The High Court in the Western Cape Division, Cape Town answered this question on 3 June 2024 in the judgment of RS v JPS & Others where it held that in certain instances, a duty of support that applies to a de jure adoption can be extended to a de facto adoption. In other words, in certain circumstances the legal consequences that follow a formal adoption (de jure adoption) may be extended to a child in foster care.

In this particular matter, the appellant RS was married to the first respondent, JPS from 1991 until the dissolution of their marriage in May 2019. During the course of their marriage, RS volunteered at the Heidedal Child and Youth Care Centre where she met an abandoned child, LX, who was born on 10 March 2012. At the time that RS met LX, the minor child was only 18 months old and still a baby; her biological parents are deceased leaving her orphaned. RS and JPS decided together to adopt LX who formed a parental bond with RS and JPS.

Following the decision to adopt, RS and JPS commenced the process of adopting LX through the Bloemfontein’s Children’s Court where they were advised by that court that they first needed to foster LX to monitor if they were suitable parents before the adoption could be finalised. Whilst the adoption process was pending, the court issued an order pursuant to the foster care and the parties became foster parents to LX with the intention of continuing the adoption process until completion. During this time, LX came to live with RS and JPS and the two undertook parental rights and responsibilities in respect of LX.

Unfortunately, before the adoption process could be completed, the marriage between RS and JPS broke down and divorce proceedings were instituted by JPS in February 2019. In the summons, JPS explicitly, inter alia –

  • acknowledged that a minor child is involved in the marriage with RS through the adoption process;
  • sought an order obliging him to pay maintenance of R5000 for LX until she reached 18 or became self-supporting. The maintenance was to be paid into RS’ bank account and subject to an increase of 5% per annum; and
  • sought an order declaring that he would be responsible for LX’s educational and medical costs.

Once the divorce was finalised, JPS acted in accordance with the wishes as set out above and discharged the duties of a father in his dealings with LX by continuing to pay maintenance. Despite the wishes set out in the summons as well as the recordal of both parties’ wishes in the settlement agreement, for reasons unknown to the court, the divorce decree did not incorporate the settlement agreement signed by the parties. Having realised this, JPS then stopped paying maintenance for LX in January 2023 which is why RS approached the court for an order obligating JPS to make payments of maintenance towards LX. Consequently, the issue to be decided by the court was whether JPS has a legal duty to maintain LX.

Having regard to JPS’ actions in relation to LX, the court held that it believed that JPS had de facto adopted LX and considered her as her own. Further, that the evidence showed –

  • he maintained a father-daughter relationship during the marriage and after the marriage was dissolved;
  • he committed to retaining his parental rights and responsibilities towards LX; and
  • he agreed, in the settlement agreement, that LX would primarily reside with RS and that he would have reasonable contact rights with LX.

Giving consideration to the best interest of the child as enshrined in the Children’s Act, 2005, the court held that it is unconscionable for JPS to renege from his representation to LX and RS and that JPS must be held to his promise and commitment. Consequently, JPS has a legal duty to maintain LX.

Despite the aforementioned ruling, the judge did caution that this judgment should not be construed to mean that the legal consequences flowing from a formal adoption can ordinarily be extended to informal adoptions as it were however in circumstances such as these where intentions were made and actions taken representing to the world that the child was being maintained by the foster father, a duty of support could be extended.

The judgment is a lesson to trustees sitting on a board of a pension fund, highlighting the importance of considering all relationships including in circumstances such as those presented in this matter when distributing death benefits.