Constitutional Court Declares Section 4 of Mediation in Certain Divorce Matters Act 24 of 1987 Unconstitutional

 

In a recent court case known as Centre for Child Law v TS [2023] ZACC 22, the Constitutional Court examined the issue of whether section 4 of the Mediation in Certain Divorce Matters Act 24 of 1987 was consistent with the Constitution. Section 4 of the Act pertained to the involvement of the Family Advocate in matters concerning never-married parents and married parents who were not going through a divorce, as well as their children.

Background

The case stemmed from the circumstances involving Mrs TS and Mr BN, who had two children together during their romantic relationship. When their relationship ended, Mrs TS got married and desired to relocate with her children to Australia. However, she needed Mr BN's consent, which she was unable to obtain. Seeking resolution, Mrs TS approached the High Court, requesting an order for the Family Advocate to investigate the best interests of her minor children and permit her permanent relocation to Australia, thus modifying the existing parenting plan.

Central issue

The central issue, in this case, was that the Family Advocate, in matters involving minor children, does not conduct investigations or compile reports when the parents have never been married, unless specifically ordered by the court to do so. The applicant argued that this provision was unconstitutional, as it created an obstacle for never-married parents and their children to access the services of the Family Advocate on an equal footing with married parents going through a divorce or parents who were married to each other. The argument emphasized the principles of equality before the law, non-discrimination, and the fair treatment of different groups of people.

Findings by Court

The court examined these arguments and concluded that section 4 of the Act unjustifiably limited the rights to equality and dignity, as well as the rights of the affected parents and children under sections 9(1), 9(3), 10, and 28 of the Bill of Rights. It highlighted that the Office of the Family Advocate could not become involved in such cases without a court order, while in divorce proceedings, its involvement was initiated by the simple submission of Annexure B. This distinction was seen as an unfair and unwarranted differentiation between different groups of parents and their children.

As a result, the court confirmed the High Court's declaration of the constitutional invalidity of section 4 of the Act. The confirmation meant that never-married parents and married parents not going through a divorce, along with their children, would now be able to access the services of the Family Advocate in the same manner as divorced or divorcing married parents. The court acknowledged the need for an interim solution while awaiting parliamentary intervention to address the flaw in the legislation.

Lesson learnt

The decision, delivered by Justice Tshiqi, was reached unanimously by the court. It signifies an important step towards equal access to services and protection of rights for all parents and children, regardless of their marital status or divorce proceedings.