oa Comparative and International Law Journal of Southern Africa - Resolving custody disputes between married parents in Roman-Dutch jurisdictions: will English law continue to be relevant?



Two Roman-Dutch law principles can be identified for the resolution of custody disputes between married parents. During the subsistence of the marriage, the father has a preferential right to the custody of his minor children; and on divorce the innocent spouse is entitled to the custody of the children of the marriage. Both these rules have lost much of their significance in the two Roman-Dutch jurisdictions we will be considering here, namely, South Africa and Sri Lanka. In South Africa, the Matrimonial Affairs Act 37 of 1953 established that on divorce, judicial separation or where the parties had previously been divorced or were living apart, a court could, in the interests of a child grant sole guardianship or sole custody to a parent. The powers conferred on South African courts by virtue of the Divorce Act 70 of 1979 are much wider. In the context of a divorce, the court now has the power to make any order it may 'deem fit'. The Divorce Act of 1979 also amended the Matrimonial Affairs Act of 1953 and vested a similar discretion in a court dealing with a child whose parents are already divorced or living apart. These statutory provisions were the outcom of a long line of decisions which had undermined the Roman-Dutch principles. In Sri Lanka, there has been no attempt on the part of the legislature to interfere with the preferential right of the father to the custody of his minor children during the subsistence of the marriage. The development in both jurisdictions regarding the law relating to custody disputes demonstrate a readiness with which courts in different jurisdictions are prepared to accept change and their willingness to introduce it into their own jurisdictions if convinced that these developments are sound.


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