H S v J S (1025/2016) [2019] ZAFSHC 2 (7 March 2019)

/ / Family Law, children, News, primary care


On or about 22 December 2016, the Honourable Justice Daffue J granted a decree of divorce in the unopposed motion court which included a deed of settlement pertaining to the care and residency of the two minor children born from the marriage which existed between the Applicant and Respondent.

At the time, the parties agreed that the children would stay for a week with the Applicant followed by a week with the Respondent and further arrangements were to be made in respect of holidays. In addition, the parties further agreed with the sentiments of the experts called to testify at the time that the shared primary care was a “wonderful idea”.  Since then, the Applicant remarried, resigned from her employment and resumed the role of a full time mother

On or about 30 November 2017 and after a history of nearly four years of joint primary care of the children, the Applicant launched an application in which she sought a variation to the deed of settlement on the basis that the children primarily reside with her. The Respondent opposed the application and filed a counter application in which he sought the primary care of the children.  

In her application, the Applicant alleged that she and the Respondent remained locked in conflict since the divorce as a result of the Respondent’s failure to overcome his feelings of resentment towards her. The Respondent disputed the alleged conflict and stated that he and the Applicant communicate almost daily regarding the children and that he had further put aside his resentment towards the Applicant.  

The court noted that during the weeks that the children stay with the Respondent, the Applicant collects them from school, provides them with lunch and afternoon care and assists them with their homework where-after the respondent picks them up after work. In practice, this in fact amounted to the Applicant being seen as the primary caregiver of the children on a daily basis from Monday to Friday.

Counsel for the Applicant submitted that the children required more stability and this could be achieved by the children living in one home in which they followed one set of disciplines instead of the current situation of two households with different routines, structures and disciplines.  The Honourable Justice Daffue J was of the opinion that such submission might have been valid and convincing had pertinent and material evidence in relation thereto been placed before the court.  

Counsel for the Defendant argued to the contrary and submitted that the Applicant sought a variation of the deed of settlement purely as a result of the present arrangements being inconvenient to her.


It was held that however good the intentions of the divorced parents may be, conflict will always be much greater in the case of joint primary care. In this case specifically, the presiding judge was of the view that after nearly four years, the children would be used to their circumstances and be coping well and as such it would not be in the best interests of the children to grant a variation of the deed of settlement. The application was dismissed and each party was liable for the payment of his/her costs of the application.


Courts will always act in the best interests of minor children

Written by Jayna Hira and Jenna Bentel

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