Parents, whether married or unmarried, should have equal access to the Office of the Family Advocate who has to make decisions in the best interests of children in matters relating to parental rights.
The Constitutional Court on Thursday confirmed a Gauteng High Court order, that found section 4 of the Mediation in Certain Divorce Matters Act 24, of 1987, to be constitutionally invalid in that it discriminated against parents who were unmarried and not able to access the services of a family advocate.
The specific section of the act was declared unconstitutional, in that it excluded permanent life partners as the automatic recipients of parental rights and responsibilities of children born as a result of artificial fertilisation and by so doing unfairly discriminated on the basis of marital status and sexual orientation.
Parliament now has 24 months to change the law.
This comes after the parents of two children, who were never married, sought legal intervention when the mother wanted to emigrate to Australia with her husband.
The biological father opposed the relocation, with a claim for primary care of the children with him and his wife in South Africa.
The mother argued that they were being prejudiced in that they had to follow a different process than married parents or parents going through a divorce, and that this “is an obstacle in the way of never-married parents and their children”.
High Court Acting Judge F Bezuidenhout said in his 2022 judgment: “The even harsher reality about stories of this kind is that parents have the choice to move on, but children do not.
“They remain inextricably linked to both parents, but find themselves torn between two separate households.
“This happens to children whether or not their parents were ever married or once married, but divorced.
“Which begs the question – if there are so many commonalities in the lives of these children, why then does the law require children of non-married parents to embark on a process, different to the one followed by children of married or divorced parents, to have their best interests investigated by the Office of the Family Advocate?”
Cape Times