Updated: 16 April 2020

New regulations have been issued on 16 April 2020. Click on the link below: The material change is that you do not have to have a court order or a parental responsibilities and rights agreement or parenting plan, registered with the family advocate. Possession of a birth certificate or certified copy of a birth certificate is now also allowed.

Update: 07 April 2020

NEW LOCKDOWN REGULATIONS REGARDING THE MOVEMENT OF CHILDREN – CERTAIN PARENTS MAY MOVE CHILDREN DURING THE NATIONAL LOCKDOWN PERIOD (7 April 2020)

“The child must remain in the custody of the parent with whom the child was with, when lockdown period started” – Directive 6(m)(ii) in terms of the Regulations [30 March 2020]

South Africa is in a state of a national lockdown. Our borders are closed, the economy is standing still or barely moving. There are troops on the ground and police on high alert. The doors of businesses are closed and people are to remain at home. All these measures are in place to limit the spread of COVID-19 or the Coronavirus. This is an important and necessary measure implemented by the State to flatten the curve. The South Africa, we are living in today is far different than the one we lived in 10 days ago. Not many people saw it coming.

“Continue paying your child support or child maintenance.”

Co-parenting during the National Lockdown Period

Before the commencement of the National Lockdown period, there was uncertainty about how the National Lockdown would affect co-parenting. And rightfully so. Parents had to consider the possibility of no movement of children during the national lockdown period. Not only for their safety and risking infection but for their children as well. What would then happen? Did it mean that the child would have to remain with one parent during the entire lockdown period? Or may they move the children around? This issue was resolved by the government and we wish to bring it to your attention.

What does the regulation or law say?

In summary, and in layman terms, children are not to be moved between parents during the lockdown period. Have a look at the recent regulations. The regulations in place brought about serious challenges for all. Firstly, what if the parent who is not the primary caregiver, and not capable of caring for the children for extended periods had the children during the start of the lockdown? This parent-only knows how to care for the children for a few days at a time – not at all for 21 days. What if the conditions at his or her home are not the same as the primary home of the children? For example, in the primary home, the children have their room to share, and a bigger place to play, etc. All their clothes are there, also their schoolwork and extramural equipment. This is not the case at the home they are at during the lockdown period. Stepsiblings may also be living with them. The example above is a mellow one, but there are far more serious real examples out there. What if the child is prone to fall ill, and everything he or she needs is at the primary home? The list goes on.

Parents abusing the lockdown situation

Then there is the issue of abusing the National lockdown situation. If a parent refused to return the minor child before the lockdown, then that situation would remain. The primary caregiver would then have to wait 21 days before he or she can physically see the minor child. This is the sad reality of the situation. Should you wish to approach the court for urgent relief, you would have to have very strong and compelling reasons why the child should be removed despite the regulations in place.

What to do 8 days later?

Now that we passed the first week of lockdown, many parents never saw their children for the entire period. Many of those parents may prefer that there be a change in caring arrangements where the other parent can now care for the children for another week. Or a parent may want to only see the children for a few hours. Unless the government changes the regulations, that would not be possible.

What advice do we have for parents during the remainder lockdown period?

Parents should work together to ensure that the child’s best interests are upheld during the lockdown period. Telephone calls, WhatsApp messages, and video calls, to mention a few should constantly be used, if possible, between parents and children. We also remind parents to continue paying child maintenance and child support during this lockdown period.

Final advice during the lockdown period

Our final advice to all parents is to remain patient during these challenging times. The entire country is in lockdown and many other nations as well. Everyone is, therefore, going through challenges. Businesses are suffering, and people do not know if they would have an income after the lockdown period. If all goes well, and there is no reason to doubt that it would, at the end of the 21-days of lockdown, things would better. We, therefore, should all respect the government’s decision. Should the situation change during the lockdown period, Our Lawyer (Pty) Ltd would update its website accordingly. If you require legal advice, our online appointment portal is still running. All appointments are done telephonically or via video. We make use of WhatsApp Video, FaceTime, Zoom, and Skype. Stay home and stay safe.

Update: 07 April 2020

NEW LOCKDOWN REGULATIONS REGARDING THE MOVEMENT OF CHILDREN – CERTAIN PARENTS MAY MOVE CHILDREN DURING THE NATIONAL LOCKDOWN PERIOD (7 April 2020) We are certain that you found the above article useful and interesting. Please consider sharing it on the share buttons below. They include Facebook, Twitter, LinkedIn, WhatsApp, Gmail and more. Someone may find it useful as well. Should you require business advice or services, feel free to click on these links: Business SA | Private Legal | Envirolaws

Posted on 11 February 2025 by Telelaw

Updated: 16 April 2020

New regulations have been issued on 16 April 2020. Click on the link below:

The material change is that you do not have to have a court order or a parental responsibilities and rights agreement or parenting plan, registered with the family advocate. Possession of a birth certificate or certified copy of a birth certificate is now also allowed.

Update: 07 April 2020

NEW LOCKDOWN REGULATIONS REGARDING THE MOVEMENT OF CHILDREN – CERTAIN PARENTS MAY MOVE CHILDREN DURING THE NATIONAL LOCKDOWN PERIOD (7 April 2020)

“The child must remain in the custody of the parent with whom the child was with, when lockdown period started” – Directive 6(m)(ii) in terms of the Regulations [30 March 2020]

“Continue paying your child support or child maintenance.”

Co-parenting during the National Lockdown Period

What does the regulation or law say?

In summary, and in layman terms, children are not to be moved between parents during the lockdown period. Have a look at the recent regulations.

The regulations in place brought about serious challenges for all. Firstly, what if the parent who is not the primary caregiver, and not capable of caring for the children for extended periods had the children during the start of the lockdown? This parent-only knows how to care for the children for a few days at a time – not at all for 21 days. What if the conditions at his or her home are not the same as the primary home of the children? For example, in the primary home, the children have their room to share, and a bigger place to play, etc. All their clothes are there, also their schoolwork and extramural equipment. This is not the case at the home they are at during the lockdown period. Stepsiblings may also be living with them. The example above is a mellow one, but there are far more serious real examples out there. What if the child is prone to fall ill, and everything he or she needs is at the primary home? The list goes on.

Parents abusing the lockdown situation

What to do 8 days later?

What advice do we have for parents during the remainder lockdown period?

We also remind parents to continue paying child maintenance and child support during this lockdown period.

Final advice during the lockdown period

Should the situation change during the lockdown period, Our Lawyer (Pty) Ltd would update its website accordingly. If you require legal advice, our online appointment portal is still running. All appointments are done telephonically or via video. We make use of WhatsApp Video, FaceTime, Zoom, and Skype. Stay home and stay safe.

Update: 07 April 2020

NEW LOCKDOWN REGULATIONS REGARDING THE MOVEMENT OF CHILDREN – CERTAIN PARENTS MAY MOVE CHILDREN DURING THE NATIONAL LOCKDOWN PERIOD (7 April 2020)

Should you require business advice or services, feel free to click on these links:

Business SA | Private Legal | Envirolaws

Daniella Mair – Psychological Counsellor Professional Summary I am a passionate, positive and driven person. I strive for excellence in everything I do while keeping my own limitations in mind. I am dedicated to being an being an honest, ethical and valuable member of society. I conduct myself from an empathetic internal point of reference and enjoy helping people learn and grow in their own lives. I am a psychological Counsellor who deals with many cases of family trauma and family disjointment and am passionate about helping with the process of repair. I have always been a very maternal person who connects well with children, I am dedicated to being part of decision making that will allow children to have the best possible opportunities, love and care and feel grateful to be able to do so as a divorce mediator. Employment history Psychological Counsellor & Divorce Mediator, Self. Cape Town Mar. 2010 – Present I run a private practice dealing with all areas of psychological well being focusing on child and adolescent development, psychopathology, family therapy and divorce mediation with specific focus on creating parenting plans. My main area of interest is to Counsel individuals, groups, or families to help them understand problems, deal with crisis situations, define goals, and develop realistic action plans. Facilitator, Various. Cape Town Jan. 2004 – Dec. 2012 Facilitator at Herzlia school for various learners with learning difficulties. Provide ongoing support and advance them in their studies, offer motivational and mental health support. HR, Ashdan Electronics. Cape Town Jan. 2005 – Jan. 2008 Implement staffing guidelines, Project managed various products. Research and development. Education FAMAC, Cape Town Course, Divorce Mediation, Oct. 2012 UNISA, Cape Town HONORS, Psychology, Nov. 2010 UNISA, Cape Town Bachelor of Arts, Communications, Nov. 2008

Posted on 11 February 2025 by Telelaw

How to get urgent Access to your Children without the services of a Lawyer (Attorney or Advocate)
Are you a father or mother of a child and the other parent refuses you access/contact to that child? If that is the case, you have a right to relief from the Court for Urgent Access. A couple would bring a child into this world. Whilst the relationship is ongoing, they can see eye to eye on what is best for the child and both parties form a productive part of the child’s life. Even if the couple is not living together, the father would see the child regularly and bond with the child as is needed. However, once the relationship has severed, it often happens that the parties cannot see eye to eye on what is best for the child regarding regular contact by the father. The mother would either blatantly refuse the father access or would place strict measures on when and how the father can see the child. Should the mother refuse access or prescribe access to the child, which is not in the child’s best interest, the father, in this case, would have grounds to urgently approach the Court for relief. Court procedure is very complicated. It is therefore strongly advised that you approach an attorney with knowledge and experience with these urgent applications. Furthermore, the attorney should have an advocate at hand to move the Application with or without opposition at Court. However, if you wish to do it yourself, read further should you wish to make the Application in the High Court.
The Procedure
Your application is urgent and therefore it is done on affidavit and not orally in Court. You may, however, be called to give oral evidence if the Judge so wishes. This is to clarify certain issues. However, this can mostly be avoided if your papers are properly drafted. You should firstly draft a document called a Notice of Motion and a founding affidavit. I shall explain these documents next. Although reference below may be made to an attorney or advocate, you may attend to the process yourself. Lastly, for the sake of simplicity, the term contact and access is used, as opposed to care and contact.
Notice of Motion
In this document, you state exactly what you want the Judge to grant you. It is similar to the prayers in a summons. Of course, you want the Judge to grant you urgent access to your child. You are making the application urgently and sidestepping some rules of Court regarding time periods and procedure. The first thing you should, therefore, ask the Court is to condone non-compliance with its Rules. You will then ask the Court what relief you want, usually in the form of an interim order to be finalised later. Usually, you will ask for a rule nisi. An example of the prayers in an urgent access application in the High Court are as follows:
Condoning the Applicant’s non-compliance with forms and service and time periods provided in the Uniform Rules of this Honourable Court and permitting this Application to be entertained as a matter of urgency in terms of Rule 6(12) of the Rules of Court;
That a Rule Nisi be issued, calling upon the Respondent to appear before Court on ____________________ 2026 at 10:00, in order to show cause why an Interim Order should not be confirmed in the following terms:-
That the Applicant shall have unsupervised contact to the minor child as follows:
Every alternative weekend commencing from Friday 18:00 to Sunday at 18:00.
That the provisions above shall operate as an Interim Order, with immediate effect, pending the return date of the Rule Nisi;
This document is signed by your attorney, or by you if, you are acting in person.
Founding Affidavit
In your Founding Affidavit, you provide relevant information under oath. Here you would provide details of you, the mother and the child. You would also need to provide information on a few or more of the following matters:
Background information about your relationship with the mother of the child;
Past access to the child;
Past involvement in the child’s life;
When access to the child seized/lessened and the circumstances surrounding it;
Past maintenance or attempts to maintain the child;
Why the application is urgent and substantive redress in due course would not be afforded to you; and
Any other relevant information.
Issue and Service of the Application
Once the Notice of Motion and Founding Affidavit is in order, your attorney would make the necessary copies. Thereafter he would have the application issued at Court. A case number would be provided. If possible, you would have the application served on the mother of the child timeously. The Office of the Family Advocate should also be served. Here you may make use of the office of the Sheriff or your attorney would serve the papers on the mother.
Opposition
If the mother of the child opposes the relief sort after being served with the Application, she should file an opposing affidavit to which you would have to reply. The parties would then have to argue the matter before the Judge.
Urgent Hearing at the High Court
If your matter has been set down on the Motion Court Roll, the Judge would have already read over the papers filed. You would then wait for your matter to be called up. Should your matter is to be heard before the Urgent Judge on duty that day, you or your Advocate would have to take the file to the Judge beforehand to read. If the mother or her Advocate is present at Court, and the parties cannot settle the matter, they would then have to argue the matter before the Judge. If, however, the mother after having been duly served does not appear at court, then the process is a bit faster.
After the judge decided on the matter, the following might happen:
The Judge would grant the urgent access requested;
Grant you urgent access but not on the terms as requested;
Refuse to grant you any relief without a family advocate report;
Dismiss your application for lack of merits and/or urgency.
Sharing is Caring
We are certain that you found the above article useful and interesting. Please consider sharing it on the share buttons below. They include Facebook, Twitter, LinkedIn, WhatsApp, Gmail and more. Someone may find it useful as well. Should you require business advice or services, feel free to click on these links: Business SA | Private Legal | Envirolaws

Posted on 11 February 2025 by Telelaw

Relocation with my minor child to Vietnam, Ha Long (Consent and Refusal) – Advocate Muhammad Abduroaf

The world is becoming a much smaller place, and technology plays a huge role. People are moving across the world for employment, love and happiness, something that was not the norm a few decades ago. There is no reason why you should remain in South Africa if you can find a better life for yourself and your family overseas. Moving overseas may provide you with the quality of life you want or the possibility of experiencing things you always wanted. The same applies to your child or children relocating with you.

Relocation of your minor child to Ha Long, Vietnam

If you are single and do not have any minor children, then moving around the world would not be too complicated. All you need to do is ensure that you have the necessary travel documentation and travel ticket (and spending money), and off you go. However, if you want to travel with your minor children (for example, ages five or six) or relocate to another country, things may not be that simple. Firstly, if there is another parent, and he or she has parental responsibilities and rights, then his or her consent is required. For example, let us say you live in Butterworth or Bloemfontein, South Africa, and you want to relocate to Ha Long, Vietnam, you would require the other parent’s consent to leave South Africa with your minor child. This can cause challenges, especially if the staying parent (in South Africa) does not agree to the relocation.

What about Passport Consent to travel or relocate to Ha Long, Vietnam?

The same applies when it comes to your minor child applying for a South African passport to relocate to Vietnam, or any country. Both parents who have parental responsibilities and rights of guardianship will have to consent to the minor child’s passport application as well. In this regard, both parents have to be at the Department of Home Affairs (or the relevant bank that also assists with passport application) when making the Application with the minor child. This can be challenging if you have a disinterested parent who does not want to cooperate with the passport application. As you will see later, legal action would need to be taken.

What are the steps to follow when I want to relocate to Ha Long, Vietnam with my minor child? There is there another parent.

To simplify the process for relocation, the first step would be to receive the other parent’s consent in principle for the relocation and that he or she will co-operate in this regard. Once that has been resolved, the parent relocating would need to make the appointment for the minor child’s passport application as well as the application for the relevant VISA. Each country has different requirements; however, seeing that it is a relocation, you need to apply for the correct VISA. For that, you need the Passport. Once the visa and travel arrangements have been finalised, the parent remaining behind will sign a parental consent letter for the international travel. That letter can be found on the Department of Home Affairs website. Basically, the parent remaining behind would state that he or she gives consent for the minor child to leave the Republic of South Africa and travel and/or relocate to Ha Long, Vietnam.

What can I do if the other parent does not want to consent to the minor child’s relocation to Ha Long, Vietnam?

If the parent remaining in South Africa does not want to consent to the minor child’s passport application and/or his or her relocation to Ha Long, Vietnam, then you would need to approach the Court. The Court, as upper guardian of the minor child, may order that the parent’s consent for the passport application and relocation be dispensed with. What this entails is submitting Court documents explaining why you want to relocate to Ha Long, Vietnam. The other parent would also have an opportunity to give reasons why he or she objects. At the end of the process, the Court would determine what is in the minor child’s best interests. If it is in the minor child’s best interests to relocate to Ha Long, Vietnam, the Court would make it possible despite the issue of consent or refusal.

What is the first step I should take if the other parent does not want to consent to the minor child’s passport application and/or relocation to Ha Long, Vietnam?

If the other parent does not want to consent to the passport application and/or the relocation of the minor child to Ha Long, Vietnam – in that case, we suggest you approach an attorney or advocate (trust account) to assist you with the legal process. He or she would then contact the other parent explaining the reasons for the relocation and request the necessary consent. If the parent remaining in South Africa does still not agree to the passport application and/or to the relocation to Ha Long, Vietnam, then the attorney or advocate will proceed to take the matter to court. The legal route can be expensive. However, it is necessary to make the relocation of the minor child possible. You may also attend to the legal process yourself.

Getting legal assistance or help with your relocation application to Ha Long, Vietnam

If you require legal assistance or representation with relocating to Ha Long, Vietnam due to the other parent not cooperating or providing consent, then feel free to contact us for assistance. The Firm Advocate, Muhammad Abduroaf, deals with these types of matters.

Changing your matrimonial property regime from in community of property to out of community of property

Are you married? Do you know what is your matrimonial property regime?

To register your Antenuptial Contact, Click here. Are you married in Community of Property? Do you want to change your matrimonial property regime to Out of Community of Property? Did you not know that a marriage Out of Community of Property was possible when getting married? There is legal relief for you and your spouse.

In Community of Property

All civil marriages are automatically In Community of Property. This means that there is one estate shared between wife and husband. Therefore, if anyone of the spouses incurs a debt, that debt belongs to both of them.

Out of Community of Property

The other option is to get married Out of Community of Property. This means that there are two separate estates and each party is responsible for his or her own debt. For some people, this would be a better option, especially if you are a business person.

Accrual system

The usual process to be married Out of Community of Property is to enter into an antenuptial contract before the marriage. The contract will have clauses in it stating:

That there shall be no community of property;
That there shall be no community of profit or loss; and
That the accrual system provided for in Chapter 1 of the Matrimonial Property Act, no 88 of 1984 is expressly excluded from the marriage.

However, if you did not do so, there is a way of changing your matrimonial property regime from In Community of Property to Out of Community of Property. For this, you need the consent of the High Court in your Jurisdiction. Here you will make use of section 21 of the Matrimonial Property Act 88 of 1984.

Getting the High Court’s Consent to change your matrimonial property regime to Out of Community of Property

Once you and your spouse have decided to change your matrimonial property regime to Out of Community of Property, you would need to approach the High Court in your area for consent. If you know the law, legal process, Court rules, and procedure, you and your spouse can do it on your own. If you cannot do it on your own, an attorney would be able to do it for you. This the attorney may attend to with or without the assistance of an Advocate.

Drafting a post-nuptial contract

What they do is draft a post-nuptial contract for you which would outline what matrimonial property regime you want and also how the joint estate should be divided.

Application to the High Court for consent to change your matrimonial property regime to Out of Community of Property

Then they draft a Notice of Motion (notifying the Court what you want) and Founding Affidavit (your affidavit outlining your case etc.). Your case must satisfy the Court that:

There are sound reasons for the proposed change of the matrimonial property regime;
There has been sufficient notice to creditors regarding the proposed change; and
No other person will be prejudiced by the proposed change.

If, however, you cannot make a case for the above, your application may be unsuccessful.

Costs involved in changing your matrimonial property regime

As stated, you have to approach the High Court for consent to change your matrimonial property regime. There, therefore, would be the costs of an attorney who may instruct and advocate, and further costs in drafting and registration of the postnuptial contract. Furthermore, there is advertisement cost involved as you would have to give notice in the Government Gazette and in one or two local newspapers. You would further have to serve your application on the Registrar of Deeds and give notice to your creditors via registered mail. The total costs can range from R 25 000 – 00 should your matter be straight forward, to R 30 000 – 00 should it be more complicated.

Complicated applications to change your matrimonial property regime to Out of Community of Property

Complicated would mean the joint estate has many creditors. Furthermore, there may be many assets in the joint estate that needs to be divided, especially if they are not easily describable. The above-mentioned fee is obviously dependent on your application not being opposed by any interested party. One reason for opposing the application could be that the Joint Estate is deeply indebted to a creditor, and she feels that her claim would be prejudiced by the proposed change. Should your application be opposed for any reason, many more hours will be spent fighting for the success of your application which could costs you a small fortune and you may even be ultimately unsuccessful. Therefore, you would need to advise your legal team of all relevant facts before the application is made.

Time estimates to change your matrimonial property regime to Out of Community of Property

The estimated time in preparing your application, your post-nuptial contract and ultimately obtaining consent from the High Court is about 4 weeks. This is also dependent on whether or not the High Court is sitting within 4 weeks after the drafting of your application. If the High Court is in recess, a few extra weeks may apply. The Court may also want a report from the Registrar of Deeds which could cause delays.

Registering the postnuptial contract

Once your application is successful and the High Court, therefore, gave consent, you will usually have 3 (three) months to register the postnuptial contract. So once consent is granted, you need to see a Notary Public before whom you will sign your post-nuptial contract and then have it registered. This, therefore, needs to be done within the three months of obtaining the consent of the High Court.

Sharing is Caring

We are certain that you found the above article useful and interesting. Please consider sharing it on the share buttons below. They include Facebook, Twitter, LinkedIn, WhatsApp, Gmail and more. Someone may find it useful as well. Should you require business advice or services, feel free to click on these links: Business SA | Private Legal | Envirolaws