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Mediation in Certain Divorce Matters Act, 1987

Act 24 of 1987

Mediation in Certain Divorce Matters Act, 1987
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Act 24 of 1987
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South Africa

Mediation in Certain Divorce Matters Act, 1987

Act 24 of 1987

  1. [Amended by Mediation in Certain Divorce Matters Amendment Act, 1991 (Act 121 of 1991) on 10 July 1991]
  2. [Amended by General Law Amendment Act, 1992 (Act 139 of 1992) on 7 August 1992]
  3. [Amended by Natural Fathers of Children Born out of Wedlock Act, 1997 (Act 86 of 1997) on 4 September 1998]
  4. [Amended by Judicial Matters Second Amendment Act, 2003 (Act 55 of 2003) on 31 March 2005]
  5. [Amended by Jurisdiction of Regional Courts Amendment Act, 2008 (Act 31 of 2008) on 9 August 2010]
(Afrikaans text signed by the State President.)ACTTo provide for mediation in certain divorce proceedings, and in certain applications arising from such proceedings, in which minor or dependent children of the marriage are involved, in order to safeguard the interests of such children; and to amend the Divorce Act, 1979, in order to provide for the consideration by a court in certain circumstances of the report and recommendations of a Family Advocate before granting a decree of divorce or other relief and to make the provisions of section 12(1) and (2) of the said Act applicable to an enquiry instituted in terms of this Act; and to provide for matters connected therewith.BE IT ENACTED by the State President and the Parliament of the Republic of South Africa, as follows:—

1. Definitions

In this Act, unless the context otherwise indicates, any word or expression has the meaning attached thereto in the Divorce Act, 1979 (Act No. 70 of 1979), and—"court" means the court having jurisdiction in any action or proceedings referred to in section 4;[definition of "court" inserted by section 10(2) of Act 31 of 2008]"Family Advocate" means a Family Advocate appointed under section 2(1)"Family Counsellor" means a Family Counsellor appointed under section 3(1);"Minister" means the Minister of Justice.

2. Appointment of Family Advocates

(1)The Minister may appoint one or more officers in the public service at each division of the Supreme Court of South Africa to be styled the Family Advocate, to exercise the powers and perform the duties granted or assigned to a Family Advocate by or under this Act or any other law and the Minister, or any person authorized thereto in writing by him, may appoint one or more persons, whether or not they are officers in the public service, at any such division to act as a Family Advocate or Family Advocates for the duration of a specific divorce action or an application or for more than one such action or application.[subsection (1) amended by section 1 of Act 121 of 1991]
(2)No person shall be appointed as a Family Advocate unless he is qualified to be admitted to practice as an advocate in terms of the Admission of Advocates Act, 1964 (Act No. 74 of 1964), and the Minister deems him to be suitable for appointment as a Family Advocate by reason of his involvement in or experience of the adjudication or settlement of family matters.

3. Appointment of Family Counsellors

(1)Subject to the provisions of this section the Minister may appoint at each division of the Supreme Court of South Africa one or more suitably qualified or experienced persons to be styled the Family Counselor, to assist the Family Advocate with an enquiry in terms of any applicable law.[subsection (1) substituted by section 8 of Act 86 of 1997]
(2)A Family Counsellor shall hold office for a period of three years, or for such shorter period as the Minister determines at the time of his appointment.
(3)A Family Counsellor may resign by written notice to the Minister.
(4)The Minister may at any time withdraw the appointment of a Family Counsellor if in his opinion there is sufficient reason for doing so.

4. Powers and duties of Family Advocates

(1)The Family Advocate shall—
(a)after the institution of a divorce action; or
(b)after an application has been lodged for the variation, rescission or suspension of an order with regard to the custody or guardianship of, or access to, a child, made in terms of the Divorce Act, 1979 (Act No. 70 of 1979),
if so requested by any party to such proceedings or the court concerned, institute an enquiry to enable him to furnish the court at the trial of such action or the hearing of such application with a report and recommendations on any matter concerning the welfare of each minor or dependent child of the marriage concerned or regarding such matter as is referred to him by the court.
(2)A Family Advocate may—
(a)after the institution of a divorce action; or
(b)after an application has been lodged for the variation, rescission or suspension of an order with regard to the custody or guardianship of, or access to, a child, made in terms of the Divorce Act, 1979,
if he deems it in the interest of any minor or dependent child of a marriage concerned, apply to the court concerned for an order authorizing him to institute an enquiry contemplated in subsection (1).
(3)Any Family Advocate may, if he deems it in the interest of any minor or dependent child of a marriage concerned, and shall, if so requested by a court, appear at the trial of any divorce action or the hearing of any application referred to in subsections (1)(b) and (2)(b) and may adduce any available evidence relevant to the action or application and cross-examine witnesses giving evidence thereat.

5. Regulations

(1)The Minister may make regulations as to—
(a)the procedure to be followed in relation to the institution of an enquiry by a Family Advocate in terms of any applicable law, and the manner in which the report and recommendations emanating from such enquiry shall be produced in court;[paragraph (a) substituted by section 9(a) of Act 86 of 1997]
(b)the conditions of service of a Family Counsellor;
(c)the payment by the State of remuneration and allowances to a Family Advocate appointed under section 2(1) to act in a specific divorce action or an application in terms of any applicable law or in more than one such action or application and a Family Counselor, for services rendered, the determination of criteria for the payment of such remuneration and allowances, the manner of calculation of such remuneration and allowances and the recovery thereof by the State from a party or parties to such action or application by means of an order as to costs by the court;[paragraph (c) substituted by section 2 of Act 121 of 1991 and by section 9(b) of Act 86 of 1997]
(d)the appointment by a Family Advocate or a Family Counselor of a person or persons to assist him or her with an enquiry referred to in paragraph (a) and the payment by the State of remuneration to such person or persons;[paragraph (d) substituted by section 9(b) of Act 86 of 1997]
(dA)the circumstances in which a court may cause an investigation to be carried out by a Family Advocate as contemplated in section 10(1A) of the Maintenance Act, 1998 (Act No. 99 of 1998), and section 5(1A) of the Domestic Violence Act, 1998 (Act No. 116 of 1998);[paragraph (dA) inserted by section 15 of Act 55 of 2003]
(e)the appointment, powers and duties of one or more committees to advise the Minister regarding the appointment, powers and duties of Family Counsellors; and
(f)generally, any other matter which he deems necessary or expedient to prescribe in order to give effect to the provisions of this Act and to realize the objects thereof.
(2)No regulations may be made under subsection (1)(c) or (d) except with the concurrence of the Minister of Finance.

5A. Court may condone non-compliance with provision of regulation

The court may, at the trial of an action or the hearing of an application in terms of any applicable law, condone non-compliance with any provision of a regulation made under section 5.[section 5A inserted by section 26 of Act 139 of 1992 and substituted by section 10 of Act 86 of 1997]

6. Amendment of section 6 of Act 70 of 1979

Section 6 of the Divorce Act, 1979, is hereby amended by the substitution for subsection (1) of the following subsection:
"(1)A decree of divorce shall not be granted until the Court—
(a)is satisfied that the provisions made or contemplated that can be affected in the circumstances, and, 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, 1987, has considered the report and recommendations referred to in the said section 4(1).".

7. Amendment of section 8 of Act 70 of 1979

Section 8 of the Divorce Act, 1979, is hereby amended by the substitution for subsection (1) of the following subsection:
"(1)A maintenance order or an order in regard to the custody or guardianship of, or access to, a child, made in terms of this Act, may at any time be rescinded or varied or, in the case of a maintenance order or an order with regard to access to a child, be suspended by a court if the court finds that there is sufficient reason therefor: Provided that if an enquiry is instituted by the Family Advocate in terms of section 4(1)(b) or (2)(b) of the Mediation in Certain Divorce Matters Act, 1987, such an order with regard to custody or guardianship of, or access to, a child, shall not be rescinded or varied or, in the case of an order with regard to access to a child, not be suspended before the report and recommendations referred to in the said section 4(1) have been considered by the court.".

8. Amendment of section 12 of Act 70 of 1979

Section 12 of the Divorce Act, 1979, is hereby amended by the substitution for subsection (3) of the following subsection:
"(3)The provisions of subsections (1) and (2) shall mutatis mutandis apply with reference to proceedings relating to the enforcement or variation of any order made in terms of this Act as well as in relation to any enquiry instituted by a Family Advocate in terms of the Mediation in Certain Divorce Matters Act, 1987.".

9. Short title and commencement

(1)This Act shall be called the Mediation in Certain Divorce Matters Act, 1987, and shall come into operation on a date fixed by the State President by proclamation in the Gazette.
(2)Different dates may be fixed under subsection (1) in respect of different provisions of this Act.

Unconstitutional provisions

Legislation provisions that have been declared unconstitutional by a court. They are resolved when new legislation is passed. All unconstitutional provisions →
  • 4. Powers and duties of Family Advocates Unresolved
    Judgment
    Centre for Child Law v T S and Others [2023] ZACC 22 (29 June 2023)
    Date deemed unconstitutional
    29 June 2023
    End of suspension period
    29 June 2025

    1. The order of the High Court, Gauteng Local Division, Johannesburg, declaring section 4 of the Mediation in Certain Divorce Matters Act 24 of 1987 to be inconsistent with the Constitution and invalid is confirmed to the extent that it precludes never-married parents and married parents who are not going through a divorce, and their children, from accessing the services of the Office of the Family Advocate in the same manner as married parents who are divorced or going through a divorce do.

    …

    3. During the period of suspension referred to in paragraph 2, the Mediation in Certain Divorce Matters Act shall be deemed to include the following additional provision:
    [See read-in text]

    Read-in text

    4A

    (1)The Family Advocate shall—
    (a)after an application has been instituted that affects, or is likely to affect, the exercise of any right, by a parent or non-parent with regard to the custody or guardianship of, or access to, a child; or after an application has been lodged for the variation, rescission or suspension of an order with regard to any such rights, complete Annexure B to the regulations, if so requested by any party to such proceedings or the court concerned, institute an enquiry to enable them to furnish the court at the hearing of such application with a report and recommendations on any matter concerning the welfare of each minor or dependent child of the marriage concerned or regarding such matter as is referred to them by the court.
    (2)Any Family Advocate may, if they deem it in the interest of any minor or dependent child concerned apply to the court concerned for an order authorising him or her to institute an enquiry contemplated in sub-section (1)(a).
    (3)Any Family Advocate may, if they deem it in the interest of any minor or dependent child concerned, and shall, if so requested by a court, appear at the hearing of any application referred to in sub-section (1)(a) and may adduce any available evidence relevant to the application and cross-examine witnesses giving evidence thereat.
    4. Powers and duties of Family Advocates as at 9 August 2010:

    4. Powers and duties of Family Advocates

    (1)The Family Advocate shall—
    (a)after the institution of a divorce action; or
    (b)after an application has been lodged for the variation, rescission or suspension of an order with regard to the custody or guardianship of, or access to, a child, made in terms of the Divorce Act, 1979 (Act No. 70 of 1979),
    if so requested by any party to such proceedings or the court concerned, institute an enquiry to enable him to furnish the court at the trial of such action or the hearing of such application with a report and recommendations on any matter concerning the welfare of each minor or dependent child of the marriage concerned or regarding such matter as is referred to him by the court.
    (2)A Family Advocate may—
    (a)after the institution of a divorce action; or
    (b)after an application has been lodged for the variation, rescission or suspension of an order with regard to the custody or guardianship of, or access to, a child, made in terms of the Divorce Act, 1979,
    if he deems it in the interest of any minor or dependent child of a marriage concerned, apply to the court concerned for an order authorizing him to institute an enquiry contemplated in subsection (1).
    (3)Any Family Advocate may, if he deems it in the interest of any minor or dependent child of a marriage concerned, and shall, if so requested by a court, appear at the trial of any divorce action or the hearing of any application referred to in subsections (1)(b) and (2)(b) and may adduce any available evidence relevant to the action or application and cross-examine witnesses giving evidence thereat.

Subsidiary legislation

Title
Mediation in Certain Divorce Matters Regulations: Amendment
Human Rights
Government Notice R251 of 2005
Mediation in Certain Divorce Matters Regulations: Amendment
Human Rights
Government Notice R1123 of 2001
Mediation in Certain Divorce Matters Regulations: Amendment
Human Rights
Government Notice R2513 of 1992
Mediation in Certain Divorce Matters Regulations, 1990
Human Rights
Government Notice R2385 of 1990
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