Parties to a divorce more than often focus so much on the proprietary consequences of their divorce that they lose sight of the fact that the minor children born from their marriage are also affected by their divorce.

The Children’s Act 38 of 2005 together with section 28 of the Constitution of the Republic of South Africa is the main law safeguarding the rights and wellbeing of children. It has also defined the parental rights and responsibilities that parents or other parties may have towards their children, and confers equal and joint guardianship status on parents of children born from marriage.

Primary Care and Residence

This means where the child/ren will reside for most of the time and is awarded to the person who will be their primary care giver and the person who will tend to the child/ren’s day to day needs. Usually primary care and residence will be awarded to the mother of the child/ren, but sometimes this can be awarded to the father as well.

The ‘best interests of the child’ principle

The child’s best interest is a constitutional right of every child and all matters, concerning a child, including where their parents are going through a divorce, the best interests of the child is of paramount importance.

The Act provides a list of factors that have to be considered when determining a child’s best interests:

  1. The nature of the personal relationship between the child and the parents, or a specific parent.
  2. The attitude of the parents, or a specific parent, towards the child and the exercising of parental responsibilities and rights.
  3. The capacity of the parents, or a specific parent, or any other caregiver or relevant person to provide for the needs of the child, including emotional and intellectual needs.
  4. The likely effect on the child of any change in his/her circumstances, including any separation from both or either of the parents.

What is furthermore noteworthy is the fact that The Children’s Act also expressly includes the right of a child to participate in any decisions pertaining to him/her. This will include the child’s right to have their wishes taken into consideration in the divorce.

Parental rights and responsibilities

This is the umbrella term for the rights and responsibilities a person may have in respect of a child. These include all or some of the elements of guardianship, care, contact and maintenance.

More than one person may have parental rights and responsibilities and they are referred to as co-holders of such responsibilities and rights. The holder or co-holder of parental rights and responsibilities must always act in the best interests of the child, while also taking into account the child’s wishes.

In a divorce the court will in most cases make an order that both parents will retain their parental rights and responsibilities with regards to a child/ren, unless extreme circumstances are present.

Care and Contact

Care in terms of children means providing a child/ren with a place to live, financial support, safeguarding the child/ren’s wellbeing, promoting the child/ren’s education etc.

Contact in terms of children includes maintaining a personal relationship with the child/ren, communicating regularly, exercising regular visits etc.

It is a child’s right to have contact with both his/her parents. In considering the amount and form of contact a parent should have with the child, the factors contained in the Children’s Act are taken into consideration. Each situation is unique and the outcome will depend on the facts presented, the child’s development, the parent’s relationship with the child and the child’s wishes, when applicable.

It is thus favorable for divorcing parents to try and enter into an agreement regarding the care and contact regarding the child/ren to ensure that both parties are satisfied with the terms of care and contact and to prevent a court from making a less favorable order.


A child may have more than one guardian. Guardians do not necessarily have either care of or contact with the children. Guardianship is simply the right and responsibility to administer and safeguard the child’s property or property interests, assist or represent the child in administrative, contractual and other legal matters, give or refuse any consent required by law in respect of the child such as marriage, adoption, the removal from the country etc.

As the upper guardian of all children, the High Court has a wide discretion in exercising its powers, and in interfering with the rights and responsibilities of a guardian, should it be in the child’s best interests. In any dispute relating to guardianship, the High Court will consider all the relevant facts and request the input of the Office of the Family Advocate or any other expert who may be of assistance in determining the child’s best interests. It is also possible for the court to appoint a legal representative for the child where there are substantial disputes between the parents to ensure that the voice of the child/ren is also heard.

Contact our offices to speak to one of our friendly divorce attorneys should you require any assistance regarding an ongoing or pending divorce.