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Balancing Rights of Parents: Constitutional Court’s Decision on Section 4 of the Mediation in Certain Divorce Matters Act

In a landmark decision, the Constitutional Court recently rendered a pivotal judgment for never-married parents and parents who are not going through a divorce. In the case of  Centre for Child Law v TS [2023] ZACC 22, the Constitutional Court confirmed the decision of the Gauteng High Court which declared Section 4 of the Mediation in Certain Divorce Matters Act 24 of 1987 unconstitutional and invalid.

Section 4 of the Mediation in Certain Divorce Matters Act

Before exploring the meaning of Section 4, it is important to mention that the Office of the Family Advocate is a state entity that investigates the best interests of children and it guides courts with reports and recommendations. These reports are not necessarily always legally binding, they are held in high regard by the courts and are always considered in decisions.

In terms of Section 4, the Family Advocate is automatically involved in cases where parental rights and responsibilities are contested during divorce proceedings. All they need to do is complete an Annexure B form (providing their case number or application number), the Office of the Family Advocate will then explore the matter further and thereafter furnish the court with a report on the best interests of the child. The parents do not need a specific court order to involve the Office of the Family Advocate in ongoing divorce proceedings.

However, parents who were never married or not going through a divorce did not have direct access to the Family Advocate. They first had to bring an application in the High Court wherein they requested that the court order the Office of the Family Advocate to explore the matter and produce a report. This meant that the Office of the Family Advocate only got involved when summoned by a court order.

Centre for Child Law v TS and Others

Mrs. TS and Mr. BN were in a romantic relationship that began in 2007. In August 2008, Mrs, TS moved to Oyonnax, France, to live with Mr, BN who was a professional rugby player there. Two children were born from their relationship in 2009 and 2011, however, the couple’s relationship started to deteriorate in 2012, and they decided to end their relationship in 2014. Mrs. TS and the children returned to South Africa. In December 2015, Mr. BN moved to George in the Western Cape.

Mrs. TS got married in February 2020 and she and her new husband had considered the possibility of emigrating to Australia with the children from her relationship with Mr. BN. However, Mr. BN did not support this idea and instead insisted that the children live with him. Mrs. TS then sought relief from the High Court.

In her application to the High Court, she sought an order directing the Office of the Family Advocate to explore the best interests of her minor children regarding their potential relocation with her to Australia and she also sought an order allowing her to permanently relocate to Australia with the minor children. Mr. BN opposed both parts of the application and filed a counter-application in which he had sought an order that his home be the primary residence of the minor children.

The High Court declared that Section 4 was not in line with the Constitution and was therefore invalid. This declaration had to be confirmed by the Constitutional Court.

The decision of the Constitutional Court

In the Constitutional Court, the Centre for Child Law brought the argument that Section 4 unfairly discriminated against parents who never got married and married parents who were not going through a divorce because it excluded them from accessing the services of the Office of the Family Advocate in the same manner as divorced or divorcing married parents. This case investigated whether this differentiation violated the rights to equality, human dignity, and the best interests of minor children as enshrined in the Constitution.

On the 29th of June 2023, the Constitutional Court confirmed the decision of the Gauteng High Court which declared Section 4 of the Mediation in Certain Divorce Matters Act 24 of 1987 unconstitutional and invalid. The Court argued that denying unmarried parents the right to approach the Office of the Family Advocate was discriminatory and also counter to the best interests of children born from unmarried parents.

The Constitutional Court also instructed Parliament to rectify the defects within 24 months, however, the decision of the Constitutional Court grants unmarried parents the immediate right to approach the Office of the Family Advocate by submitting an application along with Annexure B, wherein they are requesting an investigation.

The decision in this case is important for never-married parents and married parents who are not going through a divorce because it enables them to access the services of the Office of the Family Advocate in the same manner as divorced or divorcing married parents.

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Family law is an ever-evolving field. The assessment of the rights of parents, particularly those relating to their minor children, is under continual scrutiny and legal practitioners are tirelessly striving to eradicate any discrimination that could impact any parent or the best interest of their children.

Navigating family issues can be difficult. Our family law department has extensive knowledge and experience in dealing with a range of family matters in an empathetic and understanding manner.

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