Advocate Muhammad Abduroaf – Trust Account Lawyer- Best Legal Law Practitioners (Advocate Attorney) Child Custody Maintenance Contact Divorce Relocation Passport Consent High Court Cape Town

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Advocate Muhammad Abduroaf – Trust Account Lawyer- Best Legal Law Practitioners (Advocate Attorney) Child Custody Maintenance Contact Divorce Relocation Passport Consent High Court Cape Town

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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 Others

2004 (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:
  1. 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.
  2. 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.
  3. 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"]Best Attorneys, Advocates, lawyers to assist you in your Court Custody matter. When is the best time to get them involved in your case? Adv. Muhammad Abduroaf[/caption]

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Can technology be used to have me divorced online? I do not want to go to court or see my spouse again. Is an online divorce possible?

When a marriage breaks down, people naturally would want information on the topic of divorces and the legal process. For this, they usually go online to find answers. This information they seek could include, how divorces works, the process and how long it takes. Of course, if there are minor children involved, parents would want to know what the parental rights and responsibilities are as well. This relates to issues of care, contact, child maintenance etc. Then there is the issue of proprietary rights. In other words who gets what assets or money if there is a joint estate. This article, however, deals with the issue regarding whether or not a couple’s divorce can be done online?

Two main aspects of a divorce process

Broadly speaking the divorce process can be divided into two processes. The first aspect relates to that of instituting the divorce proceedings and getting the matter to court. The second aspect relates to the actual divorce proceedings in court. As can be seen, further below, the divorce process is analogue. The only part of it that can be done online is getting the documentation in order, so that your lawyer may prepare the Summons, Particulars of Claim and so on. However, processing a divorce would entail physically issuing documents at court, serving the summons on the other spouse via the sheriff and attending to court on the date of the divorce. Once the documents have been issued and served, some legal processes thereafter can take place via email. However, physical copies of those documents still need to be filed at court. Therefore, a lot of walking still needs to take place.

The online aspect of the divorce

If you are making use of the services of a legal practitioner to attend to your divorce, you can provide him or her with instructions online. These instructions relate to the names and details of the spouses, the matrimonial property regime, reasons for the breakdown, details of the minor children if any and the assets of the parties if applicable and so on. The legal practitioner (advocate or attorney) would then draft the necessary documentation. He or she would then have to physically issue it at court.  Therefore, the only aspect of the divorce that can be done online as stated earlier is instructing your legal practitioner with the relevant information. [caption id="attachment_9218" align="alignleft" width="441"] Online Divorce – South Africa[/caption]

Things that must be done physically in a divorce process

Once you provided your legal practitioner with the relevant information either in person or online, the following needs to take place. Firstly, the legal practitioner after drafting the documentation would have to have them issued at court, obtain a case number, and then have it served on your spouse by the sheriff of the court. This would have to be done physically. It cannot be done online or via email unless the court authorises it via edictal citation or substituted service.

Physically attending to court to give evidence

We will presume for this example that your spouse will not oppose the divorce. If that is the case then your legal practitioner would physically have to draft and serve a notice of set down on the relevant court. After your legal practitioner ensured that the court file is in order, then either you or your spouse would physically have to appear before the judge or magistrates to provide evidence as to the details of the marriage and the reasons for the breakdown. If the court is so satisfied, that the marriage has broken down irretrievably, and the minor children’s best interest are looked after, a decree of divorce would be granted.

Is there such a thing as an online divorce in South Africa?

Considering the above, there is no such thing as an online divorce in South Africa. The only aspect that can be done online is providing your legal practitioner with the necessary details of your marriage, the children, property, and so on. Your legal practitioner would then use that information to prepare the necessary documentation. These documents would have to be issued at court and served on the other spouse. On the divorce day, one of the parties will still have to appear in court to give evidence. As can be seen above, the concept of an online divorce could be confusing. However, if you’re making use of illegal practitioners, who is tech-savvy, the only time you physically need to be available would be on the date of the divorce at court. All other times you can provide the legal practitioners with instructions telephonically, via email, video and so on.            
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