Divorce and Custody/Primary Residence PDF Print E-mail

Clients occasionally make comment: “Oh you’re on the side of the men nowadays” or “you’re always on the side of the women” but the fact is, we’re not on anyone’s ‘side’.

We put our Clients’ needs first and foremost and keep our Clients on the right side of the law. Each individual Client’s situation – no matter how similar to many – is always different with its own particular set of circumstances.

Parents’ Rights

Years ago, and for a very long time, the law actually did favour women. This often gave them certain advantages that their male counterparts did not enjoy.

However, that situation was addressed when on 1st July 2007 the new Children’s Act No 38 of 2005 was brought into effect. This was created to re-evaluate and improve on the Minor Children’s rights in this country according to our Constitution. In doing so it re-assessed the roles of the parents and all matters regarding the care, protection and wellbeing of a child so that the Minor Children’s best interests were of paramount and utmost importance compared to those of the parents.

Fathers Have More Rights

In recent years therefore, since the passing of this new legislation, husbands and fathers have been granted very similar rights to wives and mother – where they had few or none before. As a result of this, more and more husbands and fathers are stepping forward and succeeding in their quest for Custody/Primary Residence of their children.

Thus, we have now arrived at a place in history where each case is examined on its own merits and the best interests of the Minor Children are being put first.

The Old Regime

Under the old system, once a couple became divorced it was usually the Mother who was awarded Custody/Primary Residence of the Minor Children and the Father was entitled to visitation rights. That meant that with the granting of Custody, the Mother made all the decisions for the Minor Children (school, religion, residence, etc.), and the visiting Parent – usually the Father – was not consulted.

The New Regime

Nowadays the new law gives parents joint rights and responsibilities and allows them to make joint decisions regarding the Minor Children. Not only is this an improved situation concerning the Minor Children’s futures, it has other benefits for the Minor Children observing how their divorced or separated Parents are co-operating with each other to arrive at the best possible decision concerning them and their futures. It speaks to them of harmony and peace instead of conflict and chaos.

Further, this new Act makes provision for Fathers of illegitimate Minor Children – whereby, although the Mother may remain the primary caregiver, the Father can now acquire these rights.


Naturally, maintenance is involved and required to be paid by the Parent who will not have Custody/Primary Residence, to the Parent to whom these rights have been granted.

So that, say, the biological Father is made responsible for maintenance payments for the Minor Children, this is irrespective of whether or not he wants to apply for Custody/Primary Residence.

This rule is applicable to Parents regardless of whether or not their Minor Child was born before or after the commencement of the new Act.

If there is a dispute about this between the Parents, then the Offices of the Family Advocate are brought into the equation which involves Attorneys, Social Workers and sometimes even a Social Services Professional.

Fathers Are Claiming Their Rights

Nowadays – and much to the surprise of a great many women – Fathers are coming forward and claiming their rights not only as Parents but also as Primary Caregivers. This does not mean that the Law has changed and given them the advantage over women and Mothers. It simply means that the needs of the Minor Children are being put first.