Confronted with a situation of whether a man with a foster child is liable to pay maintenance to his divorced wife regarding the child in their care, the Western Cape High Court ruled in favour of payment and said the interests of the child is of paramount importance.
The child was 18-months -old when the couple took her into their home. They applied to adopt her, but before the adoption could go through, the couple broke up.
In starting off his judgment, Judge James Lekhuleni remarked that children are the cornerstone of society; when we neglect them, we neglect our society's future.
“Every child deserves proper parental care and support for the well-being of society,” he said.
This was an appeal against the judgment of a magistrate, in which the court dismissed the wife’s claim for maintenance of her foster care child, LX.
The magistrate found that the husband did not adopt LX, and as such, there was no legal duty on him to maintain LX. Consequently, the magistrate dismissed the wife’s claim for the maintenance of LX.
The couple were married to each other in community of property in 1991, but they got divorced in 2019.
In 2014, while they were still married, the wife volunteered at a youth care centre, where she met an abandoned child, LX, who 18 months old and still a baby. The coupler decided to adopt her. The child had over the years formed a bond with the couple and regarded them as her parents.
The couple commenced the process of adopting LX at the Bloemfontein Children’s Court, but they were told that they first had to foster her before adoption could be finalised.
Whilst the adoption process was pending, the parties took in the child as foster parents with the intention of continuing the adoption process until it was completed.
The child came to live with them and they undertook parental rights and responsibilities in respect of the child and raised her as their own.
Unfortunately, before the adoption process could be completed, the marriage broke down.
As part of the divorce settlement, the husband undertook to pay R5 000 a month towards the child until she turned 18. He also undertook to pay towards her educational and medical needs.
The parties agreed that the settlement agreement would be incorporated into the final divorce order.
But on the day of the divorce, for reasons which are unknown, the decree did not incorporate the settlement agreement signed by the parties. Even though there was no court order requiring the husband to pay maintenance, he continued to make child support payments for the child at a reduced amount of R4 000 a month.
The wife told the court on appeal 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 what was granted in the divorce order. After she discovered that the maintenance was not included in the divorce order, she attempted to have this rectified at the Bellville Regional Court but was not assisted.
Meanwhile, in January last year, the husband stopped paying maintenance for their foster care daughter.
The wife yet again turned to the lower court, where a magistrate ruled that the husband had no legal duty to pay maintenance towards the child.
Judge Lekhuleni said the fact that the adoption proceedings were not concluded, does not absolve the husband of his obligation towards the child. Significantly, the child was in the foster care of the couple and formed a strong bond with them.
The husband regarded the child as his own and notwithstanding that the adoption had not been completed, he referred to LX by his own surname.
“I firmly believe that the first respondent (husband) de facto adopted the child and considered her as her own. He supported and nurtured the child during the marriage and even after the marriage was dissolved.”
He maintained a father-daughter relationship during the marriage and even after the marriage was dissolved.
“The first respondent's decision to stop providing for the child, after previously committing to care for her since she was a baby and supporting her for the past ten years offends against the best interest of the child principle and goes against the hallowed principle of ubuntu as well as considerations of propriety and morality,” the judge said.
He added that it is unconscionable for the father to renege from his representation to the child and his now former wife.
The court ordered that the matter of maintenance must be decided by the maintenance court, but the man was ordered to in the meantime pay R5 000 a month towards the child.
Pretoria News
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