How will your divorce affect your kids?

Unfortunately parents can use children as pawns during a divorce without realising the real damage this can cause in the long-term.

When parents decide to divorce, the effects on children are frequently overlooked. The reality is that children could end up with some sort of troubles, worries, and behavioural issues, both during the proceedings and after the divorce takes place. It is up to the parents, however, to determine what the extent of these issues might be.

What does the law say?

Children are not only affected by the issues which relate directly to them, for example, primary residence, contact and maintenance, there are other disputes between parents and the acrimony between them may also affect their children. Sadly, some attorneys fuel this. There is a direct correlation between such attorneys’ methods and that of lining their own pockets. The fact remains that the longer the litigation process continues, the more the legal fees accordingly increase.

Section 6(4) of The Children’s Act (the Act), specifically states that “in all matters concerning a child an approach which is conducive to conciliation and problem-solving should be followed and a confrontational approach should be avoided.” 

Our courts have also confirmed that this is the approach to be taken in the matters of MM vs. AV (2901/2010) [2011] ZAWCHC 425 and S vs. L (728393/2016) [2016] ZAGPPHC 929.

Get help for your kids

It is wise to appoint a legal representative for the minors and children should be referred to a psychologist to ensure their own views and wishes are heard and taken into account, without the influence or coercion of either parent. Section 10 of the Act stipulates that every child that is of such an age, maturity and stage of development as to be able to participate in any matter concerning that child has the right to participate in an appropriate way and views expressed by the child must be given due
consideration.

Children may not know what they want

It is important to bear in mind that children are easily swayed, manipulated and often end up confused. It is not unusual for a child to elect to spend a weekend with one particular parent, to only then “choose” the other in a seemingly short or confused space of time. The Act is silent as to what age a child is regarded as “mature enough” to make such decisions and is also silent as to what “appropriate participation” is.

Consider the kids

Parents are, however, advised to note that the Act states that the views of a child must be given due consideration. This does not mean that the child can “choose”. The court, however, remains the upper guardian of minor children, and should a child’s wish not be in his or her best interest; it shall make an alternative order. It is important to identify an attorney that does not only adhere to Section 6(4) of the Act but is also fully abreast of the latest case law and interpretation thereof. 


Adams & Adams is an internationally recognised and leading African law firm that specialises in providing intellectual property, corporate and commercial services. 



 


 

 

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