Lectures 9 and 10

7.7. Parental Responsibilities and Rights at Divorce

7.7.1. Introduction

When the parents of children get divorced, the break-up may have serious and long-
term consequences for the children. While the principles discussed in the previous
paragraphs may also be applicable in the divorce process, the law has introduced
special measures to ensure the protection of the interests of children after divorce.
The most important measures can be found in the Divorce Act and the Mediation
in Certain Divorce Matters Act 24 of 1987.

A) Divorce Act: Section 6

court granting a decree of divorce may make the following orders with regard to a
minor or dependent children:

1. A custody order or an order for sole custody

2. A guardianship order or an order for sole guardianship
3. An order regarding access
4. An order for maintenance

It must be noted that the common law terms “custody” and “access” are still
employed in the divorce act. These terms must of course now be interpreted as
provided for in section 1(2) of the children’s act as explained in paragraph 7.3.

The court may make any order which it may deem fit. The best interests of the
children remain the overriding consideration in any order made. The Divorce Act
also provides that the court may not grant a decree of divorce unless-

1. It is satisfied that the provisions made or contemplated with regard to

the welfare of any minor or dependent child of the civil union are
satisfactory or are the best that can be effected in the circumstances;
and
 2. If an enquiry is instituted in terms of the Mediation in Certain Divorce
Matters Act, the court has considered the report and recommendation
of the Family Advocate.

b) Mediation in Certain Divorce Matters Act

 Thi
s act was the first official step toward introducing mediation in Family Law
proceedings. However, despite its title, the act does not really make provision for
mediation services in divorce matters. The Office of the Family Advocate
investigates the circumstances of children involved in divorce proceedings
with the aim of making recommendations to the court. The Family Advocate is
assisted in its task by so called Family Counsellors who may be appointed by the
Minister. Family Counsellors are appointed from the corps of social workers,
clinical psychologists, psychiatrists, educationalists, church leaders, etc. the
enquiry is instituted if any party of the court requests the Family Advocate
to conduct the inquiry. If the Family Advocate has not been requested to institute
the inquiry, the Family Advocate may apply to a court concerned for an order
authorising the office to institute the enquiry. In Van Vuuren v Van Vuuren the court
held that the Family Advocate should institute an enquiry in terms of the Act in the
following instances:

1. Where there are serious problems with regard to contact

2. Where there is an intention not to grant care of young children to the
mother
3. Where there is an intention to separate the children
4. Where there is an intention to grant care of the child to someone other
than the parents.
5. Where there is an intention to make an arrangement with regard to care or
contact which is prima facie not in the interests of the child.

The report of the family advocate should contain balanced recommendations and
may not choose sides or be prescriptive to the court. In Soller v G the court
described the role of the Family Advocate in the following terms:

“The family advocate provides a professional and neutral channel of

communication between the conflicting parents (and perhaps child) and the
judicial officer. The legal practitioner (appointed on behalf of the child in terms
 of section 28(1)(h) of the constitution) stands squarely in the corner of the child
and has the task of presenting and arguing the wishes and desires of that child.”

Mediation is increasingly being introduced into Family Law proceedings as a more

appropriate method of dispute resolution. The SALRC is in the process of
finalising legislation to provide for the appropriate resolution of family
disputes in the form of a Family Dispute Resolution Bill (2019). The objects of
the proposed legislation include allowing the voices of children and parents to be
heard, reducing legal costs and expediting the resolution of family disputes.

7.7.2. (Re-) assignment of parental responsibilities and rights at divorce

It is generally accepted that it is in the best interests of children that their parents
should retain full parental responsibilities and rights after getting divorced.
In practice this means that both parents will commonly still have guardianship,
care and contact in respect of their children after their divorce. If a parent is
vested with “care” it includes the right to decide where the child is to reside. The
Children’s Act has not created a separate term to denote physical care. Courts
now frequently make use of the term “primary caregiver” or “primary residence”
to indicate with which parent or where the children will reside. The other parent will
then have the right to contact with the children.

Divorcing parents commonly agree on a parenting plan to regulate how they will
exercise their parental responsibilities and rights after divorce. This parenting plan can
be incorporated in the divorce settlement and made part of the divorce
order to give it the force of law.

Since it rarely happens that a divorce court will interfere with the guardianship vested
in the parents, the next paragraphs will focus on the granting of care and contact in
the time of divorce.

a) Care orders

It has been mentioned above that a decree of divorce will not be granted until
the court is satisfied that the provisions made or contemplated with in regard
to the welfare of any minor or dependent child of the marriage are satisfactory or are
the best that can be effected in the circumstances.

While the court will usually leave both parents with the responsibility and right to care
for their children, the court may decide to deprive one parent of his or her right
and make an award of “sole care” to the other parent. If the court has to make
such a decision or decide on a primary care-giver it will inquire into the
circumstances of the children to decide what is in their best interests. For
this purpose, the factors listed in section 7 of the children’s act will be taken into
consideration. Although not the only factors that will be considered, the following
factors are deemed worthy of special mention:

i) Nature of the personal relationship between child and parent and capacity
of the parent to provide for needs of the child

In the past it was generally accepted that mothers should be granted the physical
care of their children because mothering was deemed a component of a
woman’s being alone. The court in Van Der Linde v Van Der Linde rejected the
so called “tender-years” or “maternal-preference” rule, holding that-

“the concept mothering is indicative of a function rather than a persona

and this function is not necessarily situated in the biological mother… Mothering
is not only a component of a wife but also forms part of the father’s
being”

Despite the rejection of this rule, the court nevertheless deemed the application of the
maternal preference rule as a useful point of departure, in particular where
young children were involved. The court, however, warned that the preference of
the mother as the primary caregiver could not serve as a “universally valid axiom”.
In Ex parte Critchfield the court held that the fact that the mother gave birth to the
child could be considered a factor, but that it was unfair discrimination in terms of
the Constitution if the court attached excessive and improper weight to it
when the decision regarding care was made. The rejection of the assumption
that mothers make better caregivers is, according to Heaton and Kruger, in
accordance with the equality clause of the Constitution as well as the child’s
constitutional right to “parental care” which is not limited to maternal care.

ii) Need for child to remain in care of parent, family and extended family to
maintain connection with family

Prior to the enactment of section 7, a component of this factor was described in

McCall v McCall as the desirability or otherwise of keeping siblings together.
The court in Van Der Linde v Van Der Linde held that, all things being equal,
siblings should not be separated unnecessarily. The reason given was that siblings
who experience the trauma of divorce tend to form a bond with one another
that gives them a feeling of security against the “onslaught from the outside”.

iii) Consideration of the child’s gender

In the McCall case the court discussed the desirability or otherwise of applying the
doctrine of same-sex matching. In terms of this factor the court should investigate
to what extent it is better for girls to grow up with their mothers and for
boys to grow up with their fathers. According to the court in McCall:

“It is based upon the premise that boys as they grow older should be placed
with their father. It is a well-established proposition. In my view it is of particular
application here. Rowan is, so to speak ripe, for his father. He needs a masculine
environment, including the discipline that his father will provide. With his
mother Rowan is in an all-female environment, his mother, his sister, his
grandmother and to a lesser extent his aunt”

iv) Taking wishes of the child into consideration

This is a very important factor mentioned in section 10 of the Children’s Act. The
child’s preferences should be taken into account if the court is satisfied that the child
has necessarily intellectual and emotional maturity to give an accurate
expression of his or her feelings.

b) Contact orders
Where one parent is made the primary caregiver, the court will usually make
a contact order in favour of the other parent. The parent who is not the primary
caregiver has a right to reasonable contact with the children born from a civil
union. A contact order is aimed at maintaining the relationship between the
parent and the child. It is generally accepted that the more extended the right,
the greater the benefit for the child (and parent). The court may deprive a
parent of contact only if it is deemed in the best interests of the child.

In Van Rooyen v Van Rooyen a case decided before the constitutional era, the court
held that children should be protected from the “confusing signals” resulting from the
homosexual behaviour exhibited by a parent. The court in this case decided to
limit the homosexual parent’s right of contact in specific and detailed terms.
After the adoption of the Bill of Rights, the court in V v V criticised that choice and
held that in view of the equality clause it is legally wrong to describe
homosexual orientation as abnormal. In Ex parte Critchfield the court argued
that in the case of both care and contact orders the court should not be too
concerned with the sexual preference of the parties. Homosexual encounters
should in the opinion of the court not be seen in a more serious light than adulterous
flirtations. However, when sexual preferences of a parent pose an actual or
potential threat to the welfare of the minor, the court should consider the
impact thereof on the children. The court held in such a case the best interests
of the minor children should take precedence over the right of the parent
not to be discriminated against based on his or her sexual orientation. In the
sequel to the Van Rooyen case, the court described the order in the original case as
“clearly constitutionally untenable”