Parental Alienation in the situation of a divorce or separation – What can a parent do?

Family law becomes challenging when there are children in the equation. If a couple who were not married, broke up, there is not much to squabble about afterward if there were no kids. The same applies to a divorced couple. The only potential issues in such a divorce would be that of the matrimonial property regime and possible personal maintenance. If there are children involved, couples must deal with the issue of child maintenance, care, contact, and guardianship as well. The latter issues are usually the stumbling blocks in a divorce case or post-separation. At the end of the day, in all matters concerning children, the law says that their best interests should be upheld. Now let us look at the issue of parental alienation in the context of child custody disputes.

What is parental alienation?

This article in no means provides a psychological analysis or definition of parental alienation. It deals with the legal relief a parent can seek should parental alienation be perpetrated. On the web, the following definition of parental alienation is provided: “The term parental alienation refers to psychological manipulation of a child, by saying and doing things that lead the child to look unfavorably on one parent or the other. In essence, parental alienation amounts to brainwashing the child, and it can be done both consciously and unconsciously. This is a significant problem in family law cases and something that the courts take very seriously…” We are certain there are many more similar definitions. However, what seems to be clear is that parental alienation deals with a situation where one parent tries to detrimentally affect the relationship a child has with the other parent.

Parental Alienation Syndrome (PAS)

Then there is the issue of parental alienation syndrome (PAS). Whatever the definition or consequence of parental alienation is, it is an issue that needs to be addressed from a legal point of view. This article tackles that. This is so as parental alienation negatively affects the relationship between a child and his or her parent. Clearly, that would not be in the child’s best interests.

What should one do if you suspect parental alienation taking place?

Looking at what constitutes parental alienation, a parent who experiences parental alienation would see a change in the child’s behaviour towards that parent. This change could be for various reasons. Some would be obvious and some less so. It would not mean that parental alienation is taking place due to every change in the child’s demeanour towards the affected parent. Maybe the child is being adversely affected by the separation or continual arguing by the parents and no parental alienation is actually taking place. Therefore, to verify that there is some form of parental alienation, an expert would need to be approached. In this case, we refer to a psychologist or social worker with the necessary experience and training in relation to parental alienation.

How to stop parental alienation?

If a parent is practising parental alienation, by, for example, badmouthing the other parent, undermining the child’s relationship with the other parent, and so on, before approaching the courts, the parents must try to resolve this issue through less harsh means. Parents must try to go for family or parent counselling, or some type of mediation. This would all be based on the fact that an expert already advised that there is parental alienation taking place which adversely affects the minor child. If the latter suggestions and other potential avenues do not work, then, unfortunately, the court would need to be approached.

What can the Court do regarding parental alienation?

If a parent believes that parental alienation is taking place, and the other parent does not want to work towards eradicating it, then, unfortunately, the court would need to be approached for relief. The court would be guided by what the experts have to say. It may happen that the court request the Family Advocate, or the private psychologist to advise on the issue of parental alienation and give the court some guidance on how it can be eradicated. Each case is different and therefore handled differently. A court may decide that in order to limit parental alienation, the child should have more contact with the affected parent. For example, the affected parent should be the one that takes and collects the child from school. In other cases, the court may decide to reverse the care and contact arrangements already in place. In other words, the child would not reside primarily by the parent who was the victim of parental alienation.

The court would be guided by what is best for the minor child involved. As the presiding officer and lawyers involved are not child care experts, they would be greatly guided by those who are. However, the court would have the final say in the matter. 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

Parental Alienation in the situation of a divorce or separation – What can a parent do?

Family law becomes challenging when there are children in the equation. If a couple who were not married, broke up, there is not much to squabble about afterward if there were no kids. The same applies to a divorced couple. The only potential issues in such a divorce would be that of the matrimonial property regime and possible personal maintenance. If there are children involved, couples must deal with the issue of child maintenance, care, contact, and guardianship as well. The latter issues are usually the stumbling blocks in a divorce case or post-separation. At the end of the day, in all matters concerning children, the law says that their best interests should be upheld. Now let us look at the issue of parental alienation in the context of child custody disputes.

What is parental alienation?

This article in no means provides a psychological analysis or definition of parental alienation. It deals with the legal relief a parent can seek should parental alienation be perpetrated. On the web, the following definition of parental alienation is provided:

“The term parental alienation refers to psychological manipulation of a child, by saying and doing things that lead the child to look unfavorably on one parent or the other. In essence, parental alienation amounts to brainwashing the child, and it can be done both consciously and unconsciously. This is a significant problem in family law cases and something that the courts take very seriously…”

We are certain there are many more similar definitions. However, what seems to be clear is that parental alienation deals with a situation where one parent tries to detrimentally affect the relationship a child has with the other parent.

Parental Alienation Syndrome (PAS)

Then there is the issue of parental alienation syndrome (PAS). Whatever the definition or consequence of parental alienation is, it is an issue that needs to be addressed from a legal point of view. This article tackles that. This is so as parental alienation negatively affects the relationship between a child and his or her parent. Clearly, that would not be in the child’s best interests.

What should one do if you suspect parental alienation taking place?

Looking at what constitutes parental alienation, a parent who experiences parental alienation would see a change in the child’s behaviour towards that parent. This change could be for various reasons. Some would be obvious and some less so. It would not mean that parental alienation is taking place due to every change in the child’s demeanour towards the affected parent.

Maybe the child is being adversely affected by the separation or continual arguing by the parents and no parental alienation is actually taking place. Therefore, to verify that there is some form of parental alienation, an expert would need to be approached. In this case, we refer to a psychologist or social worker with the necessary experience and training in relation to parental alienation.

How to stop parental alienation?

If a parent is practising parental alienation, by, for example, badmouthing the other parent, undermining the child’s relationship with the other parent, and so on, before approaching the courts, the parents must try to resolve this issue through less harsh means. Parents must try to go for family or parent counselling, or some type of mediation. This would all be based on the fact that an expert already advised that there is parental alienation taking place which adversely affects the minor child. If the latter suggestions and other potential avenues do not work, then, unfortunately, the court would need to be approached.

What can the Court do regarding parental alienation?

If a parent believes that parental alienation is taking place, and the other parent does not want to work towards eradicating it, then, unfortunately, the court would need to be approached for relief. The court would be guided by what the experts have to say. It may happen that the court request the Family Advocate, or the private psychologist to advise on the issue of parental alienation and give the court some guidance on how it can be eradicated. Each case is different and therefore handled differently.

A court may decide that in order to limit parental alienation, the child should have more contact with the affected parent. For example, the affected parent should be the one that takes and collects the child from school. In other cases, the court may decide to reverse the care and contact arrangements already in place. In other words, the child would not reside primarily by the parent who was the victim of parental alienation.

The court would be guided by what is best for the minor child involved. As the presiding officer and lawyers involved are not child care experts, they would be greatly guided by those who are. However, the court would have the final say in the matter.

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

What is the Status of Muslim Marriage in South Africa?
Women’s Legal Centre Trust v President of the Republic of South Africa and Others (CCT 24/21) [2022] ZACC 23; 2022 (5) SA 323 (CC); 2023 (1) BCLR 80 (CC) (28 June 2022)
In the case of Women’s Legal Centre Trust v President of the Republic of South Africa and Others (CCT 24/21) [2022] ZACC 23; 2022 (5) SA 323 (CC); 2023 (1) BCLR 80 (CC) (28 June 2022), the Constitutional Court deal with an issue relating to Muslim Marriage. The parties in the case where the following:
WOMEN’S LEGAL CENTRE TRUST                                              Applicant
and
PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA                First Respondent
MINISTER OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT                                                                            Second Respondent
MINISTER OF HOME AFFAIRS                                                    Third Respondent
SPEAKER OF THE NATIONAL ASSEMBLY                                 Fourth Respondent
CHAIRPERSON OF THE NATIONAL COUNCIL
OF PROVINCES                                                                             Fifth Respondent
SOUTH AFRICAN HUMAN RIGHTS COMMISSION                     Sixth Respondent
COMMISSION FOR THE PROMOTION AND PROTECTION
OF THE RIGHTS OF CULTURAL, RELIGIOUS
AND LINGUISTIC COMMUNITIES                                                Seventh Respondent
LAJNATUN NISAA-IL MUSLIMAAT (ASSOCIATION
OF MUSLIM WOMEN OF SOUTH AFRICA)                                 Eighth Respondent
and
COMMISSION FOR GENDER EQUALITY                                   Intervening Party
and
MUSLIM ASSEMBLY CAPE                                                         First Amicus Curiae
UNITED ULAMA COUNCIL OF SOUTH AFRICA                        Second Amicus Curiae
The Constitutional Court gave the following ruling:
“On application for confirmation of an order of constitutional invalidity granted by the Supreme Court of Appeal: 1. The Supreme Court of Appeal’s order of constitutional invalidity is confirmed: 1.1. The Marriage Act 25 of 1961 (Marriage Act) and the Divorce Act 70 of 1979 (Divorce Act) are declared to be inconsistent with sections 9, 10, 28 and 34 of the Constitution in that they fail to recognise marriages solemnised in accordance with Sharia law (Muslim marriages) which have not been registered as civil marriages, as valid marriages for all purposes in South Africa, and to regulate the consequences of such recognition. 1.2. It is declared that section 6 of the Divorce Act is inconsistent with sections 9, 10, 28(2) and 34 of the Constitution, insofar as it fails to provide for mechanisms to safeguard the welfare of minor or dependent children born of Muslim marriages, at the time of dissolution of the Muslim marriage in the same or similar manner as it provides for mechanisms to safeguard the welfare of minor or dependent children born of other marriages that are dissolved. 1.3. It is declared that section 7(3) of the Divorce Act is inconsistent with sections 9, 10, and 34 of the Constitution, insofar as it fails to provide for the redistribution of assets, on the dissolution of a Muslim marriage, when such redistribution would be just. 1.4. It is declared that section 9(1) of the Divorce Act is inconsistent with sections 9, 10 and 34 of the Constitution, insofar as it fails to make provision for the forfeiture of the patrimonial benefits of a Muslim marriage at the time of its dissolution in the same or similar terms as it does in respect of other marriages that are dissolved. 1.5. The common law definition of marriage is declared to be inconsistent with the Constitution and invalid to the extent that it excludes Muslim marriages. 1.6. The declarations of invalidity in paragraphs 1.1 to 1.5 above are suspended for a period of 24 months to enable the President and Cabinet, together with Parliament, to remedy the foregoing defects by either amending existing legislation, or initiating and passing new legislation within 24 months, in order to ensure the recognition of Muslim marriages as valid marriages for all purposes in South Africa and to regulate the consequences arising from such recognition. 1.7. Pending the coming into force of legislation or amendments to existing legislation referred to in paragraph 1.6, it is declared that Muslim marriages subsisting at 15 December 2014, being the date when this action was instituted in the High Court, or which had been terminated in terms of Sharia law as at 15 December 2014, but in respect of which legal proceedings have been instituted and which proceedings have not been finally determined as at the date of this order, may be dissolved in accordance with the Divorce Act as follows: (a) all the provisions of the Divorce Act shall be applicable, save that all Muslim marriages shall be treated as if they are out of community of property, except where there are agreements to the contrary, and (b) the provisions of section 7(3) of Divorce Act shall apply to such a union regardless of when it was concluded. (c) In the case of a husband who is a spouse in more than one Muslim marriage, the court: (i) shall take into consideration all relevant factors, including any contract or agreement between the relevant spouses, and must make any equitable order that it deems just; and (ii) may order that any person who in the court’s opinion has a sufficient interest in the matter be joined in the proceedings. 1.8. Pending the coming into force of legislation or amendments to existing legislation referred to in paragraph 1.6, it is declared that, from the date of this order, section 12(2) of the Children’s Act 38 of 2005 applies to a prospective spouse in a Muslim marriage concluded after the date of this order. 1.9. Pending the coming into force of legislation or amendments to existing legislation referred to in paragraph 1.6, for the purpose of paragraph 1.8 above, the provisions of sections 3(1)(a), 3(3)(a) and 3(3)(b), 3(4)(a) and 3(4)(b), and 3(5) of the Recognition of Customary Marriages Act 120 of 1998 shall apply, mutatis mutandis, to Muslim marriages. 1.10. If administrative or practical problems arise in the implementation of this order, any interested person may approach this Court for a variation of this order. 1.11. The Department of Home Affairs and the Department of Justice and Constitutional Development shall publish a summary of the orders in paragraphs 1.1 to 1.10 above widely in newspapers and on radio stations, whichever is feasible, without delay. 2. The conditional cross appeal by the Women’s Legal Centre Trust, and the appeals by the South African Human Rights Commission and Commission for Gender Equality are dismissed. 3. The President and the Minister of Justice and Constitutional Development must pay the Women’s Legal Centre Trust’s costs of this application, including the costs of two counsel.”
Status of Muslim Marriages in South Africa
Considering the latter judgment, Muslim Marriages are seen as valid marriages. However, the South African legal framework needs to be changed to allow for its incorporation.

Posted on 11 February 2025 by Telelaw

Top tips from a Senior Family Law Advocate on how to deal with your Child Custody matter in the Welkom Children’s Court

Family law legal matters can be very stressful. This is so whether you live in Welkom or any other city in South Africa. Especially so if you have no idea how the legal processes work. It is one thing to know that you are entitled to child support, but it is a totally different matter to know the law and procedure on how to claim child support. Luckily in child maintenance matters, the maintenance court is there to assist you in completing the application form. However, many times that is not enough. Especially so if the other parent has a lawyer and knows how to present the case for his or her client.
This article, however, deals with some top tips in care and contact or custody matters in the Children’s Court in Welkom. It would explain the processes involved and advise on how to be best prepared for your matter. This advice is applicable whether you live in Welkom or any other city in South Africa.
What to do before visiting the Welkom Children’s Court
Before you approach the Children’s Court in Welkom, first try to resolve the issues with the other parent. Therefore, if you want more contact with your child and the other parent is refusing, try to resolve the matter first with that parent. If that does not work, try mediation. The mediator can be anyone, from a trusted mutual friend, priest, or other religious leaders, or a professional like an attorney, psychologist, or the office of the Family Advocate. Welkom has many professionals that can assist you in this regard. If resolving the matter by yourselves is not possible, or mediation fails, then we suggest you approach the Welkom Children’s Court for assistance.
TIP: Focus on getting someone neutral to assist in mediating your matter. Organisations like FAMSA and FAMAC can be of assistance. Google them.
Approaching the Welkom Children’s Court
The Welkom Children’s Court should be approached if it is the closest Children’s Court to you. You need to verify with the Welkom Children’s Court that you fall under their area of jurisdiction. If not, they would direct you to which Children’s Court is applicable to you.
Once you arrive at the Welkom Children’s Court, they will provide you with a form headed “Bringing Matter to Court in Terms of Section 53 Children’s Act, 2005 (Act no. 38 of 2005) Regulation Relating to Children’s Court and International Child Abduction, 2008 [Regulation 6]. This form is also called Form 2.
In this form, you will provide all your particulars and that of the child or children and the other parent. The sections in the form are as follows:
PART A: PARTICULARS OF CHILD(REN)
PART B: PARTICULARS OF CHILD WHO IS AFFECTED BY OR INVOLVED IN THE MATTER/PERSON ACTING IN THE INTEREST OF THE CHILD/ON BEHALF OF THE CHILD WHO CANNOT ACT IN HIS/HER OWN NAME/ MEMBER OF A GROUP OF CLASS OF CHILDREN/*IN THE PUBLIC INTEREST (SECTION 53(2)
PART C: PARTICULARS OF PERSONS HAVING AN INTEREST IN THE MATTER
PART D: PARTICULARS OF MATTER
In part D, the following is stated which you need to provide in the form:
Nature of matter brought to Court: (Please give full details of the matter e.g., registration/amendment of parenting plans, removal of child to safe care, children in need of care and protection, placement in youth care centers, adoption etc.
Documents: Are there any documents relating to the matter? (If so please attach)
Once you have completed the form and attached the relevant documents to it, you must take it to a commissioner of Oaths to have it commissioned. It does not have to be in Welkom.
TIP: Draft a separate affidavit explaining your case. Outline some background information and reasons why the Court should give you what you request. Attach it to Form 2.
Processing your Application at the Welkom Children’s Court
Once you complete the Form A and submit it to the Clerk of the Welkom Children’s Court, they will process it and allocate it a case number or reference number. The Clerk of the Court would then allocate a date to the matter and advise the parties accordingly when the court date is. Please note that some courts follow a different process for processing the application and informing the parties of the court date. Please enquire from the Court when making the application what process they follow.
TIP: Obtain the contact details of the Court for you to contact them to obtain the Court date or other information. Ask for their contact number and email address.
Appearing in the Welkom Children’s Court
When notified of the Court date, both you and the other parent should attend. If you are making use of a lawyer (Advocate or Attorney), inform them timeously of the date. Depending on the Court, you may first see the Clerk or go directly to the Magistrate. The Children’s Court would do its best to try to resolve the matter. If the parents cannot come to an agreement, the Children’s Court may postpone the matter for either of the following:
Get a social worker involved in the matter;
Appoint a legal representative for the minor child;
Implement interim care and contact arrangements;
Having the parties attempt to agree on a parenting plan;

In serious matters, the Court may remove the minor child from both parents and place the child in foster care. The powers of the Children’s Court are extensive. It will, however, focus on what is in the child’s best interests.
TIP: Be as vocal as possible. Do not expect the Court to be understanding of your case or be on your side. It is your duty to explain your case and provide the Court with all the relevant information they require for them to make a fair decision.
Finalising the matter in the Welkom Children’s Court
Once the Welkom Children’s Court has enough information to make a final decision, it will do so. Depending on the facts of the matter, that could either be making a Parenting Plan, an Order of the Court or a final care and contact Order. The Court may even make further interim orders, where the parties are to return to Court after a few months, or a year later.
TIP: Do not agree to something just because the social worker, a lawyer, or the Court suggest it. You need to be happy with what is decided.
The above Welkom Children’s Court Application tips should apply to the following provinces and cities:
Eastern Cape:
Alice, Butterworth, East London, Graaff-Reinet, Grahamstown, King William’s Town, Mthatha
Port Elizabeth, Queenstown, Uitenhage, Zwelitsha
Free State:
Bethlehem. Bloemfontein, Jagersfontein, Kroonstad, Odendaalsrus, Parys, Phuthaditjhaba, Sasolburg, Virginia, Welkom
Gauteng:
Benoni, Boksburg, Brakpan, Carletonville, Germiston, Johannesburg, Krugersdorp, Pretoria, Randburg, Randfontein, Roodepoort, Soweto, Springs, Vanderbijlpark, Vereeniging
KwaZulu-Natal:
Durban, Empangeni, Ladysmith, Newcastle, Pietermaritzburg, Pinetown, Ulundi, Umlazi
Limpopo:
Giyani, Lebowakgomo, Musina, Phalaborwa, Polokwane, Seshego, Sibasa, Thabazimbi
Mpumalanga:
Emalahleni, Nelspruit, Secunda, North West, Klerksdorp, Mahikeng, Mmabatho, Potchefstroom, Rustenburg, Northern Cape, Kimberley, Kuruman, Port Nolloth
Western Cape:
Bellville, Welkom, Constantia, George, Hopefield, Oudtshoorn, Paarl, Simon’s Town, Stellenbosch, Swellendam, Worcester

Posted on 11 February 2025 by Telelaw

Gay and Lesbian (Same-sex) Divorces in South Africa – How does it work?
As with any marriage, relationship or romantic partnership, there is no guarantee that it will last until death do you part. For a marriage, a divorce is what is needed if the marriage has irretrievably broken down. Much has been written on the issue of divorces in relation to heterosexual marriages where the Marriage Act find application. The same applies to customary marriages. What about same-sex, or gay and lesbian couples who are married and want to get divorced? Does the law cater for such marriages? And how are they different from heterosexual divorces. Before we deal with the dissolution aspect of a same-sex marriage, let us first deal with the validity and legality of the same-sex marriage itself.

What are same-sex marriages?

This sounds like a simple question. However, without presuming too much, let us unpack the law. Here we will look at the Civil Union Act 17 of 2006. It is this Act of Parliament that made same-sex marriages legal in South Africa.

Civil Union Act, 17 of 2006

According to the Civil Union Act, a “civil union” means the voluntary union of two persons who are both 18 years of age or older which is solemnised and registered by way of either a marriage or a civil partnership, in accordance with the procedures prescribed in this Act, to the exclusion, while it lasts, of all others“. Furthermore, according to the Act, a “civil union partner” means a spouse in a marriage or a partner in a civil partnership. as the case may be, concluded in terms of this Act“. From the aforementioned, it is clear that there are two types of civil unions, the one is a marriage, and the other is a civil partnership. Now let us have a look at what the legal requirements are for a gay or lesbian couple to enter into a same-sex marriage as provided for in the Civil Union Act.

Requirements for solemnisation and registration of a civil union

The requirements for the solemnisation and registration of a civil union are as follows as provided for in the Act: “8. (1) A person may only be a spouse or partner in one marriage or civil partnership. ( 2 ) A person in a civil union may not conclude a marriage under the Marriage Act or the Customary Marriages Act. (3) A person who is married under the Marriage Act or the Customary Marriages Act may not register a civil union. (4) A prospective civil union partner who has previously been married under the Marriage Act or Customary Marriages Act or registered as a spouse in a marriage or a partner in a civil partnership under this Act, must present a certified copy of the divorce order, or death certificate of the former spouse or partner, as the case may be, to the marriage officer as proof that the previous marriage or civil union has been terminated. ( 5 ) The marriage officer may not proceed with the solemnisation and registration of the civil union unless in possession of the relevant documentation referred to in subsection ( 4 ). ( 6 ) A civil union may only be registered by prospective civil union partners who would apart from the fact that they are of the same sex, not be prohibited by law from as the case may be, at any given time, concluding a marriage under the Marriage Act or Customary Marriages Act.” The aforementioned clauses basically say you should not be married, and there should be no legal reason why you cannot get married.

Now let us move on to the issue of divorces when it comes to gay and lesbian marriages

Should a gay or lesbian couple married in terms of the Civil Union Act wish to get divorced, the procedure is the same as would be in a marriage solemnised in terms of the Marriage Act. The legal documents, however, would be slightly different. For example, in the case of a gay marriage, where it comes to the type of civil marriage, and children, the following clauses would be inserted in the Particulars of Claim:

The parties entered into a marriage or a civil partnership; and
There are no children of the marriage, either through adoption or surrogacy;

Otherwise, the procedure would be exactly the same, save for in a gay marriage, only the word he would be used to describe the spouse and the word she, for a lesbian couple.

Contact us to assist you with your same-sex divorce

If your same-sex marriage has irretrievably broken down, and you wish to get divorced, feel free to contact our offices for assistance. Based on our experience with same-sex divorces, additional knowledge on the law may be required when it comes to preparing the legal documents.

Posted on 11 February 2025 by Telelaw