Divorce is never easy, but when children are involved, the stakes are significantly higher. South African law places the welfare of children at the absolute centre of every divorce proceeding involving minors. If you’re going through a divorce with children, understanding the legal framework and what to expect will help you make better decisions — for yourself and your family.
The Paramount Principle: Children’s Best Interests
Everything in a divorce involving children is filtered through a single principle: the best interests of the child. This principle is enshrined in both Section 28 of the Constitution of the Republic of South Africa, 1996 and Section 9 of the Children’s Act 38 of 2005.
This means courts do not automatically favour one parent over the other. They look at the specific circumstances of each family and make orders that serve the child’s physical, emotional, social, and spiritual wellbeing — even if this is at odds with what one or both parents prefer.
The Family Advocate: An Essential Player
In every contested divorce involving minor children, the Office of the Family Advocate must be involved. The Family Advocate is an independent official of the Department of Justice who:
- Investigates the circumstances of the family, meeting with both parents, the child (where age-appropriate), teachers, therapists, and other relevant parties
- Assesses each parent’s parenting capacity and the nature of their relationship with the child
- Makes a recommendation to the court on primary residence, contact arrangements, and parenting plans
Even in uncontested divorces involving children, a parenting plan must be lodged with the Family Advocate or a social worker. The Family Advocate will confirm whether the plan is in the child’s best interests before the divorce is finalised.
Parenting Plans: What Must Be Covered
A parenting plan is a written agreement between parents — required by Section 33 of the Children’s Act — that sets out how parental responsibilities and rights will be exercised after separation. A comprehensive parenting plan should address:
- Primary residence: Which parent the child primarily lives with
- Contact schedule: When the other parent has the child (weekends, school holidays, public holidays, birthdays)
- Decision-making: How parents will make decisions about education, healthcare, religion, and extracurricular activities
- Communication: How parents will communicate with each other about the child
- Relocation: What happens if one parent wants to move
- Dispute resolution: How disagreements about the plan will be resolved
Family law attorneys in South Africa draft comprehensive parenting plans that reduce future conflict and are accepted by the Family Advocate and court.
Child Maintenance: Who Pays and How Much?
Both parents are legally obliged to support their children proportionally to their means, regardless of which parent has primary residence. Child maintenance is governed by the Maintenance Act 99 of 1998.
Maintenance covers:
- Food, clothing, housing
- Educational costs (school fees, uniforms, stationery, devices)
- Medical aid and medical expenses
- Extracurricular activities
- Transport costs
If parents cannot agree on maintenance, either can apply to the Maintenance Court. Failure to pay court-ordered maintenance can result in the defaulting parent’s salary being garnished, or criminal prosecution under the Maintenance Act.
Relocation After Divorce: Can You Move With Your Child?
Relocation — particularly where a parent wants to move to another city or emigrate with the child — is one of the most bitterly contested post-divorce issues. The leading case is Le Roux v Le Roux and subsequent cases, which confirm that neither parent may unilaterally relocate with a child in a way that impairs the other parent’s contact rights.
A parent wishing to relocate must either obtain the other parent’s consent or apply to court for permission. Courts balance the relocating parent’s rights against the child’s need to maintain a meaningful relationship with both parents.
Frequently Asked Questions
Can I divorce while my spouse is pregnant?
Yes. A divorce can proceed while a spouse is pregnant. However, the court may defer some child-related orders (such as maintenance and contact for the unborn child) until after birth.
What is the difference between primary residence and sole guardianship?
Primary residence determines where the child mainly lives. Guardianship relates to major decisions affecting the child’s life (education, medical decisions, travel documentation). In most cases, both parents retain guardianship even if only one has primary residence. Sole guardianship — where one parent has exclusive decision-making power — is rare and only granted in exceptional circumstances.
Can my ex-partner take our child out of the country without my permission?
No. A child cannot be removed from South Africa without the consent of all guardians (unless by court order). Attempting to remove a child without consent is a criminal offence under Section 18 of the Children’s Act. You can apply for an order preventing your child’s removal and requiring their passports to be held.
What happens if one parent is not complying with the parenting plan?
Non-compliance with a court-ordered parenting plan is contempt of court. The aggrieved parent can apply to the High Court for an order enforcing the parenting plan, varying it, or holding the other parent in contempt. Repeated non-compliance can affect future custody arrangements.
How does divorce affect a child’s surname in South Africa?
Divorce does not automatically change the child’s surname. Changing a child’s surname requires the consent of all guardians or a court order. The Home Affairs process requires a specific application supported by legal documents.
Get Expert Help for Your Divorce Involving Children
When children are involved in a divorce, you need more than just a divorce attorney — you need a family law specialist who understands both the legal and human dimensions of these matters. Connect with experienced family law attorneys in Pretoria or the best divorce lawyers in South Africa through our directory to ensure your children’s interests are fully protected.