A landmark shift in family law has recently levelled the playing field for unmarried parents, providing them with the same legal rights and protections in child custody matters as those available to divorcing parents.
The Office of the Family Advocate, a state entity, investigates the best interests of minors and guides courts with reports and recommendations. While their reports aren't always legally binding, they are held in high regard by the courts and are always considered in final judgements.
So, how can one engage the Office of the Family Advocate to report on a child's best interest?
During divorce proceedings, the Office of the Family Advocate is automatically involved if parental rights and responsibilities are contested. Parents simply need to complete an Annexure B form (providing their case number or application number), triggering the Office of the Family Advocate to explore the matter and provide the court with a report on the best interests of the children involved. Consequently, no specific court order is needed to involve the Office of the Family Advocate in ongoing divorce proceedings.
How does this recent judgment by the High Court and its subsequent confirmation by the Constitutional Court impact the rights of unmarried parents seeking assistance from the Office of the Family Advocate?
Before this groundbreaking judgement, unmarried parents embroiled in disputes over parental rights and responsibilities could not directly approach the Office of the Family Advocate. They first had to submit a two-part application to a court, requesting in Part A that the court order the Office of the Family Advocate to conduct an inquiry and produce a report on the minor children's best interests. Thus, the Office of the Family Advocate only got involved when summoned by a court order.
The phrase "the best interest of the minor children" is common parlance in family law. As mandated by our Constitution and the Children's Act, all decisions involving minors should prioritize their best interests. The Court found that denying unmarried parents the automatic right to approach the Office of the Family Advocate was not only discriminatory but also counter to the best interests of children born out of wedlock.
In family law proceedings, the Office of the Family Advocate plays an instrumental role in aiding both the court and parents to ensure that parental rights and responsibilities are exercised in the best interests of the minor children.
What was the final order given and confirmed by the Constitutional Court?
The Constitutional Court endorsed the judgement issued by the High Court of Johannesburg on 2 February 2022, declaring the specified section of the Mediation in Certain Divorce Matters Act unconstitutional and hence invalid. The Court also instructed Parliament to rectify the defects within 24 months. However, the judgement grants unmarried parents the immediate right to approach the Office of the Family Advocate by submitting an application along with an Annexure B, requesting an investigation.
Family law is an ever-evolving field, with an increasing recognition of the rights of unmarried parents, same-sex partners, and those in committed life-partner relationships. The assessment of their rights, particularly relating to their minor children, is under continual scrutiny, with legal practitioners tirelessly striving to eradicate any discrimination that could impact any parent or the best interest of their children.
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