[caption id="attachment_10811" align="alignnone" width="713"] Relocation consent Court Order for minor child to Canada – Advocate Muhammad Abduroaf[/caption]

I want to relocate from South Africa to Canada with my minor child. The other parent does not want my child to relocate to Canada. What can I do?

Canada is a popular destination to emigrate to. People emigrate from South Africa for many reasons. It ranges from better employment opportunities, family relations, or for a better standard of living. Whatever the reason a parent wants to relocate to Canada, if a minor child will be joining that parent and also relocating to Canada, then the parent remaining in South Africa’s consent would usually be required. Let us unpack the legal issues a parent may encounter when wanting to emigrate to Canada. Before we do so, let us list the various cities and towns in Canada to which you may want to relocate: Alberta, Banff, Brooks, Calgary, Edmonton, Fort McMurray, Grande Prairie, Jasper, Lake Louise, Lethbridge, Medicine Hat, Red Deer, Saint Albert, British Columbia, Barkerville, Burnaby, Campbell River, Chilliwack, Courtenay, Cranbrook, Dawson Creek, Delta, Esquimalt, Fort Saint James, Fort Saint John, Hope, Kamloops, Kelowna, Kimberley, Kitimat, Langley, Nanaimo, Nelson, New Westminster, North Vancouver, Oak Bay, Penticton, Powell River, Prince George, Prince Rupert, Quesnel, Revelstoke, Rossland, Trail, Vancouver, Vernon, Victoria, West Vancouver, White Rock, Manitoba, Brandon, Churchill, Dauphin, Flin Flon, Kildonan, Saint Boniface, Swan River, Thompson, Winnipeg, York Factory, New Brunswick, Bathurst, Caraquet, Dalhousie, Fredericton, Miramichi, Moncton, Saint John, Newfoundland and Labrador, Argentia, Bonavista, Channel-Port aux Basques, Corner Brook, Ferryland, Gander, Grand Falls–Windsor, Happy Valley–Goose Bay, Harbour Grace, Labrador City, Placentia, Saint Anthony, St. John’s, Wabana, Northwest Territories, Fort Smith, Hay River, Inuvik, Tuktoyaktuk, Yellowknife, Nova Scotia, Baddeck, Digby, Glace Bay, Halifax, Liverpool, Louisbourg, Lunenburg, Pictou, Port Hawkesbury, Springhill, Sydney, Yarmouth, Nunavut, Iqaluit, Ontario, Bancroft, Barrie, Belleville, Brampton, Brantford, Brockville, Burlington, Cambridge, Chatham, Chatham-Kent, Cornwall, Elliot Lake, Etobicoke, Fort Erie, Fort Frances, Gananoque, Guelph, Hamilton, Iroquois Falls, Kapuskasing, Kawartha Lakes, Kenora, Kingston, Kirkland Lake, Kitchener, Laurentian Hills, London, Midland, Mississauga, Moose Factory, Moosonee, Niagara Falls, Niagara-on-the-Lake, North Bay, North York, Oakville, Orillia, Oshawa, Ottawa, Parry Sound, Perth, Peterborough, Picton, Port Colborne, Saint Catharines, Saint Thomas, Sarnia-Clearwater, Sault Sainte Marie, Scarborough, Simcoe, Stratford, Sudbury, Temiskaming Shores, Thorold, Thunder Bay, Timmins, Toronto, Trenton, Waterloo, Welland, West Nipissing, Windsor, Woodstock, York, Prince Edward Island, Borden, Cavendish, Charlottetown, Souris, Summerside, Quebec, Asbestos, Baie-Comeau, Beloeil, Cap-de-la-Madeleine, Chambly, Charlesbourg, Châteauguay, Chibougamau, Côte-Saint-Luc, Dorval, Gaspé, Gatineau, Granby, Havre-Saint-Pierre, Hull, Jonquière, Kuujjuaq, La Salle, La Tuque, Lachine, Laval, Lévis, Longueuil, Magog, Matane, Montreal, Montréal-Nord, Percé, Port-Cartier, Quebec, Rimouski, Rouyn-Noranda, Saguenay, Saint-Eustache, Saint-Hubert, Sainte-Anne-de-Beaupré, Sainte-Foy, Sainte-Thérèse, Sept-Îles, Sherbrooke, Sorel-Tracy, Trois-Rivières, Val-d’Or, Waskaganish, Saskatchewan, Batoche, Cumberland House, Estevan, Flin Flon, Moose Jaw, Prince Albert, Regina, Saskatoon, Uranium City, Yukon, Dawson, Watson Lake, Whitehorse. (https://www.britannica.com/topic/list-of-cities-and-towns-in-Canada-2038873)

Why do I require the other parent’s Consent to relocate to Canada?

According to South African law, if you are a co-holder of parental responsibilities and rights over your minor child, you must consent to your child leaving South Africa. In this case, relocating to Canada. Here we refer to section 18 of the Children’s Act 38 of 2005. The entire provision is as follows: 18 Parental responsibilities and rights  (1) A person may have either full or specific parental responsibilities and rights in respect of a child.  (2) The parental responsibilities and rights that a person may have in respect of a child, include the responsibility and the right-  (a) to care for the child;  (b) to maintain contact with the child;  (c) to act as guardian of the child; and  (d) to contribute to the maintenance of the child.  (3) Subject to subsections (4) and (5), a parent or other person who acts as guardian of a child must-  (a) administer and safeguard the child’s property and property interests;  (b) assist or represent the child in administrative, contractual and other legal matters; or  (c) give or refuse any consent required by law in respect of the child, including-  (i) consent to the child’s marriage;  (ii) consent to the child’s adoption;  (iii) consent to the child’s departure or removal from the Republic;  (iv) consent to the child’s application for a passport; and  (v) consent to the alienation or encumbrance of any immovable property of the child.  (4) Whenever more than one person has guardianship of a child, each one of them is competent, subject to subsection (5), any other law or any order of a competent court to the contrary, to exercise independently and without the Consent of the other any right or responsibility arising from such guardianship. (5) Unless a competent court orders otherwise, the Consent of all the persons that have guardianship of a child is necessary in respect of matters set out in subsection (3)(c). Now let us explain what Parental Responsibilities and Rights are.

What are Parental Responsibilities and Rights of a parent in relation to a child?

As can be seen from section 18(2) of the Children’s Act, when we refer to Parental Responsibilities and Rights, we refer to the following: (a) to care for the child;  (b) to maintain contact with the child;  (c) to act as guardian of the child; and  (d) to contribute to the maintenance of the child. Therefore, if a parent has parental responsibilities and rights over a minor child, and accordingly, rights of guardianship, their Consent is required when it comes to issues of guardianship. As seen from section 18(3)(c) of the Children’s Act above, both parents’ Consent is required should a minor child depart from the Republic of South Africa. In this case, to emigrate to Canada. Even if the minor child only wants to go for a short holiday to Canada, both guardians’ Consent would be required.

When would the other parent be seen as a guardian in the case of a relocation matter to Canada?

It must be noted that not all parents are legal guardians over their minor children. We should therefore distinguish between married or divorced parents and parents who were never married. As you would see below, usually married, or divorced parents’ Consent would be required for a minor child to relocate or emigrate to Canada. However, that does not automatically apply to parents who were never married. This could be because the child could have been born from a brief encounter and never met his or her father. It would not make sense that a parent who never met his or her 15-year-old child, should give Consent for relocation to Canada.

Mother’s Consent for relocation of the minor child to Canada

Section 19 of the Children’s Act deals with the Parental responsibilities and rights of mothers. It states the following: 19 Parental responsibilities and rights of mothers  (1) The biological mother of a child, whether married or unmarried, has full parental responsibilities and rights in respect of the child.  (2) If-  (a) the biological mother of a child is an unmarried child who does not have guardianship in respect of the child; and  (b) the biological father of the child does not have guardianship in respect of the child, the guardian of the child’s biological mother is also the guardian of the child.  (3) This section does not apply in respect of a child who is the subject of a surrogacy agreement. As seen from section 19(1) of the Children’s Act, in most cases involving the relocation of a minor child to Canada, the mother’s Consent is required as she has full parental responsibilities and rights over the minor child.

Married father’s Consent for the relocation of the minor child to Canada

Section 20 of the Children’s Act deals with Parental responsibilities and rights of married fathers. It states the following: 20 Parental responsibilities and rights of married fathers The biological father of a child has full parental responsibilities and rights in respect of the child- (a) if he is married to the child’s mother; or (b) if he was married to the child’s mother at (i) the time of the child’s conception; (ii) the time of the child’s birth; or (iii) any time between the child’s conception and birth. As can be seen from sections 20 (a) and (b) of the Children’s Act, if the father and the mother were married, or are married, then his Consent is required for the minor child to relocate to Canada. Of course, an exception to this would be should a court of law order otherwise. This would be the case should the parents be divorced and the divorce court ordered that only the mother may act as guardian. Next, we deal with the issue of an unmarried father’s Consent to relocate a minor child to Canada.

Consent of unmarried fathers for the relocation of their minor children to Canada.

Section 21 of the Children’s Act deals with parental responsibilities and rights of unmarried fathers. The section states the following: 21 Parental responsibilities and rights of unmarried fathers  (1) The biological father of a child who does not have parental responsibilities and rights in respect of the child in terms of section 20, acquires full parental responsibilities and rights in respect of the child-  (a) if at the time of the child’s birth he is living with the mother in a permanent life-partnership; or  (b) if he, regardless of whether he has lived or is living with the mother-  (i) consents to be identified or successfully applies in terms of section 26 to be identified as the child’s father or pays damages in terms of customary law;  (ii) contributes or has attempted in good faith to contribute to the child’s upbringing for a reasonable period; and  (iii) contributes or has attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period.  (2) This section does not affect the duty of a father to contribute towards the maintenance of the child.  (3) (a) If there is a dispute between the biological father referred to in subsection (1) and the biological mother of a child with regard to the fulfilment by that father of the conditions set out in subsection (1) (a) or (b), the matter must be referred for mediation to a family advocate, social worker, social service professional or other suitably qualified person.  (b) Any party to the mediation may have the outcome  of the mediation reviewed by a court.  (4) This section applies regardless of whether the child was born before or after the commencement of this Act. As can be seen from the latter sections, a father of a child born out of wedlock does not automatically have parental responsibilities and rights over his minor child. He may however acquire those parental responsibilities and rights over his minor child if he is materially involved in the child’s life. That would be where the father and the mother were in a permanent life partnership when the child was born or he is meaningfully involved in the child’s life, as outlined above. We shall not go into much detail regarding that. However, in most cases, if the father had regular contact with the child and paid child support, he would have acquired parental responsibilities and rights over the minor child.

What do you do if the other parent does not want to consent to the minor child relocating to Canada?

Suppose the other parent also has parental responsibilities and rights over the minor child, and he or she does not want to consent to the relocation of the minor child to Canada, then in such a case, the Court needs to be approached. Here I refer you back to section 18(5) of the Children’s Act referred to above where it states: (5) Unless a competent court orders otherwise, the Consent of all the persons that have guardianship of a child is necessary in respect of matters set out in subsection (3)(c). Therefore, after your Court Application has been launched an both sides have been heard, the Court would make the necessary Order. If you are successful in your application for the relocation of your minor children to Canada, then the Court will make an Order similar to that which is shown below.
[caption id="attachment_10810" align="alignnone" width="697"]Relocation consent Court Order for minor child to Canada - Advocate Muhammad Abduroaf Relocation consent Court Order for minor child to Canada – Advocate Muhammad Abduroaf[/caption] [caption id="attachment_10811" align="alignnone" width="717"] Relocation consent Court Order for minor child to Canada – Advocate Muhammad Abduroaf[/caption]  
Relocation consent Court Order for minor child to Canada – Advocate Muhammad Abduroaf

I want to relocate from South Africa to Canada with my minor child. The other parent does not want my child to relocate to Canada. What can I do?

Canada is a popular destination to emigrate to. People emigrate from South Africa for many reasons. It ranges from better employment opportunities, family relations, or for a better standard of living. Whatever the reason a parent wants to relocate to Canada, if a minor child will be joining that parent and also relocating to Canada, then the parent remaining in South Africa’s consent would usually be required. Let us unpack the legal issues a parent may encounter when wanting to emigrate to Canada. Before we do so, let us list the various cities and towns in Canada to which you may want to relocate:

Alberta, Banff, Brooks, Calgary, Edmonton, Fort McMurray, Grande Prairie, Jasper, Lake Louise, Lethbridge, Medicine Hat, Red Deer, Saint Albert, British Columbia, Barkerville, Burnaby, Campbell River, Chilliwack, Courtenay, Cranbrook, Dawson Creek, Delta, Esquimalt, Fort Saint James, Fort Saint John, Hope, Kamloops, Kelowna, Kimberley, Kitimat, Langley, Nanaimo, Nelson, New Westminster, North Vancouver, Oak Bay, Penticton, Powell River, Prince George, Prince Rupert, Quesnel, Revelstoke, Rossland, Trail, Vancouver, Vernon, Victoria, West Vancouver, White Rock, Manitoba, Brandon, Churchill, Dauphin, Flin Flon, Kildonan, Saint Boniface, Swan River, Thompson, Winnipeg, York Factory, New Brunswick, Bathurst, Caraquet, Dalhousie, Fredericton, Miramichi, Moncton, Saint John, Newfoundland and Labrador, Argentia, Bonavista, Channel-Port aux Basques, Corner Brook, Ferryland, Gander, Grand Falls–Windsor, Happy Valley–Goose Bay, Harbour Grace, Labrador City, Placentia, Saint Anthony, St. John’s, Wabana, Northwest Territories, Fort Smith, Hay River, Inuvik, Tuktoyaktuk, Yellowknife, Nova Scotia, Baddeck, Digby, Glace Bay, Halifax, Liverpool, Louisbourg, Lunenburg, Pictou, Port Hawkesbury, Springhill, Sydney, Yarmouth, Nunavut, Iqaluit, Ontario, Bancroft, Barrie, Belleville, Brampton, Brantford, Brockville, Burlington, Cambridge, Chatham, Chatham-Kent, Cornwall, Elliot Lake, Etobicoke, Fort Erie, Fort Frances, Gananoque, Guelph, Hamilton, Iroquois Falls, Kapuskasing, Kawartha Lakes, Kenora, Kingston, Kirkland Lake, Kitchener, Laurentian Hills, London, Midland, Mississauga, Moose Factory, Moosonee, Niagara Falls, Niagara-on-the-Lake, North Bay, North York, Oakville, Orillia, Oshawa, Ottawa, Parry Sound, Perth, Peterborough, Picton, Port Colborne, Saint Catharines, Saint Thomas, Sarnia-Clearwater, Sault Sainte Marie, Scarborough, Simcoe, Stratford, Sudbury, Temiskaming Shores, Thorold, Thunder Bay, Timmins, Toronto, Trenton, Waterloo, Welland, West Nipissing, Windsor, Woodstock, York, Prince Edward Island, Borden, Cavendish, Charlottetown, Souris, Summerside, Quebec, Asbestos, Baie-Comeau, Beloeil, Cap-de-la-Madeleine, Chambly, Charlesbourg, Châteauguay, Chibougamau, Côte-Saint-Luc, Dorval, Gaspé, Gatineau, Granby, Havre-Saint-Pierre, Hull, Jonquière, Kuujjuaq, La Salle, La Tuque, Lachine, Laval, Lévis, Longueuil, Magog, Matane, Montreal, Montréal-Nord, Percé, Port-Cartier, Quebec, Rimouski, Rouyn-Noranda, Saguenay, Saint-Eustache, Saint-Hubert, Sainte-Anne-de-Beaupré, Sainte-Foy, Sainte-Thérèse, Sept-Îles, Sherbrooke, Sorel-Tracy, Trois-Rivières, Val-d’Or, Waskaganish, Saskatchewan, Batoche, Cumberland House, Estevan, Flin Flon, Moose Jaw, Prince Albert, Regina, Saskatoon, Uranium City, Yukon, Dawson, Watson Lake, Whitehorse.

(https://www.britannica.com/topic/list-of-cities-and-towns-in-Canada-2038873)

Why do I require the other parent’s Consent to relocate to Canada?

According to South African law, if you are a co-holder of parental responsibilities and rights over your minor child, you must consent to your child leaving South Africa. In this case, relocating to Canada.

Here we refer to section 18 of the Children’s Act 38 of 2005. The entire provision is as follows:

18 Parental responsibilities and rights

 (1) A person may have either full or specific parental responsibilities and rights in respect of a child.

 (2) The parental responsibilities and rights that a person may have in respect of a child, include the responsibility and the right-

 (a) to care for the child;

 (b) to maintain contact with the child;

 (c) to act as guardian of the child; and

 (d) to contribute to the maintenance of the child.

 (3) Subject to subsections (4) and (5), a parent or other person who acts as guardian of a child must-

 (a) administer and safeguard the child’s property and property interests;

 (b) assist or represent the child in administrative, contractual and other legal matters; or

 (c) give or refuse any consent required by law in respect of the child, including-

 (i) consent to the child’s marriage;

 (ii) consent to the child’s adoption;

 (iii) consent to the child’s departure or removal from the Republic;

 (iv) consent to the child’s application for a passport; and

 (v) consent to the alienation or encumbrance of any immovable property of the child.

 (4) Whenever more than one person has guardianship of a child, each one of them is competent, subject to subsection (5), any other law or any order of a competent court to the contrary, to exercise independently and without the Consent of the other any right or responsibility arising from such guardianship.

(5) Unless a competent court orders otherwise, the Consent of all the persons that have guardianship of a child is necessary in respect of matters set out in subsection (3)(c).

Now let us explain what Parental Responsibilities and Rights are.

What are Parental Responsibilities and Rights of a parent in relation to a child?

As can be seen from section 18(2) of the Children’s Act, when we refer to Parental Responsibilities and Rights, we refer to the following:

(a) to care for the child;

 (b) to maintain contact with the child;

 (c) to act as guardian of the child; and

 (d) to contribute to the maintenance of the child.

Therefore, if a parent has parental responsibilities and rights over a minor child, and accordingly, rights of guardianship, their Consent is required when it comes to issues of guardianship. As seen from section 18(3)(c) of the Children’s Act above, both parents’ Consent is required should a minor child depart from the Republic of South Africa. In this case, to emigrate to Canada. Even if the minor child only wants to go for a short holiday to Canada, both guardians’ Consent would be required.

When would the other parent be seen as a guardian in the case of a relocation matter to Canada?

It must be noted that not all parents are legal guardians over their minor children. We should therefore distinguish between married or divorced parents and parents who were never married. As you would see below, usually married, or divorced parents’ Consent would be required for a minor child to relocate or emigrate to Canada. However, that does not automatically apply to parents who were never married. This could be because the child could have been born from a brief encounter and never met his or her father. It would not make sense that a parent who never met his or her 15-year-old child, should give Consent for relocation to Canada.

Mother’s Consent for relocation of the minor child to Canada

Section 19 of the Children’s Act deals with the Parental responsibilities and rights of mothers. It states the following:

19 Parental responsibilities and rights of mothers

 (1) The biological mother of a child, whether married or unmarried, has full parental responsibilities and rights in respect of the child.

 (2) If-

 (a) the biological mother of a child is an unmarried child who does not have guardianship in respect of the child; and

 (b) the biological father of the child does not have guardianship in respect of the child, the guardian of the child’s biological mother is also the guardian of the child.

 (3) This section does not apply in respect of a child who is the subject of a surrogacy agreement.

As seen from section 19(1) of the Children’s Act, in most cases involving the relocation of a minor child to Canada, the mother’s Consent is required as she has full parental responsibilities and rights over the minor child.

Married father’s Consent for the relocation of the minor child to Canada

Section 20 of the Children’s Act deals with Parental responsibilities and rights of married fathers. It states the following:

20 Parental responsibilities and rights of married fathers

The biological father of a child has full parental responsibilities and rights in respect of the child-

(a) if he is married to the child’s mother; or

(b) if he was married to the child’s mother at (i) the time of the child’s conception; (ii) the time of the child’s birth; or (iii) any time between the child’s conception and birth.

As can be seen from sections 20 (a) and (b) of the Children’s Act, if the father and the mother were married, or are married, then his Consent is required for the minor child to relocate to Canada. Of course, an exception to this would be should a court of law order otherwise. This would be the case should the parents be divorced and the divorce court ordered that only the mother may act as guardian. Next, we deal with the issue of an unmarried father’s Consent to relocate a minor child to Canada.

Consent of unmarried fathers for the relocation of their minor children to Canada.

Section 21 of the Children’s Act deals with parental responsibilities and rights of unmarried fathers. The section states the following:

21 Parental responsibilities and rights of unmarried fathers

 (1) The biological father of a child who does not have parental responsibilities and rights in respect of the child in terms of section 20, acquires full parental responsibilities and rights in respect of the child-

 (a) if at the time of the child’s birth he is living with the mother in a permanent life-partnership; or

 (b) if he, regardless of whether he has lived or is living with the mother-

 (i) consents to be identified or successfully applies in terms of section 26 to be identified as the child’s father or pays damages in terms of customary law;

 (ii) contributes or has attempted in good faith to contribute to the child’s upbringing for a reasonable period; and

 (iii) contributes or has attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period.

 (2) This section does not affect the duty of a father to contribute towards the maintenance of the child.

 (3) (a) If there is a dispute between the biological father referred to in subsection (1) and the biological mother of a child with regard to the fulfilment by that father of the conditions set out in subsection (1) (a) or (b), the matter must be referred for mediation to a family advocate, social worker, social service professional or other suitably qualified person.

 (b) Any party to the mediation may have the outcome  of the mediation reviewed by a

court.

 (4) This section applies regardless of whether the child was born before or after the commencement of this Act.

As can be seen from the latter sections, a father of a child born out of wedlock does not automatically have parental responsibilities and rights over his minor child. He may however acquire those parental responsibilities and rights over his minor child if he is materially involved in the child’s life. That would be where the father and the mother were in a permanent life partnership when the child was born or he is meaningfully involved in the child’s life, as outlined above. We shall not go into much detail regarding that. However, in most cases, if the father had regular contact with the child and paid child support, he would have acquired parental responsibilities and rights over the minor child.

What do you do if the other parent does not want to consent to the minor child relocating to Canada?

Suppose the other parent also has parental responsibilities and rights over the minor child, and he or she does not want to consent to the relocation of the minor child to Canada, then in such a case, the Court needs to be approached. Here I refer you back to section 18(5) of the Children’s Act referred to above where it states:

(5) Unless a competent court orders otherwise, the Consent of all the persons that have guardianship of a child is necessary in respect of matters set out in subsection (3)(c).

Therefore, after your Court Application has been launched an both sides have been heard, the Court would make the necessary Order. If you are successful in your application for the relocation of your minor children to Canada, then the Court will make an Order similar to that which is shown below.

Relocation consent Court Order for minor child to Canada - Advocate Muhammad Abduroaf
Relocation consent Court Order for minor child to Canada – Advocate Muhammad Abduroaf
Relocation consent Court Order for minor child to Canada – Advocate Muhammad Abduroaf

 

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Child custody, guardianship and visitation (parental responsibilities and rights) – What do I need to know should I be going through a divorce or separation?

Although it is not ideal, it often happens that parents divorce or break up. Their romantic or spousal relationship may have come to an end, but their co-parenting relationship continues if they have a child together. They need to be the best co-parents possible for their child. This should be the case despite their failed marriage or relationship. [caption id="attachment_8203" align="alignleft" width="300"]The child in the middle The child in the middle. Child Custody disputes between parents, involving the child.[/caption]
Sadly, sometimes the civility the parents had for each other does not transcend beyond their divorce or separation. Some parents in this situation have unresolved issues. It then often happens that the child becomes a victim of the conflict that ensures. They often use the child as a pawn to settle unresolved differences. This situation is not in the child’s best interest. What follows are five things that parents should know when it comes to a divorce or separation. This is especially important if there are young children involved. [caption id="attachment_8198" align="alignleft" width="300"]The child loses out. It is often the child who gets hurt the most in child custody disputes.[/caption]

Number 1: The Child’s best interests are of paramount importance.

In all matters concerning a child, his or her best interests are of paramount importance. Therefore, the law does not focus on what is best for the parents. However, the court would have to be reasonable and fair. All relevant facts must be looked at. A parent, therefore, cannot demand that he or she has custody over the child notwithstanding the fact, that the child would be prejudiced if that happens. For example, the child would have to leave his or her current school and enrol in a new school in the middle of the academic year. The same applies to child maintenance. It does not mean that because you are paying for all the child’s expenses that you can demand when and how you wish to spend time with the child. [caption id="attachment_8201" align="alignleft" width="300"]Seek professional help in child custody matters It is always best to speak to a professional lawyer or childcare expert in custody matters.[/caption] The sad reality is that when parents are embroiled in conflict, they are blinded from what is in the child’s best interests. They focus on what is seemingly best for them. Often, it is to win. Or get more than the other party. Therefore, the parent with the most money would employ the best of lawyers, just to show the other parent. Most times, the child loses out.

Number 2: Know your parental responsibilities and rights – Well

This one is mostly for fathers. Long gone are the days where it is assumed that only a mother can care for a child. Often the courts’ award custody or primary care to the father. The bottom line is; what is best for the child. Therefore, in a given scenario, if the mother is the one who worked from morning to dusk and the father was the one who took the child to school, collected her and attended to her homework, then in such a case, he may be awarded primary care or custody. If, however, the mother was the one who works but cared for the child since birth, she may be awarded custody.

Number 3: Don’t rush to the courts of law – This should be your last option

[caption id="attachment_8199" align="alignleft" width="300"]The Court should be the last resort The High Court and Children’s Court should be the last place you should find yourself in when dealing with child custody issues.[/caption] At the first sign of trouble, do not rush to the court. Here we refer to the Children’s Court or the High Court, concerning parental responsibilities and rights. First, try to mediate the issue. Both parents should try to meet with a social worker or family counsellor in trying to resolve issues. It is better for the parents to come up with a workable parenting plan than for the court to enforce one on them.

Number 4: Understand that there are now two households – The child cannot be divided into two.

When parents live together with a child, there is only one household. Therefore, parents will see the child every day. They would share in the child’s care, as well as his or her expenses. Spending the same time with the child after separation would be impossible. The child would have to live primarily in one home, and occasionally in the other. The focus must be in what is in the child’s best interest and not the parents. This is a reality the parents must accept and which the courts would impose. [caption id="attachment_8200" align="alignleft" width="300"]There is always hope if parents speak and communicate For the sake of the minor child, try hard to resolve child custody disputes when it comes to divorce or separation.[/caption] Therefore, when divorcing or separating, try to work out together a workable parenting plan. As both parents have different work schedules and commitments, it is possible to come to a workable agreement. The parents can rotate who takes and collects the child from school. They may want to do the same when it comes to extramural activities over the weekend as well. Regular telephonic and video (Skype, WhatsApp or FaceTime) contact are encouraged. This would ensure regular contact.

Number 5: Make use of a facilitator – A third party can assist the parties to see clearly for the sake of the child.

Parents don’t need to rush to court every time there is a dispute regarding the child. This practice can become very exhausting and expensive. They should appoint a facilitator to assist them in resolving the dispute. For example, should there be a wedding in the father’s family during the weekend of the mother, then if the parties cannot resolve the issue, they need to first see a professional third party [caption id="attachment_8202" align="alignleft" width="300"]The child is innocent Consider the child before considering yourself in child custody disputes.[/caption] The facilitator would usually be a social worker, psychologist or even a lawyer. However, the facilitator would have to be experienced in family law and related matters to be of much worth. Either way, having a third party assist the parents in resolving the issue is always useful. It would also help them save a lot of money by avoiding litigation. 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. [caption id="attachment_8204" align="alignleft" width="300"]There is help out there. Speak to a child custody lawyer, or legal professional to assist you in resolving your parental legal matters.[/caption] Should you require business advice or services, feel free to click on these links: Business SA | Private Legal | Envirolaws  

Questions on Divorces  to an Attorney or Advocate

Below are some questions people have regarding divorces that they may pose to an Attorney. Should have any questions on a divorce, feel free to post it below.

Family Law Questions and Answers

Should you not find what you are looking for, feel free to post your questions on our blog, by clicking on the following links:

Divorces – Questions and Answers

Child Custody – Questions and Answers

Child Maintenance – Question and Answers

Domestic Violence – Questions and Answers

You are welcome to call us on 021 424 3487 / 0870735800

For other legal and business services, feel free to visit:

Business SA or Private Legal.

Can you get a divorce without your spouse’s consent?

Yes, you can.  The process will take longer if it is defended.

How do you get a divorce if you have no money?

Approach the Magistrate’s Court in your area for assistance with your divorce. You do not need a lawyer.

Can you refuse to get a divorce?

Yes, you can. However, the Court would grant the divorce if the marriage has broken down and cannot be saved.

Can I do my own divorce?

Yes, you can do your own divorce. There is no need for a lawyer.

How can you get a divorce if spouse won t sign?

The Court can still divorce you if your spouse won’t sign.

Can you be denied a divorce?

Yes,  you can if the marriage has not broken down.

How many years do you have to be separated to get a divorce?

There is no minimum. A week could be enough. The marriage should have broken down.

Can you get a divorce without having to go to court?

One spouse needs to go to court to give evidence.

Do both parties have to agree to get a divorce?

No, they do not. The Court will decide if a divorce is warranted.

Can you get a divorce without a lawyer?

Yes, you can. A lawyer is not needed. However, it is always a good idea to use one.

How long does it take to get a contested divorce?

It depends on the Court. We presume no less than 6 months.

How long do you have to respond after being served with divorce papers?

You have 10 (ten) working days.

How much does it cost to get a mutual divorce?

It depends on the lawyers you use. The Court does not charge. So if you do it yourself, there is no fee.

How cheap can you get a divorce?

Various lawyers charge different fees. If you do it yourself, its free.

Can you get a divorce for free?

If you do it yourself, its free.

How fast can you get a divorce?

If both parties agree, it can take about three weeks.

How much does it cost to get a divorce?

It depends on the lawyer. But if you do it yourself, it free.

Do you have to get a lawyer to get a divorce?

No, you do not need a lawyer.

How long do you have to be married before you have to pay alimony?

There is no set time.

Can you make your spouse pay for the divorce?

Yes, you can.

Can you force a divorce?

No, you cannot.

How do you stop a divorce after filing?

You have to withdraw the action.

Can you contest a divorce?

Yes, you can.

What is an uncontested divorce?

It is a divorce where both parties agrees to the

What do I need for a contested divorce?

You need good reasons why you are contesting it.

Can serve divorce papers myself?

No, you need to make use of the Sheriff of the Court.

Can you get a divorce without your spouse’s consent?

Yes, you can.

How do you get a divorce if you have no money?

You do not need much money to get divorced. The only costs is that of the Sheriff.

What are unreasonable terms in a divorce?

Terms which you are not entitled to. For example, wanting the entire joint estate.

Can I do my own divorce?

Yes, you can.

How much will it cost to get a divorce?

There are no costs. You must, however, pay the sheriff fees.

How many years do you have to be separated to get a divorce?

There is no specific minimum. The marriage should only not be able to be saved.

Where can I get divorce papers for free?

Visit the divorce court in your area.

How much money does it cost to get a divorce?

There are no costs, other than the sheriff’s costs. How do I file for divorce without a lawyer? You can do it yourself. Visit the Magistrate’s Court in your area.

Can you refuse to get a divorce?

Yes, you can.

Can you get a divorce without having to go to court?

One party must go to court.

What happens if your spouse does not sign divorce papers?

The divorce would then proceed on a defended basis if they filed such a notice.

Can you be denied a divorce?

Yes, you can if the marriage has not broken down.

Do both parties have to agree to get a divorce?

No.

How long do you have to wait before a divorce is final?

It’s final once the judge or magistrate gives the decree.

How long does it take for a divorce to be final after signing papers?

Once the matter gets heard in Court and the order granted.

How long does it take to get a contested divorce?

Can take no less than six months. It depends on the Court and the lawyer.

Can a judge not grant a divorce?

Yes, if the marriage has not broken down.

Can the father get full custody of his child?

Yes, he can if it is in the child’s best interests.

Can you force a divorce?

No, you cannot.

How long do you have to be married before you have to pay alimony?

There is no limit.

Is it adultery to date while separated?

Yes, it is as you are still married.

Is it cheaper to get divorced after 2 years?

The costs might be more for legal fees.

Can you get a divorce without the other person knowing?

No, the other person must be notified.

Can you get a divorce online?

No, it is not possible. One party must appear in Court and give evidence.

Can you get a divorce without a lawyer?

Yes, you can. You can act as your own lawyer.

How long do you have to respond after being served with divorce papers?

You have 10 working days. It is best to do it sooner.

How do you get a divorce if you do not work?

It is still possible. Visit your nearest magistrate’s court for assistance. All you need is the costs of the sheriff.

How can I file for a divorce on my own?

If you know what you are doing, we advise that you do so. However, you can go to the Magistrate’s Court and ask for assistance.

How long do you have to be separated in order to get a divorce?

There is no maximum or minimum time period.

Can serve divorce papers myself?

No, you have to make use of the Sheriff.

What is sexual misconduct during a divorce?

This would be in a spouse is busy with adultery during the divorce.

What is an informal separation in a marriage?

This is when the parties do not get divorced, but agree to live separately.

Can I date while separated before the divorce?

There is nothing in law preventing you from doing so.

Is it okay to date while going through a divorce?

It may be best to first finalise your divorce.

How much do you pay in alimony and child support?

It depends on the means and need of the parties concerned.

How do you figure out alimony?

You look at income, expenses and needs.

Can you refuse to get divorced?

Yes, you can. However, you must have good reasons. If the marriage is over, then the divorce would proceed.

How can you get a divorce if the spouse will not sign?

The Court can still divorce you.

Can a mother take her child away from the father?

Yes, if it is in the child’s bests interests. However, one should not do so unless a child care expert advises you to do so.

Do you still have to pay child support if you have 50 50 custody?

It is possible if you earn more than the other parent.

Can a judge not grant a divorce?

Yes, it is possible if the marriage has not broken down. Can the court deny a divorce?

How long does it take to get a contested divorce?

It can take a long time, from six months to over a year.

How much is a contested divorce?

It depends on your lawyer and how long it takes.

Do you have to have proof of divorce to remarry?

No. But it is illegal to marry again if you are not divorced.

Is a decree of divorce the final divorce?

Yes, it is. You should receive and Order.

How long do you have to wait before a divorce is final?

It is final once the Judge gives a final order or divorce.

How long does divorce take?

It depends on the case. If your spouse and you fight on every issue, it can take years.

Can I divorce my wife without her consent?

Yes, you can.

Do both husband and wife have to agree to divorce?

No, they do not have to. The Court would divorce you if the marriage has broken down completely.

Can you force your spouse to divorce you?

No, you cannot. You need to follow the court process.

Can you contest a divorce?

Yes, you can.

How long do you have to keep your divorce papers?

You should keep it indefinitely.

Where can I get a copy of my divorce papers?

You should visit the Court that gave you the divorce.

How do you get a divorce if you have no money?

We advise that you approach the Magistrate’s Court in your area.

What does it mean when a divorce is contested?

It means your spouse is not agreeing to the divorce.

Can you fight a divorce?

Yes, you can fight it. The legal term is defend it.

How much does it cost to get an uncontested divorce?

It depends on the lawyer. But if you do it yourself, there is no fee other than the sheriff.

How long do you have to keep bank statements for?

It depends on what. If it is for maintenance, we suggest three years.

Are all divorce records public?

Yes, it is.

Can I find divorce orders online?

No, you need to visit the court.

How do you find out if your divorce is final?

You need to visit the court and ask for a copy.

Are divorce filing public records?

Yes it is.

How can I get my divorce certificate?

You need to visit the court and ask for a copy.

How do you get a copy of a divorce decree?

You need to visit the court and ask for a copy.

Can you refuse to get divorced?

Yes, you can.

Is everything Split 50 50 in a divorce?

Yes if you are married In Community of Property.

Can a wife claim her husband property in the divorce?

It is possible if there is a legal basis for it.

Can I keep my house in a divorce?

Yes, if it is agreed upon or awarded by the court.

Who gets the child in a divorce?

The parent who can best care for the child primarily.

Can infidelity be used in a divorce?

Yes, it can.

Can you lose custody of your child due to adultery?

Its possible, but very unlikely if its the sole reason.

Can you sue your spouse for adultery?

No, you cannot.

Can the father get full custody of his child?

Yes, he can.

What is considered adultery in a divorce?

If there was sexual intercourse.

Can a mother take her child away from the father?

If it is in the child’s best interest. It is advised to get the advice of a social worker first.

Do you still have to pay child support if you have 50 50 custody?

It is possible. Depending on your income. If you earn more, then it is possible.

How do you prove a parent unfit?

It depends on the facts. If there are such facts, it must be brought to the court’s attention.

What is considered an unfit mother?

A mother who does not act in the best interests of the child and the child suffers.

How can mother win child custody?

She must prove that it is in the best interest of the child if she gets custody.

Can you get custody of a child that is not yours?

Yes, it is possible.

What is considered a stable environment for a child?

Where there child’s best interests are met.

How long does divorce take?

If it is defended, it can take a year. If not, a month.

What is unreasonable divorce settlement in a divorce?

Where it favours one party.

Can you contest a divorce if you not happy with it?

Yes, you can.

Can you defend a divorce?

Yes, you can.

What happens if your wife does not sign divorce papers?

The divorce would go ahead, however, it might take longer.

Can you be denied a divorce?

Yes, you can be denied a divorce if the marriage has not broken down.

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