“I earn more than you, so I will get the children.” It is one of the most common threats in a divorce, and South African law does not support it. No legislation makes a parent’s income or wealth the test for who the children live with. The test is the best interests of the child.
This article explains, with reference to the legislation itself, how decisions about children are made in a divorce, why money is dealt with through maintenance rather than care, and why you should never move out of the family home and leave your children behind.
1. The test is the best interests of the child — not money
The Constitution states that “a child’s best interests are of paramount importance in every matter concerning the child” (Constitution, s 28(2)), and every child has the right to family care or parental care (s 28(1)(b)). The Children’s Act 38 of 2005 repeats this: in all matters concerning the care, protection and wellbeing of a child, the child’s best interests are of paramount importance (s 9).
Section 7(1) of the Children’s Act lists the factors that must be considered, where relevant, when deciding what is in a child’s best interests. They include:
- the nature of the personal relationship between the child and each parent (s 7(1)(a));
- each parent’s attitude towards the child and towards exercising parental responsibilities (s 7(1)(b));
- each parent’s capacity to provide for the child’s needs, including emotional and intellectual needs (s 7(1)(c));
- the likely effect on the child of any change in circumstances, including separation from either parent or from siblings (s 7(1)(d));
- the child’s age, maturity, stage of development and other characteristics (s 7(1)(g));
- the child’s physical and emotional security and development (s 7(1)(h));
- the need for the child to be brought up in a stable family environment (s 7(1)(k)); and
- the need to protect the child from harm, and any family violence (s 7(1)(l)-(m)).
Wealth is not on this list. The closest factor, the capacity to provide for the child’s needs, expressly includes emotional and intellectual needs. A parent who earns less but has been the child’s primary carer is not at a disadvantage because of income alone.
2. Both parents keep their parental responsibilities and rights
A biological mother has full parental responsibilities and rights in respect of her child (Children’s Act, s 19(1)). A biological father who is, or was, married to the child’s mother has the same (s 20). These responsibilities and rights include the responsibility and the right to care for the child, to maintain contact with the child, to act as the child’s guardian and to contribute to the child’s maintenance (s 18(2)).
Moving out, or earning less, does not take these away. Where both parents hold the same responsibilities and rights, each may generally act without the other’s consent (s 30(2)). Neither parent may surrender or transfer them to the other (s 30(3)).
There are limits:
- Both guardians must consent to the child’s removal from South Africa or a passport application, unless a court orders otherwise (s 18(3)(c) and (5)).
- Before taking a decision likely to significantly change the child’s living conditions, education or relationship with a parent, a parent must give due consideration to the child’s views (s 31(1)) and to the views of the other parent (s 31(2)).
3. Money is dealt with through maintenance, not through care
The law’s answer to a difference in income is maintenance, not a change in where the children live.
- Contributing to the child’s maintenance is one of each parent’s parental responsibilities (Children’s Act, s 18(2)(d)).
- The duty to support a child covers what the child reasonably needs for a proper living and upbringing, including food, clothing, accommodation, medical care and education (Maintenance Act 99 of 1998, s 15(2)).
- Supporting a child is an obligation the parents carry jointly, and their shares are apportioned according to their respective means (Maintenance Act, s 15(3)(a)(i)-(ii)).
- On divorce, the court may make any order it considers fit about the maintenance of a dependent child (Divorce Act 70 of 1979, s 6(3)).
In other words, if one parent earns substantially more, the legislation expects that parent to contribute more towards the children’s needs, wherever the children live. A higher income is a reason to pay more maintenance, not a reason to be awarded the children.
4. Never move out without your children
This is the most important practical advice in this article. If you decide to leave the family home, do not leave your children behind.
The reason lies in the best-interests factors themselves. When the court later decides where the children should live, it must consider:
- the likely effect on the children of any change in their circumstances, including separation from a parent or siblings they have been living with (Children’s Act, s 7(1)(d));
- the need for the children to be brought up in a stable family environment (s 7(1)(k)); and
- the nature of the relationship between the children and each parent (s 7(1)(a)).
If you move out and the children stay with the other parent, a new routine forms around that parent. By the time the matter is decided — often months later — moving the children away from that routine is itself a “change in circumstances” the court must weigh. A parent who leaves the children behind may find that the arrangement meant to be temporary becomes the arrangement the court is reluctant to disturb.
Taking the children with you must still be done lawfully:
- Both of you remain holders of parental responsibilities and rights (s 30). Moving the children is a decision likely to significantly change their living conditions and their relationship with the other parent, so you must give due consideration to the children’s views (s 31(1)) and to the other parent’s views (s 31(2)). Tell the other parent where the children are.
- Do not obstruct the other parent’s contact. Once a court order or registered agreement governs contact, refusing or preventing that contact is a criminal offence punishable by a fine or up to one year’s imprisonment (s 35(1)), and you must notify the other parent in writing of any change of address (s 35(2)).
- You may not take the children out of South Africa without the other guardian’s consent or a court order (s 18(3)(c)(iii) and (5)).
- If you or the children are in danger, you may apply to court for a protection order, including on an urgent basis (Domestic Violence Act 116 of 1998, s 4(1)).
Speak to an attorney before you move out. The timing and manner of leaving can affect the outcome for years.
5. How the court decides
A divorce cannot be granted until the court is satisfied that the arrangements made or contemplated for the welfare of the minor or dependent children are satisfactory, or the best that can be achieved in the circumstances (Divorce Act, s 6(1)(a)). The court may order any investigation it considers necessary (s 6(2)), and may make any order it considers fit regarding the children’s custody (care), guardianship and access (contact), including sole guardianship or sole custody for one parent where that is in the child’s interests (s 6(3)).
The Family Advocate. After a divorce action has been instituted, the Family Advocate must, if either party or the court requests it, enquire into the children’s welfare and give the court a report and recommendations (Mediation in Certain Divorce Matters Act 24 of 1987, s 4(1)). The Family Advocate may also apply to court to institute an enquiry on his or her own initiative (s 4(2)). The court must consider that report before granting the divorce (Divorce Act, s 6(1)(b)).
The child’s voice. Every child old enough and mature enough to take part has the right to participate in an appropriate way in matters concerning him or her, and the child’s views must be given due consideration (Children’s Act, s 10).
6. Try to agree on a parenting plan first
Where co-holders of parental responsibilities and rights struggle to agree, the Children’s Act requires them to try to agree on a parenting plan before going to court (s 33(2)). A parenting plan may cover where and with whom the child lives, maintenance, contact, schooling and religious upbringing (s 33(3)). It must comply with the best-interests standard in section 7 (s 33(4)).
In preparing it, the parents must seek the assistance of a family advocate, social worker or psychologist, or mediation through a social worker or other suitably qualified person (s 33(5)). The plan must be in writing and signed by both parents, and may be registered with a family advocate or made an order of court (s 34(1)).
Quick checklist
Do:
- Remember that the test is the child’s best interests (Constitution s 28(2); Children’s Act ss 7 and 9).
- Take your children with you if you leave the family home, and tell the other parent where they are (Children’s Act ss 7(1)(d), 7(1)(k) and 31).
- Keep supporting the children’s relationship with the other parent (s 35).
- Claim maintenance in proportion to each parent’s means (Maintenance Act s 15(3)).
- Try to agree on a written parenting plan (Children’s Act ss 33-34).
- Speak to an attorney before you move out.
Don’t:
- Accept that the parent who earns more automatically gets the children.
- Move out and leave the children behind “for now”.
- Keep the children from the other parent, or take them out of South Africa without consent (Children’s Act ss 18(3)(c) and 35).
- Involve the children in the dispute between the two of you.
How Suhannie Greyling Attorneys can help
If you are considering divorce, or your spouse is threatening to “take the children”, contact us before you move out or sign anything. We can advise you on your rights, help you negotiate a parenting plan, claim maintenance, and represent you in divorce proceedings.
Suhannie Greyling Attorneys Inc.
28A Taylor Street, Burgersdorp, 9744
Email: info@suhannie.co.za
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This article provides general information about South African law and is not legal advice. Every case is different. Please consult an attorney about your specific situation.
Legislation referred to
- Constitution of the Republic of South Africa, 1996 — section 28
- Children’s Act 38 of 2005 — sections 7, 9, 10, 18, 19, 20, 30, 31, 33, 34 and 35
- Divorce Act 70 of 1979 — section 6
- Mediation in Certain Divorce Matters Act 24 of 1987 — section 4
- Maintenance Act 99 of 1998 — section 15
- Domestic Violence Act 116 of 1998 — section 4
