Divorce Attorney Cape Town

Watershed Case About Parental Rights and Responsibilities of Children from a Same-Sex Relationship


Some time ago I wrote an article about an application argued in the Cape Town High Court in the matter of CM v NG. Judgement in this matter was reserved and handed down by Gangen A J on 26 April 2012. Family Law experts, Adv Julia Anderssen and Adv Retha Maas two Cape Town Advocates argued this matter. The case can be regarded as a watershed case for same sex couples with children and will be a reported judgement.

This was an application in terms of Sections 23 and 24 of the Children’s Act 39 of 2005 (“the Act”) and concerned parties that was involved in a same sex relationship for several years. The parties did not register a marriage. During the relationship, a child was conceived by artificial insemination.

The relationship between the parties started in May 2005 and ended in November 2010. The applicant (not the biological mother) lodged an application to court and requested an order granting her full parental rights and responsibilities in respect of the minor child.

When the parties ended their relationship the Applicant still had contact with the minor child until approximately April 2011. During April 2011 the Respondent (biological mother) advised the Applicant that she wanted to stop her contact with the minor child. Her reason was that it was not in the minor child’s best interests. The child was in the biological mother’s care at the time. The applicant then lodged an application to court in April 2011 compelling the biological mother to co-operate with the Family Advocate and an expert identified by the applicant.

The South African Children’s Act is clear on the point that someone does not have automatic parental rights in terms of Sections 19 and 22 of the Act if there is no biological link to a child and such a person. Furthermore an Applicant does not acquire automatic rights and responsibilities in terms of Section 40 of the Act which deals with children conceived by artificial insemination. Without a parental agreement an Applicant could therefore only apply to the court in terms of Sections 23(2) and 24(2) of the Act. Common to both these Sections is the “best interests” of the child.

The court found that the Applicant did indeed have parental responsibilities and rights as set out in Section 18 as it would be in the best interests of the child to have a relationship with both parents. The court concluded that both parties be co-holders of parental rights and responsibilities in respect of the minor child as contemplated in sections 18(2) (3) (4) and (5) of the 2005 Children’s Act and that both parties shall be co-guardians of the child.

About the Author:

Bertus Preller is a Divorce Attorney at Bertus Preller & Associates in Cape Town. He specializes in Family Law and Divorce Law in and handles divorce and family law matters across South Africa. Bertus is also the Family Law expert on Health24.com, he blogs regularly on news24.com and nuus24.com and has been quoted on Family Law issues in various newspapers such as the Sunday Times and Business Times and magazines such as Noseweek, Keur, Living and Loving, Longevity, You and Huisgenoot, and also appears frequently on the SABC television show 3 Talk. His clients include artists, celebrities, sports people and high net worth individuals. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Parenting Plans, Parental Responsibilities and Rights, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters, international divorce law, digital rights, media law and criminal law.

Contact details

bertus@divorceattorney.co.za

O: 021 422 2461

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