Unmarried Fathers Rights Children Advocate Abduroaf Court Posted on 11 February 2025 by TelelawUnmarried Fathers Rights Children Advocate Abduroaf Court
I want to relocate with my minor child from South Africa – Do I need consent? Advocate Muhammad Abduroaf Posted on 11 February 2025 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 AustraliaBotswanaCanada Alberta – British Columbia – Province of Manitoba – North West Territories – Province of OntarioCocoa (Keeling) IslandsCyprusFijiGermanyGuernsey (Bailiwick of)Hong KongIsle of JerseyIsle of ManKenyaLesothoMalawiMauritiusNamibiaNew ZealandNigeriaNorfolk IslandSarawakSingaporeSt HelenaSwazilandUnited Kingdom England – Northern Ireland – Scotland – WalesUnited States of America California – FloridaZambiaZimbabwe 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. 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Claiming Child Maintenance from Grandparents – What does the law say? Many people are of the view that child maintenance may only be claimed by the parents of a child. They have that view even in the case where the parents cannot afford to maintain the child, but the grandparents can. At the outset, we state that the latter view is incorrect. If parents cannot afford to maintain a child, a claim for maintenance may be made against both the paternal and maternal grandparents of the child involved. This applies whether or not the child was born in or out of wedlock. Prior to 2004, or before the case of Petersen v Maintenance Officer, Simon’s Town Maintenance Court, and Others 2004 (2) SA 56 (C), the law allowed parents to claim maintenance for their minor children from maternal and paternal grandparents, as long as the child was born within wedlock, or out of a marriage. If the child was born out of wedlock, then in such a case, the parent could only claim from the maternal grandparents. And not the paternal grandparents. This was clearly unfair and unconstitutional and something that many people would have issues with. In 2004, Adv. Muhammad Abduroaf had a client who wanted to claim maintenance from the maternal grandparents of her minor child, but the law did not allow for it. He and his client was not happy with the legal position and took the matter to the Western Cape High Court (the Provisional Division of the Cape). Adv. Abduroaf cited the Maintenance Office of Simon’s Town Maintenance Court and the paternal grandparents. The matter was argued, and the Court found in favour of Adv. Muhammad Abduroaf and his client. The case opened many doors for mothers in similar positions. Below we discuss the case. Due to Adv. Muhammad Abduroaf’s academic background in Constitutional law and willingness to fight for his client, he challenged the legal position.Petersen v Maintenance Officer, Simon’s Town Maintenance Court, and Others2004 (2) SA 56 (C) The well-known case of Petersen v Maintenance Officer, Simon’s Town Maintenance Court, and Others 2004 (2) SA 56 (C) was a special one. Not because Adv. Abduroaf and his client were successful, but the effect of the case meant that children who could never claim maintenance from paternal grandparents if they were born out of wedlock could do so due to the case. The case also brought about widespread attention to the fact that a parent can claim maintenance from grandparents when the parents cannot afford to support the child on their own.The following is extracted from the case of Petersen v Maintenance Officer, Simon’s Town Maintenance Court, and Others 2004 (2) SA 56 (C) : [6] The Motan decision is generally accepted as authority for the assertion that the paternal grandparents of an extramarital child do not owe a duty of support to the child. The interpretation of the common law in Motan and the resultant denial of a duty of support by the paternal grandparents of an E extra-marital child has, even prior to the present constitutional dispensation, been widely criticised by South African writers. Van den Heever Breach of Promise and Seduction in South African Law (1954) at 70 says the following: ‘It is submitted that the decision is so patently wrong that it should be reconsidered; for it is based on legislative considerations and methods, which are, moreover, unsound. It is contrary to public policy and humanity and should, if necessary, be rectified by the Legislature.’This is what Adv. Abduroaf argued: [7] Mr Abduroaf, who appears for the applicant, submitted that the common-law rule as interpreted in Motan, violates the extra-marital child’s constitutional rights to equality and dignity enshrined in ss 9 and 10 of the Constitution of the Republic of South Africa Act 108 of 1996 (the Constitution) and is contrary to the best interest of the child (see s 28(2) of the Constitution). He accordingly submits that the common-law rule is unreasonable and unjustifiable and should be declared unconstitutional and invalid. Adv. Abduroaf further submitted: [14] Mr Abduroaf submitted that the constitutional values embodied in ss 9, 10 and 28(2) of the Constitution, dictate that the common-law rule as enunciated in Motan, be developed by imposing a duty of support upon the paternal grandparents of an extra-marital child in the event of the natural parents of such child being unable to support the child. The said sections of the Constitution provide: ‘9 (1) Everyone is equal before the law and has the right to equal protection and benefit of the law. (2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken. (3) The State may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. (4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of ss (3). National legislation must be enacted to prevent or prohibit unfair discrimination. (5) Discrimination on one or more of the grounds listed in ss (3) is unfair unless it is established that the discrimination is fair. 10 Everyone has inherent dignity and the right to have their dignity respected and protected. . . . 28 (2) A child’s best interest is of paramount importance in every matter concerning the child.’ The Ruling in Petersen v Maintenance Officer, Simon’s Town Maintenance Court, and Others 2004 (2) SA 56 (C) At the end of the matter, the Court made the following ruling: [29] In the result I make the following order:It is declared that the second and third respondents have a legal duty to support the extra-marital child of the applicant, J, born on 7 January 2003, to the same extent to which the fourth and fifth respondents are liable to maintain the said child.The first respondent is directed to take the necessary steps for an enquiry to be held in terms of s 10 of the Maintenance Act 99 of 1998, with a view to enquiring into the provision of maintenance by the second and third respondents for the said extra-marital child of the applicant.No order as to costs is made. Petersen v Maintenance Officer, Simon’s Town Maintenance Court, and Others 2004 (2) SA 56 (C) [caption id="attachment_10745" align="alignnone" width="300"] Adv. Muhammad Abduroaf[/caption] Posted on 11 February 2025 by Telelaw
Adv. Muhammad Abduroaf[/caption]