The South Gauteng high court addressed issues relating to the shared residency of minor children in a recent judgment relating to three separate unopposed divorce matters. In each of the cases, the parties had agreed to a 50-50 shared residency arrangement for the minor children.
But the high court and the family advocate raised serious concerns regarding whether such shared residency arrangements, and the exclusion of cash maintenance payable to the financially weaker parent as a result of it, were truly best for the children.
The matters before the court
The three cases before the court were that of WJ S vs RS (“the S matter”), L DK vs J-P DK (“the DK matter”), and PB VZ vs L VZ (“the VZ matter”).
In each of these unopposed divorce proceedings, the parents of the minor children had signed settlement agreements confirming that they would remain co-holders of parental rights and responsibilities and regulating their contact with the minor children. The parties had agreed to implement shared residency on a one week on, one week off basis, with the children rotating between their parents each week.
In their scant pleadings before the court, and later in oral testimony, the parties all asserted that the shared residency arrangements were in the best interests of the children simply because the arrangements had been in place for some time.
The S matter
The parties in the S matter testified that the shared residency arrangement, which had been implemented for a year, was in line with the children’s expressed wishes. However, an investigation by the Office of the Family Advocate suggested that this was not the case. In fact, the children were merely informed by their parents of the arrangement, were not given a choice and were emotional after every rotation between the parents.
The family advocate also found that, despite the parents’ testimony, their communication was far from effective and that they had even been involved in an altercation on school property. It was also determined that both children were displaying regressive behaviour and struggling to adapt to the shared residency arrangement, which was exacerbated by the acrimony between the parents.
Further, there was a stark difference between the standard of living enjoyed by the children when with their father, as opposed to with their mother. Despite the large gap in the parents’ incomes, it was agreed that no maintenance would be paid to the financially weaker parent.
The DK matter
Similarly in the DK matter, the parties testified that the shared residency arrangement had been in place for some time and that the children had adjusted well and were happy.
However, the family advocate again raised concerns regarding the emotional stability of the children, with one child experiencing extreme separation anxiety and the other seemingly having been prepared for the interview with the family advocate.
The court also questioned why the parties had agreed that cash maintenance would not be payable to the mother of the children, considering the significant difference in the parties’ earnings.
The VZ matter
In the VZ matter, the parents again described an idyllic situation in which they had equal contact with the children and co-parented in a harmonious way to their benefit.
After an interview with the family advocate, it came to light that the parties had not been honest and that the children only spent every alternative weekend with their father. When asked why he wanted the shared residency regime, the father reasoned that he did not want the mother to enter into a new relationship and relocate with the children.
It was also found that, despite a difference of over R100 000 in the parents’ monthly salaries, they had agreed that no cash maintenance would be payable, which baffled the family advocate and the court.
The Divorce Act and the Children’s Act
Parties to a divorce sometimes expect the court to rubberstamp any agreement they reach on the basis that the divorce has been settled. However, the Divorce Act 70 of 1979, as amended, makes it the court’s duty to consider the best interests of the child in all divorce proceedings, whether they are opposed or not.
This is in line with section 9 of the Children’s Act 38 of 2005, which provides that the childrens’ best interests must be of paramount importance in all matters concerning their care, protection and well-being.
The high court, as the guardian of all minor children, would be committing a grave miscarriage of justice should it choose to blindly accept that an arrangement agreed to between parents, for the sake of their own convenience or alternative motives, is necessarily best for the children involved.
Shared residency
There is a general misconception that what is best for the child in all circumstances is to be brought up by both parents equally. As such, shared residency arrangements are viewed as the ideal way to ensure equal care and contact. Over the past decade it has become the default position — an arrangement to which some parents think they are entitled at separation or divorce.
However, courts must consider the facts of each and every case in order to determine what is truly in the best interests of the child. It is important to realise that every family is unique, with their own dynamics, and what might work for one family, might not work for another.
Maintenance
Unfortunately, shared residency has also become an unfair tool used by the financially stronger parent, often the father, to avoid paying cash maintenance to the financially weaker parent, often the mother, on the basis that the children spend an equal amount of time with each parent, and to restrict her movements, if she ever wanted to move with the children.
This can lead to devastating financial and other implications for the financially weaker parent.
Acting judge AJ Haupt, who heard the three matters, in her judgment on 10 October 2024, confirmed that this cannot be the case. There is no reason why parents should not remain responsible for the maintenance of the child in their pro rata shares based on their income, even where a shared residency arrangement is implemented. Any other alternative places the financially weaker parent in an extremely difficult position, as they are unable to provide the same standard of living as the other parent.
Evidence before the court
Parties in unopposed divorce proceedings tend to put a utopian scenario to the court to motivate how a proposed shared residency arrangement would be successfully implemented and how any communication issues between the parties (which presumably led to the breakdown of the marriage) would simply not arise.
More often than not, there is ample evidence to the contrary. However, courts are not always presented with the necessary evidence and are expected to make a decision based only on the scant information in the settlement agreement reached between the parties and not the actual facts of the case.
Often parties claim that the agreed contact arrangement is in the best interests of the children, as it has been in effect for some time, but do not provide any substantive reasons to support this. More often than not, as Haupt found, a shared residency arrangement is an underhanded attempt to exert control over the freedom of movement of the other party or a tool to get out of paying cash maintenance, potentially placing undue stress on the financially weaker parent and the children.
Significance of the judgment
The judgment serves to disabuse all of the notion that shared residency is automatically beneficial for the child merely because both parents agree to it and it has been implemented.
The judiciary, together with the Office of the Family Advocate, has a duty to ensure that all settlement agreements and contact arrangements genuinely serve the best interests of the children and are not merely the preferences or selfish motivations of the parents.
This important judgment highlights that investigation into the children’s requirements must take place in both opposed and unopposed matters. Often parties do not expect to be grilled on the facts and circumstances in instances where an agreement has been reached.
There are also instances when the financially weaker parent might not have the means to fight the demands of the wealthier parent, who is insisting on shared residency with no cash maintenance. This underlines the need for a proper interrogation of the facts and circumstances by the court and family advocate to ensure the arrangement is in fact best for the children.
This judgment also sends a warning to all legal practitioners — their overriding duty remains to the court and the interests of justice and not their clients.
In the VZ matter, the plaintiff’s attorney was ordered to forgo all fees he had incurred in the matter as a mark of the court’s displeasure at his unprofessional communication with the family advocate and failure to disclose all material information to the court.
A parent completing the Annexure A document (which is an attachment to a divorce summons) needs to provide the family advocate with all the relevant information and not the bare minimum, hoping the parenting plan submitted will be rubber stamped.
The best interests of the child must remain the primary consideration in every matter and all litigants and legal practitioners would be well advised to ensure that any agreement truly serves the interests of the child before requesting the court’s endorsement.
Kaamilah Paulse is a director and Bronwyn Dearden a candidate attorney at Herold Gie Attorneys.