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    When it comes to divorce, children are often stuck in the middle of their parent’s dispute. The constitutional court has ruled that in all matters concerning minor children, the best interests of the child is of paramount importance. What this means is that the court will take into consideration a multitude of factors from the relationship the parents have with their child to the capacity of the parents to care for the child in order to determine what is in their best interest. The Children’s Act also includes the right of the children to participate in any discussions or decisions which may involve them.

    The following are some of the more common factors the courts take into account when considering the best interests of the child:

    • The nature of the personal relationship between the child and their parents
    • The attitude of the specific parent towards:
      • the child
      • parental responsibilities
    • The capacity of the parents, or a specific parent, to provide for the needs of the child, including emotional and intellectual needs.
    • The child’s:
      • age, maturity, and stage of development;
      • gender;
      • background; and
      • any other relevant characteristics;
    • The child’s physical and emotional security, as well as his/her intellectual, emotional, social and cultural development.
    • Any chronic illness or disability the child might have.
    • Physical and emotional violence perpetrated against the child.


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    Parental rights

    Parental rights and responsibilities is the term used for the rights a parent may have in respect to their child. This includes guardianship, care, contact and maintenance. More than one person may have parental rights and responsibilities, this would mean that both parents are co-holders of parental rights and responsibilities.  In general you have a right to maintain contact with your child and a responsibility to look after the needs of your child. A person who has rights and responsibilities must always act in a way that represents the best interests of the child.

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    When the Children’s Act was implemented they changed the term custody to the concept of care, the act states that care involves there following (where applicable):

    • Providing a suitable living environment for the child
    • Necessary financial support
    • Protection from mistreatment, abuse and neglect
    • Guiding the child in their everyday routine
    • Ensuring provisions for any disabilities or illnesses
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    Guardianship may be awarded to more than one person, children may have more than one guardian. Guardians do not necessarily have custody or the rights and responsibilities of a parent in terms of care and contact towards the child. A guardian has the right and responsibility to:

    • Safeguard the child and their best interests
    • Assist the child in legal or contractual matters
    • Give or refuse consent for the child to enter into marriage if they are under the age of 18
    • Give or refuse consent for the child to vacate the borders of South Africa
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    Your children are always the most important part of your life and you will want to make sure they are impacted as little as possible by your divorce. Some couples may decide to stay together for their children but this can often lead to problems with children living in an unloving and unhappy household, you will need to make hard decisions to ensure your children can be happy as well as yourself.

    If you have any questions, please feel free to get in touch with us and we will happily assist you.


    We serve you by giving you sound professional legal advice and by using our dedication, compassion, and experience to promptly seek a fair and comprehensive outcome. Get in Touch with us below.