parenting plan, visitation rights, child access, child custody, divorce, Cape Town, South Africa

Posted on 11 February 2025 by Telelaw

Finding the best lawyer (attorney or advocate) for your legal matter – Top advice for anyone with a legal problem in South Africa
It is best to stay out of trouble. However, sometimes trouble finds you. And if that happens, you must obtain the best lawyer suited for you (attorney or advocate) to assist you with your legal problems. If you do not need an attorney or advocate to assist you with your matter, it may be best to first schedule a consultation with one, at least for peace of mind. Read on further to ensure you obtain the best legal practitioner (advocate or attorney) that suits your budget and case.
Is the top or best attorney or advocate necessary in every legal matter?
The legal problems people have varied from case to case. Some are simple. For example, a traffic fine which you wish to dispute. Others can have severe consequences on your life. For example, going through a divorce or being arrested and charged for a crime you did not (or did) commit. Whatever the legal issues, obtaining the best advice is always the best. It does not mean you need to source the top lawyers in South Africa for every legal problem. That would not make sense if the issues involved were relatively minor and the consequences were not dire. For example, if you are disputing a traffic fine of R 500 – 00, it does not make sense to consult with the top criminal lawyer in Cape Town, who may charge you R 5000 – 00 for the consultation. However, if you are facing jail time, consult with an experienced attorney or advocate who charges more than others based on their experience and is worth their fee.
What is the first step to take when faced with a legal problem?
When faced with a minor legal problem, it may be a good idea to research the topic first. For example, someone owes you money and does not want to pay you. Doing some basic research will tell you that you can send that person a letter of demand, and if that does not work, approach the small claims court. If you do not want to go through all that effort, approaching an attorney or advocate may be less stressful. However, there would be legal fees involved. And in some cases, the legal costs involved would be more than the amount claimed. If, on the other hand, there are serious legal consequences, for example, losing your home, jail time, custody of minor children and so on, we advise you best to obtain legal advice and assistance from the start. Usually, serious legal matters are time sensitive, and a delay can cause more significant issues. For example, if someone is suing you for money through the court, and you receive the summons, you have two weeks to file a notice informing the court you are defending the matter. If you do not do so within two weeks, the other party, the plaintiff, may obtain a default judgment against you.
Do senior advocates and attorneys charge more than junior lawyers?
The more experience an attorney or advocate has, the better they are for your case. That experience earns the advocate or attorney the right to charge more than his competitor with less experience and who may have to learn how to handle your matter. An experienced lawyer may charge more per hour but spend less time dealing with your matter. A less experienced lawyer may charge less per hour but spend many more hours dealing with your matter with less experience and skill than the senior lawyer would have. At the same time, it would be overkill to use a senior attorney or advocate if your case does not require their skills and expertise. In many cases, a junior lawyer would have the necessary skills and expertise to assist you as a senior advocate would. It would all depend on the nature and complexity of your case and whether your budget allows it.

Posted on 11 February 2025 by Telelaw

[caption id="attachment_10828" align="alignnone" width="682"] Relocation consent Court Order for minor child to Ireland – Advocate Muhammad Abduroaf[/caption]
I want to relocate from South Africa to Ireland with my minor child. The other parent does not want my child to relocate to Ireland. What can I do?
Ireland is a popular destination to emigrate to. People emigrate from South Africa for many reasons. It ranges from better employment opportunities, family relations, or for a better standard of living. Whatever the reason a parent wants to relocate to Ireland, if a minor child will be joining that parent and also relocating to Ireland, then the parent remaining in South Africa’s consent would usually be required. Let us unpack the legal issues a parent may encounter when wanting to emigrate to Ireland. Before we do so, let us list the various cities and towns in Ireland to which you may want to relocate: Dublin, Cork, Galway, Limerick, Waterford, Drogheda, Dún Dealgan, Swords, Blackrock, Tralee, Carlow, Ennis, Dunleary, Kilkenny, Naas, Sligo, Monaghan, Ros Comáin, Mullingar, Tallaght, Wicklow, Clonmel, Wexford, Longford, Trim, Carrick on Shannon, Tullamore, Nenagh, An Cabhán, Port Laoise, Castlebar, Lifford. (https://simplemaps.com/data/ie-cities)
Why do I require the other parent’s Consent to relocate to Ireland?
According to South African law, if you are a co-holder of parental responsibilities and rights over your minor child, you must consent to your child leaving South Africa. In this case, relocating to Ireland. Here we refer to section 18 of the Children’s Act 38 of 2005. The entire provision is as follows: 18 Parental responsibilities and rights (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). Now let us explain what Parental Responsibilities and Rights are.
What are Parental Responsibilities and Rights of a parent in relation to a child?
As can be seen from section 18(2) of the Children’s Act, when we refer to Parental Responsibilities and Rights, we refer to the following: (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. Therefore, if a parent has parental responsibilities and rights over a minor child, and accordingly, rights of guardianship, their Consent is required when it comes to issues of guardianship. As seen from section 18(3)(c) of the Children’s Act above, both parents’ Consent is required should a minor child depart from the Republic of South Africa. In this case, to emigrate to Ireland. Even if the minor child only wants to go for a short holiday to Ireland, both guardians’ Consent would be required.
When would the other parent be seen as a guardian in the case of a relocation matter to Ireland?
It must be noted that not all parents are legal guardians over their minor children. We should therefore distinguish between married or divorced parents and parents who were never married. As you would see below, usually married, or divorced parents’ Consent would be required for a minor child to relocate or emigrate to Ireland. However, that does not automatically apply to parents who were never married. This could be because the child could have been born from a brief encounter and never met his or her father. It would not make sense that a parent who never met his or her 15-year-old child, should give Consent for relocation to Ireland.
Mother’s Consent for relocation of the minor child to Ireland
Section 19 of the Children’s Act deals with the Parental responsibilities and rights of mothers. It states the following: 19 Parental responsibilities and rights of mothers (1) The biological mother of a child, whether married or unmarried, has full parental responsibilities and rights in respect of the child. (2) If- (a) the biological mother of a child is an unmarried child who does not have guardianship in respect of the child; and (b) the biological father of the child does not have guardianship in respect of the child, the guardian of the child’s biological mother is also the guardian of the child. (3) This section does not apply in respect of a child who is the subject of a surrogacy agreement. As seen from section 19(1) of the Children’s Act, in most cases involving the relocation of a minor child to Ireland, the mother’s Consent is required as she has full parental responsibilities and rights over the minor child.
Married father’s Consent for the relocation of the minor child to Ireland
Section 20 of the Children’s Act deals with Parental responsibilities and rights of married fathers. It states the following: 20 Parental responsibilities and rights of married fathers 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. As can be seen from sections 20 (a) and (b) of the Children’s Act, if the father and the mother were married, or are married, then his Consent is required for the minor child to relocate to Ireland. Of course, an exception to this would be should a court of law order otherwise. This would be the case should the parents be divorced and the divorce court ordered that only the mother may act as guardian. Next, we deal with the issue of an unmarried father’s Consent to relocate a minor child to Ireland.
Consent of unmarried fathers for the relocation of their minor children to Ireland.
Section 21 of the Children’s Act deals with parental responsibilities and rights of unmarried fathers. The section states the following: 21 Parental responsibilities and rights of unmarried fathers (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. As can be seen from the latter sections, a father of a child born out of wedlock does not automatically have parental responsibilities and rights over his minor child. He may however acquire those parental responsibilities and rights over his minor child if he is materially involved in the child’s life. That would be where the father and the mother were in a permanent life partnership when the child was born or he is meaningfully involved in the child’s life, as outlined above. We shall not go into much detail regarding that. However, in most cases, if the father had regular contact with the child and paid child support, he would have acquired parental responsibilities and rights over the minor child.
What do you do if the other parent does not want to consent to the minor child relocating to Ireland?
Suppose the other parent also has parental responsibilities and rights over the minor child, and he or she does not want to consent to the relocation of the minor child to Ireland, then in such a case, the Court needs to be approached. Here I refer you back to section 18(5) of the Children’s Act referred to above where it states: (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). Therefore, after your Court Application has been launched an both sides have been heard, the Court would make the necessary Order. If you are successful in your application for the relocation of your minor children to Ireland, then the Court will make an Order similar to that which is shown below. [caption id="attachment_10827" align="alignnone" width="644"] Relocation consent Court Order for minor child to Ireland – Advocate Muhammad Abduroaf[/caption] [caption id="attachment_10828" align="alignnone" width="686"] Relocation consent Court Order for minor child to Ireland – Advocate Muhammad Abduroaf[/caption]

Posted on 11 February 2025 by Telelaw

I want to relocate from South Africa to Germany with my minor child. The other parent does not want my child to relocate to Germany. What can I do?
Germany is a popular destination to emigrate to. People emigrate from South Africa for many reasons. It ranges from better employment opportunities, family relations, or for a better standard of living. Whatever the reason a parent wants to relocate to Germany, if a minor child will be joining that parent and also relocating to Germany, then the parent remaining in South Africa’s consent would usually be required. Let us unpack the legal issues a parent may encounter when wanting to emigrate to Germany. Before we do so, let us list the various cities and towns in Germany to which you may want to relocate: Baden-Württemberg , Aalen , Bad Mergentheim , Baden-Baden , Bruchsal , Esslingen , Freiburg im Breisgau , Freudenstadt , Friedrichshafen , Göppingen , Hechingen , Heidelberg , Heilbronn , Karlsruhe , Konstanz , Ludwigsburg , Mannheim , Offenburg , Pforzheim , Ravensburg , Reutlingen , Schwäbisch Gmünd , Schwäbisch Hall , Stuttgart , Tübingen , Ulm , Bavaria , Amberg , Ansbach , Aschaffenburg , Augsburg , Bad Reichenhall , Bamberg , Bayreuth , Berchtesgaden , Coburg , Dachau , Deggendorf , Dinkelsbühl , Donauwörth , Erlangen , Freising , Fürth , Füssen , Garmisch-Partenkirchen , Ingolstadt , Kempten , Landshut , Lindau , Memmingen , Mittenwald , Munich , Nördlingen , Nürnberg , Passau , Regensburg , Rothenburg ob der Tauber , Würzburg , Berlin , Berlin , Charlottenburg (district) , Spandau (area) , Tempelhof (area) , Tiergarten (area) , Brandenburg , Brandenburg , Cottbus , Eberswalde , Frankfurt an der Oder , Potsdam , Schwedt , Bremen , Bremen , Bremerhaven , Hamburg , Hamburg , Altona (district) , Hessen , Bad Homburg , Darmstadt , Frankfurt am Main , Fulda , Giessen , Hanau , Kassel , Lorsch , Marburg , Offenbach , Rüdesheim , Wiesbaden , Lower Saxony , Bad Gandersheim , Bad Harzburg , Braunschweig , Celle , Cuxhaven , Delmenhorst , Emden , Goslar , Göttingen , Hameln , Hannover , Helmstedt , Hildesheim , Lüneburg , Oldenburg , Osnabrück , Salzgitter , Stade , Wilhelmshaven , Wolfsburg , Mecklenburg-West Pomerania , Greifswald , Güstrow , Neubrandenburg , Peenemünde , Rostock , Schwerin , Stralsund , Wismar , North Rhine-Westphalia , Aachen , Arnsberg , Bad Godesberg , Bergisch Gladbach , Bielefeld , Bocholt , Bochum , Bonn , Bottrop , Brühl , Castrop-Rauxel , Cologne , Detmold , Dorsten , Dortmund , Duisburg , Düren , Düsseldorf , Essen , Gelsenkirchen , Gladbeck , Gütersloh , Hagen , Hamm , Herne , Hürth , Iserlohn , Jülich , Kleve , Königswinter , Krefeld , Leverkusen , Lüdenscheid , Lünen , Marl , Minden , Moers , Mönchengladbach , Mülheim an der Ruhr , Münster , Neuss , Paderborn , Recklinghausen , Remscheid , Rheine , Siegen , Soest , Solingen , Wesel , Witten , Wuppertal , Rhineland-Palatinate , Bad Kreuznach , Bingen , Boppard , Frankenthal , Kaiserslautern , Koblenz , Landau , Ludwigshafen , Mainz , Neustadt an der Weinstrasse , Speyer , Trier , Worms , Saarland , Homburg , Reinheim , Saarbrücken , Saarlouis , Saxony , Altenburg , Annaberg-Buchholz , Bautzen , Chemnitz , Dresden , Freiberg , Görlitz , Hoyerswerda , Leipzig , Meissen , Torgau , Zittau , Zwickau , Saxony-Anhalt , Bernburg , Dessau , Eisleben , Halberstadt , Halle , Köthen , Merseburg , Naumburg , Quedlinburg , Stendal , Wernigerode , Wittenberg , Schleswig-Holstein , Büsum , Eutin , Flensburg , Glückstadt , Kiel , Lübeck , Rendsburg , Schleswig , Thuringia , Arnstadt , Eisenach , Erfurt , Gera , Gotha , Jena , Meiningen , Mühlhausen , Nordhausen , Suhl , Weimar (https://www.britannica.com/topic/list-of-cities-and-towns-in-Germany-2038874)
Why do I require the other parent’s Consent to relocate to Germany?
According to South African law, if you are a co-holder of parental responsibilities and rights over your minor child, you must consent to your child leaving South Africa. In this case, relocating to Germany. Here we refer to section 18 of the Children’s Act 38 of 2005. The entire provision is as follows: 18 Parental responsibilities and rights (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). Now let us explain what Parental Responsibilities and Rights are.
What are Parental Responsibilities and Rights of a parent in relation to a child?
As can be seen from section 18(2) of the Children’s Act, when we refer to Parental Responsibilities and Rights, we refer to the following: (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. Therefore, if a parent has parental responsibilities and rights over a minor child, and accordingly, rights of guardianship, their Consent is required when it comes to issues of guardianship. As seen from section 18(3)(c) of the Children’s Act above, both parents’ Consent is required should a minor child depart from the Republic of South Africa. In this case, to emigrate to Germany. Even if the minor child only wants to go for a short holiday to Germany, both guardians’ Consent would be required.
When would the other parent be seen as a guardian in the case of a relocation matter to Germany?
It must be noted that not all parents are legal guardians over their minor children. We should therefore distinguish between married or divorced parents and parents who were never married. As you would see below, usually married, or divorced parents’ Consent would be required for a minor child to relocate or emigrate to Germany. However, that does not automatically apply to parents who were never married. This could be because the child could have been born from a brief encounter and never met his or her father. It would not make sense that a parent who never met his or her 15-year-old child, should give Consent for relocation to Germany.
Mother’s Consent for relocation of the minor child to Germany
Section 19 of the Children’s Act deals with the Parental responsibilities and rights of mothers. It states the following: 19 Parental responsibilities and rights of mothers (1) The biological mother of a child, whether married or unmarried, has full parental responsibilities and rights in respect of the child. (2) If- (a) the biological mother of a child is an unmarried child who does not have guardianship in respect of the child; and (b) the biological father of the child does not have guardianship in respect of the child, the guardian of the child’s biological mother is also the guardian of the child. (3) This section does not apply in respect of a child who is the subject of a surrogacy agreement. As seen from section 19(1) of the Children’s Act, in most cases involving the relocation of a minor child to Germany, the mother’s Consent is required as she has full parental responsibilities and rights over the minor child.
Married father’s Consent for the relocation of the minor child to Germany
Section 20 of the Children’s Act deals with Parental responsibilities and rights of married fathers. It states the following: 20 Parental responsibilities and rights of married fathers 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. As can be seen from sections 20 (a) and (b) of the Children’s Act, if the father and the mother were married, or are married, then his Consent is required for the minor child to relocate to Germany. Of course, an exception to this would be should a court of law order otherwise. This would be the case should the parents be divorced and the divorce court ordered that only the mother may act as guardian. Next, we deal with the issue of an unmarried father’s Consent to relocate a minor child to Germany.
Consent of unmarried fathers for the relocation of their minor children to Germany.
Section 21 of the Children’s Act deals with parental responsibilities and rights of unmarried fathers. The section states the following: 21 Parental responsibilities and rights of unmarried fathers (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. As can be seen from the latter sections, a father of a child born out of wedlock does not automatically have parental responsibilities and rights over his minor child. He may however acquire those parental responsibilities and rights over his minor child if he is materially involved in the child’s life. That would be where the father and the mother were in a permanent life partnership when the child was born or he is meaningfully involved in the child’s life, as outlined above. We shall not go into much detail regarding that. However, in most cases, if the father had regular contact with the child and paid child support, he would have acquired parental responsibilities and rights over the minor child.
What do you do if the other parent does not want to consent to the minor child relocating to Germany?
Suppose the other parent also has parental responsibilities and rights over the minor child, and he or she does not want to consent to the relocation of the minor child to Germany, then in such a case, the Court needs to be approached. Here I refer you back to section 18(5) of the Children’s Act referred to above where it states: (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). Therefore, after your Court Application has been launched an both sides have been heard, the Court would make the necessary Order. If you are successful in your application for the relocation of your minor children to Germany, then the Court will make an Order similar to that which is shown below. [caption id="attachment_10782" align="alignnone" width="470"] Relocation Consent Order[/caption] [caption id="attachment_10783" align="alignnone" width="483"] Relocation Consent Order[/caption]

Posted on 11 February 2025 by Telelaw

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