Previously children born out of wedlock did not have the same privileges as those born out of married parents. Especially when we compare the rights children born to unmarried parents have in gaining access to the Family Advocate.
The Mediation in Certain Divorce Matters Act 24 of 1987 (“The Act”) provides that the Family Advocate can only deal with the best interest of a child born out of married parents with the intent to divorce. Consequently, it meant that children born out of unmarried parents were excluded from accessing the Family Advocate. This exclusion also impacted children born in unrecognized Hindu and Muslim marriages, as well as vulnerable groups such as single parents, teenage parents, and even concerned grandparents and other relatives.
In St v BN and Others, the court dealt with this provision. The case featured a South African couple who met overseas. While living abroad the two entered a relationship. As a result, two children were born out of the relationship. Hereafter the couple split up, but both parents moved back to South Africa and married new people. The woman wished to relocate to Australia and bring her children along. The father, who had regular contact with the kids as part of a parenting plan, had declined to give permission. The provisions set out in s4 of the Act dictate that the Family Advocate can only deal with children of married parents, so the mother was forced to go to court to get an order to compel an investigation and report back in the best interest of the children.
Formerly, unmarried parents would have had to go through a costly court application, rather than just fill in a form, as is the case when married parents divorce. This led to children being deprived of access to the office of the Family Advocate which was created to protect the best interest of the child. It further created ongoing discrimination against children of unmarried parents.
In assessing the merits of the case Judge Bezuidenhout stated Section 4 of the Mediation in Certain Divorce Matters Act, 24 of 1987, is declared to be inconsistent with the Constitution of the Republic of South Africa, 108 of 1996, and invalid. This provides that after the parliament has attended to amend the Act, unmarried parents together with the vulnerable groups such as single parents, teenage parents, and even concerned grandparents and other relatives, will now have the same rights as those who are married with the intention to divorce. These groups will now be able to access the Family Advocate in the best interest of the child.
Should you require any legal assistance in respect of access to the family advocate please do not hesitate to contact us.