Yasmina Griesel | SchoemanLaw Inc  

Category: Family Law 

It is a legal requirement, as set out in sections 33 and 34 of the Children’s Act 38 of 2005 (“the Children’s Act”) that all divorcing parents conclude a parenting agreement upon divorce. This is important as it upholds the best interest of the minor child and sets out how the parent’s rights and responsibilities are exercised towards the minor child.  

Section 33 of the Children’s Act provides an outline of what a parenting agreement is. In simple terms, it is an agreement which spells out the respective parent’s rights and responsibilities towards their child(ren) and it determines how care and contact are exercised by each parent. It should therefore detail which parent will be the primary caregiver / whom the child(ren) will reside with; how contact will be divided and/or whom the child(ren) spends their holiday with; maintenance of the child(ren); and any important decisions relating to the child(ren)’s education, religion, and even extra mural activities. 

By the common law standards, both parents are equally responsible for their child(ren) whether or not a parenting plan has been drawn up, however in divorce procedure, a parenting plan will be required to establish the roles and responsiblities of each respective parent before the divorce can be granted. If the parents struggle to reach an agreed-upon plan, the parents may request for the court to direct the appointment of an independent mediator or social worker who will assess the matter and provide the court with a report. The court may also direct or refer the parents to the Family Advocate’s Office, who will assist by appointing a professional social worker or attorney to help the parents negotiate and draw up an acceptable parenting plan. An assessment will be done by the Family Advocate’s Office and centred on the best interest of the child(ren).  

Depending on the Family Advocate’s assessment of the legal and personal issues that may affect the child(ren), a recommendation may be made setting out if the parents should co-share the responsibilities, or if one parent should have more responsibility than the other. The court will only grant the divorce once the parenting plan has been endorsed by the Family Advocate’s Office. 

Conclusion 

In situations where divorcing parents are unable to determine the roles and responsibilities in respect of the care and contact of the minor child(ren), a court may order that the parents enter into a parenting agreement. Because the interest of the child may change as the child ages, it is advisable to include a date on which the parenting plan must be reviewed by the parents and/or guardians. 

Yasmina Griesel | SchoemanLaw Inc
Candidate Attorney
www.schoemanlaw.co.za