Good day, 

My husband's ex wife remarried and her new husband formally adopted my husband's kids after a long and ugly divorce. Birth certificates, surnames etc all changed. He had no contact with them for about 8 years and paid no support either. In July this year, his ex contacted him and requested that his son (17) come to live with us as their relationship is very strained. (The step-father passed away a few years ago). His son moved in with us towards the end of July 2019 and we took over all expenses except for medical aid. There was nothing in writing about the arrangement though. End of September my husband passed away and both his son and ex wife asked if his son can stay on with me. I am now paying all his expenses. I have two concerns. 

1. Should I get anything in writing with regards to guardianship?

2. With the payout of my husband's RA, they now recognise his son as one of his dependents as he paid his expenses for 2 months and therefor a portion of the RA should be allocated to him. As he is still a minor, this portion however, will be paid directly to his mother's bank account. Which means I won't get the money, yet I am raising him and paying for everything. What do I do here?

Hi there and thank you for your question,

I am a practicing attorney based in South Africa and I will assist you with your question. Please feel free to ask as many follow up questions in order to clarify your question. If you have a new question, you must please open a new thread.

If your husband's ex-wife's new husband formally adopted your husband's kids, then your husband would have given up his parental rights in relation to the kids. That means that legally, he is no longer their parent. He might still be their natural parent - i.e. their father, but in law, No. That means that things like a duty of support no longer exist. 

Technically, what you guys are doing is no different to having somebody else's 17 year old boy living with you. 

If your husband has passed away, and you are bearing all of the expenses, that's not fair on you. 

You are not presently the boy's guardian. You actually have no family relationship with the boy at all. You don't need to get something in writing about guardianship, firstly, because the courts may not give it to you, and secondly, because it might not be necessary. If the boy needs anything signed (e.g. school application, university application, passport application, etc) then his mother must sign it.

What needs to happen is that the mother needs to deal with the boy's guardianship in her Will. That's IF you are happy that the situation continues - but then the mother should also leave money to you so you can continue to look after the boy IF the mother passes away. 

Re 2) This is a complicated situation indeed, because there is a risk that the mother simply spends the money instead of using it to look after the boy!

The easiest way to deal with this is for you to get the mother to agree, in writing, that the money be paid to you and that you will use it for the boy's benefit. You can then submit that letter to the RA company and get them to make the payment to you instead. 

Otherwise, if the boy is nearly 18 years old, you should try get the RA company to delay the payment until the boy turns 18, and then they can make the payment directly to the boy, or if he agrees, that the payment would be made to you instead. 

Otherwise, you will need to get the boy to withdraw his claim against the RA company on the basis that he doesn't want any money from your husband's RA policy. 

Unfortunately the RA company is entitled to make a payment to anyone who was dependent on the deceased. It does not need to be a family member. It could be anyone - so trying to argue that your husband had given the boy up for adoption and therefore the boy shouldn't get any money won't really help you. 

If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.

Att. Patrick

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