Divorce Article 8: The rights of children and the Family Advocate.

In our previous article, we considered the Domestic Violence Act 116 of 1998. In this article, we shall focus on the rights of children in divorce proceedings.  

In accordance with the Children’s Act 38 of 2005 (“the Act”), Section 9, “in all matters concerning the care, protection and well-being of a child the standard that the child's best interest is of paramount importance, must be applied”.

Furthermore, in terms of the High Court’s Inherent Jurisdiction, it shall act as the upper guardian of all minor children. The Act, at Section 45(4), provides as follows: “Nothing in this Act shall be construed as limiting the inherent jurisdiction of the High Court as upper guardian of all children”.

Therefore in divorce proceedings involving minor children, the Court must have regard to and protect the best interests of any minor children. The Act, at Section 7, proceeds to set out factors that must be taken into consideration where relevant in the determination of the standard of the best interest of minor children. This section is however lengthy and falls outside the scope of this article. It is suggested that due to its complexity an attorney is instructed to assist you. It is submitted that due to the Inherent Jurisdiction of the High Court Section 7 cannot be held to be all-inclusive.

Apart from the High Court’s duty to protect the best interests of minor children, both in terms of the Act and its Inherent Jurisdiction, the Mediation in Certain Divorce Matters Act 24 of 1987 provides the Family Advocate with limited statutory powers which are also used to achieve the protection of the best interests of minor children.

If an action for divorce has been instituted, or an application for the variation, suspension or rescission of an order made in terms of the Act relating to the custody, guardianship or access of any minor children if so requested by any party to such proceedings or the court concerned, the Family Advocate is to institute an enquiry to enable him to furnish the court at the trial of such action or the hearing of such application with a report and recommendations on any matter concerning the welfare of each minor or dependent child of the marriage concerned or regarding such matter as is referred to him by the court. Furthermore, the Family Advocate may, if he deems it in the interest of any minor or dependent child of a marriage concerned, apply to the court concerned for an order authorizing him to institute an enquiry contemplated above.

Any Family Advocate may if he deems it in the interest of any minor or dependent child of a marriage concerned, and shall, if so requested by a court, appear at the trial of any divorce action or the hearing of any application referred to above and may adduce any available evidence relevant to the action or application and cross-examine witnesses giving evidence thereat.

Please note that the involvement of the Family Advocate is of paramount importance in actions involving minor children as the Act, at Section 6(1), provides: “A decree of divorce shall not be granted until the court-

(a)   is satisfied that the provisions made or contemplated with 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; and

(b)   if an enquiry is instituted by the Family Advocate in terms of section 4 (1) (a) or (2) (a) of the Mediation in Certain Divorce Matters Act, 1987, has considered the report and recommendations referred to in the said section 4 (1)”.

***Kindly note that the contents of this article are intended for information purposes only and does not constitute legal advice. Please consult an attorney.

In our next article, we shall continue to focus on the aspects of guardianship, custody and access. Thereafter we shall focus on the issue of maintenance for minor children.