Child Custody and Relocation – Live Questions taken and answered by Adv. Muhammad Abduroaf
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Relocation with my minor child to Italy, Venice (Consent and Refusal) – Advocate Muhammad Abduroaf
The world is becoming a much smaller place, and technology plays a huge role. People are moving across the world for employment, love and happiness, something that was not the norm a few decades ago. There is no reason why you should remain in South Africa if you can find a better life for yourself and your family overseas. Moving overseas may provide you with the quality of life you want or the possibility of experiencing things you always wanted. The same applies to your child or children relocating with you. Relocation of your minor child to Venice, Italy
If you are single and do not have any minor children, then moving around the world would not be too complicated. All you need to do is ensure that you have the necessary travel documentation and travel ticket (and spending money), and off you go. However, if you want to travel with your minor children (for example, ages three or four) or relocate to another country, things may not be that simple. Firstly, if there is another parent, and he or she has parental responsibilities and rights, then his or her consent is required. For example, let us say you live in Durban or Pretoria, South Africa, and you want to relocate to Venice, Italy, you would require the other parent’s consent to leave South Africa with your minor child. This can cause challenges, especially if the staying parent (in South Africa) does not agree to the relocation. What about Passport Consent to travel or relocate to Venice, Italy?
The same applies when it comes to your minor child applying for a South African passport to relocate to Italy, or any country. Both parents who have parental responsibilities and rights of guardianship will have to consent to the minor child’s passport application as well. In this regard, both parents have to be at the Department of Home Affairs (or the relevant bank that also assists with passport application) when making the Application with the minor child. This can be challenging if you have a disinterested parent who does not want to cooperate with the passport application. As you will see later, legal action would need to be taken. What are the steps to follow when I want to relocate to Venice, Italy with my minor child? There is there another parent.
To simplify the process for relocation, the first step would be to receive the other parent’s consent in principle for the relocation and that he or she will co-operate in this regard. Once that has been resolved, the parent relocating would need to make the appointment for the minor child’s passport application as well as the application for the relevant VISA. Each country has different requirements; however, seeing that it is a relocation, you need to apply for the correct VISA. For that, you need the Passport.
Once the visa and travel arrangements have been finalised, the parent remaining behind will sign a parental consent letter for the international travel. That letter can be found on the Department of Home Affairs website. Basically, the parent remaining behind would state that he or she gives consent for the minor child to leave the Republic of South Africa and travel and/or relocate to Venice, Italy. What can I do if the other parent does not want to consent to the minor child’s relocation to Venice, Italy?
If the parent remaining in South Africa does not want to consent to the minor child’s passport application and/or his or her relocation to Venice, Italy, then you would need to approach the Court. The Court, as upper guardian of the minor child, may order that the parent’s consent for the passport application and relocation be dispensed with. What this entails is submitting Court documents explaining why you want to relocate to Venice, Italy. The other parent would also have an opportunity to give reasons why he or she objects.
At the end of the process, the Court would determine what is in the minor child’s best interests. If it is in the minor child’s best interests to relocate to Venice, Italy, the Court would make it possible despite the issue of consent or refusal. What is the first step I should take if the other parent does not want to consent to the minor child’s passport application and/or relocation to Venice, Italy?
If the other parent does not want to consent to the passport application and/or the relocation of the minor child to Venice, Italy – in that case, we suggest you approach an attorney or advocate (trust account) to assist you with the legal process. He or she would then contact the other parent explaining the reasons for the relocation and request the necessary consent. If the parent remaining in South Africa does still not agree to the passport application and/or to the relocation to Venice, Italy, then the attorney or advocate will proceed to take the matter to court. The legal route can be expensive. However, it is necessary to make the relocation of the minor child possible. You may also attend to the legal process yourself. Getting legal assistance or help with your relocation application to Venice, Italy
If you require legal assistance or representation with relocating to Venice, Italy due to the other parent not cooperating or providing consent, then feel free to contact us for assistance. The Firm Advocate, Muhammad Abduroaf, deals with these types of matters.
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Victory for Muslim Marriages in South Africa – Court gives the State 2 (two) years to enact legislation
[Re-post] On 31 August 2018, the Western Cape High Court handed down a ground-breaking judgment. In effect, it Orders the State to prepare, initiate, introduce, enact, and bring into operation, diligently, and without delay, legislation to recognise Muslim marriages. The High Court gave the State exactly two (2) years to attend to the latter process. This two (2) years would only be suspended if the matter is taken to the Constitutional Court. However, should the matter not be taken to the Constitutional Court for final determination, and the State does not enact the legislation, then by default, Muslim marriages may be dissolved in accordance with the Divorce Act 70 of 1979. Therefore, it is up to the State to action matters urgently. Download a Copy of the Judgment by clicking here.How does this benefit Muslim Marriages?
To understand how the judgment benefits Muslim Marriages, one needs to understand the legal nature of Muslim Marriages in South Africa. Let us refer to the judgment for some insight: In the judgment, the following is stated: “The issues before us concern recognition and regulation of marriages solemnised and celebrated according to the tenets of Islamic (also referred to as ‘Muslim marriages’). It is undisputed that marriages entered into in terms of the tenets of Islam have not been afforded legal recognition for all purposes. The applicants argue that non-recognition and non-regulation of these marriages violates the rights of women and children in particular in these marriages. According to them. the State has failed in its duty of respect, protect promote and fulfil the Bill of’ Rights as required in section 7(2) of the Constitution, in the face of its constitutional and international obligations and that the most effective way of dealing with this systemic violation of rights, is an enactment of statute. This approach. according to the applicants has been postulated by the courts in a number of judgments dealing with issues concerning Muslim marriages before.”What is the current state of Muslim Marriages?
Unfortunately, until the Muslim Marriages Act comes into operation, Muslim Marriages are not valid marriages in terms of South African Law. The consequences are however enforceable. For example, spousal support, succession, contracts etc. However, a Muslim spouse cannot get a divorce in terms of the Divorce Act, or make use of certain legislation as in the case of civil marriages. If a party is married in terms of civil law, he or she must approach a court of law for a valid divorce. That, unfortunately, does not apply to Muslim Marriages. Therefore, the Judgement is welcomed.The Judgment Order
To get a better understanding of what the order of the court was, you can read it below. Feel free to leave your comments below. Order [252] In the result. the following orders are proposed: 1 . It is declared that the State is obliged by section 7(2) of the Constitution to respect, protect, promote and fulfil the rights in sections 9, 10, 15. 28, 31 and 34 of the Constitution by preparing, initiating. introducing, enacting and bringing into operation. diligently and without delay as required by section 237 of the Constitution, legislation to recognise marriages solemnised in accordance with the tenets of Sharia law (‘Muslim marriages’) as valid marriages and to regulate the consequences of such recognition. 2. It is declared that the President and the Cabinet have failed to fulfil their respective constitutional obligations as stipulated in paragraph 1 above and such conduct is invalid. 3. The President and Cabinet together with Parliament are directed to rectify the failure within 24 months of the date of this order as contemplated in paragraph 1 above. 4. In the event that the contemplated legislation is referred to the Constitutional Court by the President in terms of section 79(4)(b) of the Constitution, or is referred by members of the National Assembly in terms of section 80 of the Constitution, the relevant deadline will be suspended pending the final determination of the matter by the Constitutional Court: 5. In the event that legislation as contemplated in paragraph 1 above is not enacted within 24 months from the date of this order or such later date as contemplated in paragraph 4 above, and until such time as the coming into force thereafter of such contemplated legislation, the following order shall come into effect: 5.1 It is declared that a union validly concluded as a marriage in terms of Sharia law and which subsists at the time this order becomes operative, may (even after its dissolution in terms of Sharia Law) be dissolved in accordance with the Divorce Act 79 of 1979 and all the provisions of the Act shall be applicable, provided that the provisions of section 7(3) shall apply to such a union regardless of when it was concluded: and 5.2 In the case of a husband who is a spouse in more than one Muslim marriage, the court shall: (a) take into consideration all relevant factors including any contract or agreement and must male any equitable order that it deems just; and (b) may order that any person who in the court’s opinion has a sufficient interest in the matter be joined in the proceedings. 5.3 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. 5.4 The Department of Home Affairs and the Department of Justice shall publish a summary of the orders in paragraphs 5.1 to 5.2 above widely in newspapers and on radio stations, whatever is feasible, without unreasonable delay. 6. An order directing the Minister of Justice to put in place policies and procedures regulating the holding of enquiries by the master of the High Court into the validity of marriages solemnised in accordance with the tenets of Islamic law is refused. 7. An order declaring the pro forma marriage contract attached as annexure “A” to the Women’s Legal Centre Trust’s founding affidavit, to be contrary to public policy is refused. 8. In respect of matters under case numbers 22481/2014 and 4406/2013, the president, the Minister of Justice and the Minister of Home Affairs are to pay the costs of the Women’s Legal Centre Trust respectively, such costs to include costs of three counsel to the extent of their employment. 9. In respect of the matter under case number 13877/2015: 9.1 Ruwayda Esau’s claim to a part of the Mogamat Riethaw estate, if any. is postponed for hearing at trial along with Parts B and E, of the particulars of claim. 9.2 The Cabinet and the Minister of justice shall pay Ruwayda Esau’s costs in respect of Claim A, such costs to include costs of two counsel to the extent of their employment. Download a Copy of the Judgment by clicking here. Feel free to leave your comments below.
Posted on by Telelaw