Judge Legal Legal Services and Advice Cape Town South Africa

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Judge Legal Legal Services and Advice Cape Town South Africa

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Family Law Legal services – Child custody, divorce and child maintenance

Our family law consultancy have a range of family law legal services for your convenience. Our specialized legal services are child maintenance, child custody and divorce. To top it off, we are situated in the heart of the buzzing CBD at Suit 702, 7th Floor, The Pinnacle, corner of Strand and burg Street, Cape Town, South Africa. [caption id="attachment_4566" align="alignleft" width="300"] Call our law offices on: 0211110090
Email us at: [email protected][/caption] Feel free to visit us at our offices in a safe, central setting and enjoy professional, confidential, legal consultations at its best. Our specialized legal services are:     Should any of the above legal services interest you, feel free to call our offices on 021 424 3487 and have our receptionist make an online appointment for you.

Child custody and legal advice…

Like any other family legal matter, child custody involves a number of factors. When it comes to the legal aspect, the Children’s Act is used as a guideline on how to go about parental legal rights. We’ve found child custody disputes to be very tragic legal battles because the children always happens to be the middle of it all. Because of this, the family legal expert at hand will always try to guide the matter in a legal manner that is best for the child and not the parents. This is where the expert legal advice and guidance of the legal expert comes in handy. [caption id="attachment_4567" align="alignleft" width="300"] Call our law offices on: 0211110090
Email us at: [email protected][/caption] Parents will have to make important, life changing decisions for the betterment of their children. With that being said, we’ve only found this possible when the parents understand how child custody in South Africa works. It is hereby essential that the parents make a choice that will impact their children the least. We therefore encourage parents to try and work in close collaboration so as to reach an agreement on visitation rights and the child’s residence.

Divorce and child custody…

[caption id="attachment_4568" align="alignleft" width="300"] Call our law offices on: 0211110090
Email us at: [email protected][/caption] It is often thought that the mother is generally more preferred to have custody of a child. In the eyes of the court, in a divorce, both parents are seen as equivalents unless a child would really be at risk in the care of the one other parent. The court will take a number of factors into consideration, especially the child’s well-being, when deciding on the child’s primary residence.

 An online family law consultancy…

As a family law consultancy, we understand the importance of moving with the dynamic nature of technology and therefore introduced our online operation. Other than being highly efficient and convenient, this method also shows that we are serious about making life easier for the layperson. [caption id="attachment_4569" align="alignleft" width="300"] Call our law offices on: 0211110090
Email us at: [email protected][/caption] Should you be residing out of the South Africa, consulting with us will not be a problem. We are able to conduct legal consultations online, face to face or Skype / video call for your convenience.

Child custody online legal appointment…

We are family law Consultancy that offers a range of legal services and products. Once the layperson sees a legal service that they require, they may call our offices for a legal appointment. Our friendly receptionist is always willing to go the extra mile by setting up the online legal appointment for you. [caption id="attachment_4570" align="alignleft" width="300"] Call our law offices on: 0211110090
Email us at: [email protected][/caption] Being a family law legal consultancy, means that we operate by professional legal consultation which is done by appointment only. Previously it was a mandatory for the layperson to have consultation form printed, fill out details manually then have it scanned back to us.  This is no longer the case. With our online appointment system, our receptionist sets the appointment up for you there and then while on the phone. No long, complicated details but just the basic information required for your professional legal consultation.  Call our offices today and have your legal appointment booked online immediately.

After the appointment for child custody…

It is crucial to note that having your legal consultation booked for child custody, does not mean that it is official. The person in question will have time to consult with their spouse or find out more about our expertise on our website. The time and date for consultation will be confirmed once payment has been made in advance date of the consultation to take place. [caption id="attachment_4571" align="alignleft" width="300"] Call our law offices on: 0211110090
Email us at: [email protected][/caption] During your legal consultation, you will have a well experienced family legal expert who will be advising and guiding you through the process.

Family law legal queries for child custody, divorce and child maintenance…

We are highly accommodating towards our clients and believe in making life easier for them. In the grander scheme of things, we have also initiated an online platform on our website. Yes, we’ve now made it possible for you to share your thoughts and post your legal questions. [caption id="attachment_4572" align="alignleft" width="300"] Call our law offices on: 0211110090
Email us at: [email protected][/caption] On an easy read website, on the home page, you will immediately notice the “Post a family law question on…” thus enabling the layperson to post their legal question in any family law topic they deem fit. These range from:
  1. Ante-nuptial Contracts
  2. Changing your Matrimonial Property Regime
  3. Child Maintenance / Support
  4. Child Custody / Visitation / Access
  5. Divorce
  6. Domestic Violence
  7. Parenting Plans
As this is not an online legal consultation, questions should therefore be kept short and to the point. So go ahead and connect with us today and have you online appointment made!
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Child Custody, Contact rights and more – Children’s Act 38 of 2005

This article gives a  short introduction to the Children’s Act.

The Children’s Act 38 of 2005 was a very welcomed piece of legislation. It assists us in answering many issues relating to Family Law. For example. What are the rights of unmarried fathers? Do I as a father of a child born out of wedlock have rights? Do I as a father of a child born in terms of a religious marriage have rights?

Parents who are involved in disputes regarding their children should educate themselves on the provisions of the Children’s Act.

Challenges for unmarried fathers

In our view, unmarried fathers almost always experienced difficulties regarding access to their children if they were separated from their mother. What is even worse, is if a couple was married in terms of religion or custom, and not civilly (e.g. in Court), and the parties separated, where the unmarried father’s position would be the same as that of an unmarried father who was never married to the mother religiously or customary.

Rights of Unmarried Fathers in South Africa

However, if a party was married civilly and divorced, the Divorce Court in the past would deal with the issue of care and contact in relation to the minor children. The usual phrase used was that the mother would have custody over the child, with the father having rights of reasonable access. The position has however improved with the inception of the Children’s Act 38 of 2005 for both divorced and unmarried fathers. As outlined below, an unmarried father would have rights over a child, akin to that of a married father, as long as certain conditions are met.

The persistent problem for unmarried parents

However, in our view, based on the custody and contact matters we dealt with since the inception of the Act, mothers are still seen as primary caregivers in practice, and if the mother does not want the father to have contact or care with the child or a say in his or her life, the father would still have to follow the procedures in the Act to give effect to his rights. Sometimes, approaching the Court is the only solution. However, on the whole, the Children’s Act 38 of 2005, is a step in the proper direction for unmarried fathers, and children born out of wedlock. We hope it would improve even more.

The coming into effect of the Children’s Act 38 (Act 38 of 2005)

All sections of the Children’s Act 38 (Act 38 of 2005) came into effect on 1 April 2010. The Children’s Act 38 of 2005 brought many changes regarding the responsibilities and rights of parents and children and also deals with other aspects regarding children, e.g. contraceptives and abortion, etc. Interesting to note are the following sections listed below, there are however others depending on your issues.

Parental responsibilities and rights

Section 18 of the children’s act 38 of 38 2005 states the following: (1) A person may have either full or specific parental responsibilities or 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 marriage (ii) Consent to the child adoption; (iii) Consent to the child departure or removal from the Republic; (iv) Consent to the child 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). We shall now deal with what the Children’s Act of 2005 says the meaning of care and contact are, which are not the traditional words used in the past. In the past, the courts and the legal fraternity used the terms custody and access. This was reflected in divorce papers. Now legal documents use the terms care and contact although some might disagree, it is respectfully submitted that custody is an aspect of care and the Children’s act provides broader responsibilities and rights in this regard.

Meaning of Care in the Children’s Act

The Children’s Act 38 of 2005 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 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 education and upbringing, including religious and cultural education and upbringing, in a manner appropriate to the child age, maturity and stage of development; guiding, advising and assisting the child in decisions to be taken by the child in a manner appropriate to the child 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;

Meaning of Contact in the Children’s Act

According to the Children’s Act 38 of 2005, contact means the following: Contact in relation to a child, means- (a) Maintaining a personal relationship with the child; and (b) If the child lives with someone else- (I) communication on a regular basis with the child in person, including- (AA) visiting the child; or (Bb) being visited by the child; or (ii) Communication on a regular basis with the child in any other manner, Including- (AA) through the post; or (Bb) by telephone or any other form of electronic communication; It is my view that the Children’s Act 38 of 2005 attempts to place greater value to contact between parent and child. There are many sections in the Children’s Act 38 of 2005 that deals with parental responsibilities and rights of parents and children. Get hold of the Act and see how it applies to you. If you are an unmarried father and your rights are being limited by the mother of the child, I advise you to contact a family legal practitioner and discuss your rights with him or her. And to all unmarried fathers out there, fight for your rights as a father, this would be in the child’s best interest.

Sharing is Caring

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Is my landlord allowed to evict me and my family during the National Lockdown if we cannot pay our rent? What are my legal rights considering COVID-19?

We are today experiencing day 99 of the South Africa national lockdown. Many people are out of work, and unable to pay their rent, mortgage bonds and so on. COVID-19 came with it a lot of challenges and drastically affected everyone’s lives. During this period, Our Lawyer received many queries regarding the eviction of people from their homes during the national lockdown. As people cannot pay their rent or monthly mortgage bond repayments, eviction is on many people’s minds.

Commercial Rent Defaulters during the National Lockdown

This article does not deal with the eviction from commercial property. For example, it would not apply to you if you are a business owner and cannot afford to pay your commercial rent. Here reference can be made to gyms, fitness centres, nightclubs, and those other businesses specifically prohibited from operating during the lockdown. As well as those businesses which are struggling to survive during the lockdown. In such a case, the current lockdown regulations won’t be of much use. You and your business would be left at the mercy of the court. Nonetheless, we are sure the courts would be sympathetic depending on your specific situation.

The default of mortgage bond payment – Do the Regulations assist?

If you are unable to pay your bond, the bank must first take you to court and ultimately be able to declare your property executable. Once this is done, then the property would be sold at a public auction. If you decided not to leave after the sale, then the new owner would have to consider eviction proceedings. At that point would this article apply to you. Now moving on.

Evictions at the start of the lockdown – What was the law then?

At the start of the lockdown, evictions where prohibited. However, now in alert level 3, things are the same, but not quite. Have a look at this article posted at the start of the lockdown, “Occupants and tenants may not be evicted from their homes during the National Lockdown. This is so even if you are in arrears with your rent or bond, or the lease has been terminated.”

Latest eviction regulations in South Africa – Has things changed?

In terms of the current Disaster Management Act Regulations, eviction orders are to be stayed and suspended until the last day of the alert level 3 period. This only relates to your home or land. The court dealing with the eviction matter may order that the eviction not be stayed and suspended if it decides that it is not just and equitable to do so until the last day of the Alert Level 3 period. However, if the court determines it isn’t just and equitable to suspend the eviction order, it may order that the eviction takes place during level 3. The regulation reads as follows:
  1. (1) Subject to subregulation (2), a person may not be evicted from his or her land or home during the period of Alert Level 3 period.
(2) A competent court may grant an order for the eviction of a person from his or her land or home in terms of the provisions of the Extension of Security of Tenure Act, 1997 (Act No. 62 of 1997) and the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 1998 (Act No, 19 of 1998): Provided that an order of eviction may be stayed and suspended until the last day Of the Alert Level 3 period, unless a court decides that it is not just and equitable to stay and suspend the order until the last day of the Alert Level 3 period

Let us summaries: What does this mean to the ordinary tenant when it comes to evictions during the lockdown?

In short, your landlord, or owner of the property may approach the court to have you evicted from your home. However, should the court determine that you are an unlawful occupier of the land or premises, it would grant an eviction order, but make an order that it remains suspended until the end of alert level 3 unless the court decides that it would be just and equitable to order otherwise. Nothing, however, prevents the Minister from extending the eviction prohibition in alert level two or one when the time arrives. We will, however, have to wait and see. Read on to learn more about how evictions work. Evictions from your home must be lawful For an eviction to be lawful, the person evicting you must obtain a court order. Without a court order, the sheriff of the Court cannot remove you from your home. You can, therefore, refuse to vacate your home. During the lockdown, the sheriff of the court cannot remove you, even if he or she comes with a court order. Constitutional provisions regarding evicting people from their homes Section 25 of our Constitution states the following: “25(1) No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property.” Furthermore, section, section 26 (3) of our Constitution states: “No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.” Prevention of Illegal Eviction from Unlawful Occupation of Land Act of 19 of 1998 Therefore, for someone to be evicted, an application must be made to the court. The law applicable is the Prevention of Illegal Eviction from Unlawful Occupation of Land Act of 19 of 1998. It came into effect on 5 June 1998. In it, it lays down the procedure for the eviction of unlawful occupiers. In short, the owner or person in charge of the premises must follow the processes in the Prevention of Illegal Eviction from Unlawful Occupation of Land Act. It entails giving you notice to appear in court to say your say. The court would then decide whether or not you should be evicted after hearing both sides of the story. 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  
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