Cape Town - The Constitutional Court yesterday reserved judgment after hearing an application from the Centre for Child Law wanting it to confirm that it is unconstitutional that a Family Advocate’s report on the best interests of children is not required if unmarried parents split up.
In a landmark ruling in February this year, the High Court sitting in Pretoria declared the law giving the children of married couples more rights than those of unmarried couples to be unconstitutional and outdated.
That application was sparked by the unmarried parents of an 11-yearold girl and her 13-year-old brother.
The parents, both South African, met in 2007 when the man was in Knysna on holiday from France, where he was living and working.
Their romantic relationship developed and she moved back to France with him and both children were born in France. However, their romantic relationship ended in June 2015 and he agreed that she could return to South Africa with the children.
She eventually met and married someone else and she and her now husband were considering the possibility of emigrating. The father, however, was unhappy with this plan and wanted custody of the children.
The mother launched a two-part application in the High Court, seeking an order directing the Family Advocate to investigate the best interests of her children with regard to their possible relocation to Australia.
In Part B, she sought an order permitting her to relocate to Australia with the children.
The father opposed both parts of the application and lodged a counter-application, seeking an order that his home should be the primary residence of the children.
In September 2021, acting High Court Judge Franciska Bezuidenhout raised the constitutional validity of section 4 of the Mediation in Certain Divorce Matters Act.
She said the section appeared to make an arbitrary distinction between the children of married, or formerly married and divorced parents, and children whose parents had never been civilly married, so was therefore inconsistent with the provisions of the Constitution and the Children’s Act.
Under the outdated act, married couples simply submitted the required form to the Office of the Family Advocate, which would then conduct an investigation into the circumstances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 in the case of unmarried parents, the Family Advocate cannot become involved without a court order directing it to do so.
In her ruling, Judge Bezuidenhout agreed and said the couple’s story was all too familiar.
“No doubt, the mother and the father had hopes of a love story that would never end. Marriage was not a prerequisite to these dreams and hopes and this love. Married or not, what matters is that they fell in love, had children and later fell out of love – like some married couples do.”
Judge Bezuidenhout said the even harsher reality about stories of this kind was that parents had the choice to move on, but children did not and found themselves torn between two separate households.