Many people historically believed that only parents were liable for maintenance.
Image: Ivan S/Pexels.com
UNDER the new Maintenance Act, financially distressed siblings could claim support from their well-off siblings.
The issue has drawn public attention after the NPA’s Northern Cape division’s recent maintenance awareness webinar detailed the options available for maintenance under the country's Maintenance Act.
During the webinar, the NPA’s senior state advocate at the Sexual Offences and Community Affairs Unit, Moeketsi Molaudi, clarified the legal obligations between siblings.
He said: “The legal duty of siblings to provide maintenance in times of distress stems from the relationship; just as a relationship between a child and a parent, siblings can also claim maintenance against each other.”
He said maintenance referred to essential financial support covering accommodation, food, clothing, medical expenses and educational needs.
The law also applies to adopted and step-siblings.
Ayesha Karim, a family law specialist in Durban, said the Maintenance Act had always inclusive of siblings claiming maintenance from well-off siblings, but not directly because of the Maintenance Act alone.
She said the Maintenance Act 99 of 1998 mainly provided the procedural mechanism to enforce that duty through the Maintenance Court.
“Under this legal framework, the primary duty of support rests with parents. If parents cannot provide support, the duty may extend to grandparents. If neither parents nor grandparents are able to maintain the dependent person, siblings may become liable, provided they have the financial means.
“Therefore, the principle that siblings can support each other is not new, and it has existed in South African common law for many years. The aspect has been brought to the fore recently through increased public discussion, and due to legal practitioners and media outlets starting discussions about extended family maintenance obligations. This is in contexts such as child maintenance where the parent cannot pay, financial hardship in families, claims against estates or extended relatives, or greater awareness of common-law duties,” Karim added.
She said many people historically believed that only parents were liable for maintenance.
She said legal commentary had recently clarified that support duties existed between several family members, including siblings.
“Increased financial hardship and unemployment has led to more exploration of alternative maintenance claims within families, which has brought attention to this rule. Cases specifically about siblings claiming maintenance from siblings are relatively rare, because the duty only arises after closer relatives cannot provide support, and most disputes are resolved within families or earlier in the hierarchy of support.
“South African courts have acknowledged the principle that the duty of support may extend to siblings. Courts have recognised that family support obligations extend beyond parents to other relatives including siblings, depending on the circumstances. The principle is therefore legally recognised even if litigation is uncommon,” she added.
Karim said for a sibling to claim maintenance, they would follow the normal Maintenance Court procedure under the Maintenance Act.
She said the struggling sibling would have to lodge an application for maintenance at a Maintenance Court in the area they lived in, and a maintenance investigation would begin.
“A maintenance officer will be assigned to investigate the financial needs of the claimant, and the financial means of the respondent sibling.
“The court will conduct a maintenance inquiry to determine whether the claimant is genuinely indigent, or whether the respondent sibling has sufficient means to support him/herself.
“If the court is satisfied, it may order the sibling to contribute financially according to their means,” added Karim.
She said court generally required the indigence of the claimant (struggling sibling), and the claimant must show that they could not support themselves.
“The court will also require that the claimant demonstrate that parents are deceased, absent or unable to support, and that grandparents are also unable to provide support to them. Only then does the duty extend to siblings.
“The respondent sibling must have sufficient financial means. If multiple siblings exist, liability may be divided according to their respective means.
“If more people become aware of this principle, courts may see more complex maintenance inquiries, investigations involving extended family finances, and disputes about family responsibility hierarchy.
“However, courts already deal with multiparty maintenance claims, so the legal system is not entirely unprepared,” she added.
Karim said she anticipated that the courts would see an increase in these types of cases due to the ongoing discussions, but she believed it would not be a “dramatic increase”.
She said many people were reluctant to litigate against siblings.
“The legal threshold (indigence and absence of other relatives) is quite high. Maintenance claims usually remain focused on parents. That said, increased awareness may lead to some additional cases, particularly in situations involving deceased parents, abandoned children, and disabled adult dependants.
“A sibling can fully oppose the claim. Common defences include that the claimant is not actually indigent, or that the respondent sibling cannot afford to pay.
“Defences can also include that other relatives (parents or grandparents) should bear the responsibility first, or that the claimant has income or assets. The court will assess all financial evidence before making an order. The impact on families can be both positive and negative. The positive effects could be that the act protects vulnerable family members, prevents destitution, and encourages shared family responsibility.
“But the potential challenges could be family disputes and resentment, financial strain on successful siblings, and litigation between relatives,” Karim added.
She said in reality, courts attempted to balance fairness with family responsibility, and maintenance orders were usually limited to what was reasonable and affordable.