child support, child custody, divorce, child maintenance, Cape Town
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I would love to have contact with my child on Father’s Day. Her mother is refusing me contact. What does the law say when it comes to the rights of a father?
Every year, the World celebrates Father’s Day. In 2019, it was celebrated on 16 June, coinciding with Youth Day in South Africa. It is a very special day not only for fathers but for the children concerned. When we refer to children, we are not only referring to kids or toddlers. Even grown-up children celebrate Father’s Day with their respective fathers. In some families, Father’s Day is being celebrated by three generations of offspring. This article, however, relates to Father’s Day in the context of minor children spending time with their fathers on that special day.The Father
We will not go into the technical legality of what makes you a father. A child who has been adopted is for all intents and purposes the child of the adoptive parent. Even if the child was not adopted, or you are not the biological father of the child, if the child refers to you as a father, then the celebration of Father’s Day would apply to you. Here a specific example would be step-parents. Now let’s move on to the issue of what rights does a father have to have contact with his child on Father’s Day. But before we can do that, we need to have a look at the Children’s Act 38 of 2005. Let us start off by looking at what the law says regarding parental responsibilities and rights of fathers. You will note that the law applies differently when it comes to married and unmarried fathers. However, the principles are the same.Unpacking the law
The purpose of this article is to correctly outline the law applicable to the rights of fathers in relation to their children. In this case, we shall make extensive reference to the Children’s Act. A father can, therefore, have a look at the various sections of the Children’s Act, unpacked below and apply it to himself. Let us start off with a concept of parental responsibilities and rights.Parental responsibilities and rights of married fathers
Section 20 of the Children’s Act deals with the parental responsibilities and rights of married fathers. It states: The biological father of a child has full parental responsibilities and rights in respect of the child— (a) if he is married to the child’s mother; or (b) if he was married to the child’s mother at— (i) the time of the child’s conception; (ii) the time of the child’s birth; or (iii) any time between the child’s conception and birth. This section is straight forward. If you were married to the child’s mother, you automatically have full parental responsibilities and rights in respect of the child. In short, you do not have to be married to the mother at conception. Parental responsibilities and rights of unmarried fathers Section 21 of the Children’s Act deals with parental responsibilities and rights of unmarried fathers. It states: (1) The biological father of a child who does not have parental responsibilities and rights in respect of the child in terms of section 20, acquires full parental responsibilities and rights in respect of the child— (a) if at the time of the child’s birth he is living with the mother in a permanent life-partnership; or (b) if he, regardless of whether he has lived or is living with the mother— (i) consents to be identified or successfully applies in terms of section 26 to be identified as the child’s father or pays damages in terms of customary law; (ii) contributes or has attempted in good faith to contribute to the child’s upbringing for a reasonable period; and (iii) contributes or has attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period. (2) This section does not affect the duty of a father to contribute towards the maintenance of the child. (3) (a) If there is a dispute between the biological father referred to in subsection (1) and the biological mother of a child with regard to the fulfilment by that father of the conditions set out in subsection (1) (a) or (b), the matter must be referred for mediation to a family advocate, social worker, social service professional or other suitably qualified person. (b) Any party to the mediation may have the outcome of the mediation reviewed by a court. (4) This section applies regardless of whether the child was born before or after the commencement of this Act. The application of this section can be a bit technical. However, it seems that if a father was involved in a child’s life, he acquires parental responsibilities and rights. Now let us move on to what is meant by the term “parental responsibilities and rights”. Parental responsibilities and rights Section 18 of the Children’s Act deals with parental responsibilities and rights. It states the following: (1) A person may have either full or specific parental responsibilities and rights in respect of a child. (2) The parental responsibilities and rights that a person may have in respect of a child, include the responsibility and the right— (a) to care for the child; (b) to maintain contact with the child; (c) to act as guardian of the child; and (d) to contribute to the maintenance of the child. (3) Subject to subsections (4) and (5), a parent or other person who acts as guardian of a child must— (a) administer and safeguard the child’s property and property interests; (b) assist or represent the child in administrative, contractual and other legal matters; or (c) give or refuse any consent required by law in respect of the child, including— (i) consent to the child’s marriage; (ii) consent to the child’s adoption; (iii) consent to the child’s departure or removal from the Republic; (iv) consent to the child’s application for a passport; and (v) consent to the alienation or encumbrance of any immovable property of the child. (4) Whenever more than one person has guardianship of a child, each one of them is competent, subject to subsection (5), any other law or any order of a competent court to the contrary, to exercise independently and without the consent of the other any right or responsibility arising from such guardianship. (5) Unless a competent court orders otherwise, the consent of all the persons that have guardianship of a child is necessary in respect of matters set out in subsection (3) (c). This section is extensive. However, it is clear that if you have parental responsibilities and rights in relation to a child, you would form part of the child’s life. Moreover, you would be part and parcel of important decision-making in the child’s life. With regard to Father’s Day, a father having parental responsibilities and rights in relation to a child should have contact on that special day. As it is clear from the above, the law looks at what is best for the child. And it would be best for the child to celebrate Father’s Day with his or her father. Now let’s move on to the best interests of the child principle.Best interests of the child
Section 9 of the Children’s Act states the following: Best interests of child paramount.—In all matters concerning the care, protection, and well-being of a child the standard that the child’s best interest is of paramount importance, must be applied. There you have it. The law does not look at the interest of the parents or other third parties. The law looks at what is best for the child. Now let us move on to the best interests of the child standard.Best interests of the child standard
With regard to the best interests of the child standard, section 7 of the Children’s Act states the following: (1) Whenever a provision of this Act requires the best interests of the child standard to be applied, the following factors must be taken into consideration where relevant, namely— (a) the nature of the personal relationship between— (i) the child and the parents, or any specific parent; and (ii) the child and any other care-giver or person relevant in those circumstances; (b) the attitude of the parents, or any specific parent, towards— (i) the child; and (ii) the exercise of parental responsibilities and rights in respect of the child; (c) the capacity of the parents, or any specific parent, or of any other caregiver or person, to provide for the needs of the child, including emotional and intellectual needs; (d) the likely effect on the child of any change in the child’s circumstances, including the likely effect on the child of any separation from— (i) both or either of the parents; or (ii) any brother or sister or other child, or any other care-giver or person, with whom the child has been living; (e) the practical difficulty and expense of a child having contact with the parents, or any specific parent, and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with the parents, or any specific parent, on a regular basis; (f) the need for the child— (i) to remain in the care of his or her parent, family and extended family; and (ii) to maintain a connection with his or her family, extended family, culture or tradition; (g) the child’s— (i) age, maturity and stage of development; (ii) gender; (iii) background; and (iv) any other relevant characteristics of the child; (h) the child’s physical and emotional security and his or her intellectual, emotional, social and cultural development; (i) any disability that a child may have; (j) any chronic illness from which a child may suffer; (k) the need for a child to be brought up within a stable family environment and, where this is not possible, in an environment resembling as closely as possible a caring family environment; (l) the need to protect the child from any physical or psychological harm that may be caused by— (i) subjecting the child to maltreatment, abuse, neglect, exploitation or degradation or exposing the child to violence or exploitation or other harmful behaviour; or (ii) exposing the child to maltreatment, abuse, degradation, ill-treatment, violence or harmful behaviour towards another person; (m) any family violence involving the child or a family member of the child; and (n) which action or decision would avoid or minimise further legal or administrative proceedings in relation to the child. (2) In this section “parent” includes any person who has parental responsibilities and rights in respect of a child. The Children’s Act refers to a variety of factors above. At the end of the day, what is best for the child is looked at.Definition of “Care”
Before we end this article, we feel that it is important to deal with the aspect of care in the Children’s Act. What is meant by care? The Children’s Act defines “care” as follows: “care”, in relation to a child, includes, where appropriate— (a) within available means, providing the child with— (i) a suitable place to live; (ii) living conditions that are conducive to the child’s health, well-being and development; and (iii) the necessary financial support; (b) safeguarding and promoting the well-being of the child; (c) protecting the child from maltreatment, abuse, neglect, degradation, discrimination, exploitation and any other physical, emotional or moral harm or hazards; (d) respecting, protecting, promoting and securing the fulfilment of, and guarding against any infringement of, the child’s rights set out in the Bill of Rights and the principles set out in Chapter 2 of this Act; (e) guiding, directing and securing the child’s education and upbringing, including religious and cultural education and upbringing, in a manner appropriate to the child’s age, maturity and stage of development; (f) guiding, advising and assisting the child in decisions to be taken by the child in a manner appropriate to the child’s age, maturity and stage of development; (g) guiding the behaviour of the child in a humane manner; (h) maintaining a sound relationship with the child; (i) accommodating any special needs that the child may have; and (j) generally, ensuring that the best interests of the child is the paramount concern in all matters affecting the child;Conclusion on the rights of a father on Father’s Day
From the above, it is clear that the law does not discriminate between fathers that were married to the mother and those who were not. What the law is only concerned with is what is best for the child. Various factors are looked at and those are outlined above. At the end of the day if it is in the child’s best interests to have contact with the father on Father’s Day; the law would enforce it.
Posted on by Telelaw
Finding the right lawyer (Attorney or Advocate) to fight for you in your contractual dispute in Port Elizabeth. Read further below about a “Bulldog Lawyer”)
Contract law is the bedrock of business and day-to-day transactions, providing a framework for parties to define their rights, obligations, and expectations. However, disputes can arise when one or more parties feel that the terms of the contract have been violated. This can apply to an employment contract, lease agreement, marriage contract, or one where you lent someone money. Even buying groceries at your local grocery is a contractual transaction. You pay, and he provides you with the goods. The list is endless.
All is good until someone violates the terms of the contract. This is where you may want to use an attorney or advocate in Port Elizabeth. Read further below about what is referred to as a “bulldog lawyer”. If the other side is playing hardball or has a bulldog lawyer, then having a tough lawyer who takes no-nonsense is something that you must consider. Please note that the law on contractual disputes would be the same whether you live in Port Elizabeth or any other city in South Africa.
Let us get into the theory. Navigating the complexities of contract law disputes requires a clear understanding of the legal principles and practical strategies for resolution.
Critical Elements of Contract Law are as follows:
Formation of Contract:
Before delving into disputes, it’s essential to understand how contracts are formed. A valid contract typically requires an offer, acceptance, consideration, legal capacity, and legality of purpose. Disputes may arise if any of these elements are in question. If you are entering into a high value contact, it may be best to consult with an advocate or attorney beforehand.
Types of Contracts:
Contracts can take various forms, such as express, implied, unilateral, and bilateral. Understanding the nature of the contract is crucial in determining the rights and obligations of the parties involved.
Common Contract Disputes:
Breach of Contract:
The most prevalent type of contract dispute arises from a breach. This occurs when one party fails to fulfil its obligations outlined in the contract. It could involve non-payment, incomplete performance, or failure to deliver goods or services.
Misrepresentation:
If one party makes false statements that induce another to enter a contract, it may lead to a dispute. Misrepresentation can be innocent, negligent, or fraudulent, each carrying different legal consequences.
Duress and Undue Influence:
Contracts entered under duress or undue influence may be deemed voidable. If one party was coerced or pressured into an agreement, it could lead to a dispute over the contract’s validity.
What follows are resolution strategies when it comes to contract disputes.
Negotiation:
Often, disputes can be resolved through negotiation. Parties can discuss the issues, explore compromises, and reach a mutually acceptable resolution without legal action. You should use a tough lawyer to represent you if the other side is unreasonable.
Mediation:
Mediation involves a neutral third-party facilitating discussions between the parties to help them resolve. It is a voluntary and confidential process that can be less adversarial than litigation.
Arbitration:
Arbitration is a more formal process where an arbitrator or a panel makes a binding decision after hearing both sides. It provides a faster and more private resolution compared to traditional court proceedings.
Litigation:
If all else fails, parties may resort to litigation. This involves taking the dispute to court, presenting evidence, and having a judge decide. Litigation can be time-consuming and costly, but it provides a definitive resolution.
Conclusion:
Contract law disputes are an inherent risk in business transactions, but understanding the principles and available resolution strategies can mitigate potential damage. Whether through negotiation, mediation, arbitration, or litigation, the goal is to find a fair and just resolution that upholds the integrity of the contractual relationship. As businesses continue to engage in complex transactions, a comprehensive understanding of contract law and dispute resolution mechanisms is essential for navigating the legal landscape successfully. When meeting with an advocate or attorney to assist you in your contractual dispute, discuss the above issues or factors with him or her to find out if they know what they are talking about.
What is a bulldog lawyer?
A “bulldog lawyer” is a colloquial term used to describe a lawyer (attorney or advocate) known for their aggressive and tenacious approach to legal representation. The term draws an analogy between the lawyer’s characteristics and those of a bulldog, known for its solid and determined demeanour. Bulldog lawyers are often associated with being assertive, persistent, and unwavering in pursuing their client’s interests.
Key characteristics of a bulldog lawyer may include:
Aggressiveness: Bulldog lawyers are known for their assertive and forceful advocacy on behalf of their clients. They are unafraid to challenge opponents and vigorously pursue their client’s objectives.
Tenacity:
Bulldog lawyers are persistent and determined in their legal pursuits. They may be willing to go to great lengths to achieve their client’s goals and are known for not easily giving up in the face of challenges.
Fearlessness:
Bulldog lawyers are often unafraid to take on tough cases or confront powerful adversaries. They may be known for their willingness to face complex legal battles head-on.
Advocacy Skills: Bulldog lawyers possess strong advocacy skills, including effective communication, negotiation, and litigation abilities. They can passionately argue their client’s case in court or during negotiations.
Strategic Thinking:
While aggressive, bulldog lawyers are also strategic in their approach. They carefully plan their legal strategies and tactics to achieve the best possible outcome for their clients.
It’s important to note that “bulldog lawyer” can have positive and negative connotations. On the positive side, it highlights an attorney’s dedication and commitment to their clients. On the negative side, it may suggest an overly aggressive or abrasive style that may not be suitable for all legal matters or personalities.
Posted on by Telelaw
What all South African expatriates (expats) should know when it comes to family law matters connected to their homeland – Divorce – Custody – Maintenance
In most countries around the world, you would find South African expatriates. They are either living in another country due to work, or other family responsibilities. Whatever the reason being for living abroad, they still consider themselves South Africans, and South Africa is their home. When someone leaves South Africa to work in another country, he or she may still have a very strong connection with South Africa from a family legal point of view. He or she may have children or a spouse still living in South Africa. Due to the connection to South Africa, various legal issues may arise. One of those issues could possibly be wanting to divorce the spouse living in South Africa or to have more visitation or access rights to the child living in South Africa. Then there is the possibility of wishing to claim maintenance from a spouse living in South Africa while the child is living abroad with the expatriate parent.The scope of this article in relation to South African expatriates
This article will deal with three important legal aspects, the first is that of a divorce, the second is that of child custody or guardianship disputes, and the third is that of claiming maintenance from a parent in South Africa.Knowing your rights and the law when it comes to marriage, children and divorce
Not all expatriates of South Africa know their rights in relation to family law relevant to South Africa. He or she may not know how to divorce a spouse living in South Africa or how to claim maintenance from a parent who still lives in South Africa. The South African expatriate may then decide not to do anything and wait until he or she returns to South Africa. This may be fine if it only relates to the issue of a divorce. But it may be problematic should it relate to issues regarding child contact and child maintenance.Family legal issues for South African expatriates
If the spouse who expatriates to a distant country wishes to marry someone else there while still being married to somebody in South Africa, such a second marriage cannot take place. The obvious reason for that is that he or she is still married to somebody in South Africa. Therefore, he or she needs to look into the possibility of getting divorced from the spouse living in South Africa while he or she is still an expatriate in a different country.Divorcing someone living in South Africa while you are living abroad
For a South African Court to divorce a couple, it has to have jurisdiction over the matter or one of the spouses. Not to complicate matters, basically one of the spouses has to be living in its area of jurisdiction for the divorce court to divorce a couple. Therefore, notwithstanding a spouse living abroad, he or she may still Institute divorce proceedings if the other spouse lives in South Africa. The opposite also applies. For example, if a spouse lives in South Africa and wishes to divorce his or her spouse who lives abroad, the divorce court in South Africa can still divorce the couple.Uncontested divorces are best when it comes to expatriates
It would be advisable that the parties agree on getting divorced before instituting divorce proceedings. The reason for saying so is that if the divorce becomes contested and both parties are living in different countries, things can become messy for both, and very expensive for the expatriate. However, if the parties cannot come to an agreement regarding the divorce, one of them have to institute divorce proceedings. As stated, such proceedings may be instituted in South Africa notwithstanding the other spouse living abroad.The edictal citation for international divorces
If a spouse who lives in South Africa wishes to Institute divorce proceedings against a spouse living abroad, he or she will have to approach the divorce court first for consent to serve the documentation on the other spouse through a process called edictal citation. In other words, the court documents would have to be served in a manner other than the usual manner of serving legal documents. That is through the South African Sheriff. For expatriates, the court may order that the document may be served via email or through an attorney or sheriff in the foreign country. Now we can move on to the issue of child custody and guardianship disputes.Child custody and guardianship disputes where expatriates are involved
Child custody and guardianship disputes where one of the parents are expatriates of South Africa often occurs when one of the parents would leave South Africa for work. Should there be a parent who wishes to leave on his or her own to work overseas; no consent would be required from the other parent to do so.Consent for relocation of minor children
However, should a parent wish to relocate to another country or visit another country and take the minor child with temporarily for a year or two while he or she is working there, then under those circumstances, the consent of the other parent is required. This would be the case if both parents are holders of parental rights and responsibilities of guardianship over the minor child. In such a case both parents have to consent for the removal of the minor child from the Republic of South Africa. The same applies to an application for a passport for the minor child. If the father does not have guardianship rights, then his consent would not be required.Consent for passport Applications for minor children
Although a minor child has a right to a passport as entrenched in our Constitution, if an application is made for the minor child’s passport, both parents who have parental rights and responsibilities of guardianship over the minor child has to consent to such an application. If a parent is an expatriate in another country and he or she now wishes to have the minor child travel with him or her to his or her country of work, and the other parent does not wish to give consent for such travel, then an application would have to be made to the court for the necessary consent. Such an application can still be made while the one parent is living abroad and the minor child is living in South Africa. Communications between the parent living abroad and the lawyers assisting that parent in South Africa can be done via email telephone or video conferencing. At the end of the day, the court will decide whether or not to send the minor child to the country where the expatriate resides based on whether or not it is in the minor child’s best interest.Child maintenance claims by expatriates
It often happens that only one parent moves abroad with the minor child and the other parent remains in South Africa. With the current cost of living, a parent may find it hard to survive abroad without financial support from the other parent. If the parent living in South Africa does not want to contribute a reasonable sum of child maintenance, then the expatriated parent may approach the relevant authorities in the country to start the legal process of claiming maintenance from the parent in South Africa.Reciprocal enforcement agreements between countries (the REMO Act)
South Africa is a signatory to international agreements with various other countries. In terms of these agreements, countries would work together in enforcing maintenance orders in foreign countries. The relevant legislation in South Africa is the Reciprocal Enforcement of Maintenance Orders Act (the REMO Act). This act is applied in South Africa should an expatriate wish to claim maintenance from a parent living in South Africa. The opposite also applies. Should a parent living in South Africa wish to claim maintenance from a parent living abroad in one of the signatory countries, he or she would make use of the REMO Act. A list of the proclaimed countries or territories are as follows:- Australia
Capital Territory – New South Wales – Northern Territory – State of Queensland South Australia – Tasmania – State of Victoria – Western Australia- Botswana
- Canada
Alberta – British Columbia – Province of Manitoba – North West Territories – Province of Ontario- Cocoa (Keeling) Islands
- Cyprus
- Fiji
- Germany
- Guernsey (Bailiwick of)
- Hong Kong
- Isle of Jersey
- Isle of Man
- Kenya
- Lesotho
- Malawi
- Mauritius
- Namibia
- New Zealand
- Nigeria
- Norfolk Island
- Sarawak
- Singapore
- St Helena
- Swaziland
- United Kingdom
England – Northern Ireland – Scotland – Wales- United States of America
California – Florida- Zambia
- Zimbabwe
https://www.justice.gov.za/ilr/intmnt.html Are you an expatriate of South Africa and require advice or assistance on any of the issues mentioned above? Get in contact with us. 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 by Telelaw