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Top court backs unwed parents

Tauriq Moosa Legal Writer

A law that does not give unmarried parents the same access to the family advocate as married ones has been declared unconstitutional by the Constitutional Court. While married parents are able to access the services of the family advocate, unmarried ones struggle to.

A law that does not give unmarried parents the same access to the family advocate as married ones has been declared unconstitutional by the Constitutional Court.

While married parents are able to access the services of the family advocate easily, which assists in family disputes, unmarried ones cannot.

A children’s rights NGO, the Centre for Child Law (CCL), sought to have the law overturned.

The family advocate is an important office that assists families instituting legal proceedings affecting children regarding issues such as emigration. It serves to protect the best interests of children by investigating the homes, using social workers to interview parents and the children before reporting its findings directly to a court.

The Constitutional Court ruled on Thursday that the Mediation of Certain Divorces Matters Act (Mediation Act), which governs access to the family advocate, differentiates between married and unmarried parents and is therefore unconstitutional.

The case arose from a 2020 dispute between a Frenchbased rugby player and his former partner, whose names were redacted on court papers. After the couple separated the mother wanted to take their two children to Australia when she decided to emigrate there with her new husband.

The rugby player opposed the move, prompting the mother to approach the high court. She asked the Johannesburg high court to order the family advocate to investigate the best interests of the children regarding the relocation.

Acting Johannesburg high court judge Franciska Bezuidenhout found that the act differentiates between parents based on marital status. Unmarried parents, she said, “have a different path to follow entirely” from married ones, requiring a court order before the family advocate will be involved.


Married parents who are getting divorced “can easily complete”a standardised form under the act that will initiate the same investigation from the family advocate.

Bezuidenhout said this distinction “[appears] arbitrary”.

Due to the constitutional challenge to legislation involving children, the court received input from CCL and the minister of justice, which oversees the family advocate.

CCL and the mother argued that the distinction is arbitrary, and unmarried couples thus have to spend more money and time to get the same result married parents obtain easier.

The rugby player argued that the differentiation between married and unmarried is not unlawful, because it arises from couples deciding not to get married. The minister mainly said the act is outdated and a differentiation does exist.

Bezuidenhout declared the act unconstitutional in 2022.

If a high court’s judgment affects legislation, it must go to the Constitutional Court for confirmation. The apex court has the final say in declaring legislation unconstitutional.

Writing for a unanimous court on Thursday, Justice Zukisa Tshiqi noted the CCL argument that the act violates rights to equality, dignity and children. The minister confirmed his previous stance.


The rugby player did not strictly oppose the ruling but made argument to assist the court in seeing the matter from a different perspective. The act was enacted “when discrimination against unmarried parents and their children was ubiquitous”, Tshiqi wrote. “There was also no protection afforded to unmarried partners in any form of relationship.”

The act “ignored” that unmarried parents “have disagreements about parental responsibilities”, precisely the area in which the family advocate is supposed to assist. The act also ignores that previously married parents could be separated for some time before disagreements arise.

She accepted the minister’s concession that “no purpose” is served by differentiating between married and unmarried parents. She also dismissed the rugby player’s argument that, because couples decide not to get married, they should be denied easier access.

Tshiqi said this “notion that the rights of parties who get married should be elevated above those of people who do not conclude marriages” holds no legal water due to recent Constitutional Court judgments.

Even though it is open to use another section of the act, this still indirectly discriminates based on marital status, Tshiqi ruled. Therefore the section differentiating between married and unmarried couples is unlawful.

Tshiqi ruled that until parliament fixes the section, all those who institute proceedings affecting children must gain easier access to the family advocate, without having to pay extra costs.

The minister was ordered to pay CCL’s costs.





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