THE INTEREST OF CHILDREN IN DIVORCES

 The Preamble to The African Charter on the Rights and Welfare of the Child (of which South Africa is a signatory) provides ‘the child should grow up in a family environment in an atmosphere of happiness, love and understanding’. Article 4(1) of the Charter provides that ‘in all actions concerning the child undertaken by any person or authority, the best interests of the child shall be the primary consideration’. Article 4(2) further provides that ‘In all judicial or administrative proceedings affecting a child who is capable of communicating his/her own views, an opportunity shall be provided for the views of the child to be heard either directly or through an impartial representative as a party to the proceedings, and those views shall be taken into consideration by the relevant authority in accordance with the provisions of appropriate law’.

In terms of the Children’s Act 38 of 2005, a child is defined as a person who is under the age of 18 years. The court views the rights of children of paramount importance and for this reason the well-being and stability of children should always be safeguarded. Section 6(1)(a) of the Divorce Act 70 of 1979 stipulates that a court will not grant a decree of divorce until it is satisfied that the welfare of any minor or dependent children of the marriage are reasonable or are in the best interests of the child in the circumstances. Sections 19 and 20 of the Children’s Act provide that both parents have equal rights and responsibilities in respect of the children. Upon separation, both parents must decide which parent the children will live with on a permanent basis and which parent the children will live with on a temporary basis. The parents will also have to decide what the contact rights of the parent of temporary residence will be. Essentially both parents will have full capacity to care for their children after the divorce.

 All the children born from the parties to a divorce matter must be mentioned in the divorce summons and such children include the biological or adopted children of the parties jointly, whether the children were born or legally adopted before or during the marriage relationship. Where there are minor children from marriage, the divorce summons must adhere to and refer to the following provisions of the Children’s Act:

  •  section 6(5) of the Act – a child who has reached an age of maturity and stage of development and a person who has parental rights and responsibilities in respect of the child must be notified of the matters that will significantly affect them;
  •  section 10 of the Act – the express views of every child who has reached an age of maturity and a stage of development to participate in any matter concerning them should be taken into consideration;
  •  section 18(2) – provides the definition of parental rights and responsibilities which include the following: to care for the child; to maintain contact with the child; to act as guardian of the child; and to contribute to the maintenance of the chid (this will include minor and dependent children over the age of 18 years).

 The children caught up in a divorce situation are often the ones who suffer the most psychological hardships and therefore parents should always ensure their wellbeing and make decisions that are in their best interests. Stability in a child’s life guarantees a productive individual within society.

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