rights and responsibilities in respect of the minor child. They further agreed to adopt the child and raise her as their own daughter.

Unfortunately, before the adoption process could be completed, the marriage relationship between the parties broke down. In May 2018, the husband signed a “commitment letter” where he undertook to pay a monthly R5,000 maintenance for the child until a final agreement was in place.

The parties further signed a settlement agreement in contemplation of their divorce in August 2018. The settlement agreement addressed the division of assets and the husband undertook to pay maintenance for the child, half of her educational expenses and spousal maintenance for his wife in the sum of R500 per month. In addition, the parties also agreed that the wife and the child would remain dependents on his medical aid until the divorce was finalised.

In February 2019, the husband instituted divorce proceedings and in the summons, he explicitly acknowledged that a minor child was involved in the marriage through the adoption process. He sought an order obliging him to pay maintenance of R5,000 for the child until she reached 18, or became self-supporting, an order that he would be responsible for the child’s educational and medical costs.

In addition, he acknowledged that the child resides with his wife and that both parents support her and that visitation rights have been arranged through mutual agreement.

As the parties had settled the patrimonial consequences and the maintenance issue, the wife did not attend court when the divorce was heard and finalised. The husband attended court alone and was granted a decree of divorce.

For reasons that did not appear on the divorce court record, the decree did not incorporate the settlement agreement signed by the parties. Even though there was no court order requiring the husband to pay child maintenance, he continued to make monthly payments of R4,000.

His wife, however, argued that due to the traumatic experience leading up to the divorce, she left all the administrative work in the hands of her then-attorney, who represented her. Due to the depression and anxiety after the divorce, she never checked the prayers granted in the divorce order. After she discovered that the prayer for maintenance was not included in the divorce order, she attempted to have this rectified by the court but was not assisted.

In January last year, the husband stopped paying child maintenance, forcing his wife to approach the Kuilsriver maintenance court for an application for maintenance.

The man was thereafter subpoenaed to appear in court in July 2023, however his legal representative sent a letter to the court stating that the child was not the man's biological child and that she was not legally adopted by him. He said he was not obligated under common law or the Maintenance Act to financially support the child.

Subsequently the matter was argued in court and after hearing arguments, the magistrate found that there was no legal duty on the man to maintain the child. The magistrate also noted that, in his view, the kindness he showed towards the child does not, without more, translate into a legal duty to maintain.

On appeal against the magistrate's court order, the appeal court was mindful that the adoption was commenced but not completed. However, this did not absolve the man of his obligation towards the child and she was in the foster care of both parties.

In addition, he faithfully performed the functions and discharged the duties of a father in his dealings with the child. Even after the parties were divorced, he continued to pay child maintenance. The commitment he made in the settlement agreement and in the divorce summons attests to the relationship between the daughter and father. He regarded the child as his own.

The court found that the man's legal duty to maintain his child was established.

The magistrate’s court order was set aside and replaced with an order that the man was legally liable to support the child. The matter was referred to the maintenance court for a maintenance inquiry.

Pending the outcome of the maintenance inquiry, the man was ordered to pay interim child maintenance of R5,000 for the child.