Mediation in Divorce
Matters Act 24 of 1987
This Act effected the appointment of the family advocate, who would normally mediate me in certain divorce proceedings. The family advocate institutes an inquiry into the welfare of the manor children involved in the divorce. He/She may act on the request of the parties involved in the divorce or may institute inquiry of his/her accord with the authorisation of the court.
The court is provided with a report and recommendations on his/her findings. The family advocate also his family counsellors, usually people like social workers, clinical psychologists, psychiatrists and ministers of religion.
The family advocate may also appear at the trial of any divorce to give evidence in the best interests of the children. The family advocate’s main purpose is to safeguard the interests of the minor children in divorce proceedings.
The Divorce Act 70 of 1979
This piece of legislation provides that a divorce may not be granted unless the court is satisfied that provisions made for the welfare of the children are satisfactory. The Act also provides that the court must take into account the family advocate report in relation to children.
The Act may award custody of the minor children to one of the parents. Joint custody may awarded, but only in exceptional circumstances, where there is an excellent level of communication between the divorced parents. Unless the court orders otherwise, both parents will remain guardians of the minor children. The custodial parent will manage the day-to-day life of the minor children while the parent who is not awarded custody can have reasonable access to the children after the divorce.
Maintenance Act 1999
Both parents must contribute to the maintenance of the children in proportion to their means. If custody is awarded to the mother, the court will order the father to pay maintenance or vice versa. Factors to be taken into account when the maintenance of the child is considered are: the child’s needs, age, educational needs and the incomes. social status and abrity to pay. The new Act that came into force in November 1999 is Stricter in its application. It makes provision for garnishee orders (serving notice on a person for the purpose of legally seizing minors, attachment of property and should a parent fail to pay maintenance, the court can issue a warrant of arrest. If a parent is convicted for this he/she will be blacklisted. The law will be more effcctive in ensuring that maintenance gets paid. The parents will no longer be permitted to disregard the children’s well-being, and the law will be enforced to make sure that provision is made for the children.
Summarised by family law attorney Graeme Greenstein
