Is the emotional security of children adequately safeguarded in South African divorce law and procedure? An appraisal of how divorce law and procedure in South Africa can be adjusted to fully cater to and protect the emotional security of children during divorce proceedings

Chimwendo, Tamanda

Is the emotional security of children adequately safeguarded in South African divorce law and procedure? An appraisal of how divorce law and procedure in South Africa can be adjusted to fully cater to and protect the emotional security of children during divorce proceedings

Thesis / Dissertation

2024

Publisher

University of Cape Town

Department

Department of Public Law

Faculty

Faculty of Law

Abstract

Children, defined as those below the age of 18 by article 1 of the 1989 United Nations Convention on the Rights of the Child (CRC), are a particularly vulnerable group as a result of their limited legal capacity and autonomy. As a consequence of this, legal rules and procedure in domestic jurisdictions as well as internationally have been developed to specifically protect the interests of children in any and all matters involving children. Divorce, while ordinarily an action involving those with full legal capacity, can be a matter involving children should there be children of the dissolving marriage. Therefore, there is an obligation grounded in the best interests of the child principle, (provided for by article 3 of the CRC), to develop divorce law and procedure in a manner that highlights and protects the best interests of children. The best interests of the child, as per the 2013 General Comment no. 14, is a multifaceted principle, rule, and independent right involving various elements. Given that an expected and significant effect of divorce on the children of divorce is an emotional toll and a state of emotional insecurity, the focus of this research is the development of divorce law and procedure highlighting and protecting the best interests of the children with a specific focus on the emotional security interest of the child. The main argument of this paper asserts that current divorce law and procedure in the Republic of South Africa does not adequately protect the emotional security interest of children on the threshold placed by international law standards, by the South African constitution, and by domestic South African legislation

Keywords

public law

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