Can I force my mother-in-law’s sons to support her financially? A legal expert responds

A reader reached out to us with a tricky question after reading about a son who thought supporting his mother financially was too much for him.

Read the article here: A grown son asks if he can legally be made to support his mother financially – a legal expert responds

Dear Parent24,

Referring to your article about a child's responsibility to support a parent, I have a further question. I look after my elderly mother-in-law. Her health is deteriorating and the financial burden of giving her adequate health care is now exceeding my capacity.

State medical is a poor, and I feel life-threatening option for any elderly person. And as a state pensioner, she is not self-sufficient. However, like many in S.A., I'm in debt and under debt review. Partially due to the cost of supporting my mother-in-law whom I have supported willingly for more than 20 years now.

My question is what chance do I have of forcing her two sons, who both have good jobs and upper-middle-class lifestyles to finally start contributing to her monthly support? All requests over the years have fallen on deaf ears. Morally they should support her. Legally however is the question?

I have no funds to fight a protracted court battle. The last time I asked for help was after my wife, their sister, passed. Dumping her into an old age home was the response. Something I felt would exacerbate her deteriorating condition.

Children have a moral and ethical responsibility to share in the care of their parents. But morals and ethics can't be enforced by courts!

Please help,

A concerned son in law

A legal expert provides the following advice

Dear concerned son in law,

Can you force your mother-in-law’s two sons to support her financially? The answer is yes, however the process is not a simple one.

According to the Maintenance Act, parents and children have a reciprocal duty of support and accordingly, a child has a duty to support his/her parents. Your mother-in-law in her personal capacity would have to bring an application for the duty of support against her two sons.

In your case, it seems that your mother-in-law is unable to institute the action in her personal capacity (as she is elderly and of ill health), and would therefore require you to do so on her behalf.

The first step would be to bring an application to the High Court, to be appointed as your mother-in-law’s curator ad litem (who is a person that litigates a matter on behalf of another person, who is incapable of representing themselves).

Once the High Court has appointed you as the curator ad litem, you may then apply for maintenance in respect of your mother-in-law against her two sons. If you cannot afford to appoint an attorney to assist you, there are several organisations which may assist you on a pro bono basis.

The criteria which must be present is a need on the part of the person to be maintained, and the ability to support on the part of the person from whom support is claimed. A parent who claims support from a child must prove his/her need and the child’s ability to support the parent. It sounds like you would succeed in this regard. In decided case law, it was stressed that the support of parents must be confined to the basic needs, which are food, clothing, shelter, medicine and care in times of illness.

Another option would be to consider placing your mother-in-law in a hospice, due to her deteriorating health, to ensure that she gets the necessary health care needed.

Kind regards,

Deborah Di Siena

Di Siena Attorneys

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