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Posted on 11 February 2025 by Telelaw

Passport Application for a minor child: Mother cannot find the father to provide the necessary consent at the Department of Home Affairs. The Application is therefore refused.
Passport Application for a minor child: It is not easy being a single parent, and at the same time, the primary caregiver of the child. This is even so where the other parent pays child support and regularly sees the child. This article deals with the situation where the father of the child is missing. He, therefore, does not pay any child support, nor has a relationship with the child. This causes a problem when it comes to issues of guardianship rights. For example, when the mother wants to enrol the child in a school or provide medical consent. The question would always arise – “where is the father?”, or “did the father give his consent?” When it comes to official matters, for example, the application for a passport, then things become more complicated. This is where the issue of parental consent for the application for a passport is looked at. Now let us first deal with the law.
Parental Responsibilities and Rights of Fathers
In short, if a father was married to the mother, he would automatically have full parental responsibilities and rights to the child born from them. This includes the rights of care, contact and guardianship. If he was not married to the mother of the child, he can acquire parental responsibilities and rights. In short, in order for the unmarried father to acquire parental responsibilities and rights, he has to form part of the child’s life. He may also attempt to do so and the mother hinders it from happening. In the latter situation, he would still acquire parental responsibilities and rights.

The Unmarried Father’s Rights

The unmarried father can acquire parental responsibilities and rights to his child in a number of ways. They include paying child support, visiting the child and so on. Therefore, not all fathers would have parental responsibilities and rights over their children. Some fathers just impregnated the mothers and went missing. Such a father cannot rock up, 12 years later and demand to take the child with him to the movies. I think you understand the point we are trying to make.

What is the legal effect of having parental responsibilities and rights over a child?

Should a father have parental responsibilities and rights over a child – he has certain defined rights. Those rights could either be absolute, or specific. An absolute right would be one of guardianship. An example would be an application for a passport or the removal of a child from the Republic. In the latter cases, the father’s consent is an absolute requirement which can only be taken away by a court of law. Then there are relative parental responsibilities and rights over a child. These rights depend on the circumstances of the case. An example would be that of visitation. A father who has parental responsibilities and rights of contact over a child cannot demand to see the child at any time. He may not even be able to demand to see the child half the time. His contact rights would be limited to what is in the child’s bests interests. And that would change from time to time. For example, should the father live 100km away from his children, contact could be every second weekend. But, should he live down the road, it could be every second day.

The Legal Problem for unmarried parents and their rights

The consent required in relation to the exercise of parental responsibilities and rights over certain children have challenges. How would anyone know whether or not an unmarried father has parental responsibilities and rights? For example, lets say the father was never involved in the child’s life – what proof does she have to show the authorities that the father does not have any parental responsibilities and rights? Would the Department of Home Affairs just accept the allegation made by the mother? I do not think so. And this could cause a problem in two ways. Let’s say the father has parental responsibilities and rights over a child. The mother however now wishes to relocate overseas. She tells the authorities at the Department of Home Affairs that she does not know where the father is, and he was never involved in the child’s life. If the Department of Home Affairs accepts her lie, the mother would be able to leave South Africa with the child, and without the father knowing. Let alone obtain his consent. On the other hand, let’s say that the father was really not involved in the child’s life since birth. He went missing after he found out the mother was pregnant. He never paid for any of the birthing costs, nor any of the child’s expenses since birth. Should the mother approach the Department of Home Affairs, would they allow her to obtain a passport without the father’s consent? We could be wrong, but we doubt they will.

What can a mother do if she does not have the consent from the father

As the law stands and with the current position of the Department of Home Affairs, the following needs to be done if the father refuses to give his consent, or cannot be found.

Application to the High Court

We advise that you consult with a legal advisor to advise you on the merits of your case. If there are merits, an application to the relevant court would be made. The Court would decide on the matter after hearing from both the parents. If it is decided that it would be best for the child to obtain a passport or relocate, the court would grant the appropriate order.

These are the documents that would form part of the Court file:

Notice of Motion

This document outlines the relief you are asking the court for. This would be the case where the details of the father is known. Two of the clauses could be as follows:

The Respondent’s consent is not required for the departure of the minor child, Little One, with identity number 0813040502086 (hereafter referred to as “the minor child”), from the Republic of South Africa, and to relocate to France, as provided for in section 18(5) of the Children’s Act 38 of 2005;
The Respondent’s consent is not required for the return of the minor child to the Republic of South Africa for visits;

Founding Affidavit

In this document, you outline the facts of the matter. You would deal with why you want consent.

Opposing Affidavit

If the father opposes the Application, he would file this affidavit. In this document he would outline reasons why the court should not give consent.

Replying Affidavit

You would then get an opportunity to reply to the father’s allegations made.

Advice to parents who wants to relocate or temporary leave South Africa with the minor child

If you need to relocate, with a child, and the other parent refuses to give consent, speak to a legal advisor, or to us. They would advise you on your case, and if need be, assist or direct you to the proper people for an Application to court for an order that the requirement of consent is dispensed with. Should you be successful in such an application, the Order would be shown to the Department of Home Affairs when applying for a passport and when leaving the Country. The Officials would comply with the Order. The Order of Court can also be shown to the officials overseas should they want to know where the consent of the father is. [caption id="attachment_7081" align="alignleft" width="217"] Advocate Cape Town Lawyer Attorney Legal High Court

Advocate Muhammad Abduroaf[/caption] In the same manner, should you want to leave South Africa to go overseas on holiday with the minor, approach us for advice should the other parent refuse to give consent. Your visit overseas could be to visit a family member, or just for a break. There should be no reason why you cannot take the minor child with you on holiday. [caption id="attachment_6387" align="alignleft" width="300"]

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Posted on 11 February 2025 by Telelaw

There is NO Child Maintenance Payment Holiday during the National Lockdown Period! If the other parent is refusing to pay child support during the National Lockdown period – what can you do?
South Africa is now in a state of National Lockdown. As things stand at present, children are not to be moved between homes during this period. This is to limit the spread of COVID-19 / Coronavirus. A lot has been written on the topic of moving children during the lockdown period by co-holders of parental responsibilities and rights. Have a look at a few of these articles written by Our Lawyer on this topic:
Parental responsibilities and care during the coronavirus lockdown in South Africa – The uncertain questions that cannot and should not be answered today (24 March 2020)
Co-parenting during the South African National Lockdown period – What does the law say? – The good and the abuse (4 April 2020)
Latest regulations regarding the movement of children during the National Lockdown – 30 March 2020 (6 April 2020)

Update: 07 April 2020

NEW LOCKDOWN REGULATIONS REGARDING THE MOVEMENT OF CHILDREN – CERTAIN PARENTS MAY MOVE CHILDREN DURING THE NATIONAL LOCKDOWN PERIOD (7 April 2020) For those who do not have much time to read further, there is no child maintenance payment holiday during the lockdown period!

Parents and lawyers should focus on what is best for the child

We at Our Lawyer (Pty) Ltd, when working with children matters, always focus on what is best for the child, and not necessarily the parents, or even our client who pays us for our services. Children are a vulnerable sector of our society, and their interests should be vehemently protected. They are our future and the leaders of tomorrow. Who knows, out of your home could emerge the next Olympic star, or State President one day. The best interest of the child principle applies to all situations – not only during the lockdown but other periods as well. It disappoints us when parents do not want to pay adequate child support towards their children in these trying times.

Complaints from parents where the other parent does not want to pay child maintenance during the lockdown period

We have received queries from parents where the other parent is not paying child support during the National Lockdown period. This for good reason concerns us. We felt it necessary to write an article on this issue. Does the national lockdown afford parents with a child maintenance payment holiday? The same as offered by some loan banks that allows you to miss the occasional monthly payments. Some banks are offering it to their customers due to the national lockdown. Now let’s get into it.

What is child maintenance usually for?

Each family is different, and therefore each child’s needs vary. What would be necessary maintenance for a child of 8, would not be necessary for a child of 13. The same applies to children of the same ages living in different homes. The usual maintenance provisions would include any of the following:

Groceries, Water and Electricity, Laundry
Telephone, Internet, airtime
Domestic Worker, Garden Services
Clothing, shoes
Transport costs, vehicle maintenance, repairs
Medical aid and medical expenses not covered by the medical aid
Holidays, Entertainment, Recreation, DSTV, Netflix
Reading material (books, newspaper etc)
Pets food, litter, Vet
School projects, assignments
School fees, Summer and winter uniforms, shoes
Extra-Mural (incl. clothes), stationery, textbooks, sports equipment (incl. clothing)

For some families, many other items would be included. An in others, only half the items above would be applicable.

Child maintenance payment scenarios

There are usually two (2) scenarios where child maintenance gets paid:

The first scenario applies where there is a maintenance order in place. This could have been made by the maintenance court, or the divorce court when the parties divorced. Should a maintenance court have made the order, it would usually mean there was a complaint about non-payment or paying too little. This is not always the case. Either way, the court making the maintenance order would have had to be satisfied that the order is in the child’s best interest.
Then there is the second scenario where there is no maintenance order in place. The parents were never divorced and neither party took the other to the maintenance court. The parties pay maintenance based on an agreement they have, or the paying parent just pays as he or she feels. In the scenario, no court determined whether the amount being paid is fair or not.

Is Non-compliance with a Maintenance Order allowed?

When the maintenance order was made, various factors where considered. Included in those was the fact that the child has a holiday. Therefore, under ordinary circumstances, a parent cannot say they do not want to pay child maintenance during the December holiday, because the child is with them during the entire period. If the court order says that child maintenance is R X a month, that includes school holidays as well. There is, therefore, no payment holiday when it comes to child maintenance where a court order is in place. And if there is no order in place, payments must continue.

Can parents agree to relax the maintenance order during the National Lockdown period despite the Maintenance Order being in place?

It must be noted that children usually cost much more during the holidays as opposed to when they are at school. They eat more and also want to go out more. The latter may not apply during the lockdown period. More electricity is used, as well as water. School fees and medical aid must still be paid. Furthermore, caregivers may not have any income during this period. However, if the parents come to an agreement for less maintenance to be paid during a specific month, and for it to be repaid the following month, that is in order. This could be because the paying parent is not working during the lockdown. However, unless the paying parent really cannot afford to pay the ordered maintenance, we do not advise that any relaxation of the maintenance provisions are made.

What to do when there is no maintenance order in place?

If there is no maintenance order in place, one would assume that the parents have a cordial agreement when it comes to their child’s expenses. The primary caregiver did not see it as necessary to approach the court for a maintenance order to be in place. On the other hand, a parent may decide not to proceed with seeking a maintenance order because he or she is afraid they may get much less than what is being paid. Then there is a further scenario, where a parent does not want to proceed with a child maintenance claim, as he or she does not want the other parent to be in the child’s life. There are many other reasons as well. Nonetheless, if a parent has a maintenance agreement in place, that agreement must be fulfilled. The same principles with relaxing the agreement as outlined above would apply here as well. This would be in the child’s best interests. Now we shall deal with what a parent can do if the maintenance obligations are not adhered to during the lockdown period, either in terms of a court order, or agreement.

Noncompliance with maintenance orders and non-payment

There are certain directives in place during the lockdown period for the maintenance courts. If you are not receiving maintenance, and there is no order in place, you may make a first time application to the maintenance court. If there is a maintenance order in place, but it is not being adhered to, then you may approach the maintenance court for its enforcement.

The relevant regulations in respect of the maintenance court during the lockdown period

In terms of direction 8(b)(i) and (ii)issued in the Regulations (No. R418) issued on 28 March 2029 in the Government Gazette (No.43167), the Maintenance Court may deal with maintenance matters during the lockdown as follows:

First time applications for maintenance will only be dealt with if complete information is supplied in respect of required names, surname, telephone or cellular phone number, employment or business address, banking details of the Respondent; and
Application in respect of enforcement of maintenance orders

We, therefore, cannot stress it enough, for those who want to know whether there can be a payment holiday, our answer is no. All maintenance obligations must be adhered to. The maintenance courts are still in operation, and defaulters would be dealt with accordingly. 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

Posted on 11 February 2025 by Telelaw