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The Views of the Child in Divorce and Separation Cases


The Children’s Act 38 of 2005 (the Act) makes provision for divorcing parents to give consideration to the welfare of their minor children during divorce proceedings. The Act gives both parents full parental responsibilities and rights in relation to a child subject to specific exceptions provided for in the Act. The preamble to the Act states that give effect to certain rights of children as contained in the Constitution, sets out principles relating to the care and protection of children and defines parental responsibilities and rights’. A great deal of relevance has been placed on the involvement of children in decisions regarding parental responsibilities and rights that affect them. ​

​The following two cases dealt with the views of the child:

AC v ADT 
[2015] JOL 33077 (GJ)

Parent and child – Access to child

The battle between the parties over the applicant’s access to his child had a 12-year-long history. The father had relentlessly sought assistance from the Court to gain access to his minor daughter and the mother had frustrated the father’s every effort to gain such access to the child. The mother referred to the violent nature of the father in justification of her refusal to have the father gain access to the child. However, the father was comprehensively assessed by a clinical psychologist, whose professional opinion was that no reason existed to deprive him of access to his daughter. On the other hand, the mother had consistently refused the father’s requests to attend consultations with psychologists.

As the best interests of the child is paramount, it is mandatory that due regard and due consideration be given to any views and wishes expressed by the child. The child in this matter was now 16 years old. The Court found that fear and anxiety expressed by the child has been created by the mother. The Court sits as upper guardian in the protection of the best interests of the minor child. It was in the best interests of the child to at least attempt establishing meaningful contact with the father, without the rights of the father being deliberately frustrated by the mother. An order facilitating that objective was issued.
 
CRI (born B) v MRI 
[2013] JOL 29946 (ECG)

Divorce – Access to children

The parties in this matter were embroiled in divorce proceedings. In a rule 43 application brought by the applicant (mother), the applicant was appointed as primary carer of the children, and awarded her pendente lite custody of the children, subject to the condition that the respondent be allowed contact with them. The parties were not able to agree on how the respondent’s (father's) right to contact would be exercised, and he now sought an order defining that right.

In terms of section 10 of the Children’s Act 38 of 2005, the Court had to give due consideration to the views expressed by the minor children if they were of an age, maturity, and stage of development to be able to meaningfully participate in the proceedings. Their views however, had to be considered in the context of the fact that they had been in the applicant’s sole custody for more than two years, and that during that period they had not had any contact with their father.
​
The Court found that the respondent should be allowed to see his children and granted supervised contact, as defined in the order.

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Contact Details

BERTUS PRELLER
​MAURICE PHILLIPS WISENBERG

20th Floor, 2 Long  Street, Cape Town, 8001, South Africa
Telephone: +27 21 419 7115


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Email: familylaw@mpw.co.za
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  • Home
  • Divorce
    • The Divorce Process in South Africa
    • Rule 41A Mediation
    • The Marital Property Regimes >
      • Marriage in Community of Property
      • Marriage out of community without accrual
      • Marriage out of community with the inclusion of the accrual
      • Universal Partnerships
      • Register Antenuptial Contract Online
      • Changing your matrimonial regime.
    • Division of Assets at Divorce >
      • Forfeiture of Assets in a Divorce
    • Evicting your spouse divorce
    • Retirement Funds and Divorce
    • Living Annuities
    • Hiding Assets in a Divorce
    • Trusts and Divorce
    • Divorce a Missing Spouse
    • Adultery and Suing a Third Party
    • Domicile in Divorce Cases
    • International Divorces in South Africa
    • International Divorce Law >
      • UK Divorce Laws
    • Choosing a Divorce Attorney
    • On-line Divorce
    • Lawyer Fees and Costs
    • Important Aspects of a Divorce
    • Dealing with Emotions During Divorce and Separation
    • Divorce Statistics
    • Divorce Therapy and Counselling >
      • Marriage and Relationship Therapists
    • Rebuilding Your Financial Life
    • Divorce Attorney Cape Town
    • Divorce Polls
    • Ingredients of a successful relationship
    • Uncontested Divorce
    • Uncontested Divorce - What Happens on the Court Day?
  • Maintenance
    • Maintenance Child COVID19
    • Spousal maintenance
    • How to calculate Child Maintenance?
    • Maintenance Defaulters
    • What Happens if you don't pay child maintenance
    • Child Maintenance Frequently Asked Questions
    • Rule 43 Interim Maintenance Pending Divorce >
      • Can I appeal a Rule 43 Order
      • Apply for Costs in Rule 43
      • Financial Disclosure Rule 43
      • Rule 43 Maintenance
    • The Maintenance Manual
    • Grand Parents and Maintenance
  • Children
    • Custody and Coronavirus
    • Relocation and Child Abduction >
      • International Child Custody Law South Africa
      • Tips on international child custody
    • Unmarried Parents and the Law
    • Parenting Plans >
      • Conflict and dispute-resolution mechanisms
    • The non-custodian parent and contact
    • Appointing a Guardian in a Will
    • Introducing a new partner to your child
    • Refusal of Contact
    • Suspending Parental Rights
    • Parental Alienation
    • Facilitation
    • Living Arrangements
    • Joint decisions about your child
    • Paternity Disputes
    • The Family Advocate
    • Parenting during separartion
    • Children's Act 38 of 2005
  • Abuse
    • Gender Based Violence in South Africa
    • Domestic Abuse Forms
    • Domestic Violence Corona Virus
    • Divorcing an Abusive Spouse
    • What is Coercive Control?
    • What is Emotional Abuse
    • What is Sexual Abuse
    • What is Financial Abuse
    • What is Stalking
    • What is Verbal Abuse
    • What is Spiritual Abuse
    • What is Social Abuse
    • Revenge Porn
    • Steps to obtain a Protection Order
    • Domestic Violence eBook
    • The Protection Order
    • Who Qualifies for a Protection Order
    • Breaching a Protection Order
    • Questions on Domestic Abuse
    • Signs of an Abusive Relationship
    • Domestic Violence Information
    • Harassment
  • Cohabitation
    • Maintenance and Cohabitation
    • Sample Cohabitation Agreement
    • Engagement and the law
    • Formalities for marriage in south africa
  • Same Sex
  • Family Law eBooks
  • Family Law Links
    • The South African Court System
    • Court Rolls
    • Family Law Legislation
    • Family Law Blog
    • Family Law Newsletter March 2017
    • September 2016 Family Law Newsletter
    • Family Law Newsletter 2017 1
    • New Family Law Cases
    • Family Law Matters
    • Register for the Online Family Law Course
    • Online Family Law Education
  • About the Author
  • Contact
  • Charities