Step-Parent Maintenance Obligations During Divorce in South Africa

Blended families are common in South Africa, and when those marriages break down, a pressing legal question emerges: do step-parent maintenance obligations survive the divorce?

Historically, no, but recent High Court rulings suggest that a step-parent who has voluntarily assumed an in loco parentis (in the place of a parent) role may be legally obligated to continue maintaining their stepchildren during the separation and divorce process. Courts are applying the Children’s Act 38 of 2005 and the constitutional right children have to parental care to impose interim maintenance orders on step-parents during divorce proceedings.

What Did the Western Cape High Court Rule?

The judgement that reshaped this area of law is N.M v B.M and Others [2024] ZAWCHC 254, handed down by the Western Cape High Court on 11 September 2024. The applicant sought maintenance pendente lite (pending the finalisation of the divorce) for her minor biological children from her estranged husband, who was not their biological father and had never formally adopted them. He argued the common law imposed no automatic duty on a step-parent, relying on Heystek v Heystek 2002 (2) SA 754 (T).

Judge Thulare rejected that traditional defence for the interim period, examining instead whether the respondent had assumed an in loco parentis role through his conduct, and whether that assumption created obligations that could not be instantly discarded when the marriage soured.

What Factors Did the Court Consider?

The court applied a fact-specific analysis, weighing the following criteria:

• Financial assumption of responsibility: The respondent had provided consistent financial support for the children throughout the marriage, including moving them to private schools.
• Public presentation as a parental figure: He presented himself to family, friends, and institutions as being responsible for the children.
• Active involvement in daily upbringing: His participation went well beyond that of a passive household member; he was involved in the children’s lives in a substantive, parental manner.
• The children’s reasonable expectation of continued support: Having known no other father figure, the children had developed a genuine financial and psychological dependency on the respondent.
• Abrupt withdrawal of support: The court found that a step-parent cannot unilaterally withdraw from a parental role they have voluntarily assumed simply because the marriage has broken down.

The court granted substantial interim maintenance covering rent, utilities, and household expenses via an opposed Rule 43 application, the mechanism for expeditious interim relief in matrimonial matters.

Who is Legally Responsible for Child Maintenance in South Africa?

Under South African common law, the duty to maintain a child rests with the biological parents. The Children’s Act does not displace this, but it introduced a broader definition of “parental responsibilities and rights” that courts are now using to reach beyond biology. Section 28(1)(b) of the Constitution guarantees every child the right to parental care, and the court in N.M v B.M held that this extends to step-parents who have actively stepped into that role.

The key legal principle: A step-parent’s voluntary assumption of parental responsibilities under the Children’s Act can create a legally enforceable duty of support, even without formal adoption.

What Does This Mean for Blended Families Going Through a Divorce?

The law is no longer as clear-cut as it once appeared, and the stakes are high on both sides. While securing a permanent maintenance order against a step-parent at a final divorce trial remains a massive legal hurdle, these Rule 43 rulings mean step-parents can be held financially liable for months or even years while the divorce is pending.

If you are a step-parent, your conduct during the marriage is now legally relevant. Enrolling children in schools, paying their medical aid, or presenting yourself publicly as their parent may be enough for a court to hold you financially liable during the separation.

If you are a biological parent seeking maintenance, you will need to demonstrate the step-parent’s active parental role, the children’s financial and psychological dependency, the standard of living enjoyed during the marriage, and the step-parent’s means to continue contributing.

The in loco parentis doctrine is entirely fact-specific. There is no bright-line rule, and the outcome will depend on how the relationship is presented to the court.

Speak to a Family Law Specialist

Family law in South Africa is changing, and the consequences of getting it wrong are serious. Whether you are a step-parent unsure of your obligations or a biological parent fighting for your children’s stability, Cawood Attorneys is here to help.

Book a confidential consultation with one of our qualified attorneys and get clear, practical advice for your situation.