When getting divorced a person might think that the divorce is only between him or her and their (soon-to-be-ex) spouse, but in most cases there will be more than two parties to the divorce: the children are also party to any divorce. Legislation makes specific provisions as to how divorces where minor children are involved are to be dealt with – especially with regards to the determination of the best interests of the child. To understand what “the best interests of the child” entails, you first have to go back in history…
Background
Many years before the enactment of current Child Law legislation the South African courts were faced with the question as to what might be in the best interests of the child at the time of divorce.
In 1947 already the court held that the consideration of which parent would be best suited to care for the bodily well-being of the child and also which parent would best guide and control the child’s development should play a decisive role in custody disputes. A year later, in 1948, the courts, for the first time, mentioned that the best interests of the child should be a “main consideration” in matters concerning a child, although they did not elaborate on what the best interests of the child may be.
In the years that followed the courts held that the primary consideration when determining the best interests of the child should be that the child should feel loved and later on the courts also held that the best interests of the child applies to the child’s social and spiritual development. The courts even went as far as to state that the best interests of the child were “the golden thread that runs through the whole fabric of the South Africa law relating to children”.
In 1994 the courts eventually created an open-ended list of a factors to aid in the determination of the best interests of the child. The list comprised of 13 factors, but the courts were free to consider any other factors they deemed relevant in the situation before them. In 1996, with the enactment of the Constitution, a shift in the way the best interests of the child are viewed came about.
The “best interests”-principle and Legislation
The Constitution, in section 28, makes it abundantly clear that the best interests of the child are of paramount importance in all matters relating to children.
Section 6 of the Divorce Act also deals with the best interests of the child by providing that a court may not grant a decree of divorce before the court is satisfied that the provisions made for the welfare of any minor child are satisfactory.
The Children’s Act is currently the Act when it comes to children. This Act enforces the Constitution’s view that the best interests of the child are of paramount importance. The Act contains a list of 14 factors to be taken into consideration, but unlike the 1994-list, this list is closed and it would seem that the courts may only take the 14 factors in the Act into consideration.
The “who’s” and “how’s” of the determination of the best interests of the child at the time of divorce
As stated above, the Divorce Act makes it clear that no decree of divorce may be granted until the court is satisfied with the provisions made for the welfare of the child, but now the following questions may arise:
Who determines the best interests of the child?
How is the best interests of the child determined?
The offices of the Family Advocate determines the best interests of the child. This institution was brought into existence specifically for this purpose, is a neutral institution and cannot act as a representative for either party to the divorce. Their offices are situated in one or more location in each province.
Answering the question as to “how” the Family Advocate determines the best interests of the child requires a little more explanation. Firstly, one of the parties, usually the party instituting divorce proceedings, is required in terms of the Mediation in terms of Certain Divorce Matter Act to complete a form that accompanies certain documents to the offices of the Family Advocate.
The two forms that are used most often are:
1. Annexure “A” – This form is usually used where the parties reached a settlement during the divorce proceedings and requires the person to complete the form to set out the arrangements that were made relating to the minor child. This form will accompany the Summons and Settlement Agreement, if any, to the offices of the Family Advocate and the matter is decided on the papers, in other words, a party will not be required to go the offices of the Family Advocate to explain any allegations contained in the papers.
2. Annexure “B” – This form is used where a party requests a formal enquiry to be conducted by the offices of the Family Advocate and is usually used where a party may have concerns regarding, for example the children’s safety, when it comes to the other party. The Family Advocate will arrange for an interview with both parents and all children whereafter he or she will write his or her recommendations in a report.
Now Annexure “A” or “B” has been delivered to the Family Advocate, what now? In the case of an Annexure “A” enquiry, the Family Advocate, if satisfied with the provisions made for the child, will endorse the documents and the matter may be placed on the court roll for finalisation. Like mentioned above, in the case of an Annexure “B” enquiry, the Family Advocate will write a report containing his or her recommendations as to what might be in the best interests of the child. These documents are then presented to the court, who is obliged to consider the recommendations of the Family Advocate.
For interests’ sake, the Mediation in Certain Divorce Matters Act contains another annexure, Annexure “C”. This annexure is used by the Family Advocate to request an enquiry into the best interests of the child.
What is meant with “provisions made for the minor child”?
The provisions made for the minor child usually relates to the following to name but a few:
Where the child will reside after the divorce i.e who will care for the child (before the enactment of the Children’s Act this was referred to as “custody”);
When will the party with who the children are not residing have contact with the children (This was referred to as “access” before the enactment of the Children’s Act); and
What amount of maintenance will be paid to support the child.
These provisions can be contained in the Summons, or if the parties came to an agreement, in the Settlement Agreement. The Settlement Agreement will be made an order of court upon the finalisation of the divorce and will be binding upon both parties.
What is mediation and why is there so much talk about it these days? Do I have to mediate before getting divorced?
Mediation can loosely be described as a negotiation between the parties involved in the divorce proceedings, initiated by a neutral third party with the goal to reach an agreement between the parties.
The Legislator is currently attempting to implement mediation is a mandatory step in resolving civil matters between parties.
At this time there is no obligation on parties to a divorce to mediate the matter, although it might speed up the process and prove to be more cost effective than a longwinded trial. Currently, the Children’s Act provides that mediation will be mandatory in only 2 instances:
1. Where a dispute arises regarding the parental responsibilities and rights of unmarried fathers; and
2. When parties are preparing parenting plans.
Conclusion
A court must be satisfied that the best interests of the child takes precedence and is obliged to consider the recommendations of the Family Advocate, or may even request an enquiry to be conducted.
It can therefore be said that the “unofficial party” (or parties) to the divorce might also be the most important party and the party in need of the most protection.
By Sanet Strydom