Child-centered Divorce Month, observed annually in July, aims to raise awareness about the effects of divorce on children and promote approaches that prioritise their well-being. This initiative encourages parents and professionals to focus on minimising the negative impact of divorce on children and to adopt strategies that support their emotional and psychological health.
Divorce is one of the most stressful events that a person can experience. Going through a divorce, especially a high conflict divorce, can feel as devastating as experiencing a death in the family. “When children are involved, and especially young ones, parties need to be mindful of the best interests of their children and attempt to adopt a more child-centered and mediated approach,” says Susan Abro, of Susan Abro Attorney.
In South Africa, recent changes to the High Court and Regional Court rules require parties to indicate whether they have attempted mediation, are prepared to do so, or refuse mediation with reasons provided before initiating divorce actions.
“A key consideration in divorces involving minor children is the fact that the parents remain parents of those children before, during, and after the divorce is concluded. Therefore, it is extremely important to attempt to collaborate and communicate to avoid high conflict, which can be difficult to resolve post-divorce,” adds Abro.
In South Africa, the court system is an adversarial system, which means that the parties are in conflict with one another. Therefore, in family law, alternative forms of distribute resolution are encouraged, such as mediation, collaboration and arbitration.
Although South Africa has yet to permit arbitration in family law, the Law Society of South Africa Family Law Committee has proposed necessary amendments to the Minister of Justice to enable this. These alternative dispute resolution methods can be used in conjunction with each other; for instance, mediation or collaborative procedures can address issues affecting minor children, while arbitration can resolve discrete matters like maintenance payments. This approach saves costs and retains a child-centered focus.
The South African Law Reform Commission has been investigating alternative dispute resolution methods, including involving community traditional leaders in child-centered negotiations.
“The approaches for alternative dispute resolution have been recommended by all of the parties involved in the investigation, including the Family Advocates office and the South African Law Reform Commission, and all we need now is for the relevant legislation to be promulgated, and hopefully the new minister of Justice will do this,” explains Abro.
In South Africa, there is no separate Family Division of the High Court. However, in the South Gauteng High Court, the judge president, Justice Judge Dunstan Mlambo, has made provision for a separate family law division of the High Court. This is staffed by both permanent and acting judges from attorneys and advocates who specialise in family law practice. This ensures that family law matters are handled by specialists in the field, allowing for a greater focus on the needs and best interests of children.
In a recent case, Centre for Child Law v. TS and Others (2023), the Constitutional Court (and the High Court before it) ruled that it was unconstitutional for the office of the family advocates and the mediation in certain Divorce Matters Act to apply only to parties who were married and it held that it should apply to parents of children whether married or not. This means that the family advocate’s office, which assists the court by conducting inquiries into issues relating to minor children, is available to all parents and even non-parents, in certain circumstances.
“Adopting a child-centered approach to divorce, both in and out of court, can mitigate its negative impact on children and empower families to navigate this challenging transition with resilience and compassion,” concludes Abro.
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