Advocate Muhammad Abduroaf – Trust Account Advocate – Best Top Legal Practitioners (Advocate Attorney) Child Custody Maintenance Custody Divorce Relocation Passport Consent High Court

Relocation with my minor child to Vietnam, Ha Long (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 Ha Long, Vietnam

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 five or six) 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 Butterworth or Bloemfontein, South Africa, and you want to relocate to Ha Long, Vietnam, 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 Ha Long, Vietnam?

The same applies when it comes to your minor child applying for a South African passport to relocate to Vietnam, 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 Ha Long, Vietnam 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 Ha Long, Vietnam.

What can I do if the other parent does not want to consent to the minor child’s relocation to Ha Long, Vietnam?

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 Ha Long, Vietnam, 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 Ha Long, Vietnam. 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 Ha Long, Vietnam, 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 Ha Long, Vietnam?

If the other parent does not want to consent to the passport application and/or the relocation of the minor child to Ha Long, Vietnam – 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 Ha Long, Vietnam, 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 Ha Long, Vietnam

If you require legal assistance or representation with relocating to Ha Long, Vietnam 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.

Various Matrimonial Property Regimes focusing on the Accrual System

Getting married is a legal act. With it comes certain responsibilities and rights. For example, you have a legal obligation to maintain your spouse. You cannot marry anyone else, and furthermore, your spouse can inherit from you interstate. Depending on the matrimonial property regime you entered into, certain legal consequences would apply regarding the proprietary (or money) aspects of your marriage. For example, to whom do money and assets belong to acquired during the marriage and before it. In South Africa, a person has three (3) choices when it comes to getting married in relation to your matrimonial property regime. They are explained briefly below. In Community of Property (Default system) A marriage in community of property is the default matrimonial property regime. You do not need to enter into an antenuptial contract in order to be married like this. Basically, when getting married, both spouses’ assets, money, liabilities and so on becomes one single joint estate. You can compare it to placing it all in one pot. And from that pot would the spouse’s finances be dealt with. If either spouse gets themselves into financial trouble, it is the joint estate, or the pot that would have to be looked at in order to sort it out. This would apply to financial trouble which arose even before the marriage.   Lastly, at death or divorce, the joint estate, or the pot would be divided and each party’s estate would leave with half. If you are worried about the financial implications of your marriage, you need to read further. Out of Community of Property and Profit or Loss (Without Accrual) Being married out of community of property and profit or loss is basically the exact opposite of being married in community of property. Here we are dealing with out of community of property with the exclusion of the accrual regime. Under this matrimonial property regime, there remain two separate estates just as there was before the spouses got married. Each spouse is responsible for their own wealth and debt. Creditors can therefore only claim from the estate of the relevant spouse. Not the other. At death or divorce, the situation remains exactly the same. Each estate leaves with whatever it has, being it money, assets or debt. In order for a couple to be married out of community of property and profit or loss, they need to stipulate it in an antenuptial contract and have it registered. The antenuptial contract would be executed before a Notary Public and registered at the Deeds Office. If this is not done,  then the marriage would be In Community of Property as above.  Next, we deal with a hybrid regime. You may find it more beneficial to you. Read more on antenuptial contracts by clicking here. Out of Community of Property and Profit or Loss (With Accrual) The third option a couple has is to get married out of community of property and profit or loss with the inclusion of the accrual regime. The accrual regime or system is outlined in the Matrimonial Property Act 88 of 1984. Basically, what it entails is that during the marriage you are married out of community of property and profit or loss as in the latter section, but at divorce or death, you share in the accrual or profits of the marriage. Each spouse still retains full control over their assets and estate during the marriage. Just as out of community of property and profit or loss without the accrual. If, however, the parties divorce or one dies, they will share in the accrual or profits. If you want the accrual regime to apply to your marriage, that would be stated in your antenuptial contract. It would then also be registered at the Deeds Office. In order to work out the accrual, one needs to know the net commencement value of each party’s estate. That would be stipulated in the antenuptial contract. The Accrual system is regulated in Chapter 1 of the Matrimonial Property Act 88 of 1984. In terms of the Act, certain items are excluded when calculating the accrual unless otherwise agreed upon. This is dealt with next.

Items or amounts excluded in the accrual calculation (unless otherwise agreed upon)

1. Amounts which accrued to that estate by way of damages, other than damages for patrimonial loss. E.g. pain and suffering;
2. An asset which has been excluded from the accrual system in terms of the antenuptial contract of the spouses, as well as any other asset which he or she acquired by virtue of his or her possession or former possession of the first-mentioned asset;
3. An inheritance, a legacy or a donation which accrues to a spouse during the subsistence of his or her marriage, as well as any other asset which he acquired by virtue of his or her possession or former possession of such inheritance, legacy or donation (except in so far as the spouses may agree otherwise in their antenuptial contract or in so far as the testator or donor may stipulate otherwise);
4. Donations between spouses, other than a donation mortis causa [anticipation of the death of the donor], is not taken into account either as part of the estate of the donor or as part of the estate of the donee.

Matrimonial Property Act 88 of 1984