Cape Town – The Constitutional Court is expected to make an order as to whether a section of the Divorce Act is unconstitutional in that it unfairly discriminates against children of married parents and those of unmarried parents in the manner in which their best interests are investigated by the Office of the Family Advocate.
The hearing is an application for confirmation of an order by the Gauteng High Court which held that section 4 of the Mediation in Certain Divorce Matters Act 24 of 1987 (the Act) is unconstitutional.
The Centre for Child Law (CCL) is the applicant in the matter for confirmation, and had entered as amicus curiae for Tamerin Schutte in the Gauteng High Court where Schutte sought, among others, an order directing the Family Advocate to investigate the best interests of her minor children with regard to their possible relocation to Australia, and in part B of her application sought for an order permitting her to relocate with the minor children.
The children’s father, Naude Beukes, opposed both applications and instituted a counter-application wherein he sought for his home to be ordered to be the primary residence of the minor children.
CCL submitted that the work of the Family Advocate was vital but for unmarried parents the process is “time-consuming and costly” and “unjustifiably infringes on several fundamental rights of both the parents as well as their child(ren”).
“There can be no debate that the Office of the Family Advocate performs a vitally important function in the adjudication of disputes between parents.
“A court, in fact, is generally loath to make a final decision in a matter affecting a child without the benefit of some or other intervention by the Office of the Family Advocate … the primary function of the Family Advocate is to protect the best interests of a child,” CCL submitted.
“The Family Advocate is staffed by specialists from a variety of child-oriented disciplinary backgrounds. This uniquely positions it to investigate and report on the circumstances of the child and the report provided by the Office of the Family Advocate often represents the only time that the child’s lived reality and views and wishes are presented in an unbiased, neutral, and child-centric way to the court,” CCL submitted.
In the Constitutional Court the CCL argued that the Family Advocate’s services are, in the case of divorcing or divorced parents, provided on-demand. The parent, when initiating proceedings or any time thereafter, simply completes a form that corresponds substantially to Annexure B of the Regulations made under the Mediation in Certain Divorce Matters Act (the Regulations) and the Family Advocate, in turn, and on receipt of such application initiates an enquiry in terms of section 4 of the Act.
The CCL argued that this simple, streamlined, and cost-effective procedure, however, is not available to unmarried or never-married parents therefore unfairly discriminating against unmarried parents and the children of those parents on the listed ground of marital status. The CCL submitted that this violates the right to equality, human dignity and the right of a child to have his/her best interests considered of paramount importance.
In ascertaining whether the differentiation bore a rational connection to a legitimate governmental purpose, the high court indicated that it used to and stated that the Family Advocate was established at a time “when divorce rates were increasing in South Africa, and there was an urgent need to protect the interests of children”.
However, the high court held that as a society, the institution of marriage in South Africa “is no longer a prerequisite for children to be regarded as legitimate.”
In declaring the impugned provision unconstitutional, the high court stated that there can be no legitimate government purpose for the differentiation based on marital status when it comes to the treatment of children.