The South Gauteng excessive court docket addressed points regarding the shared residency of minor youngsters in a latest judgment relating to a few separate unopposed divorce issues. In every of the instances, the events had agreed to a 50-50 shared residency association for the minor youngsters.
However the excessive court docket and the household advocate raised critical issues concerning whether or not such shared residency preparations, and the exclusion of money upkeep payable to the financially weaker dad or mum on account of it, had been actually finest for the kids.
The issues earlier than the court docket
The three instances earlier than the court docket had been that of WJ S vs RS (“the S matter”), L DK vs J-P DK (“the DK matter”), and PB VZ vs L VZ (“the VZ matter”).
In every of those unopposed divorce proceedings, the mother and father of the minor youngsters had signed settlement agreements confirming that they might stay co-holders of parental rights and obligations and regulating their contact with the minor youngsters. The events had agreed to implement shared residency on a one week on, one week off foundation, with the kids rotating between their mother and father every week.
Of their scant pleadings earlier than the court docket, and later in oral testimony, the events all asserted that the shared residency preparations had been in the perfect pursuits of the kids just because the preparations had been in place for a while.
The S matter
The events within the S matter testified that the shared residency association, which had been carried out for a 12 months, was consistent with the kids’s expressed needs. Nevertheless, an investigation by the Workplace of the Household Advocate urged that this was not the case. In reality, the kids had been merely knowledgeable by their mother and father of the association, weren’t given a selection and had been emotional after each rotation between the mother and father.
The household advocate additionally discovered that, regardless of the mother and father’ testimony, their communication was removed from efficient and that that they had even been concerned in an altercation on faculty property. It was additionally decided that each youngsters had been displaying regressive behaviour and struggling to adapt to the shared residency association, which was exacerbated by the acrimony between the mother and father.
Additional, there was a stark distinction between the usual of residing loved by the kids when with their father, versus with their mom. Regardless of the massive hole within the mother and father’ incomes, it was agreed that no upkeep can be paid to the financially weaker dad or mum.
The DK matter
Equally within the DK matter, the events testified that the shared residency association had been in place for a while and that the kids had adjusted nicely and had been pleased.
Nevertheless, the household advocate once more raised issues concerning the emotional stability of the kids, with one little one experiencing excessive separation nervousness and the opposite seemingly having been ready for the interview with the household advocate.
The court docket additionally questioned why the events had agreed that money upkeep wouldn’t be payable to the mom of the kids, contemplating the numerous distinction within the events’ earnings.
The VZ matter
Within the VZ matter, the mother and father once more described an idyllic state of affairs through which that they had equal contact with the kids and co-parented in a harmonious option to their profit.
After an interview with the household advocate, it got here to gentle that the events had not been sincere and that the kids solely spent each different weekend with their father. When requested why he needed the shared residency regime, the daddy reasoned that he didn’t need the mom to enter into a brand new relationship and relocate with the kids.
It was additionally discovered that, regardless of a distinction of over R100 000 within the mother and father’ month-to-month salaries, that they had agreed that no money upkeep can be payable, which baffled the household advocate and the court docket.
The Divorce Act and the Kids’s Act
Events to a divorce generally count on the court docket to rubberstamp any settlement they attain on the idea that the divorce has been settled. Nevertheless, the Divorce Act 70 of 1979, as amended, makes it the court docket’s obligation to contemplate the perfect pursuits of the kid in all divorce proceedings, whether or not they’re opposed or not.
That is consistent with part 9 of the Kids’s Act 38 of 2005, which gives that the childrens’ finest pursuits have to be of paramount significance in all issues regarding their care, safety and well-being.
The excessive court docket, because the guardian of all minor youngsters, can be committing a grave miscarriage of justice ought to it select to blindly settle for that an association agreed to between mother and father, for the sake of their very own comfort or different motives, is essentially finest for the kids concerned.
Shared residency
There’s a common false impression that what’s finest for the kid in all circumstances is to be introduced up by each mother and father equally. As such, shared residency preparations are seen as the best manner to make sure equal care and phone. Over the previous decade it has change into the default place — an association to which some mother and father suppose they’re entitled at separation or divorce.
Nevertheless, courts should contemplate the info of each case in an effort to decide what is actually in the perfect pursuits of the kid. You will need to realise that each household is exclusive, with their very own dynamics, and what may work for one household, won’t work for one more.
Upkeep
Sadly, shared residency has additionally change into an unfair device utilized by the financially stronger dad or mum, usually the daddy, to keep away from paying money upkeep to the financially weaker dad or mum, usually the mom, on the idea that the kids spend an equal period of time with every dad or mum, and to limit her actions, if she ever needed to maneuver with the kids.
This may result in devastating monetary and different implications for the financially weaker dad or mum.
Appearing choose AJ Haupt, who heard the three issues, in her judgment on 10 October 2024, confirmed that this can’t be the case. There isn’t any motive why mother and father mustn’t stay accountable for the upkeep of the kid of their professional rata shares primarily based on their earnings, even the place a shared residency association is carried out. Every other different locations the financially weaker dad or mum in an especially tough place, as they’re unable to offer the identical lifestyle as the opposite dad or mum.
Proof earlier than the court docket
Events in unopposed divorce proceedings are likely to put a utopian situation to the court docket to inspire how a proposed shared residency association can be efficiently carried out and the way any communication points between the events (which presumably led to the breakdown of the wedding) would merely not come up.
Most of the time, there’s ample proof on the contrary. Nevertheless, courts are usually not at all times offered with the required proof and are anticipated to decide primarily based solely on the scant info within the settlement settlement reached between the events and never the precise info of the case.
Usually events declare that the agreed contact association is in the perfect pursuits of the kids, because it has been in impact for a while, however don’t present any substantive causes to help this. Most of the time, as Haupt discovered, a shared residency association is an underhanded try and exert management over the liberty of motion of the opposite celebration or a device to get out of paying money upkeep, probably inserting undue stress on the financially weaker dad or mum and the kids.
Significance of the judgment
The judgment serves to disabuse the entire notion that shared residency is routinely useful for the kid merely as a result of each mother and father comply with it and it has been carried out.
The judiciary, along with the Workplace of the Household Advocate, has an obligation to make sure that all settlement agreements and phone preparations genuinely serve the perfect pursuits of the kids and are usually not merely the preferences or egocentric motivations of the mother and father.
This essential judgment highlights that investigation into the kids’s necessities should happen in each opposed and unopposed issues. Usually events don’t count on to be grilled on the info and circumstances in cases the place an settlement has been reached.
There are additionally cases when the financially weaker dad or mum won’t have the means to struggle the calls for of the wealthier dad or mum, who’s insisting on shared residency with no money upkeep. This underlines the necessity for a correct interrogation of the info and circumstances by the court docket and household advocate to make sure the association is actually finest for the kids.
This judgment additionally sends a warning to all authorized practitioners — their overriding obligation stays to the court docket and the pursuits of justice and never their purchasers.
Within the VZ matter, the plaintiff’s legal professional was ordered to forgo all charges he had incurred within the matter as a mark of the court docket’s displeasure at his unprofessional communication with the household advocate and failure to reveal all materials info to the court docket.
A dad or mum finishing the Annexure A doc (which is an attachment to a divorce summons) wants to offer the household advocate with all of the related info and never the naked minimal, hoping the parenting plan submitted will likely be rubber stamped.
The perfect pursuits of the kid should stay the first consideration in each matter and all litigants and authorized practitioners can be nicely suggested to make sure that any settlement actually serves the pursuits of the kid earlier than requesting the court docket’s endorsement.
Kaamilah Paulse is a director and Bronwyn Dearden a candidate legal professional at Herold Gie Attorneys.