Concourt to rule on rights of unmarried parents

THE Constitutional Court yesterday heard an application for the confirmation of an earlier high court order which found that the law giving children of married couples more rights than those of unmarried parents was outdated.

While this was regarded as a groundbreaking judgment for children’s rights, the Constitutional Court will first have to give the final word on the issue.

The Gauteng High Court, Johannesburg, earlier this year declared sections of the Mediation in Certain Divorce Matters Act unconstitutional. This act relates to the process of approaching the Office of the Family Advocate in disputes involving children.

In most matters involving children, the courts will require a report from the Family Advocate to ascertain what is in the best interests of the children, before the court makes a ruling that affects the children.

Under what the high court said was outdated law, married couples simply submitted the required form to the Office of the Family Advocate, which would then conduct an investigation into the circumstances of the family and subsequently submit its recommendation to the court.

However, parties who have never been civilly married have a different path to follow as the Office of the Family Advocate, under the act, will not become involved without a court order directing it to do so.

It was said that the process took longer and parents had to incur additional legal costs by first obtaining a court order. The high court found that these provisions were inconsistent with the Constitution.

The matter was sparked by the unmarried and now separated parents of two young children. The mother wanted to move to Australia with her two children. The father refused and wanted custody.

The mother turned to the court to obtain permission for the Family Advocate to investigate what was in the children’s best interests. But, as they were not married, she faced legal obstacles. The father at the time instituted a counter-application for the children to remain in South Africa and to live with him here.

Acting Judge Franciska Bezuidenhout earlier said the family’s story was all too familiar. “There can be no legitimate government purpose for this differentiation based on marital status when it comes to the treatment of children. Such discrimination cannot be justified and cannot be in the best interests of children,” the judge said.

“The harsher reality about stories of this kind is that parents have the choice to move on, but children do not … This happens to children whether or not their parents were ever married or once married, but since divorced.”

The judge said that if there were so many commonalities in the lives of the children, why then did the law require parents of children of non-married couples to embark on a different process than that of children whose parents were married?

The judge said that was not a justifiable differentiation. She said the category of unmarried parents naturally would include a large number of persons who elected not to be married for many and varied reasons.

The Centre for Child Law argued before the Constitutional Court that the Family Advocate’s services were, in the case of divorcing or divorced parents, provided on demand. They simply complete the required form.

However, unmarried parents cannot follow this simple and costeffective method, as they first have to obtain permission from a court to go this route. This, the centre said, violated the right to equality and human dignity of unmarried parents.

The Constitutional Court reserved judgment.