Parenting Plans and the Law – Draft and Register you Plan

Sections 33 and 34 of the Children’s Act 38 of 2005 (the Act) came into operation on 1 April 2010. These sections make provision for “parenting plans”. Like many parents, legal practitioners, social workers, psychologists, social services professional and other suitably qualified persons would be faced with the task of acting in accordance with sections 33 and 34 of the Act; this guide attempts to facilitate a quick understanding.

What is a parenting plan?

The Act does not provide a definition of a parenting plan. However, looking at the provisions of the Act and its Regulations dealing with parenting plans, one could define it as a written agreement between co-holders of parental responsibilities and rights outlining in detail their respective responsibilities and rights of care, contact, guardianship and maintenance with regard to a child. Below I shall outline the relevant provisions of the Act and its Regulations dealing with parenting plans and how they should be applied in practice.

Who should agree on a parenting plan?

Not all holders of parental responsibilities and rights need to agree on a parenting plan and have it registered with a Family Advocate or made an Order of the High Court. Parenting Plans should be entered into only if there is a need for it. However, the choice is always there for the parties should they wish to formalise one. Section 33 of the Act provides for two (2) situations in which a parenting plan comes into play. This I shall refer to as the optional situation and the mandatory situation.

Optional situation – section 33(1)

Section 33(1) of the Act states the following:
“(1) The co-holders of parental responsibilities and rights in respect of a child may agree on a parenting plan determining the exercise of their respective responsibilities and rights in respect of the child.”
  This situation would apply when the parties want to have a structured parenting plan in place but none of them intends to go to Court on any issue. You could say they are not experiencing difficulties in exercising their responsibilities and rights but wants to have a formalised structure on paper. This optional situation may apply where the parents of the child do not live together and there is no document in place regulating their respective care and contact responsibilities and rights to the child.

Mandatory situation – section 33(2)

The other situation where a parenting plan comes into play is where the parties are experiencing difficulties in exercising their responsibilities and rights. In this case, the Act prescribes to them to first try to agree on a parenting plan before going to Court. Section 33(2) states:
“If the co-holders of parental responsibilities and rights in respect of a child are experiencing difficulties in exercising their responsibilities and rights, those persons, before seeking the intervention of a court, must first seek to agree on a parenting plan determining the exercise of their respective responsibilities and rights in respect of the child.”
Therefore, all holders of parental responsibilities and rights in respect of a child do not need to enter into a parenting plan from the outset as stated. However, should there be problems and one or more of the parties may want to take it to Court, before they do so, they should first try to agree on a parenting plan before approaching the Court. Should the parties fail to agree on a parenting plan after following the prescripts of the Act, the Court may then be approached. As outlined later, once the parenting plan has been agreed upon by the relevant parties, it may either be registered with a Family Advocate or made an Order of Court.  

What must the parenting plan deal with according to the Act?

The contents of both optional and mandatory parenting plans can vary, however, according to section 33(3) of the Act:  
“A parenting plan may determine any matter in connection with parental responsibilities and rights, including- (a) where and with whom the child is to live; (b) the maintenance of the child; (c) contact between the child and- (i) any of the parties; and (ii) any other person; and (d) the schooling and religious upbringing of the child.”  
  Furthermore, the Regulations to the Act prescribes child participation bearing in mind the child’s age, maturity, and stage of development. Regulation 11 which deals with the participation of a child in preparation of parenting plans states the following:
(1)  Bearing in mind the child’s age, maturity and stage of development, such child must be consulted during the development of a parenting plan, and granted an opportunity to express his or her views, which must be accorded due consideration. (2) When a parenting plan has been agreed the child must, bearing in mind the child’s age, maturity and stage of development, be informed of the contents of the parenting plan by the family advocate, a social worker, social service   professional, psychologist, suitably qualified person or the child’s legal representative.
Therefore, before an optional or mandatory parenting plan can be registered with a Family Advocate or made an Order of Court, Regulation 11 must be applied. Section 34 of the Children’s Act deals with the formalities of a parenting plan that need to be adhered to before it can be registered with a Family Advocate or made an Order of Court. It states the following:
“(1) A parenting plan- (a) must be in writing and signed by the parties to the agreement; and (b) subject to subsection (2), may be registered with a family advocate or made an order of court. (2) An application by co-holders contemplated in section 33 (1) for the registration of the parenting plan or for it to be made an order of court must- (a) be in the prescribed format and contain the prescribed particulars; and (b) be accompanied by a copy of the plan. (3) An application by co-holders contemplated in section 33 (2) for the registration of a parenting plan or for it to be made an order of court must- (a) be in the prescribed format and contain the prescribed particulars; and (b) be accompanied by- (i) a copy of the plan; and (ii) a statement by- (aa) a family advocate, social worker or psychologist contemplated in section 33 (5) (a) to the effect that the plan was prepared after consultation with such a family advocate, social worker or psychologist; or (bb) a social worker or other appropriate person contemplated in section 33 (5) (b) to the effect that the plan was prepared after mediation by such social worker or such person. (4) A parenting plan registered with a family advocate may be amended or terminated by the family advocate on application by the co-holders of parental responsibilities and rights who are parties to the plan. (5) A parenting plan that was made an order of court may be amended or terminated only by an order of court on application- (a) by the co-holders of parental responsibilities and rights who are parties to the plan; (b) by the child, acting with leave of the court; or (c) in the child’s interest, by any other person acting with leave of the court.”  
  Once the parties decide to proceed to try to agree on a parenting plan, they need to have the parenting plan prepared. If section 33(2) applies, they would need to do it with the assistance of the relevant party. However, for both optional and mandatory parenting plans, the best interests of the child principle apply. According to section 33(4) of the Act:  
“A parenting plan must comply with the best interests of the child standard as set out in section 7”.
  Now we look at the Act and Regulations that come into play in preparing a parenting plan.  

Optional parenting Plan – sec 33(1)

With regard to an optional parenting plan (sec. 33(1)), the parties may attend to preparing the parenting plan without the assistance of the Family Advocate, Social Worker or psychologist but they need to make sure it complies with this Act. It is however suggested that they approach a legal practitioner to assist them in this regard. As outlined later, once the parenting plan has been agreed upon and signed, it needs to be attached to Form 8. With regard to mandatory parenting plans, other parties get involved to either assist in preparing the parenting plan or for mediation.

Mandatory parenting plan – section 33(2)

According to section 33 (5) of the Act:
“In preparing a parenting plan as contemplated in subsection (2) the parties must seek- (a) the assistance of a family advocate, social worker or psychologist; or (b) mediation through a social worker or other suitably qualified person.”
  Regulation 9 to Act deals with the registration of parenting plans and having them made Orders of Court. It states:
(1) An application for the registration of a parenting plan at the office of the family advocate or for it to be made an order of court must be completed in writing in a form identical to Form 8 and must- (a) be signed by the parties to the parenting plan or, if a person whose signature is required is incapable of furnishing a signature, a thumbprint of that person must be effected and duly attested by a commissioner of oaths; (b) contain the titles, full names, dates of birth, identity numbers or passport numbers (as the case may be), residential, work addresses, and contact details of all co-holders of parental responsibilities and rights named in the parenting plan; and (c) contain the full names, dates of birth, identity numbers or passport numbers (as the case may be), residential addresses and contact details of any child or children named in the parenting plan. (2) Where parental responsibilities and rights are to be exercised in the same manner by the holders of those responsibilities and rights with respect to more than one child in the same family, the application for registration of the parenting plan must be completed for each child. (3) The applicant or applicants for the registration of a parenting plan must file copies of such plan with the family advocate, children’s court or High Court, as the case may be, to enable each co-holder to retain a copy of the registered parenting plan.  
Therefore, once the parenting plan complies with the Act and its Regulations, Form 8 needs to be completed for both optional and mandatory parenting plans. However, there is a further instruction in terms of the Regulations regarding mandatory parenting plans. The Regulations to the Act further instructs on what other form needs to be completed should a mandatory parenting plan (sec. 33(2)) be registered with a Family Advocate or made an Order of Court. Regulation 10 states the following:
  (1) The co-holders of parental responsibilities and rights as contemplated in section 30 and who are experiencing difficulty in exercising their responsibilities and rights as envisaged in section 33(2) of the Act must seek to agree on a parenting plan on matters referred to in section 33(3) of the Act. (2) The parenting plan contemplated in sub-regulation (1) must be prepared: (a) with the assistance of a family advocate, social worker or psychologist as contemplated in section 33(5)(a) of the Act, and must be completed in writing in a form identical to Form 9; or (b) after mediation by a social worker or other suitably qualified person as contemplated in section 33(5)(b) of the Act, and must be completed in writing in a form identical to Form 10.  
  It would seem that the relevant form(s) and parenting plan should be left with the Office of the Family Advocate or the Registrar of the High Court to have the parental plan registered or made an Order of Court as the case may be. It does however not seem that Rule 6 of the Uniform Rules of the High Court are applicable. However, it would seem prudent, failing directives to the contrary to make the Application in terms of Rule 6 and attach the relevant documents referred to herein with a supporting affidavit(s) and file same with the Office of the Family Advocate. Once the parenting plan is registered with a Family Advocate or made an Order of Court, the parties would be expected to adhere to the parenting plan.   Court proceedings for optional parenting plans Interesting to note is section 34 (6) of the Act where it states:
“Section 29 applies to an application in terms of subsection (2).”
Section 34 subsection (2) refers to the registration of parenting plans with a Family Advocate and for it to be made an Order of Court which was dealt with above.   Section 29 of the Act deals with various applications in the High Court, a divorce court in a divorce matter or a Children’s Court as the case may be. Looking at Section 29, the Court is not obliged to make any parenting plan an Order of Court and may only grant an application if it’s in the best interests of the child.   Section 29 (5) states the following:
The court may for the purposes of the hearing order that – a report and recommendations of the family advocate, a social worker or other suitably qualified person must be submitted to the court; a matter specified by the court must be investigated by a person designated by the court; a person specified by the court must appear before it to give or produce evidence; or the applicant or any party opposing the application must pay the costs of any such investigation or appearance.
Therefore, the Court would not blindly make a parental plan an Order of Court, but would first need to be convinced that it is in the child’s best interests. It is submitted that before a Court makes a mandatory parental plan (sec. 33(2)) an Order of Court, notwithstanding it being prepared or mediated with the assistance of the relevant person, the Court would still need to be satisfied that the parenting plan is in the minor child’s best interests before making the parenting plan an Order of Court. If the Court is not so satisfied, it may make an order similar to those provided for in section 29(5) referred to above.   Contempt of Court   The question which may be posed is what is better, having the parenting plan registered with the Family Advocate or made an Order of Court? In my view, it would be better to make it an Order of Court as this would force all parties to comply with it or they would be in contempt of Court. Furthermore, section 35 of the Act states amongst other things that it is a criminal offence to refuse or prevents a co-holder of parental responsibilities of rights to exercise such responsibilities and rights and may be liable on conviction to a fine or to imprisonment for a period of not exceeding one year.

Sharing is Caring

This and other articles and posts found on this website are written by Adv. Muhammad Abduroaf to assist people with various family law related issues they may have. If you find any of our articles, free resources and posts interesting, or possibly useful to others, please like and share it on Social Media by clicking on the icons below. For more interesting articles and information on Family Law, view our articles and Q&A page. If you have a family law related legal issue and you want someone to answer or reply to it, feel free to post it on our Family Law Blog. Therefore, kindly like and share. Should you require any other legal services and advice, not related to family law, visit Private Legal.
Posted on by Telelaw

Parenting Plans and the Law – Draft and Register you Plan

Sections 33 and 34 of the Children’s Act 38 of 2005 (the Act) came into operation on 1 April 2010. These sections make provision for “parenting plans”. Like many parents, legal practitioners, social workers, psychologists, social services professional and other suitably qualified persons would be faced with the task of acting in accordance with sections 33 and 34 of the Act; this guide attempts to facilitate a quick understanding.

What is a parenting plan?

The Act does not provide a definition of a parenting plan. However, looking at the provisions of the Act and its Regulations dealing with parenting plans, one could define it as a written agreement between co-holders of parental responsibilities and rights outlining in detail their respective responsibilities and rights of care, contact, guardianship and maintenance with regard to a child.

Below I shall outline the relevant provisions of the Act and its Regulations dealing with parenting plans and how they should be applied in practice.

Who should agree on a parenting plan?

Not all holders of parental responsibilities and rights need to agree on a parenting plan and have it registered with a Family Advocate or made an Order of the High Court. Parenting Plans should be entered into only if there is a need for it. However, the choice is always there for the parties should they wish to formalise one.

Section 33 of the Act provides for two (2) situations in which a parenting plan comes into play. This I shall refer to as the optional situation and the mandatory situation.

Optional situation – section 33(1)

Section 33(1) of the Act states the following:

“(1) The co-holders of parental responsibilities and rights in respect of a child may agree on a parenting plan determining the exercise of their respective responsibilities and rights in respect of the child.”

 

This situation would apply when the parties want to have a structured parenting plan in place but none of them intends to go to Court on any issue. You could say they are not experiencing difficulties in exercising their responsibilities and rights but wants to have a formalised structure on paper. This optional situation may apply where the parents of the child do not live together and there is no document in place regulating their respective care and contact responsibilities and rights to the child.

Mandatory situation – section 33(2)

The other situation where a parenting plan comes into play is where the parties are experiencing difficulties in exercising their responsibilities and rights. In this case, the Act prescribes to them to first try to agree on a parenting plan before going to Court. Section 33(2) states:

“If the co-holders of parental responsibilities and rights in respect of a child are experiencing difficulties in exercising their responsibilities and rights, those persons, before seeking the intervention of a court, must first seek to agree on a parenting plan determining the exercise of their respective responsibilities and rights in respect of the child.”

Therefore, all holders of parental responsibilities and rights in respect of a child do not need to enter into a parenting plan from the outset as stated. However, should there be problems and one or more of the parties may want to take it to Court, before they do so, they should first try to agree on a parenting plan before approaching the Court. Should the parties fail to agree on a parenting plan after following the prescripts of the Act, the Court may then be approached.

As outlined later, once the parenting plan has been agreed upon by the relevant parties, it may either be registered with a Family Advocate or made an Order of Court.

 

What must the parenting plan deal with according to the Act?

The contents of both optional and mandatory parenting plans can vary, however, according to section 33(3) of the Act:

 

“A parenting plan may determine any matter in connection with parental responsibilities and rights, including-

(a) where and with whom the child is to live;

(b) the maintenance of the child;

(c) contact between the child and-

(i) any of the parties; and

(ii) any other person; and

(d) the schooling and religious upbringing of the child.”

 

 

Furthermore, the Regulations to the Act prescribes child participation bearing in mind the child’s age, maturity, and stage of development. Regulation 11 which deals with the participation of a child in preparation of parenting plans states the following:

(1)  Bearing in mind the child’s age, maturity and stage of development, such child must be consulted during the development of a parenting plan, and granted an opportunity to express his or her views, which must be accorded due consideration.

(2) When a parenting plan has been agreed the child must, bearing in mind the child’s age, maturity and stage of development, be informed of the contents of the parenting plan by the family advocate, a social worker, social service   professional, psychologist, suitably qualified person or the child’s legal representative.

Therefore, before an optional or mandatory parenting plan can be registered with a Family Advocate or made an Order of Court, Regulation 11 must be applied.

Section 34 of the Children’s Act deals with the formalities of a parenting plan that need to be adhered to before it can be registered with a Family Advocate or made an Order of Court. It states the following:

“(1) A parenting plan-

(a) must be in writing and signed by the parties to the agreement; and

(b) subject to subsection (2), may be registered with a family advocate or made an order of court.

(2) An application by co-holders contemplated in section 33 (1) for the registration of the parenting plan or for it to be made an order of court must-

(a) be in the prescribed format and contain the prescribed particulars; and

(b) be accompanied by a copy of the plan.

(3) An application by co-holders contemplated in section 33 (2) for the registration of a parenting plan or for it to be made an order of court must-

(a) be in the prescribed format and contain the prescribed particulars; and

(b) be accompanied by-

(i) a copy of the plan; and

(ii) a statement by-

(aa) a family advocate, social worker or psychologist contemplated in section 33 (5) (a) to the effect that the plan was prepared after consultation with such a family advocate, social worker or psychologist; or

(bb) a social worker or other appropriate person contemplated in section 33 (5) (b) to the effect that the plan was prepared after mediation by such social worker or such person.

(4) A parenting plan registered with a family advocate may be amended or terminated by the family advocate on application by the co-holders of parental responsibilities and rights who are parties to the plan.

(5) A parenting plan that was made an order of court may be amended or terminated only by an order of court on application-

(a) by the co-holders of parental responsibilities and rights who are parties to the plan;

(b) by the child, acting with leave of the court; or

(c) in the child’s interest, by any other person acting with leave of the court.”

 

 

Once the parties decide to proceed to try to agree on a parenting plan, they need to have the parenting plan prepared. If section 33(2) applies, they would need to do it with the assistance of the relevant party. However, for both optional and mandatory parenting plans, the best interests of the child principle apply. According to section 33(4) of the Act:

 

“A parenting plan must comply with the best interests of the child standard as set out in section 7”.

 

Now we look at the Act and Regulations that come into play in preparing a parenting plan.

 

Optional parenting Plan – sec 33(1)

With regard to an optional parenting plan (sec. 33(1)), the parties may attend to preparing the parenting plan without the assistance of the Family Advocate, Social Worker or psychologist but they need to make sure it complies with this Act. It is however suggested that they approach a legal practitioner to assist them in this regard. As outlined later, once the parenting plan has been agreed upon and signed, it needs to be attached to Form 8.

With regard to mandatory parenting plans, other parties get involved to either assist in preparing the parenting plan or for mediation.

Mandatory parenting plan – section 33(2)

According to section 33 (5) of the Act:

“In preparing a parenting plan as contemplated in subsection (2) the parties must seek-

(a) the assistance of a family advocate, social worker or psychologist; or

(b) mediation through a social worker or other suitably qualified person.”

 

Regulation 9 to Act deals with the registration of parenting plans and having them made Orders of Court. It states:

(1) An application for the registration of a parenting plan at the office of the family advocate or for it to be made an order of court must be completed in writing in a form identical to Form 8 and must-

(a) be signed by the parties to the parenting plan or, if a person whose signature is required is incapable of furnishing a signature, a thumbprint of that person must be effected and duly attested by a commissioner of oaths;

(b) contain the titles, full names, dates of birth, identity numbers or passport numbers (as the case may be), residential, work addresses, and contact details of all co-holders of parental responsibilities and rights named in the parenting plan; and

(c) contain the full names, dates of birth, identity numbers or passport numbers (as the case may be), residential addresses and contact details of any child or children named in the parenting plan.

(2) Where parental responsibilities and rights are to be exercised in the same manner by the holders of those responsibilities and rights with respect to more than one child in the same family, the application for registration of the parenting plan must be completed for each child.

(3) The applicant or applicants for the registration of a parenting plan must file copies of such plan with the family advocate, children’s court or High Court, as the case may be, to enable each co-holder to retain a copy of the registered parenting plan.

 

Therefore, once the parenting plan complies with the Act and its Regulations, Form 8 needs to be completed for both optional and mandatory parenting plans. However, there is a further instruction in terms of the Regulations regarding mandatory parenting plans.

The Regulations to the Act further instructs on what other form needs to be completed should a mandatory parenting plan (sec. 33(2)) be registered with a Family Advocate or made an Order of Court. Regulation 10 states the following:

  (1) The co-holders of parental responsibilities and rights as contemplated in section 30 and who are experiencing difficulty in exercising their responsibilities and rights as envisaged in section 33(2) of the Act must seek to agree on a parenting plan on matters referred to in section 33(3) of the Act.

(2) The parenting plan contemplated in sub-regulation (1) must be prepared:

(a) with the assistance of a family advocate, social worker or psychologist as contemplated in section 33(5)(a) of the Act, and must be completed in writing in a form identical to Form 9; or

(b) after mediation by a social worker or other suitably qualified person as contemplated in section 33(5)(b) of the Act, and must be completed in writing in a form identical to Form 10.

 

 

It would seem that the relevant form(s) and parenting plan should be left with the Office of the Family Advocate or the Registrar of the High Court to have the parental plan registered or made an Order of Court as the case may be. It does however not seem that Rule 6 of the Uniform Rules of the High Court are applicable. However, it would seem prudent, failing directives to the contrary to make the Application in terms of Rule 6 and attach the relevant documents referred to herein with a supporting affidavit(s) and file same with the Office of the Family Advocate.

Once the parenting plan is registered with a Family Advocate or made an Order of Court, the parties would be expected to adhere to the parenting plan.

 

Court proceedings for optional parenting plans

Interesting to note is section 34 (6) of the Act where it states:

“Section 29 applies to an application in terms of subsection (2).”

Section 34 subsection (2) refers to the registration of parenting plans with a Family Advocate and for it to be made an Order of Court which was dealt with above.

 

Section 29 of the Act deals with various applications in the High Court, a divorce court in a divorce matter or a Children’s Court as the case may be. Looking at Section 29, the Court is not obliged to make any parenting plan an Order of Court and may only grant an application if it’s in the best interests of the child.

 

Section 29 (5) states the following:

The court may for the purposes of the hearing order that –

a report and recommendations of the family advocate, a social worker or other suitably qualified person must be submitted to the court;

a matter specified by the court must be investigated by a person designated by the court;

a person specified by the court must appear before it to give or produce evidence; or

the applicant or any party opposing the application must pay the costs of any such investigation or appearance.

Therefore, the Court would not blindly make a parental plan an Order of Court, but would first need to be convinced that it is in the child’s best interests.

It is submitted that before a Court makes a mandatory parental plan (sec. 33(2)) an Order of Court, notwithstanding it being prepared or mediated with the assistance of the relevant person, the Court would still need to be satisfied that the parenting plan is in the minor child’s best interests before making the parenting plan an Order of Court. If the Court is not so satisfied, it may make an order similar to those provided for in section 29(5) referred to above.

 

Contempt of Court

 

The question which may be posed is what is better, having the parenting plan registered with the Family Advocate or made an Order of Court? In my view, it would be better to make it an Order of Court as this would force all parties to comply with it or they would be in contempt of Court.

Furthermore, section 35 of the Act states amongst other things that it is a criminal offence to refuse or prevents a co-holder of parental responsibilities of rights to exercise such responsibilities and rights and may be liable on conviction to a fine or to imprisonment for a period of not exceeding one year.

Sharing is Caring

This and other articles and posts found on this website are written by Adv. Muhammad Abduroaf to assist people with various family law related issues they may have. If you find any of our articles, free resources and posts interesting, or possibly useful to others, please like and share it on Social Media by clicking on the icons below. For more interesting articles and information on Family Law, view our articles and Q&A page. If you have a family law related legal issue and you want someone to answer or reply to it, feel free to post it on our Family Law Blog. Therefore, kindly like and share.

Should you require any other legal services and advice, not related to family law, visit Private Legal.

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Here at our law officers, we understand the struggle of your anxious search for family legal services. Most often, you under the impression that you may not find the legal services you require within close proximity. Look no further.

Family Legal Advice Consultancy

We are a family legal consultancy that strive to cater for all your legal needs by offering legal advice and guidance in family law. If you happen to be residing in the Bo-Kaap  area, then legal advice is still in your favor. Searching for a legal solution is tough enough and we are fully aware of this. With this in mind, we have made our legal advice and legal guidance easily accessible for your convenience. Our online system enables you to make an online appointment for a professional legal consultation within minutes, while in the comfort of your own home.

Price listings for Family Legal Services in Bo-Kaap

We have managed to compile a straightforward price list of some of our legal services in which we offer legal advice and legal guidance in. With that being said, we often have potential clients asking us for an overall view of what the service will cost. When it comes to child maintenance, child custody, contested/opposed divorces and so on; then an overview of the cost cannot be provided as this will be depend upon nature and circumstance of the legal matter. See our legal services page for an idea of what some of our legal services will cost.

Legal Advice in Bo-Kaap  – Family law legal topics

For family law legal topics, we offer legal advice on a variety of family law topics, which include, but is not limited to: And while our consultation does come at a fee of R800; we have made our free, expert legal advice articles on our website, easily accessible for the layperson. See the following free, expert legal advice articles which was carefully crafted by the legal expert himself. These articles can be found within the following categories:

Child Maintenance

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  1. How to Change your Matrimonial Property Regime
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Legal consultation – telephonic, face to face or via video chat / Skype legal advice for those residing in Bo-Kaap

Are you residing in Bo-Kaap  and concerned that legal advice and legal guidance may be out of your way? This could never be more far off from the truth. Our professional legal consultancy have taken such circumstances into account and have managed to accommodate for those residing in the Bo-Kaap  area. Our professional legal consultation can take place by virtue of video chat / Skype, email or telephonic for your convenience. We are currently based at Suit 702, 7th Floor, The Pinnacle (on the corner of Burg and Strand Street). Do you require an Attorney to handle your legal matter? No problem. Our law offices have built a wealth of legal connections to ease your plight. After assessing your legal matter during the consultation, we can refer you to an Attorney if necessary. However, we have managed to sustain a convenient online operation which will unfold within the following ways:
  1. Call our friendly receptionist and ask to have an appointment made for you online which will only take a minute or two.
  2. You have the choice of deciding whether you would like a telephonic, email, video chat/Skype legal consultation.
  3. Once you call our law offices on 021 424 3487, the receptionist will make an appointment online for you. Thereafter, you will receive an automated email which will contain all relevant details about the legal consultation. The date, time, nature of legal matter and payments methods will be highlighted within the email.
  4. We urge potential clients to read their email well as well as the terms and conditions within the email.
  5. Only once payment has been made, will the face to face legal consultation be confirmed.
  6. Bear in mind that the date and time of the legal consultation is subject to change on either our part or the potential client’s part. Hence the potential client is free to change the date and time should they later find a more convenient date or time.
Call our law offices on 021 424 3487, and have our friendly receptionist make an online appointment for you for a face to face, telephonic or Video Chat/Skype legal consultation.

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Our law offices does not offer pro bono legal services as we are a Family Legal Consultancy that aims at offering expert, efficient legal advice and assistance on child maintenance, divorce, child custody and so forth. We have however, as mentioned previously, made our free, expert legal advice accessible to the layperson on our website. The creators of this website have compiled a “Free Family Law Resources” section, which can be found on our home page. The family law resources are as follows:
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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.

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I am in search of a trustworthy attorney or advocate. Please direct me to reputable sources to find one.

There are many reputable sources for legal advice and services. Some options include consulting with an advocate or attorney, reaching out to a legal aid organisation, or searching for legal resources through your various websites. It’s essential to research and choose a reliable source to ensure that you receive accurate and trustworthy legal guidance, advice or representation.

When do I decide that there is a need to consult with a lawyer, attorney, or advocate?

Consider consulting with a lawyer, attorney, or advocate if you are facing a legal issue or have questions you need help with. Some everyday situations where you may want to consult a lawyer include:  1. You have been arrested or charged with a crime;  2. You are facing a civil lawsuit or have been served with legal papers.  3. You are considering filing for divorce or dealing with a child custody issue.  4. You are starting a business or need help with business contracts.  5. You are buying or selling a home or other real estate property.  6. You are facing an employment dispute or have questions about your rights as an employee.  A lawyer can provide guidance and support throughout the legal process, ensure that your rights are protected, and help you achieve the best possible outcome in your case. I think it’s essential to choose a lawyer with experience in law that pertains to your specific issue and who you feel comfortable working with.

Is it better to consult with an attorney or advocate virtually or in person?

Whether it is better to consult with a lawyer virtually or in person depends on your preferences and the nature of your legal issue.  Virtual consultations, such as video or phone consultations, can be a convenient option for individuals who cannot travel to a lawyer’s office or prefer the flexibility of consulting with a lawyer from the comfort of their home. Virtual consultations can also benefit individuals with time constraints or who need to consult with a lawyer quickly. However, in-person consultations may be preferable for individuals who prefer face-to-face interaction and feel more comfortable discussing sensitive legal issues. In-person consultations can also allow for a more thorough and detailed discussion of your legal issue and the opportunity to review and sign legal documents on the spot. Ultimately, the decision to consult with a lawyer, attorney or advocate virtually or in person is a personal one and depends on your individual needs and preferences. Many lawyers offer virtual and in-person consultations, so it’s important to discuss your options with your lawyer and choose the best option.

What is free legal advice by an attorney or advocate?

Free legal advice refers to providing legal guidance or information without charge or cost to the recipient. This may be provided by legal aid organisations, pro bono attorneys or advocates, or other resources that offer free legal services. Free legal advice can be helpful for individuals who are unable to afford the cost of hiring an attorney or advocate. Still, ensuring that the advice received is accurate and reliable is essential. Free legal advice may only sometimes be able to address complex legal issues or provide ongoing legal representation fully.

Are all advocates and attorneys the same?

No, not all lawyers are the same. While the High Court has admitted all advocates and attorneys, they may specialise in different areas of law and have varying levels of experience and expertise. Some lawyers may focus on criminal law, while others specialise in family law, intellectual property law, or other areas. Additionally, lawyers may work in private practice, government agencies, or non-profit organisations, impacting their practice and areas of expertise. I think choosing a lawyer with experience in law is essential.

Is there a guarantee that I will win my court case with a lawyer?

No, there is no guarantee that you will win your court case. The outcome of a court case depends on various factors, including the strength of the evidence, the arguments presented by each side, the judge’s interpretation of the law, and other factors. While a lawyer can provide guidance and help prepare your case, they cannot guarantee a specific outcome. It’s essential to have realistic expectations, be prepared for the possibility of an unfavourable outcome, and plan how to proceed if this occurs.

How often should I consult with my attorney or advocate?

The frequency with which you should consult with your lawyer depends on the nature of your legal issue and the complexity of your case. In some cases, you may only need to consult with your lawyer once or twice throughout the entire legal process, while in other cases, you may need to communicate with them more frequently. It’s essential to set clear expectations with your lawyer regarding communication and ensure you are both on the same page regarding how often you will check in and what type of updates you can expect. Also, please feel free to ask me any questions or concerns during the legal process. In that case, reaching out to your lawyer as soon as possible would be essential to ensure they can address them effectively.

What do I do if I am not happy with the outcome of the court case?

If you are not happy with the outcome of your court case, several options may be available to you, depending on the circumstances of your case.  Firstly, you may have the option to file an appeal, which is a formal request for a higher court to review the decision made in your case. You would appeal to the High Court if your matter were heard in the Magistrates  Court. An appeal can only be filed if there were errors in the legal process that may have affected the outcome of your case, such as the application of the wrong law, facts, procedural errors and so on. Additionally, suppose that your lawyer provided inadequate representation or made significant errors that may have impacted the outcome of your case. In that case, you may have the option to file a complaint or a malpractice claim against them.  I think consulting with a lawyer is essential to determine the best course of action in your specific case. They can guide your legal options and help you make an informed decision about how to proceed.

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