Do stepparents have a duty to support their stepchildren?
Families come in all shapes and sizes, and a consequence of divorce is often a new blended family. A blended family (or stepfamily) forms when two people make a life together with the children from one or both of their previous relationships. What are the legal obligations of stepparents towards stepchildren? You may be surprised to learn there is no legal requirement to support stepchildren, though there may be moral obligations, especially if a blended family has been together for some time before it breaks down.
The law does not oblige a stepparent to maintain their stepchild. The duty to maintain a child rests on a blood relationship (or adoption, which we will come on to) and not on affinity. If a couple with stepchildren divorces, a maintenance order typically cannot be made against stepparents since they are not legally required to pay maintenance.
Contractual obligation
However, there is a precedent for a contractual obligation by a stepparent. In a case from 2010 a stepfather was ordered to pay his stepson’s school fees because he was deemed to have a contractual obligation to maintain the school fees. The stepfather identified himself as the child’s father and both the boy and his mother relied on this representation. This led the court to conclude that a contractual obligation existed, because the child’s mother and stepfather had jointly chosen the private school for the child and agreed to cover the cost of the fees. The court also considered the influence of the Constitution on the outcome of the case.
Section 28(1) of the Constitution safeguards minor children’s rights. Because the stepfather had pledged to maintain the child, the court viewed the promise as binding. The court ruled that the stepfather should have the same obligations toward his stepchild as he would have toward a biological son. Thus a moral obligation became a legal obligation in this case.
According to the Maintenance Act, the court may subpoena anyone who has information relevant to the maintenance inquiry, which could include a stepparent. The courts are frequently hesitant to grant a divorce without a maintenance order against the stepparent in the stepchild’s interests.
Adoption
Sometimes stepparents legally adopt stepchildren. This is more likely to happen where the biological parent of the stepchild is either deceased or unknown, or where the mother knows the identity of the father but has no contact with him. A father involved in his child’s life is unlikely to consent to the child’s adoption by another man and, where the parents are alive, they must both consent to the adoption. In a country where approximately half of children live without daily contact with their fathers, it is not that unusual for a single mother to marry a man who later adopts her child or children.
If the stepparent (let’s assume it’s the stepfather for the sake of argument) adopts the stepchild, he becomes the legal parent. Adoption confers full parental rights and responsibilities in respect of the adopted child. Adoption does not alter any rights to property the child might have had before the adoption, but the child is regarded as the child of the adoptive parent, not the stepchild. Therefore, in this scenario, the stepfather – now father – has a legal obligation to support the child if the marital or life partner relationship breaks down.
Consult a family lawyer
SD Law a firm of family attorneys in Cape Town and Johannesburg with deep experience of helping families in a variety of circumstances. If you are a stepparent and have a maintenance issue you would like to discuss or have any queries about your existing parenting arrangements, contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za for a confidential discussion.
Further reading:
- Child maintenance – marriage is irrelevant
- Child Maintenance Act
- Children’s Amendment Bill
- Child custody and guardianship in divorce
Divorce Attorney Cape Town
http://divorceattorneycapetown.co.za/The information on this website is provided to assist the reader with a general understanding of the law. While we believe the information to be factually accurate, and have taken care in our preparation of these pages, these articles cannot and do not take individual circumstances into account and are not a substitute for personal legal advice. If you have a legal matter that concerns you, please consult a qualified attorney. Simon Dippenaar & Associates takes no responsibility for any action you may take as a result of reading the information contained herein (or the consequences thereof), in the absence of professional legal advice.