Page:Du Toit v Minister of Welfare.djvu/26

Rh The curator ad litem, who supported the joint adoption by the applicants, argued in this Court that the lacuna in the law regarding the protection of children upon termination of the same-sex partnerships could be cured by invoking some of the provisions meant for the protection of children upon divorce or separation of the child’s parents. In his report, the curator observed that an aggrieved parent could approach a High Court in terms of the provisions of section 5(1) of the Matrimonial Affairs Act 37 of 1953, which allows applications for sole custody and/or guardianship in the event of a termination of the same-sex partnership. I am not persuaded that the Matrimonial Affairs Act can be read so as to achieve this result. It refers to an application by a “parent of a minor whose parents are divorced or are living apart”, and speaks of an order lapsing in circumstances where “the parents become reconciled and live together again as husband and wife”.

There can be no doubt, however, that the aid of the High Courts could always be sought in their capacity as upper guardian of all minor children. Although it clearly would be Rh