Divorce Attorney Cape Town

Victory for Unmarried Parents in High Court Ruling over Interim Maintenance


child support

A ruling by the Eastern Cape High Court granting unmarried parents who have been in “a life partnership” equal rights to married parents was an “important victory” in child maintenance cases.

The Applicant (mother) approached the Eastern Cape High Court in East London by way of urgency for an order, inter alia, that the Family Advocate institute an enquiry and furnish a report regarding the parental rights and responsibilities of the mother and father and that pending such a report the mother remained the primary carer of the child. Pending the report by the Family Advocate the father was entitled to reasonable contact with the child at all reasonable times every alternate weekend from a Saturday morning at 09h00 until 17h00 and from 09h00 until 17h00 on the Sunday, reasonable telephonic contact, special occasions such as Mother’s Day, Father’s Day etc.

The interesting part of the application was the fact that the mother also asked the court for an order that the father contribute to the child’s maintenance, by the payment of the sum of R3 300.00 per month pending finalisation of the investigation by the Family Advocate into the parental issues and/or until the court made a proper maintenance order.

Facts of the case

The Applicant was the mother of a minor child of approximately 3 years old and the father of the child was the Respondent in the case.  At the time of the child’s birth the child’s parents were in a permanent life-partnership relationship (not married) and thus acquired full and equal parental responsibilities and rights in respect of the child.

The parties separated and the mother brought an application in the High Court,  the purpose of the application was to confirm and to grant certain rights to both parents so that in the best interest of their minor child, there was certainty in respect of his primary care contact with the child by both parents as well as maintenance to support his basic needs.

In her papers the mother averred that the minor child and she had been subjected to harm at the instance of the father who has threatened to remove the minor child from the care of the applicant.  The parties were no longer staying together and the child was living in the mother’s care.

The court granted leave to the mother to move the court application as a matter of urgency only on the basis that the father wanted to remove the child from her care. The Respondent’s counsel argued that is that the matter was not urgent and therefore the Court could deal with the mother’s maintenance claim in the High Court.

The court emphasized the fact that the High Court has always been regarded as the upper guardian of all minors in all matters concerning children.  Section 28(1) of the Constitution provides, inter alia, that every child has the right to family care or parental care when removed from the family environment.  To basic nutrition, shelter, basic health care services and social services.  To be protected from maltreatment neglect, abuse or degradation.  It is also important to mention that a child’s best interests are of paramount importance in every matter concerning the child.

It is a common practice for some practitioners who appear in the High Court to apply for the dismissal of an application on the only ground that it is not urgent.  In this matter the court found that the application was urgent due to the threat that the father made to remove the child.

A co-holder of parental responsibilities has the right to apply to the High Court, divorce Court or to the Children’s Court for an order suspending for a period or terminating any or all the parental responsibilities and rights which a specific person has in respect of a child.  Or extending or circumscribing the exercise by that person of the parental responsibilities and rights that person has in respect of a child.  Such application may be combined with an application in terms of section 23 of the Children’s Act for the assignment of contact and care in respect of the child to the applicant in terms of that section.  In other words the parental rights and responsibilities as well as guardianship of a minor child can be brought before the High Court.

The parties in this application lived in a permanent life partnership as though they were a married couple.  In the event that they had been married, which they were not, they would have been able to make use of Rule 43 proceedings, a mechanism, inter alia, for speedy and effective resolution of maintenance for minor children pending finalisation of the divorce.  In this case there was no pending matrimonial action and therefore, in the court’s view, the facts of the case were distinguishable from a situation where the provisions of Rule 43 find application.

Notwithstanding the aforesaid the court found that there was nothing preventing the Court from dealing with a maintenance issue even if it is a provisional order of maintenance pending the finalization of the maintenance court enquiry.  The court’s view was that in all maintenance matters involving children the court should endeavour to see to it that they are dealt with as expeditious as is practically possible and found that it was not be in the best interests of a child if the maintenance issue had to be referred back to the maintenance court especially when there was already an indication that it will only be dealt with sometime in a few months because of the busy court roll at the maintenance court.

It is therefore possible for an unmarried mother to obtain urgent interim relief for maintenance of a child pending an investigation by  the Family Advocate’s Office into the care and contact issues of a child.

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