The Constitutional Court has ordered Parliament to revise Section 4 of the Mediation in Certain Divorce Matters Act 24 of 1987 to ensure equal access to the office of the family advocate by children, regardless of their parents` marital status. The case stems from a legal dispute between two former lovers who share two minor children. Their legal dispute over their children reached the Constitutional Court after the mother challenged the constitutionality of section 4 of the act.

The Constitutional Court has confirmed a Gauteng High Court ruling which declared Section 4 of the Mediation in Certain Divorce Matters Act 24 of 1987 is unconstitutional and invalid.

According to the apex court, the act precluded children of unmarried parents and married parents, who were not going through a divorce, from accessing the services of a family advocate in the same way children of married parents, who were divorced or going through a divorce, did.

The family advocate is a state office that helps parties resolve disputes over access, custody, and guardianship of children.

Under section 4 of the act, as it currently reads, children of divorced parents and parents going through a divorce can seek the services of the family advocate by completing a form and filing it directly with the office.

However, unmarried parents and parents who are married but not going through a divorce must petition the High Court directly for relief to access the services of the family advocate.

This can be costly and lengthy.

The Constitutional Court ruling, which was issued last week, followed an application by the University of Pretoria-based Centre for Child Law.

The parents cited in the case ended their relationship in 2014, having been romantically linked since 2007.

Their minor children were born in 2009 and 2011.

According to court documents, the children spent most of their upbringing at their mother`s home but the father, a professional rugby player, had full-time access.

Litigation history

In February 2020, the mother got married and started making plans to emigrate to Australia along with her husband and the two children.

However, the father of the children opposed the idea and proposed the children move to his home in George, the Western Cape.

`Unable to secure [the father`s] consent to relocate with the children to Australia, [the mother] approached the High Court for relief,` court documents read.

The mother`s application was in two parts, with Part A aimed at securing the services of the family advocate and Part B seeking authorisation to relocate.

Part A of the case was set for a hearing in August 2021 but was adjourned because the presiding judge had concerns with the constitutionality of section 4 of the act.

At this point, the Centre for Child Law joined the case as a friend of the court.

It argued the children of the two respondents should be able to access the services of the family advocate, regardless of their parents` marital status.

The Gauteng High Court in Johannesburg agreed, and the case was taken to the Constitutional Court for confirmation.

In a unanimous judgement, the apex court gave Parliament 24 months to remedy the constitutional deficiency so that all children can enjoy access equal access to the family advocate.

In commending the judgement, the Centre for Child Law said it was `extremely important`, adding `the function of the family advocate`s investigation and report is intended to establish the best interests of the child`.

The Constitutional Court judgement, however, is not to be applied retrospectively. 

Stanley Malemetja from the Centre for Child Law said this effectively meant it would not apply to cases that commenced prior to its issue.