Page 27 - SAReform Book

Summary Research Report 25
matrimonial estate. Therefore, although the pro rata contribution can be very time-consuming (if done properly) this should be built into the ‘investigation’ when assessing divorce proceedings and their consequences. (d) It is too onerous (both costly and time-consuming) for the custodian parent, who is often the mother, to have to return to a separate court, on a separate date, and obtain the information. Thus, the process of obtaining maintenance separate from a divorce order may disadvantage women more severely than men.
In short, the proceedings for divorce must culminate in a comprehensive order covering all aspects of custody, property and maintenance. The coupling of these matters will allow for compliance with the overall aims of the RCMA.
With regard to custody of children, the study found that the customary law stipulating that children belong to the husband once the father has paid lobolo is not the norm and is not living law (in so far as this principle applies to the custody of the child) in the cases we investigated for this research. This finding occurred both in the formal and informal regulation of custody arrangements following the dissolution of a customary marriage. According to the Law Commission, ‘the courts may take into account relevant cultural expectations when deciding a child’s future’.24 We did not find any evidence that fathers are custodians, but we did find that a large number of cases involved custody disputes. In fact, the vast majority of divorce cases reviewed were contested, which demonstrates the need for third-party involvement. While the family advocate was involved in some cases, he or she was not involved in all (only 17 out of 28). In terms of s 4(1) of the Mediation in Certain Divorce Matters Act 24 of 1987, the family advocate is supposed to investigate the family situation and supply a report and recommendations for custody based on that situation. However, how customary norms and laws are used by the courts to determine what is in the best interests of the child is unclear.
The reports of the family advocate are intended to assist the court in that determination. However, the reports we examined in the court files contained scant detail and presented only information on the living arrangements of the children and the income and expenditure of both parents. We also could not determine how the family advocate considers relevant cultural expectations when making recommendations regarding a child’s future. More details are required to provide a better understanding of how the family advocate assists in the determination of the best interests of the child, particularly in customary law matters, where affiliation to paternal kin is seen as very significant.
Therefore, we recommend that the investigation of the family advocate should go beyond logistical and material factors concerning the custody of the child to include factors that may affect the child’s custody under customary law, which the court may in turn incorporate or pre-empt in determining the best interests of the child.
24 South African Law Commission (Project 90: The Harmonisation of the Common Law and Indigenous Law) Report on Customary Marriages (August 1998) at 163.