Outdated law excluding children born out of wedlock declared unconstitutional
While the Constitution and the Children’s Act both provide great protection to children, the Mediation in Certain Divorce Matters Act of 1987 falls woefully short, Acting Judge Franciska Bezuidenhout has ruled in the Johannesburg High Court.
The judge said it was time for a change in the law. She said the harsh reality was that parents had a choice to move on, but children did not and this applied whether their parents were ever married or were once married, but wanted to divorce. The Centre for Child Law submitted that the judicial requirement imposed on unmarried parents to first obtain a court order before the office would conduct an investigation violated several fundamental rights and most importantly those of their children.
The judge said there were also concerns that the office, which serviced 714 courts with 111 Family Advocates, would be swamped.The figures clearly indicate that the budget and staff complement requires urgent attention and revision. The possibility of appointing experienced family law practitioners from private practice in the position of ad hoc family advocates to alleviate the immediate workload should be considered.