Mediation in Certain Divorce Matters Act, 1987

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Jurisdiction
South Africa
Citation
Act 24 of 1987
Date
24 June 1987
Language
English
Type
Legislation
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South Africa

Mediation in Certain Divorce Matters Act, 1987

Act 24 of 1987

(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—"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.
(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 Counsellor, to assist the Family Advocate with an enquiry referred to in section 4 (1).
(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.
[Editorial note: The Constitutional Court of South Africa has confirmed the order of the High Court, Gauteng Local Division, Johannesburg, in which the court declared section 4 of the Mediation in Certain Divorce Matters Act 24 of 1987 to be inconsistent with the Constitution and invalid “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”. The declaration of invalidity shall not be retrospective and is suspended for a period of 24 months to enable Parliament to cure the defect in the Mediation in Certain Divorce Matters Act giving rise to its invalidity. See the full judgement here: Centre for Child Law v T S and Others (CCT 157/22) [2023] ZACC 22 (29 June 2023)]

5. Regulations

(1)The Minister may make regulations as to—
(a)the procedure to be followed in relation to the institution of an enquiry referred to in section 4, and the manner in which the report and recommendations mentioned in that section shall be produced in court;
(b)the conditions of service of a Family Counsellor;
(c)the payment by the State of remuneration and allowances to a Family Counsellor for services rendered, the manner of calculation of such remuneration and allowances and the recovery of such remuneration and allowances by the State from a party or parties to a divorce action or an application referred to in section 4(1)(b), and (2)(b) by means of an order as to costs by the court;
(d)the appointment by a Family Advocate or a Family Counsellor of a person or persons to assist him with an enquiry referred to in section 4 and the payment by the State of remuneration to such person or persons;
(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.

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.
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History of this document

09 August 2010 amendment not yet applied
31 March 2005 amendment not yet applied
04 September 1998 amendment not yet applied
07 August 1992 amendment not yet applied
10 July 1991 amendment not yet applied
01 October 1990
24 June 1987 this version
16 June 1987
Assented to

Subsidiary legislation

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

Cited documents 1

Legislation 1
  1. Divorce Act, 1979

Documents citing this one 60

Gazette 37
  1. Free State Provincial Gazette dated 1998-04-24 number 35
  2. South Africa Government Gazette Regulation Gazette dated 1992-09-11 number 14263
  3. South Africa Government Gazette Regulation Gazette dated 1993-07-30 number 15024
  4. South Africa Government Gazette Regulation Gazette dated 1997-09-26 number 18305
  5. South Africa Government Gazette Regulation Gazette dated 1998-11-09 number 19458
  6. South Africa Government Gazette Regulation Gazette dated 2001-07-02 number 22435
  7. South Africa Government Gazette Regulation Gazette dated 2005-03-22 number 27406
  8. South Africa Government Gazette Regulation Gazette dated 2022-08-26 number 46795
  9. South Africa Government Gazette Regulation Gazette dated 2022-08-26 number 46796
  10. South Africa Government Gazette dated 1939-03-10 number 2615
  11. South Africa Government Gazette dated 1939-07-07 number 2660
  12. South Africa Government Gazette dated 1940-03-01 number 2738
  13. South Africa Government Gazette dated 1940-08-02 number 2798
  14. South Africa Government Gazette dated 1942-11-27 number 3120
  15. South Africa Government Gazette dated 1943-04-22 number 3182
  16. South Africa Government Gazette dated 1943-05-14 number 3195
  17. South Africa Government Gazette dated 1943-07-16 number 3220
  18. South Africa Government Gazette dated 1943-09-03 number 3240
  19. South Africa Government Gazette dated 1944-01-14 number 3292
  20. South Africa Government Gazette dated 1945-07-13 number 3520
  21. South Africa Government Gazette dated 1947-06-02 number 3823
  22. South Africa Government Gazette dated 1991-07-10 number 13366
  23. South Africa Government Gazette dated 1995-06-30 number 16509
  24. South Africa Government Gazette dated 1996-02-02 number 16943
  25. South Africa Government Gazette dated 1996-11-20 number 17584
  26. South Africa Government Gazette dated 1997-08-08 number 18166
  27. South Africa Government Gazette dated 1997-11-21 number 18451
  28. South Africa Government Gazette dated 1998-12-02 number 19539
  29. South Africa Government Gazette dated 2004-03-31 number 26206
  30. South Africa Government Gazette dated 2006-09-21 number 29237
  31. South Africa Government Gazette dated 2008-05-20 number 31075
  32. South Africa Government Gazette dated 2008-11-05 number 31579
  33. South Africa Government Gazette dated 2011-01-21 number 33946
  34. South Africa Government Gazette dated 2011-10-19 number 34692
  35. South Africa Government Gazette dated 2018-10-29 number 42005
  36. South Africa Government Gazette dated 2021-06-18 number 44724 part 1
  37. South Africa Government Gazette dated 2021-07-02 number 44799 part 1
Guide 3
  1. Guide to Role of Intermediary in South Africa
  2. Guide to Specialised Interviewers for Child Witnesses
  3. Guide to the Role of the Intermediary in South Africa
Judgment 14
  1. Central Authority v H. (262/2006) [2007] ZASCA 88 (4 June 2007)
  2. Centre for Child Law v T S and Others [2023] ZACC 22 (29 June 2023)
  3. D H v A H (914/2023) [2023] ZAECGHC 31 (4 April 2023)
  4. Ex parte: Le Grange and Another; Le Grange v Le Grange (984/2011) [2013] ZAECGHC 75 (1 August 2013)
  5. Fourie and Another v Minister of Home Affairs and Another [2003] ZACC 11 (31 July 2003)
  6. G D v L D (25896/21) [2022] ZAGPPHC 728 (31 October 2022)
  7. Henrico v Daniella Roen Spies (717/2022) [2022] ZAFSHC 159 (7 December 2022)
  8. L S v A T and Another (CCT 53/00) [2000] ZACC 26 (4 December 2000)
  9. Legal Aid Board: In re Four Children (512/2010) [2011] ZASCA 39 (29 March 2011)
  10. Mothloung v Passenger Rail Agency of South Africa (32030/13) [2022] ZAGPJHC 29 (10 February 2022)
  11. Pennello v Pennello and Another (238/2003) [2003] ZASCA 147 (1 December 2003)
  12. Potgieter v Potgieter (215/2006) [2007] ZASCA 47 (30 March 2007)
  13. S T v B N and Another (2020/26471) [2022] ZAGPJHC 943 (2 February 2022)
  14. Smith v Smith (112/2000) [2001] ZASCA 19 (16 March 2001)
Legislation 6
  1. Children's Act, 2005
  2. Domestic Violence Act, 1998
  3. Magistrates' Courts Act, 1944
  4. Maintenance Act, 1998
  5. Mediation in Certain Divorce Matters Regulations, 1990
  6. Recognition of Customary Marriages Act, 1998