
Reprinted from Business Live, by Tauriq Moosa – 2023-07-03
Divorce mediation act declared unconstitutional in case involving rugby player and former partner who wants to take their children to Australia
A law that doesn’t give unmarried parents the same access to the family advocate as married ones has been declared unconstitutional by the Constitutional Court.
While married parents are able to easily access the services of the family advocate, which assists in family disputes, unmarried ones can’t.
The family advocate is an important office that assists families instituting legal proceedings affecting children regarding issues such as emigration. It serves to protect the best interests of children by investigating the homes, using social workers to interview parents and the children before reporting its findings directly to a court.
The Constitutional Court ruled on Thursday that the Mediation of Certain Divorces Matters Act (Mediation Act), which governs access to the family advocate, differentiates between married and unmarried parents and is therefore unconstitutional.
The case arose from a 2020 dispute between a French-based rugby player and his former partner, whose names were redacted on court papers. After the couple separated the mother wanted to take their two children to Australia when she decided to emigrate there with her new husband. The rugby player opposed the move, prompting the mother to approach the high court.
She asked the Johannesburg high court to order the family advocate to investigate the best interests of the children regarding the relocation.
Acting Johannesburg high court judge Franciska Bezuidenhout found that the act differentiates between parents based on marital status. Unmarried parents, she said, “have a different path to follow entirely” from married ones, requiring a court order before the family advocate will be involved.
Arbitrary distinction
Bezuidenhout said this distinction “[appears] arbitrary”.
Due to the constitutional challenge to legislation involving children, the court received input from CCL and the minister of justice, which oversees the family advocate.
CCL and the mother argued the distinction is arbitrary, and unmarried couples thus have to spend more money and time to get the same result married parents obtain easier.
The rugby player argued that the differentiation between married and unmarried is not unlawful, because it arises from couples deciding not to get married. The minister mainly said the act is outdated and a differentiation does exist.
Bezuidenhout declared the act unconstitutional in 2022.
If a high court’s judgment affects legislation, it must go to the Constitutional Court for confirmation. The apex court has the final say in declaring legislation unconstitutional.
The rugby player did not strictly oppose the ruling but made argument to assist the court in seeing the matter from a different perspective.
Parental responsibilities
The act was enacted “when discrimination against unmarried parents and their children was ubiquitous”, Tshiqi wrote. “There was also no protection afforded to unmarried partners in any form of relationship.”
The act “ignored” unmarried parents “have disagreements about parental responsibilities”, precisely the area in which the family advocate is supposed to assist. The act also ignores that previously married parents could be separated for some time before disagreements arise.
She accepted the minister’s concession that “no purpose” is served by differentiating between married and unmarried parents. She also dismissed the rugby player’s argument that, because couples decide not to get married, they should be denied easier access. Tshiqi said this “notion that the rights of parties who get married should be elevated above those of people who do not conclude marriages” holds no legal water due to recent Constitutional Court judgments.
Even though it is open to use another section of the act, this still indirectly discriminates based on marital status, Tshiqi ruled. Therefore the section differentiating between married and unmarried couples is unlawful.
The minister was ordered to pay CCL’s costs.
You need an excellent family lawyer
At Cape Town Divorce Attorneys, we’ve helped many parents navigate the difficult scenario of relocation after divorce or relationship breakdown. Whether you and your child’s other parent were married or not, we can help you relocate to another province or country. We can also help if the other parent wants to relocate internationally and you want to contest the case. It’s important at all costs not to abduct the child. Contact Cape Town attorney Simon Dippenaar on 086 099 5146 or email sdippenaar@sdlaw.co.za to discuss your case in confidence. We are also in Johannesburg and Durban.
Further reading:
- Unmarried South Africans and maintenance – what the law says
- Stepparents and their obligations towards their stepchildren
- The role of the social worker in family law
- Contested international child relocation
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