Pretoria - The outdated law that gave the children of married couples more rights than those of unmarried couples has been declared unconstitutional.
The groundbreaking judgment for children’s rights was made by the high court in Johannesburg.
Under the ruling, the Mediation in Certain Divorce Matters Act of 1987 is unconstitutional. This act relates to the process of approaching the Office of the Family Advocate in family disputes involving children.
In most matters involving children the courts will require a report from the Family Advocate to ascertain what is in the best interest of the children, before the court makes a ruling that affects the children.
Under the outdated act, married couples simply submitted the required form to the Office of the Family Advocate, which would then conduct an investigation into the circumstances of the family and subsequently submit its recommendation to the court.
However, parties who have never been civilly married have a different path to follow as the Office of the Family Advocate, under the act, will not become involved without a court order directing it to do so.
Unmarried parties first had to approach the court for permission that the Family Advocate could investigate their circumstances and report back to the court. It was said that the process took long and parents had to incur additional legal costs by first obtaining a court order.
Acting Judge Franciska Bezuidenhout found that provisions of the act discriminated against the children of unmarried parents and that it was inconsistent with the Constitution.
“There can be no legitimate government purpose for this differentiation based on marital status when it comes to the treatment of children. Such discrimination cannot be justified, cannot be in the best interests of children,” the judge said.
While the Constitutional Court has to confirm the order at a later stage, the judge gave Parliament 24 months to change the wording of the act so that it included unmarried parents.
The application was sparked by the unmarried parents of a 11-year-old girl and her 13-year-old brother.
The couple became separated and the mother eventually wanted to move to Australia with her two children. The father refused and wanted custody.
They turned to court in the first step of the proceedings, to obtain permission for the Family Advocate to investigate what was in the children’s best interests. The judge said the family’s story was all too familiar.
“The harsher reality about stories of this kind is that parents have the choice to move on, but children do not … This happens to children whether or not their parents were ever married or once married, but divorced.”
The judge said that if there were so many commonalities in the lives of the children, why then did the law require parents of children of non-married couples to embark on a different process than that of children whose parents were married?
The judge said that was not a justifiable differentiation.
She said the category of unmarried parents naturally would include a large number of persons who elected not to be married for many and varied reasons, often economic, cultural, religious or social, or simply subscribing to a different belief system.
As things stand, this will also exclude Hindu and Muslim marriages.
It was conceded by the Family Advocate that the act discriminated against unmarried parents, including unmarried fathers, and that the act was outdated,
The Centre for Child Law, which entered the proceedings as a friend of the court, submitted that the judicial requirement imposed on unmarried parents to first obtain a court order before the office of the Family Advocate could conduct an investigation, violated several fundamental rights and, most importantly, those of the children involved.
Pretoria News