Shared Residency: Not Always the Default Solution for Divorced Parents
In a groundbreaking judgment delivered by Acting Judge Haupt in P.V.Z v L.V.Z (047502/2024; 36830/2022; 064524/2023) [2024] ZAGPPHC 1046, the Gauteng Division of the High Court has firmly challenged the growing trend of automatic shared residency arrangements in divorce cases. The judgment, dealing with three separate divorce matters, emphasises that there is no legal presumption that shared residency agreements automatically serve children’s best interests merely because parents have agreed to them.
The court referenced the seminal case of B v M [2006] 3 All SA 109 (W), which dispelled the myth that shared parenting necessarily involves a fifty-fifty time split. Rather, shared parenting means active involvement of both parents in their children’s daily lives over periods that promote the children’s development.
Dating back to 1987, in Schlebusch v Schlebusch 1988 (4) SA 548 (ECD), the courts have expressed concern about joint custody arrangements, noting that while parents may remain forever in a biological sense, the awarding of joint custody rarely ensures a continuing relationship between children and both parents in the idealistic way many hope for.
The judgment particularly criticises the emerging pattern where shared residency is being used as a mechanism by financially stronger parents to restrict the movement of primary caregivers (usually mothers) and avoid paying cash maintenance. This misuse of shared residency arrangements often masquerades as co-parenting while actually serving to control the other parent’s freedom of movement and financial independence.
The court emphasised that co-parenting does not require joint decision-making in all matters. The Children’s Act 38 of 2005 only requires joint decision-making in specific circumstances, such as when removing children from South Africa. Section 30 of the Act explicitly allows co-holders of parental responsibilities to act without the other’s consent, except where specifically required by law or court order.
This judgment serves as a crucial reminder that shared residency should not be seen as a default position or a right of parents, but rather as an arrangement that must be carefully considered based on each family’s unique circumstances and, most importantly, the best interests of the children involved.
Acting Judge Haupt’s decision reflects a growing judicial recognition that while shared residency may work well in some cases, it should never be automatically assumed to be the best solution simply because parents have agreed to it or because it appears fair to the adults involved. The paramount consideration must always be the best interests of the child, as mandated by Section 28(2) of the Constitution of the Republic of South Africa, 1996.
The Court’s Role as Upper Guardian: Looking Beyond Parental Agreements
Acting Judge Haupt’s judgment emphasises that Section 6 of the Divorce Act 70 of 1979 compels courts to satisfy themselves that agreements between parents genuinely serve children’s best interests. This duty exists regardless of whether divorces are opposed or unopposed, and courts cannot simply defer care, contact, or maintenance issues to other forums like the Children’s Court or Maintenance Court.
The judgment criticises the growing practice in unopposed divorces where evidence affidavits provide minimal detail, failing to address factors listed in Section 7 of the Children’s Act. Legal practitioners often overlook their duty to place sufficient information before the court regarding care arrangements, children’s needs, and whether maintenance provisions align with parties’ living standards and earning capacities.
The Consolidated Practice Directive 1/2024 for Court Operations in the Gauteng Division requires detailed evidence about arrangements for minor children in unopposed divorces. However, the judgment notes that many practitioners fail to comply, providing bare assertions that settlement agreements serve children’s interests without substantiating facts.
The court referenced AR v BMR [2023] ZAGPPHC 2035, highlighting how hearing unopposed divorces purely on affidavit is open to abuse. The judgment revealed instances where oral evidence and subsequent Family Advocate interviews directly contradicted affidavit evidence, emphasising why courts must scrutinise even agreed arrangements.
In the VZ matter, the court found the particulars of claim merely stated parties reached a settlement without providing facts to substantiate the relief sought. The evidence affidavit simply declared the arrangements would serve children’s interests without explanation. This approach was deemed insufficient for the court to fulfil its constitutional and legislative duties.
This judgment reinforces principles from Terblanche v Terblanche 1992 (1) SA 501 (W), emphasising that courts must look beyond parents’ agreements to objectively assess children’s interests. The judgment demonstrates that courts will increasingly require substantive evidence about how arrangements serve children’s interests, rather than accepting superficial agreements at face value.
Acting Judge Haupt’s criticism extended to attorneys who tailor prescribed forms like Annexure “A” to suit client convenience rather than fulfilling their duty to assist courts in protecting children’s interests. The judgment emphasises that attorneys’ paramount duty is to the court, not their clients, particularly when children’s interests are at stake.
Financial Implications: Why Equal Time Doesn’t Mean Equal Maintenance
The judgment firmly rejects the growing misconception that shared residency automatically negates the need for cash maintenance payments between parents. In the VZ matter, the court found a stark disparity in living standards between homes – the father’s gross monthly income was R200,000 while the mother earned R70,000, yet no cash maintenance was initially agreed upon.
The court emphasised that according to LAWSA Vol 14, children are entitled to reasonable maintenance based on their parents’ standard of living, respective incomes, and ability to pay. The judgment notes that even with equal time-sharing, the principle of pro-rata maintenance contributions based on income remains firmly entrenched in South African law.
In the DK matter, the initial settlement had the mother paying one-third and father two-thirds of expenses, reflecting their income disparity. However, a subsequent agreement shifted to 50/50 cost-sharing despite continued income inequality. The court found this arrangement failed to secure the children’s right to maintain their established standard of living in both homes.
The Financial Disclosure Forms revealed telling disparities – in the VZ case, the father allocated R22,500 monthly for groceries and toiletries for himself and children during his contact time, while the mother budgeted R17,213.50 for herself and the children despite having primary care. The father’s personal clothing budget was R4,000 versus the mother’s R1,000.
The judgment highlights how shared residency arrangements often mask financial inequities, particularly when wealthy parents use trust structures or complex financial arrangements. In the VZ matter, the father’s involvement in multiple family trusts, including an offshore trust in Guernsey, complicated the true assessment of his means.
Acting Judge Haupt introduced a practical solution by calculating maintenance to ensure both households retained similar excess cash after expenses, ensuring children experience consistent living standards regardless of which parent they’re with. This approach maintains the principle of pro-rata contributions while acknowledging the reality of shared care arrangements.
The court emphasises that the word “reasonable” in maintenance calculations encompasses more than basic necessities – it includes maintaining the standard of living children would have enjoyed had their parents remained married. This principle applies regardless of residency arrangements, ensuring children’s financial welfare isn’t compromised by their parents’ choice of care arrangement.
The Family Advocate’s Critical Role in Divorce Proceedings
The judgment powerfully reinforces the integral role of the Family Advocate in divorce proceedings, drawing on Soller v G 2003 (5) SA 430 (W) which establishes the Family Advocate as a neutral, professional channel of communication between conflicting parents and the judicial officer.
In the S matter, the Family Advocate’s investigation revealed crucial information that contradicted parents’ testimony. While parents claimed children were thriving under shared residency, the investigation uncovered that both daughters struggled emotionally, cried after rotations, and took time to stabilise. The school had even reprimanded parents for an altercation at a sports event and reported difficulties getting paperwork returned due to the shared residency arrangement.
The Family Advocate’s observations in the DK matter identified serious concerns about the children’s emotional security. The six-year-old son displayed severe separation anxiety during interviews, requiring both parents’ presence and his father carrying him. The daughter’s unusual pattern of consciously placing both parents on exactly the same level raised concerns about possible coaching.
The court rejected attempts to undermine the Family Advocate’s expertise, particularly when attorneys questioned their ability to make psychological observations. Acting Judge Haupt emphasised that two independent sources – the Family Advocate and the children’s school – both observed concerning separation anxiety, validating the Family Advocate’s professional insights.
The judgment criticises inappropriate attempts to influence the Family Advocate’s process, particularly in the VZ matter where an attorney sent WhatsApp messages to the Family Advocate’s personal phone and attempted to dictate where consultations should occur. The court emphasised that attorneys cannot prescribe how the Family Advocate conducts investigations.
Significantly, the court found the Family Advocate’s reports more credible than parents’ testimony in cases where evidence conflicted. In the VZ matter, the Family Advocate’s report exposed that the claimed 50/50 shared residency arrangement was actually an alternate weekend contact arrangement, leading to concerns about possible perjury.
The judgment reinforces that the Family Advocate’s role extends beyond merely endorsing agreements – they provide crucial objective insights into children’s emotional well-being, family dynamics, and the practical implementation of care arrangements. Their recommendations carry significant weight, as demonstrated in the S matter where the court implemented the Family Advocate’s recommended interim arrangement pending further investigation.
Legal Practitioners’ Duties in Unopposed Divorce Cases
The judgment delivers a scathing critique of legal practitioners’ conduct in unopposed divorce cases, particularly regarding their paramount duty to the court as outlined in Kekana v Society of Advocates of South Africa 1998 (4) SA 649 (SCA). Acting Judge Haupt took the extraordinary step of disallowing attorney’s fees in the VZ matter due to substandard practice.
The court condemned the practice of amending prescribed forms, specifically highlighting Mr Oosthuizen’s admission that he deliberately removed financial information from the Annexure “A” form because clients often do not know each other’s income. This explanation was rejected as fundamentally misunderstanding the form’s purpose in assisting both the court and Family Advocate.
The judgment addresses the concerning trend of “cavalier communication” by younger practitioners with state organs, exemplified by attorney Du Toit’s inappropriate WhatsApp messages and attempts to pressure the Family Advocate. The senior attorney’s characterisation of this as “a sign of the times” was met with judicial disapproval.
The court emphasises that evidence affidavits in unopposed divorces must provide substantive information about care arrangements, children’s needs, and maintenance adequacy. The practice of merely stating that arrangements serve children’s interests without providing supporting facts was deemed insufficient for courts to fulfil their upper guardian role.
Particularly concerning was the court’s finding that some attorneys may be aware of misrepresentations in their clients’ evidence. In the VZ matter, the attorney knew the actual contact arrangement differed from what was presented to court but failed to correct this misrepresentation.
The judgment warns that courts may start showing greater displeasure with parties who make a mockery of the oath, particularly where children’s interests are at stake. While the court ultimately decided against referring the VZ matter for perjury investigation to protect the children from further trauma, it signals that such leniency may not continue.
The ruling establishes that legal practitioners must ensure their clients understand the serious implications of sworn testimony and the importance of full disclosure in matters involving children. The judgment serves as a warning that professional consequences may follow when attorneys fail to maintain proper standards of practice in family law matters.
Acting Judge Haupt’s judgment in P.V.Z v L.V.Z represents a significant shift in how South African courts approach shared residency arrangements in divorce matters. The judgment’s most valuable contribution lies in its firm stance against the automatic assumption that equal time means equal contribution, and its recognition that shared residency arrangements can sometimes mask attempts to control rather than co-parent.
While some might view the judgment as overly critical of shared residency, I believe it actually provides a balanced framework for evaluating these arrangements. Rather than dismissing shared residency outright, it demands proper scrutiny of such arrangements to ensure they genuinely serve children’s interests rather than adult conveniences. The judgment’s emphasis on maintaining similar living standards across both homes through appropriate maintenance calculations is particularly practical and child-centred.
The court’s criticism of legal practice in unopposed divorces, though harsh, was necessary. Too often, these matters have been treated as mere formalities, with proper evidence-gathering sacrificed for expedience. The judgment serves as a wake-up call to legal practitioners about their duties to the court and, ultimately, to the children whose interests we are meant to protect.
Perhaps most importantly, this judgment reminds us that in family law, there are no one-size-fits-all solutions. Each family’s circumstances require careful consideration, and while shared residency might work beautifully for some families, it should not be seen as the default option for modern co-parenting. The judgment’s insistence on proper investigation and evidence, rather than mere acceptance of parental agreements, ultimately serves to protect our most vulnerable stakeholders – the children.
Questions and Answers
What does Section 6 of the Divorce Act require from courts regarding children in divorce matters? The court must satisfy itself that provisions for minor children are satisfactory or the best that can be effected in the circumstances. The court cannot grant a divorce until it has considered any Family Advocate report and recommendations. The court may order investigations and appoint legal representatives for children if needed.
Does the Children’s Act require joint decision-making between divorced parents? No. Section 30 of the Children’s Act provides that co-holders of parental rights and responsibilities may act without the other’s consent except where the Act, other laws, or court orders specifically require joint decisions. Joint decisions are only required for specific matters like removing children from South Africa.
When considering shared residency arrangements, is the status quo a determining factor? No. The judgment emphasises there is no presumption that a shared residency agreement is in a child’s best interest simply because parents agreed to it and have implemented it for a period. The court must still satisfy itself that such arrangements serve the child’s best interests.
Must maintenance be split equally when parents share residency equally? No. The judgment confirms that even with equal time-sharing, parents must contribute to maintenance pro-rata according to their respective incomes. Equal time does not negate the principle that each parent contributes according to their means.
What information must evidence affidavits contain in unopposed divorces involving children? Evidence affidavits must address the arrangements for minor children in detail, including relevant Section 7 Children’s Act factors, care arrangements, special needs, maintenance provisions relative to living standards and earning capacities, and the Family Advocate’s views.
Can courts defer maintenance and care arrangements to other courts when granting divorce? No. Section 6 of the Divorce Act places a duty on divorce courts to determine these issues. The court cannot simply grant a divorce and defer outstanding care issues to the Children’s Court or maintenance to the Maintenance Court.
What is the role of the Family Advocate in divorce proceedings? The Family Advocate provides a professional and neutral channel of communication between conflicting parents and the court. They make balanced recommendations without taking sides and help examine the true facts and circumstances affecting children’s interests.
Must attorneys complete the full Annexure A form in divorce proceedings? Yes. The judgment criticises the practice of modifying or omitting parts of the prescribed Annexure A form. All financial information must be included to assist both the court and Family Advocate in assessing arrangements for children.
Can parents contract out of their maintenance obligations through a settlement agreement? No. The judgment confirms that parents cannot contract out of their maintenance obligations. Agreements must ensure reasonable maintenance based on the standard of living, parents’ respective incomes, children’s needs and parents’ ability to pay.
What factors does the court consider regarding maintenance in shared residency arrangements? The court considers the parties’ respective incomes, standard of living, children’s reasonable needs, and ensuring children maintain similar living standards in both homes. The judgment introduced calculating maintenance to ensure similar excess cash in both households.
How should legal practitioners assist the court in unopposed divorces? Legal practitioners must provide sufficient evidence enabling the court to fulfil its upper guardian role, ensure full disclosure of relevant information, maintain professional boundaries with the Family Advocate, and prioritise their duty to court over client convenience.
What are the consequences of misleading the court in divorce proceedings? Misleading the court can result in perjury charges, attorney fees being disallowed, and the court refusing to grant divorce until proper evidence is presented. The judgment warns courts may show greater displeasure with parties making mockery of their oath.
Must the Family Advocate endorse all divorce settlements involving children? While Family Advocate endorsement is not mandatory, the court must consider their report and recommendations. The judgment emphasises the weight given to Family Advocate concerns about proposed arrangements.
Can shared residency be used to prevent relocation? No. The judgment criticises using shared residency as a mechanism to restrict primary caregivers’ freedom of movement. Such arrangements should focus on children’s interests rather than controlling the other parent’s choices.
What evidence is required to substantiate shared residency arrangements? The court requires evidence beyond mere agreement between parents, including how the arrangement serves children’s interests, practical implementation details, impact on children’s emotional well-being, and confirmation that maintenance arrangements are adequate given income disparities.
Written by Bertus Preller, a Family Law and Divorce Law attorney and Mediator at Maurice Phillips Wisenberg in Cape Town and founder of DivorceOnline and iANC. A blog, managed by SplashLaw and LegalGenius for more information on Family Law read more here.
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