Advocate Muhammad Abduroaf – Advoacate of the High Court of South Africa

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Advocate Muhammad Abduroaf – Advoacate of the High Court of South Africa

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Relocation with your minor child from South Africa – What are my rights?

In today’s modern times, many people decide to leave South Africa and seek employment overseas or in a nearby country. The reason for that could be many. But usually, it’s because they feel they can earn much more in a different country or live a better life. Furthermore, safety and security, and medical benefits are on the list. What often happens is one parent wants to relocate, with a child, however, the other parent has an issue with it. As you will see later, the consent of both guardians is required for a minor child to leave the Republic of South Africa. advice-child-maintenance-child-custody-divorce

Parents need to first discuss the issue of relocation before making a decision

We are often approached by the parent wishing to relocate with the minor child for legal advice. It is often the mother. She wants to know what her rights are regarding the child relocating with her. Now the ideal situation would be for both parents to sit down and discuss the issue. It would obviously have a big impact on their lives should relocation with the child take place. They should discuss aspects regarding contact and maintenance should relocation be a viable option. However, meeting eye to eye and having a sensible discussion on the issue is not always the case.

Effects of relocation on the parents

advice-child-maintenance-child-custody-divorceIt often happens when parents do not agree on the issue of relocation; the parent wishing to relocate has to make some drastic decisions. Should she remain in South Africa and continue in her current employment, or remain unemployed? By remaining in South Africa, she would remain the primary caregiver of the minor child. The other option is for the parent to not fight the issue but decide to relocate and leave the child with a parent in South Africa. This could become problematic. Especially so in the case where the parent residing in South Africa was never a primary caregiver of the minor child. In other words, he or she cannot care for the child as well as the parent wishing to relocate.

What does South African law say?

Now in terms of the law, if a child should be removed from the Republic of South Africa, for traveling, or relocation, he or she requires the consent of both guardians. We will not go into the finer details of who is a guardian and what are the rights of a guardian. However, in terms of the Children’s Act, both guardians should consent for the minor child to be removed from the Republic of South Africa, and his or her return. Therefore, if the parents come to an agreement that the minor child may relocate, then the consenting parent should only sign necessary consent documents. Those documents can be obtained from the Department of Home Affairs. At the same time additional assisting documents will be of use. For example, an affidavit from the father stating that he has no issue with a minor child relocating and he provides a mother with the authority to make certain decisions regarding the minor child. These decisions could relate to the enrolment of schools, medical consent, and consent to travel within the country.

advice-child-maintenance-child-custody-divorceWhat happens if consent for relocation is refused by one parent?

Let’s say consent is not provided. What can the parent do under those circumstances? Unfortunately, the parent would have to approach the court to dispense with the consent of the other. He or she will have to convince the court that it would be in the minor child’s best interest for the relocation to take place. The parent who remains in South Africa will have to do the opposite. He or she would have to convince the court that it would be in the child’s best interest for them to remain in South Africa. Valid reasons could be that the country that they wish to relocate to is dangerous, or the child would be better suited to remain in South Africa.

More on approaching the Court when it comes to relocation of minor children

Now the problem arises as mentioned earlier. The parent wishing to relocate is left with a predicament. Does he or she remain in South Africa caring for the child or does he or she relocate and leave the child behind if consent is not given. As stated earlier, he or she would have to approach the Court. All these factors will have to be ventilated before the court and then the court will decide what is in the minor child’s best interest. We pause here to state that should a parent follow the specific route in approaching the court, he or she may want to at the same time apply for certain sole guardianship rights to the minor child. The parent would have to ask the court for certain rights, for example, should the minor child have to apply for a passport while overseas; only that parent’s consent is required. The same applies should the minor child have to be enrolled in a school, and as stated earlier, attend to a medical procedure. advice-child-maintenance-child-custody-divorceIf the parent relocating is a mother, she can bring up a constitutional argument. She may argue that because she is a mother of the child and gave birth to the child, it is unfair for her to obtain the father’s consent under the circumstances. He, on the other hand, may decide to travel anywhere in the world and do not require the consent of the mother, because he is not the primary caregiver of the minor child.

Summary of the issue of consent for the relocation of minor children

So in short, if the parties cannot come to an agreement on the relocation of the minor child to another country, the parents wishing to relocate should approach the court to dispense with the consent of the other parent. The other parent can oppose the application stating various reasons why it would not be in the minor child’s best interest for them to relocate. If that parent was not much involved in the minor child’s life and cannot care for the minor child; more than likely the court would not find in that parent’s favour. The bottom line is as stated, the court will decide what is best for the child. advice-child-maintenance-child-custody-divorce  
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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 Australia
  • Botswana
  • Canada
Alberta – British Columbia – Province of Manitoba – North West Territories – Province of Ontario
  • Cocoa (Keeling) Islands
  • Cyprus
  • Fiji
  • Germany
  • Guernsey (Bailiwick of)
  • Hong Kong
  • Isle of Jersey
  • Isle of Man
  • Kenya
  • Lesotho
  • Malawi
  • Mauritius
  • Namibia
  • New Zealand
  • Nigeria
  • Norfolk Island
  • Sarawak
  • Singapore
  • St Helena
  • Swaziland
  • United Kingdom
England – Northern Ireland – Scotland – Wales
  • United States of America
California – Florida
  • Zambia
  • Zimbabwe
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. 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    

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Top tips and tricks from a Senior Family Law Advocate on claiming maintenance for a five-year-old child in Roodepoort.

Child Maintenance is the right of the child, and not that of the parent. It is also not a privilege granted to parents who must pay it. It is their duty to pay child maintenance and support their children. Once the child is self-supporting (being able to care for him or herself), the obligation falls away. This can happen when the child is 18, 20, or even 30. It all depends on the circumstances of the case.

Claiming child maintenance for your child in Roodepoort

Whether you claim child maintenance in Roodepoort, or any other city in South Africa, the procedures would be the same. There are however two (2) courts that can deal with child maintenance matters. That is a divorce court, in a divorce matter, and a Child Maintenance Court. For this article, we will focus on claiming maintenance in a Maintenance Court matter in Roodepoort.

The maintenance scenario – Roodepoort South Africa

In this article, we will deal with the following fictitious scenario, in a child maintenance matter:

  1. The Child is seven years old and attends school in Roodepoort
  2. The child is cared for by the mother who works in Roodepoort
  3. The mother works and earns a Salary of R 10 000
  4. The father sees the child every second weekend. He also lives and works in Roodepoort
  5. The child’s monthly expenses are R 6000 – 00 which includes food, clothing, accommodation, education, travel etc.
  6. The father earns a reasonable salary and can afford the R 20 000 – 00 per month
  7. The mother claims R 4 000 – 00 maintenance as the father earns double her salary

What is the first step the mother must take in claiming child maintenance?

The first thing the mother must do is work out exactly what the child costs by item. She breaks down the minor child’s living expenses, starting from rent or accommodation to groceries to school fees etc. Once she has done that, she would need to determine what exactly does the minor child cost per month, seeing that she will be asking the father to contribute towards that. As best as possible, she needs to collect proof of expenses. This can be in the form of receipts.

How does she start the legal process?

The mother now needs to approach the maintenance court in the area where she lives or works to lodge a complaint for child maintenance. If she lives or works in Roodepoort, it would be the maintenance court in Roodepoort. She will complete a Form A wherein she will provide all the expenses for her and the minor child. She would also have to stipulate her income. Once she completed the form and submitted it to the maintenance court, she must then follow the next step.

What do you do while waiting for the maintenance court date?

While you wait to be informed of the court date by the Maintenance Court of Roodepoort, and up until the actual first court date, you need to ensure that you keep a record of all income and expenses for you and the child. This is very important as the court allocates maintenance based on recent income and expenses.

What happens at the first court appearance at the Roodepoort Maintenance Court?

Once you have been notified of the maintenance court date by the Roodepoort Maintenance Court, you need to ensure that you attend it. On that day, both you and the father of the child would appear before a maintenance officer. The maintenance officer would go through both your income and expenses as well as that of the father. If all the relevant information is not before the maintenance court, then the matter may be postponed in order for the parties to submit it.

The maintenance officer will try to settle the matter and have the parents come to an agreement regarding the amount of child maintenance to be paid. If they cannot come to an agreement regarding the child maintenance to be paid, the matter would have to proceed to a formal hearing or trial before a Magistrate.

How does the Maintenance Court hearing or trial work in Roodepoort?

Essentially, the maintenance court is called upon to make a fair ruling regarding what is a fair amount of child support that needs to be paid. For that to happen, the parents would have to give evidence in that regard. The mother would present to the court what the child costs, what she contributes and what she requires the other parent to pay. The Father would have a right to question the mother and to present evidence as to why he cannot afford the amount requested or why he feels it is an unfair amount. The mother can they also question him.

At the end of the day, the Roodepoort Maintenance Court would be able to properly determine what is a fair and adequate amount of child maintenance to pay after being presented will all relevant information. The Roodepoort Maintenance Court should play an active role in determining what is a fair amount of child maintenance the father should pay.

The above child maintenance application principles should apply to the following provinces and cities:

Eastern Cape:

Alice, Butterworth, East London, Graaff-Reinet, Grahamstown, King William’s Town, Mthatha

Port Elizabeth, Queenstown, Uitenhage, Zwelitsha

Free State:

Bethlehem. Bloemfontein, Jagersfontein, Kroonstad, Odendaalsrus, Parys, Phuthaditjhaba, Sasolburg, Virginia, Welkom

Gauteng:

Benoni, Boksburg, Brakpan, Carletonville, Germiston, Johannesburg, Krugersdorp, Pretoria, Randburg, Randfontein, Roodepoort, Soweto, Springs, Vanderbijlpark, Vereeniging

KwaZulu-Natal:

Durban, Empangeni, Ladysmith, Newcastle, Pietermaritzburg, Pinetown, Ulundi, Umlazi

Limpopo:

Giyani, Lebowakgomo, Musina, Phalaborwa, Polokwane, Seshego, Sibasa, Thabazimbi

Mpumalanga:

Emalahleni, Nelspruit, Secunda, North West, Klerksdorp, Mahikeng, Mmabatho, Potchefstroom, Rustenburg, Northern Cape, Kimberley, Kuruman, Port Nolloth

Western Cape:

Bellville, Roodepoort, Constantia, George, Hopefield, Oudtshoorn, Paarl, Simon’s Town, Stellenbosch, Swellendam, Worcester

 

 

 

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