Confronted with a situation of whether a man is liable to pay maintenance to his divorced wife for a foster child in their care, the Western Cape High Court ruled that the interests of the child is of paramount importance.

A Pretoria News report says the child was 18 months when the couple took her into their home. They applied to adopt her, but before the adoption could go through, the couple separated.

Judge James Lekhuleni remarked that children are the cornerstone of society.

‘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 As part of the divorce settlement.

The husband undertook to pay R5 000 a month for 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, 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 at a reduced amount of R4 000 a month.

The wife told the court on appeal that due to the experience leading up to the divorce, she left all the administrative work in the hands of her then-attorney, notes the Pretoria News report.

After she discovered that the maintenance was not included, she attempted to have this rectified at the Bellville Regional Court but was not assisted. In January last year, the husband stopped paying maintenance.

The wife once again turned to the lower court, where a magistrate ruled that the husband had no legal duty to pay maintenance.

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 court ordered that the matter of maintenance must be decided by the Maintenance Court, but the man was ordered to pay R5 000 a month towards the child in the interim.

Full Pretoria News report in The Star

Judgment