The Mediation of Certain Divorces Matters Act – which does not give unmarried parents the same access to the Family Advocate as married ones – has been declared unconstitutional by the Constitutional Court.

Business Day report says while married parents are able to access the services of the Family Advocate easily, unmarried ones cannot. The Centre for Child Law (CCL) sought to have the law overturned.

The Constitutional Court ruled the Act differentiates between married and unmarried parents and is therefore unconstitutional.

The case arose from a 2020 dispute between a French-based rugby player and his former partner. After the couple separated the mother wanted to take their two children to Australia when she decided to emigrate there with her new husband.

The father opposed the move, prompting the mother to approach the Gauteng High Court (Johannesburg), asking it to order the Family Advocate to investigate the best interests of the children regarding the relocation.

In 2022, Acting Judge Franciska Bezuidenhout found the Act differentiates between parents based on marital status.

Unmarried parents, she said, ‘have a different path to follow entirely’ from married ones, requiring a court order before the Family Advocate will be involved.

Bezuidenhout declared the Act unconstitutional.

In confirming the judgment last week, Constitutional Court Justice Zukisa Tshiqi noted the CCL argument that the Act violates rights to equality, dignity and children.

The Act was enacted ‘when discrimination against unmarried parents and their children was ubiquitous’, Tshiqi wrote. 

‘There was also no protection afforded to unmarried partners in any form of relationship.’

The Act ‘ignored’ that unmarried parents ‘have disagreements about parental responsibilities’, precisely the area in which the Family Advocate is supposed to assist.

The Business Day report adds the Act also ignores that previously married parents could be separated for some time before disagreements arise.

Tshiqi said this ‘notion that the rights of parties who get married should be elevated above those of people who do not conclude marriages’ holds no legal water due to recent Constitutional Court judgments. Even though it is open to use another section of the Act, this still indirectly discriminates based on marital status, Tshiqi ruled.

Therefore, the section differentiating between married and unmarried couples is unlawful.

Tshiqi ruled that until Parliament fixes the section, all those who institute proceedings affecting children must gain easier access to the Family Advocate, without having to pay extra costs.

The Minister was ordered to pay CCL’s costs.

Full Business Day report

Judgment