Divorce ends a marriage relationship between spouses, but it does not end the responsibilities that parents have toward their children. South African law places the best interests of the child at the centre of all decisions relating to parental rights and responsibilities.
The primary legislation governing these matters is the Children’s Act 38 of 2005, which recognises that children benefit from having a meaningful relationship with both parents, where appropriate and in the child’s best interests.
What Are Parental Rights and Responsibilities?
Parental rights and responsibilities include:
- The responsibility to care for the child;
- The responsibility to maintain contact with the child;
- The responsibility to contribute financially toward the child’s upbringing;
- The responsibility to act as guardian of the child; and
- The responsibility to make important decisions affecting the child’s life.
These responsibilities continue after divorce, unless a court orders otherwise.
Care and Contact
In the past, the terms “custody” and “access” were commonly used. Today, South African law refers to “care” and “contact.”
“Care” refers to where the child primarily resides and who is responsible for the day-to-day upbringing of the child.
“Contact” refers to the right and responsibility of a parent to maintain a relationship with the child through visits, communication, holidays, and involvement in the child’s life.
Courts encourage both parents to remain actively involved in the child’s upbringing whenever possible. However, every matter is decided according to the specific circumstances and what would best serve the child’s emotional, physical, educational, and developmental needs.
Maintenance Obligations
Both parents have a legal duty to support their child financially according to their respective means. This duty exists regardless of whether the parents were married, divorced, or never married.
Child maintenance may include:
- School fees;
- Medical expenses;
- Food and clothing;
- Extramural activities; and
- Other reasonable needs of the child.
Failure to pay maintenance can result in legal action, including garnishee orders, attachment of property, or even criminal proceedings in certain circumstances.
Guardianship Rights
Generally, both parents remain guardians of the child after divorce unless a court limits or removes those rights.
Guardianship includes important decisions relating to:
- The child’s education;
- Medical treatment;
- Religious upbringing;
- Applying for passports; and
- Consent for international travel.
This means that major decisions concerning the child should usually be made jointly by both parents.
Parenting Plans
Divorcing parents are often encouraged to enter into a parenting plan. A parenting plan is a written agreement that regulates:
- Living arrangements;
- Holiday contact;
- Schooling;
- Communication;
- Financial responsibilities; and
- Dispute resolution mechanisms.
Parenting plans can help reduce future conflict and provide certainty and stability for the child.
The Best Interests of the Child
The guiding principle in all matters involving children is the “best interests of the child” standard, which is also protected in the Constitution of the Republic of South Africa.
Courts will consider factors such as:
- The child’s age and emotional needs;
- The relationship between the child and each parent;
- Stability and security;
- The ability of each parent to care for the child; and
- Any history of abuse, neglect, or violence.
No parent automatically has a stronger right to the child based solely on gender.
Conclusion
Divorce can be emotionally difficult for both parents and children. However, the law aims to ensure that children continue to receive love, support, guidance, and stability from both parents wherever possible.
Parents who focus on cooperation, communication, and the child’s wellbeing are more likely to create healthy long-term arrangements that benefit everyone involved.
As difficult as divorce may be, parental responsibilities remain lifelong responsibilities.