PVZ v LVZ explores three unopposed divorce cases in the Gauteng Division, Pretoria, where shared residency of minor children was a key issue. The judgment highlights the increasing prevalence of shared residency arrangements, and the ratio decidendi examines the potential pitfalls of assuming such arrangements automatically serve the child’s best interests, as required by s 28(2) of the Constitution. The judgment highlights the inadequacy of evidence provided in unopposed divorce cases and criticises legal representatives for failing to adequately advise their clients about the legal requirements, as well as the potential consequences of shared residency. Haupt AJ emphasises that courts must prioritise the best interests of children and not simply rubberstamp settlement agreements. The judgment ultimately argues for more thorough investigations and a greater focus on the individual needs of children when determining care and contact arrangements in divorce cases.
Across these cases, several common themes and concerns emerge, highlighting the complexities and potential pitfalls of shared residency when it is not carefully considered and tailored to the specific needs of the children involved.
A recurring concern is the misconception that shared residency is the automatic default when both parents have full parental rights and responsibilities after divorce. This assumption often leads parents to pursue a 50/50 split of physical custody without adequately assessing its suitability for their child/children’s emotional well-being and developmental needs. The judgments emphasise that shared parenting should prioritise the active involvement of both parents in the children’s lives, rather than simply dividing time equally.
Another prevalent theme is the inaccurate belief that shared residency negates the obligation for a financial maintenance component, even when there are significant income disparities between the parents. In the VZ and DK matters, the parents assumed that because the children resided equally with each parent, financial contributions should also be equal, irrespective of their earning capacities. This misconception ignores the well-established principle of pro-rata contribution based on each parent’s income and the need to ensure a consistent standard of living for the children as stipulated in s 15(3)(a) of the Maintenance Act 99 of 1998.
The judgment also reveals a concerning trend of shared residency being used as a mechanism to control the other parent. This is often utilised by the financially stronger parent to restrict the other parent’s freedom of movement, ensuring they cannot relocate with the children, and as such influencing the direct contact of the maintaining parent with their child/children. In the VZ matter, the father admitted that one of his motivations for shared residency was to prevent the mother from moving away with his children. This approach prioritises the controlling parent’s desires for in-person contact, over the child’s best interests and potential benefits of relocation.
The judgment repeatedly criticises the lack of detailed evidence presented in the pleadings and evidence affidavits, which hinders the court’s ability to assess whether shared residency arrangements truly serve the children’s best interests. The VZ and DK matters particularly illustrates this issue, where the case-founding documents provided minimal information regarding the children’s needs, the rationale for shared residency, and the parents’ financial situations. This lack of transparency not only makes it difficult for the court to fulfil its duty as upper guardian of minor children, but it also raises concerns about the attorney’s role in adequately advising their clients.
Finally, the judgment highlights the danger of overlooking the potential negative emotional impact of shared residency on children. While parents often focus on the perceived benefits of equal time and involvement, they may fail to consider the potential disruption and instability caused by constantly moving between homes, adapting to different routines, and potentially experiencing dissimilar standards of living. Haupt AJ at para 5 notes that: ‘There is no presumption that a shared residency agreement, or for that matter any agreement relating to primary residency, contact and maintenance, is in a child’s best interest simply because the parents agreed thereto and have implemented it for a period.’ She emphasises at para 9 that: ‘The legislative duty on the court is to [satisfy] itself that the relief the parents are seeking, indeed serves the interests of the relevant child.’ The S matter showcases this concern, where the Family Advocate reported the children struggling emotionally despite the parents’ insistence that they were well-adjusted with the circumstances after divorce. This case reiterates the importance of prioritising the children’s emotional well-being and seeking professional assessments, such as those from the Family Advocate or mental health practitioners, rather than relying solely on parental perceptions and confirmation biases.
The PVZ v LVZ judgment presents arguments in favour of shared residency primarily through the testimonies and perspectives of the parents involved in the three divorce cases. These arguments, while seemingly persuasive to the parents, are often challenged by the court and the Family Advocate, who raise concerns about the potential negative impact of shared residency on the children for various reasons.
One of the primary arguments put forth by parents is the desire for equal parental involvement in their children’s lives. They believe that shared residency allows both parents to maintain a strong bond with their children and actively participate in their upbringing. This argument often stems from a genuine and valid desire to remain closely connected to their children and ensure the child/children feel loved and supported by both parents, especially after parents’ separation. For instance, in the VZ matter, both parents emphasised their previous equal involvement in the children’s care, highlighting their shared responsibilities for academic, sporting, and emotional needs.
Parents also frequently cite their children’s happiness and adjustment to the shared residency arrangement as evidence of its suitability. They believe that the children are content with the routine and have successfully adapted to moving between homes, after having lived together as a family unit prior to divorce. This argument often relies on parental observations and interpretations of their children’s behaviour and emotional state, often being tainted by confirmation bias. In the DK matter, the mother testified that the children were happy with the arrangement, claiming that her daughter, at the age of five, even expressed a preference for shared residency. However, the court and Family Advocate questioned the validity of this assertion, highlighting the potential for young children to be influenced by parental desires or feel pressured to conform to the arrangement that their parents find comfort in.
Finally, parents often assert that they have successfully overcome communication challenges and now effectively co-parent, making shared residency a viable option in such instances. The parents understandably believe that they can make joint decisions in their children’s best interests and create a stable and consistent environment despite living in separate homes after divorce. This parental argument attempts to show that the historical conflicts that may have contributed to the marriage breakdown, no longer hinder their ability to cooperate as parents. However, the Family Advocate and court often uncover evidence that contradicts these claims, revealing ongoing tensions and disagreements that could negatively impact the children. For example, in the S matter, despite the parents’ assertions of improved communication, the Family Advocate uncovered incidents of conflict at school events and difficulties coordinating school-related matters due to the shared residency arrangement.
Haupt AJ emphasises the importance of prioritising the children’s emotional well-being and developmental necessities over parental desires for equal time or control.
A central argument against shared residency is the potential for emotional disruption and instability for children. Constantly moving between homes, adapting to different routines and parenting styles, and experiencing potential disparities in living standards can create significant stress and anxiety for children, particularly minors. In the S matter the children exhibited emotional distress and regressive behaviour despite the parents’ belief that they were adjusting well. The Family Advocate’s reports highlighted the importance of a stable and consistent home environment, particularly for young children, and cautioned against prioritising a strict 50/50 split over the children’s need for security and predictability.
Another concern raised by Haupt AJ is the use of shared residency as a control mechanism by the financially stronger parent. She cites instances where shared residency is employed to restrict the other parent’s freedom of movement, preventing them from relocating with the children, even when such a move might be beneficial. This dynamic is evident in the VZ matter, where the father acknowledged his desire to prevent the mother from relocating. This approach not only prioritises the controlling parent’s needs over the child’s best interests but also potentially limits opportunities for the child’s growth and development.
Haupt AJ in cautions against overlooking the developmental stage and capacity of children when considering shared residency. She questions the ability of young children to grasp the complexities of such arrangements and make informed choices about their living situation. There is concern that children may feel pressured to agree to shared residency to please their parents or avoid causing conflict, even if it is not in their best interests. In the DK matter, by way of example, the mother claimed her five-year-old daughter expressed a desire for shared residency, but the judge and Family Advocate questioned the child’s capacity to make such a decision at that age. This highlights the need for careful consideration of the child’s maturity, in relation to their capacity to participate in decision-making. It further promotes the understanding that when evaluating the suitability of shared residency after divorce, ensuring the child/children’s voice/s are genuinely heard and their needs are prioritised must be a key aim within the factors considered.
Eugene Opperman BProc (UFS) LLB (Unisa) is a legal practitioner at Oppermans Inc in Gordons Bay and a FAMAC, NABFAM and ADR Network SA accredited mediator.
This article was first published in De Rebus in 2025 (Jan/Feb) DR 66.
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