Custody of Children After Divorce

Issue: Will I lose custody of my children if I am the cause of the divorce?

Question from Brian:

My wife and I were married for about 14 years and last year we decided to go our separate ways. We are no longer living together but are yet to start the actual divorce proceedings. My issue is with custody of our two kids. I am sort of the reason for the marriage problems which eventually led to our marriage breaking down because I had a long affair with a colleague, who I am now living with. I’m worried now that I will lose custody of our children because of that.

How can I approach the divorce to make sure I don’t lose my kids?

From The Legal Desk:

Thank you for your question, Brian.

Divorce is undoubtedly challenging, especially when children are involved. While separation may sometimes be the healthiest option for everyone, ensuring the well-being of the children is always a top priority. Let’s take a look at the legals…

Section 6(1) of the Divorce Act¹ states:

A decree of divorce shall not be granted until the court:
(a) is satisfied that the provisions made or contemplated with regard to the welfare of any minor or dependent child of the marriage are satisfactory or are the best that can be effected in the circumstances; and
(b) if an enquiry is instituted by the Family Advocate in terms of section 4(1)(a) or (2)(a) of the Mediation in Certain Divorce Matters Act,² has considered the report and recommendations referred to in the said section 4(1).

Let’s look at each of these provisions:

The welfare of children of the marriage

The court’s satisfaction with the provisions made or contemplated regarding the welfare of the children of the marriage is guided by the Constitution of the Republic of South Africa, 1996 (“the Constitution”). Section 28(2) of the Constitution provides that a child’s best interests are paramount in every matter concerning the child.

Section 6(4) of the Children’s Act³ provides that in any matter concerning a child an approach which is conducive to conciliation and problem-solving should be followed, and a confrontational approach should be avoided. Furthermore, a delay in any action or decision to be taken must be avoided as far as possible.

Therefore, subject to lawful limitations, all actions or decisions regarding a child must respect and fulfil the child’s rights under the Bill of Rights. A child’s best interests are determined by the facts and context of each case. Under section 7(1) of the Children’s Act, the child’s best interests must consider the need to protect them from physical or psychological harm, including maltreatment, abuse, violence, or family violence.

The Family Advocate
The Office of the Family Advocate, established under the Mediation in Certain Divorce Matters Act, investigates children’s welfare in divorce cases and compiles reports for the court. These reports evaluate the care and contact arrangements proposed by the parents and provide recommendations.

The Family Advocate’s recommendations are not binding, as the court retains the ultimate authority to decide what is in the child’s best interests. This is evident in cases such as Whitehead v Whitehead,⁴ where the court deviated from the Advocate’s suggestion of joint custody. In Van Rooyen v Van Rooyen,⁵ the court denied free access to a lesbian mother despite the Family Advocate’s opinion that this would be in the best interests of the children.

If you wish to involve the Family Advocate, you or your spouse can request an enquiry, or the court can initiate one. If you would like to know more about the role of the Family Advocate, you can refer to the Department of Constitutional Development’s website.

I should add that courts have increasingly taken cognisance of children’s views in decisions relating to care and contact. For example, in McCall v McCall,⁶ the court took into account the views of a 12-year-old. In Meyer v Gerber,⁷ it considered the views of a 15-year-old, and in Soller NO v G,⁸ the views of a 15-and-a-half-year-old were decisive in placing him with his father, despite the court having more confidence in the mother’s parenting ability. So, the court may very well consider your children’s views, depending on their age.

A formal parenting plan is advisable since you and your wife are no longer living together. Parenting plans help minimise conflict and ensure clarity on parental responsibilities. Section 33(3) of the Children’s Act outlines the matters typically addressed in a parenting plan, which include where and with whom the child will live, maintenance of the child, contact between the child and both parents or other significant individuals, and any decisions regarding the child’s schooling and religious upbringing. As parents, you may include other things, such as how your children’s birthdays should be celebrated. As with anything else that involves the children, a parenting plan must prioritise the child’s best interests and should be developed with assistance from a family advocate, social worker, psychologist, or suitably qualified professional.⁹

I obviously do not know how much of an impact your affair had on your children, but it is unlikely to be the sole determinant of any custody arrangements. The court’s primary focus will always be on the children’s best interests. You could start by respectfully cooperating with your wife and involving professionals such as the Family Advocate. This would help you work toward a solution that serves your children’s welfare while preserving your parental rights.

Written by Theo Tembo

citation: Tembo, T. “Custody of Children After Divorce” (21 Jan 2025). The Legal Desk. Available at: https://wp.me/pfvcwT-6z.

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1. 70 of 1979. ↩︎
2. 24 of 1987. ↩︎
3. 38 of 2005. ↩︎
4. 1993 (3) SA 72 (SE). ↩︎
5. 1994 (2) 325 (W). ↩︎
6. 1994 (3) SA 201 (C). ↩︎
7. 1999 (3) SA 650 (O). ↩︎
8. 2003 (5) SA 430 (W). ↩︎
9. Section 33(5) of the Children’s Act. ↩︎