Who is obligated to maintain a child?
Section 47(1) of the CCGMA, imposes an obligation on certain categories of persons to maintain a child to the extent of the person’s capabilities. The section states as follows:
‘For the purposes of this Act, a person has an obligation to the extent of the person’s capabilities to maintain —
(a) the person’s own child;
(b) each child of the person’s spouse, where such child—
(i) was born prior to the marriage; AND
(ii) resides with them as a member of the family;
(c) each child of the person with whom the person cohabits, where such child—
(i) was born prior to the commencement of the cohabitation; AND
(ii) resides with them as part of the family;
(d) a child who is treated as a child of the family; and
(e) each child of any children the person has, in the event of the parents of those children failing to do so.’
The categories, therefore, include the child of a person’s spouse where that child was born prior to the marriage and resides with them as part of the family.
For instance, in Snow v. Snow [1971] 3 All ER 833, at the time of the wife’s marriage to her husband, the wife had two out-of-wedlock children for someone else. At the time of the marriage and subsequent to it, the husband took parental control of the children, disciplined them, and maintained them. The husband had made claims for allowances in regard to the children for tax purposes and referred to them as his stepchildren. The wife subsequently left the husband and applied to the court for maintenance on the ground that the husband had willfully neglected to maintain her and the two children of the family.
The husband argued that the children were not children of the family as the wife had taken them out of his control, therefore, he should not be legally bound to maintain them. The court held that if a child was unconditionally accepted by both parties as a child of the family at the time of the marriage, it was irrelevant what occurred subsequently. The husband’s appeal against an order being made against him for the benefit of the children was therefore dismissed by the English Court of Appeal.
Further, it is important to note that once a married woman gives birth to a child, there is a presumption that, because she is married, the husband is the father of the child. Unless the presumption is rebutted, the husband has a duty to maintain that child even though the child may not be his biological child. However, if the husband fathers a child outside of the marriage, there is no duty on the wife to maintain that child.
The wife’s duty to maintain children born to her husband only takes effect where the child was born before the marriage and resides with the family as a part of the family. Additionally, under this limb, if there was a child born before the marriage who does not reside with the parties as a part of the family, there would be no duty on the wife to maintain that child. The position is the same with respect to any child born to the wife prior to the marriage who does not reside with the parties.
Notably, the section applies also to persons in common-law unions.
