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Care, contact, parenting plans, interim Rule 43 or Rule 58 relief, and the divorce court’s role where children are involved
When parents divorce in South Africa, arrangements for minor or dependent children may need to address care, contact, primary residence, maintenance, guardianship and parenting plans while the divorce is pending and when the final divorce order is granted.
In High Court divorces, Rule 43 can provide interim relief concerning maintenance, litigation costs, care and contact; in the Regional Court under Rule 58 of the Magistrates’ Courts Rules, Rule 58 provides the corresponding interim procedure.
Before granting the divorce, the court must also be satisfied that the arrangements for a minor or dependent child of the marriage are satisfactory or the best that can be achieved in the circumstances.
This article provides general information about South African family law and children in divorce proceedings. It does not constitute legal advice or predict the outcome of an individual matter.
| Question | General position |
Must the court consider children before granting a divorce? | Yes. Section 6 of the Divorce Act imposes a specific duty where a minor or dependent child of the marriage is involved. |
Can parents agree on their children’s arrangements? | Yes, but the court is not automatically bound by their agreement. |
What if parents cannot agree while the divorce is pending? | Interim relief may be available. |
What is Rule 43? | The High Court procedure for specified interim matrimonial relief. |
What is Rule 58? | The corresponding procedure where the matrimonial action is pending in the Regional Court under Rule 58 of the Magistrates’ Courts Rules. |
Can interim care and contact be regulated? | Yes |
| Can interim maintenance be ordered? | Yes |
| Can an interim order later be changed? | Yes, where the applicable rule permits variation following a material change in circumstances. |
| Can the Family Advocate become involved? | Yes |
| Is a Family Advocate recommendation binding? | No. It assists the court, which remains the decision-maker. |
| Can parents use a parenting plan? | Yes, subject to the Children’s Act. |
| Can the court reject child-related terms in a settlement? | Yes |
| Can a child’s views be considered? | Yes, where the child’s age, maturity and development allow meaningful participation. |
| Can relocation become an issue before the divorce is finalised? | Yes. A proposed move can materially affect residence, care and contact arrangements. |
A divorce terminates the marriage between the spouses. It does not terminate parental responsibilities and rights merely because the parents no longer live together.
The Children’s Act distinguishes between:
Depending on the family, arrangements during the divorce may therefore need to address:
These concepts should not be collapsed into the older idea of a single “custody” dispute.
For the fuller framework, see Parental Responsibilities, Rights and Guardianship.
Section 6 of the Divorce Act 70 of 1979 creates a specific safeguard for children.
A decree of divorce may not be granted until the court is satisfied that the provisions made or contemplated regarding the welfare of a minor or dependent child of the marriage are satisfactory or the best that can be achieved in the circumstances.
If an enquiry by the Family Advocate has been instituted under the applicable legislation, the court must consider the resulting report and recommendations.
The court may also:
This responsibility does not disappear because the divorce is undefended or because the parents have reached agreement.
No.
In AR v BMR (060704/2023; 001200/2023) [2023] ZAGPPHC 2035, the Gauteng High Court emphasised that section 6 applies whether divorce proceedings are opposed or unopposed.
The court stressed that, when children are involved, it does not function merely as a rubber stamp for a settlement agreement.
The court must have enough information to satisfy itself that the proposed arrangements properly address the children’s interests.
This has an important practical consequence.
A settlement should not merely state that the arrangements are “in the best interests of the children”. The underlying facts should enable the court to understand why the arrangements are appropriate.
Yes.
Parents can resolve child-related issues by agreement, and appropriate settlement can substantially reduce cost, delay and conflict.
A divorce settlement may address matters such as:
But parental agreement does not remove the court’s responsibility under section 6.
In P.V.Z v L.V.Z (047502/2024; 36830/2022; 064524/2023) [2024] ZAGPPHC 1046, the High Court reiterated that section 6 requires the court to satisfy itself that the arrangements concerning children serve their interests, irrespective of whether the divorce is opposed or unopposed.
Parents can therefore agree.
The court must still be satisfied.
Not necessarily.
A divorce settlement agreement can regulate the broader consequences of the marriage ending, including financial and child-related issues.
A parenting plan is specifically regulated by sections 33 and 34 of the Children’s Act and concerns how co-holders of parental responsibilities and rights will exercise those responsibilities and rights.
A parenting plan may determine matters including:
It must comply with the statutory best-interests standard. A parenting plan must be in writing and signed, and it may, subject to the Act, be registered with the Family Advocate or made an order of court.
A divorce settlement can incorporate or work alongside a parenting plan, but the two terms should not automatically be used interchangeably.
Where matrimonial proceedings are pending in the High Court, Rule 43 of the Uniform Rules of Court provides a procedure for specified interim matrimonial relief.
The Rule expressly covers:
The primary source for these categories is Rule 43 itself.
An interim Rule 43 order regulates matters pending the divorce. It does not, merely because it was granted first, determine the final outcome of every child-related issue.
Where the divorce action is pending in the Regional Court, Rule 58 of the Magistrates’ Courts Rules performs the corresponding interim function.
The current Rules provide for interim matrimonial relief concerning maintenance, litigation costs and child-related arrangements.
The jurisdictional distinction was clearly considered in M.K v D.K (1246/2021) [2021] ZAECPEHC 36.
The High Court held that Rule 43 is used in proceedings pending in the High Court, while Rule 58 applies where the matrimonial action is pending in the Regional Court under Rule 58 of the Magistrates’ Courts Rules
The applicant in that case could not move a Rule 43 application in the High Court simply because her Rule 58 application in the Regional Court had been unsuccessful.
The correct procedure therefore depends on where the underlying divorce proceedings are pending.
Depending on the application and the applicable court, interim relief may address matters such as:
The purpose is to create a workable interim position while the matrimonial proceedings remain unresolved. Rule 43 expressly empowers the High Court to make an appropriate order following a summary procedure, and Rule 58 provides the corresponding mechanism in the Regional Court under Rule 58 of the Magistrates’ Courts Rules.
An interim order should therefore be understood for what it is:
interim relief, not automatically the final parenting arrangement.
Yes, where the requirements of the applicable rule are met.
Rule 43(6) expressly allows the High Court to vary its decision where there has been a material change in the circumstances of either party or a child, or where the contribution towards costs proves inadequate.
Rule 58(6) contains a corresponding variation mechanism.
A parent should not simply ignore an interim court order because circumstances have changed. An existing court order remains binding unless and until it is varied or rescinded by a competent court. Where the parties reach agreement on a proposed variation, the appropriate steps should be taken to regularise that agreement where necessary.
Not automatically.
The factual arrangement operating while a divorce is pending can become relevant evidence, particularly where a child has become settled.
But the divorce court still has to consider the arrangements ultimately proposed for the child under section 6, together with the Children’s Act best-interests framework.
Circumstances can also change before trial.
For example:
An interim arrangement should therefore not be confused with a permanent entitlement.
The Office of the Family Advocate can assist where parents cannot resolve disputes involving children.
Current Department of Justice guidance explains that the Office may:
The Family Advocate is neutral.
Where a qualifying enquiry has been instituted in divorce proceedings, section 6 of the Divorce Act requires the divorce court to consider the report and recommendations before granting the decree.
A recommendation assists the court. It does not replace judicial decision-making.
For the fuller framework, see The Family Advocate in South Africa.
Yes.
Section 6(2) expressly permits the court to cause any investigation it considers necessary to be carried out for purposes of deciding whether the arrangements for the children meet the statutory standard.
This may become relevant where:
In AR v BMR, the court postponed the divorces before it pending Family Advocate investigations rather than simply granting decrees on the material presented.
Yes.
Section 10 of the Children’s Act provides that a child who is of an age, maturity and stage of development capable of meaningful participation has the right to participate appropriately in a matter concerning that child, and the child’s views must receive due consideration.
That does not mean the child simply decides:
The child’s views form part of the broader best-interests enquiry.
The Family Advocate may assist in obtaining and conveying those views in an appropriate manner.
Parents should avoid placing the child in the position of having to choose between them.
Parents may agree on where the child will live while the divorce proceeds.
Where they cannot agree, interim care may be regulated through the appropriate procedure.
Primary residence does not automatically mean sole guardianship.
A child may live principally with one parent while both parents continue to hold other parental responsibilities and rights.
Section 18 of the Children’s Act recognises care, contact, guardianship and maintenance as distinct responsibilities and rights.
The ultimate arrangement must remain child-focused.
For the fuller framework, see Primary Residence and Contact With Children in South Africa.
Separation can create an immediate need for a new contact arrangement long before the divorce is finalised.
Contact may need to regulate matters such as:
Where agreement is impossible, Rule 43 or Rule 58 may provide the applicable interim mechanism depending on the court in which the matrimonial action is pending.
The aim should be a workable arrangement for the child, rather than using contact to gain leverage in the wider divorce.
A child’s financial needs continue while the divorce is pending.
Rule 43 expressly includes maintenance pendente lite, while Rule 58 provides corresponding interim relief in proceedings pending in the Regional Court under Rule 58 of the Magistrates’ Courts Rules.
Section 6 of the Divorce Act also empowers the court granting the divorce to make an appropriate order regarding maintenance of a dependent child of the marriage.
The duty of support is not created by the divorce order itself.
South African law recognises an underlying parental duty to maintain a child according to the applicable circumstances.
Maintenance and contact should therefore not be treated as interchangeable bargaining tools.
Divorce does not automatically terminate an existing parent’s guardianship.
The Children’s Act treats guardianship as distinct from care, contact and maintenance.
A guardian has specified legal responsibilities and may be required to consent to matters such as a child’s passport application or departure from South Africa.
The Divorce Act also gives the court powers concerning guardianship when granting a divorce.
Parents should therefore avoid assuming that:
primary residence = sole guardianship.
It does not.
A proposed relocation while divorce proceedings are pending can materially affect the arrangements being considered for the child.
It may affect:
Section 31 may be relevant to a proposed relocation. Where section 31(1) applies, due consideration must be given to the child’s views and wishes, having regard to the child’s age, maturity and stage of development.
Separately, section 31(2) requires due consideration to be given to another co-holder’s views and wishes where the decision is likely significantly to change, or have a significant adverse effect on, that co-holder’s exercise of parental responsibilities and rights.
Due consideration does not amount to an automatic right of veto, although separate consent requirements may apply to particular guardianship matters or under an existing court order.
For the specific relocation framework, see Child Relocation in South Africa and When a Parent Moves Away With Your Child.
Settlement can be highly beneficial.
A well-prepared child-related settlement can reduce:
But a settlement involving children should be built around their actual circumstances rather than standard wording.
Depending on the family, it may need to address:
The court must still satisfy itself that section 6 has been met before granting the divorce.
Yes.
AR v BMR confirms that the court’s section 6 responsibility applies even in unopposed divorces and that the court is not merely there to endorse the parents’ agreement.
P.V.Z v L.V.Z similarly reinforces the need for the court to examine whether proposed residence, contact and maintenance arrangements actually serve the children involved.
This does not mean courts routinely interfere with sensible agreements.
It means that the words “the parties agree” do not displace the child’s own interests.
For a case-focused discussion of this principle, see ZDE v CE: When Courts Reject Parenting Agreements.
A child-related settlement should answer practical questions, not merely legal ones.
The aim is not to anticipate every disagreement a family might ever have.
It is to avoid obvious uncertainty in matters that can reasonably be foreseen.
Advice may be particularly important where:
The correct legal route depends on the facts and on the court in which the underlying proceedings are pending.
A divorce decree determines the legal status of the marriage.
Where children are involved, however, the court has an additional responsibility.
Parents may negotiate their own arrangements. They may use a parenting plan. They may obtain assistance from the Family Advocate.
Where necessary, interim relief can regulate the position while the divorce remains pending.
But before granting the divorce, the court must still satisfy itself that the arrangements concerning a minor or dependent child of the marriage meet the standard imposed by section 6 of the Divorce Act.
The central question is therefore not simply:
Have the parents reached a settlement?
It is:
Do the arrangements properly address the child’s interests and circumstances?
Martin Vermaak Attorneys Inc. advises on South African divorce and family-law matters involving children, including Rule 43 and Rule 58 proceedings, interim care and contact, primary residence, child maintenance, parenting plans, Family Advocate investigations, guardianship, relocation and child-related settlement agreements.
Where a divorce involving children is contemplated or already pending, addressing the children’s arrangements early can help identify what can be resolved by agreement, what requires further investigation and whether interim or final court relief may be necessary.
Author: Martin Vermaak, B.Proc, LLB
Attorney of the High Court of South Africa | Director, Martin Vermaak Attorneys | Over 20 years’ experience in divorce and family law
Disclaimer
This information has been prepared for general educational purposes only and is not intended to constitute legal, financial, tax or other professional advice. South African family law is fact-specific, and the applicable legal position may depend on the circumstances of the individual matter. Readers should obtain independent professional advice appropriate to their circumstances before making legal, financial or other decisions.
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