Sign Up to our Divorce Newsletters to get instant access to our Divorce Cheat Sheet
Many Clients who have remarried and have a child from a previous relationship ask this question:
Is my current husband responsible to continue to pay whatever he has been paying for my child from a previous relationship?
People are relying on their spouses to honour their agreements for financial assistance.
Generally people are only liable to pay maintenance for a child if they are the biological parent or if they have legally adopted the child. However recent case law takes this obligation to the next level.
MB v NB 2010 (3) SA 220 (GSJ)
The Plaintiff was a widow with a teenaged son from her previous marriage. She married the Defendant, who agreed to adopt the child as his bond with her son had become increasingly stronger and he was treating him as his own.
Adoption was not pursued however, but the child’s surname was changed to that of the Defendant in September 2000. In 2007 when the Parties were on a search for a suitable school for the child, they enrolled him as a boarder in a private school in the Eastern Cape. The Plaintiff and Defendant completed the application form and they signed as the child’s mother and father, respectively.
After the birth of the Plaintiff’s and Defendant’s own child in 2002, the Defendant rekindled a relationship he previously had with another woman.
The Plaintiff discovered the secret affair the Defendant was having and put him on terms to leave the matrimonial home. The Defendant left the matrimonial home during 2008 and the Plaintiff commenced divorced action against the Defendant, shortly thereafter.
The Plaintiff requested from the Court an order whereby she was claiming spousal maintenance and that the Defendant must continue to pay her son’s private school fees, including the boarding fees, for as long as he attended a private school.
The Plaintiff’s claim for the Defendant to pay the child’s fees was based on the agreement to pay her son’s fees, which the Plaintiff contended constituted a binding contract.
The Court held that in order to determine if the Defendant was obliged to pay the school fees, it was not necessary to conclude that he was adopted; and that the relationship should have been recognised under the statute, or even that the Defendant was under a general duty to maintain her son.
It was enough for the Court to conclude that the Defendant presented himself as the child’s father and that the Plaintiff and child relied on this representation and therefore he was liable to pay the school fees for the child.
Don’t take the law into your own hands, let the professionals handle it!