Guardianship of Minors Amendment Act

The Guardianship of Minors Act (Chapter 5:08) was promulgated to protect the rights of children upon divorce or separation of their parents. The Guardianship of Minors Amendment Act 2 of 2022, amends sections 3, 4 and 5 of the Act.

Section 2 of the Act is amended by the insertion of definitions of “custody” and “guardianship”. Custody is defined as either legal custody, which arises by virtue of the parents being married to each other or by virtue of an order of separation or divorce, or actual custody, where the parents are not married to each other. The section defines “guardianship” to mean a legal right sanctioning either parent to manage a minor’s affairs including health, educational needs, financial security or any welfare needs. These definitions are a welcome development, as they were not previously included, yet they are crucial to the discourse surrounding the rights of children.

The Amendment Act repeals section 3 and substitutes it with new provisions on the exercise of joint guardianship and custody by parents. It gives both parents equal rights of guardianship and custody over their children, in consultation with one another, whether the parents are married or otherwise. Further, the court may expressly give direction as to the manner in which the joint guardianship is to be shared or exercised in instances where there is an order of maintenance. Before the Amendment, the position was that the rights of guardianship of the father were to be exercised in consultation with the mother, and if a decision of the father on any matter relating to guardianship was contrary to the mother’s wishes, she could approach the High Court to settle the matter.

Section 4 is amended to delete the power of parents to consent to the marriage of their minor children. This is a welcome development that upholds section 81(2) of the Constitution which provides that, “a child’s best interests are paramount in every matter concerning the child”. It also protects children from child marriages that are sanctioned by their parents, be it founded in religious or cultural practices.

Section 5 is amended to state that if parents separate “either of the parents” shall have sole custody of the children, pending a court order. Previously, upon separation, custody of minor children was given to the mother, pending the court order. The Amendment also empowers the custodial parent, and not just the mother, to apply to the children’s court for an order for sole custody, if the non-custodial parent removes the children from the custody of the custodial parent.

Click on this link to read the full Guardianship of Minors Amendment Act 2 of 2022.