It starts off looking like many other post-divorce disputes over maintenance payments for the children. But the matter of JAL vs JL raises an important issue, with potentially wide-ranging impact.
It concerns L, the older child, and her tertiary education fees and related costs.
The parents’ divorce agreement stipulated that as long as the children were not yet self-supporting, both parents would contribute half of “all reasonable costs relating to the tertiary education of their major dependent children”.
But this was tied to a proviso: the children would have to “show the necessary aptitude, apply themselves with due diligence and make satisfactory progress in their chosen courses of study”.
In the father’s view, because L had not shown these qualities, he was unwilling to pay his share of the costs involved.
How should it be decided whether he was right?
The father’s lawyers said that because the mother claimed that L had met the test, she had to provide convincing evidence that this was so. The mother’s lawyers, however, said that as the father claimed L had not met the standard required, he should shoulder the legal burden of providing evidence of his claim.
“I hold a different view,” said judge Judith Cloete. In her view, the courts have to ensure that any dependent child of a marriage is properly catered for, and it is ultimately “the court’s duty, and not the obligation of either parent, to safeguard this, not only at the time of divorce, but also [for the future]”.
The facts about L’s academic achievement didn’t look good. She had dropped out of her first year of study. Then, given a second chance by her father, she had tried again in 2020, registering for a different course of study. Again, she failed to get good results — but during the year she was diagnosed with “generalised anxiety disorder”.
The mother had met with the head of the academic institution where L was studying, who agreed that L could start over and repeat her first year. The institution even “saw L’s potential and offered a reduced rate for her fees” in 2021. At the end of that year her marks had improved dramatically, ranging between 50% and 78%. And she achieved this despite a rediagnosis that concluded that she in fact has bipolar mood disorder.
According to the psychiatrist treating L, she had been “fully compliant” in taking her medicine, despite suffering significant relapses during 2020 requiring hospitalisation, medication changes and “extensive input”.
‘Debilitating effects’
Cloete said that in her view there was no difference between L’s situation and that of someone suffering a serious physical injury or other illness that might make them unable to complete their studies for a particular year.
“To view the position otherwise would be to ignore the very real, devastating and debilitating effects of a psychiatric illness and to inappropriately regard such an illness as having lesser importance and consequences than a physical injury or other debilitating condition,” she said.
To view the position otherwise would be to ignore the very real, devastating and debilitating effects of a psychiatric illness
— Judith Cloete
The judge was, as a result, persuaded on the objective evidence that, “despite the serious challenges which L has faced and will continue to face for at least the foreseeable future”, she has shown aptitude and diligence, and has made satisfactory progress in her tertiary studies.
This meant the threshold set by her parents in their divorce settlement was met, and the father was thus liable to pay his share of L’s tuition and related costs.
In the interests of proper disclosure, I must note that my own life was turned inside out by a family member’s bipolar disorder. But it was not just because of that experience that I believe the judge’s comments and findings are important and to be welcomed. Mental illness issues are seldom dealt with humanely in society, and the court’s comments and ruling on L’s situation offer an example of sorely needed compassion.
A couple of months ago, a judge, hearing a rape case involving a little girl, ordered that she be provided with counselling for several years to help her deal with the serious psychological impact of the assaults.
It’s in thoughtful decisions like these that the courts lead the way towards a kinder, better society.
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