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Paternity disputes and Scientific DNA Testing in Child Legal Matters
Paternity disputes are not uncommon in our courts of law. What sparks them varies, however, all disputes are messy. For one, the mere allegation that he is not the father of the child may directly or indirectly affect the dignity of the mother, and that of the child. In other words, it is suggested that she had more than one sexual partner at the time, and the child was born from such a relationship. Nonetheless, the issue can speedily be resolved through scientific DNA testing.
Paternity – Legal Settings
There are two common legal settings where a parent (or alleged parent) would dispute paternity. The one would be in a child maintenance dispute, where the father alleges that he is not the biological father of the child, and therefore cannot be ordered to pay child maintenance. The other situation would be in a child custody or visitation dispute. Here the mother would allege that the man is not the father, or he denies paternity.Paternity Dispute Scenarios
There are other scenarios where paternity can become an issue. One would be in the case of inheritance. A parent would allege that a child is an heir of the person who passed on. Another would be in the case of marriage. What happens if there is a rumour your intended bride is your half-sister? These disputes and many others can only be resolved with DNA or scientific testing. Below we further deal with the question as to whether a court can force a parent and a child to submit to a blood test. That is where It gets interesting. The latter scenario laid the seed for researching and writing this post. Read on to learn more. You may learn something new. The legal presumption of pater est quem nuptiae demonstrant
Now let’s start with the common law. There is a phrase or common law presumption, “Pater est quem nuptiae demonstrant”. It is a Latin phrase which states that the father is he who is married to the mother. In other words, if the child was born whilst the father was married to the mother, it is presumed that he is the father. Therefore, unless the father or mother can prove otherwise, every child born from a marriage is presumed to be the child of the husband. If the husband or wife disputes it, they must prove it. This may become an issue during divorce proceedings. The wife may allege that the husband is the father of the child and claim maintenance from him. He would then in his plea state that he is not the father and accordingly not responsible to pay child support. At the divorce trial, he would have to prove that he is not the father. A simple way of resolving the dispute would be through a blood test or scientific DNA testing. Now let’s move on to written law, in legislation and learn some more. The Law on paternity disputes in relation to minor children
There are two pieces of legislation that applies in relation to paternity issues regarding minor children. It is the Maintenance Act 99 of 1998, in relation to child maintenance matters, and the Children’s Act 38 of 2005, in relation to child legal matters in general. We shall, however, start with the Children’s Act 38 of 2005. The Children’s Act – Paternity Disputes
The Children’s Act has two (2) sections dealing with paternity issues. The first deals with the Presumption of paternity in respect of a child born out of wedlock and the other, the refusal to submit to the taking of blood samples. We quote them next.Section 36: Presumption of paternity in respect of a child born out of wedlock
“If in any legal proceedings in which it is necessary to prove that any particular person is the father of a child born out of wedlock it is proved that that person had sexual intercourse with the mother of the child at any time when that child could have been conceived, that person is, in the absence of evidence to the contrary which raises a reasonable doubt, presumed to be the biological father of the child.”Section 37: Refusal to submit to the taking of blood samples
“If a party to any legal proceedings in which the paternity of a child has been placed in issue has refused to submit himself or herself, or the child, to the taking of a blood sample in order to carry out scientific tests relating to the paternity of the child, the court must warn such party of the effect which such refusal might have on the credibility of that party.”Create Reasonable Doubt
Looking at the aforementioned sections of the Children’s Act, in a paternity dispute, it is presumed that if parties had sexual intercourse at any time when that child could have been conceived, the male is the father. The father can disprove this by raising reasonable doubt. This can be done by proving that he was sterile, or through scientific DNA testing. If another man comes and says he is the father; we are sure some reasonable doubt may be created. According to the next section in the Children’s Act, if a party refuses to submit to a paternity test, it could affect his or her credibility. Therefore, if someone is truly a parent, or not a parent, and has nothing to fear from the truth, he or she should submit themselves to a blood test. Failing which, it might affect that person’s credibility in the matter. The court could then infer that he or she is lying. Now let’s move on to the Maintenance Act in child maintenance matters.
The Maintenance Act – Paternity Disputes
In our experience, it is the offices of the maintenance courts that deals mostly with paternity disputes. When the father gets called to the maintenance court, to pay child support for a child he does not have a relationship with, in some cases, he would invoke the paternity defence. In other words, he would dispute the paternity of the child. In such a case, he would request a paternity test. Section 21 of the Maintenance Act deals with orders relating to scientific tests regarding paternity. Here we quote the relevant section next.21 Orders relating to scientific tests regarding paternity
(1) If the maintenance officer is of the opinion-
(a) that the paternity of any child is in dispute;(b) that the mother of such child, as well as the person who is allegedly the father of such child, are prepared to submit themselves as well as such child, if the mother has parental authority over the said child, to the taking of blood samples in order to carry out scientific tests regarding the paternity of that child; and (c) that such mother or such person or both such mother and such person are unable to pay the costs involved in the carrying out of such scientific tests,
the maintenance officer may at any time during the enquiry in question, but before the maintenance court makes any order under section 16, request the maintenance court to hold an enquiry referred to in subsection (2).
(2) If the maintenance officer so requests, the maintenance court may in a summary manner enquire into-
(a) the means of the mother of the child as well as the person who is allegedly the father of the child; and
(b) the other circumstances which should in the opinion of the maintenance court be taken into consideration.
(3) At the conclusion of the enquiry referred to in subsection (2), the maintenance court may-
(a) make such provisional order as the maintenance court may think fit relating to the payment of the costs involved in the carrying out of the scientific tests in question, including a provisional order directing the State to pay the whole or any part of such costs; or
(b) make no order.
(4) When the maintenance court subsequently makes any order under section 16, the maintenance court may-
(a) make an order confirming the provisional order referred to in subsection (3) (a); or
(b) set aside such provisional order or substitute therefor any order which the maintenance court may consider just relating to the payment of the costs involved in the carrying out of the scientific tests in question.Costs of Scientific DNA Testing in Child Maintenance Matters
Looking at the aforementioned section, it does not say much about the evidentiary aspect of paternity testing. It basically deals with the costs thereof. However, what is clear is that the Maintenance Court considers issues of paternity disputes and deals with it. Nonetheless, the aforementioned provisions of the Children’s Act would apply to matters in the Maintenance Court. Next, we move on to the issue of whether or not a court can force a party to submit to a paternity test.Forced or Compelled Paternity Tests
The two pieces of legislation referred to above does not assist us much with regard to the issue of a court forcing a parent to submit to a paternity test. We now need to consider the case law. In other words, what do the courts have to say about this? Most of the older court decisions, do not agree with forcing a parent to submit to a blood/paternity test. However, it seems that things have changed in the past decade. Let us refer to the judgment of LB v YD 2009 (5) SA 463 (T), a Transvaal Provincial Division matter handed down by Judge Murphy less than 10 years ago. LB v YD 2009 (5) SA 463 (T).
One of the issues, in this case, was that the mother did not want to submit herself to a blood test. Her view, amongst other things, was that it was not in the child’s best interests. The father argued that it was his right to know whether or not he is the father of the child. He further argued that his right to the certainty of paternity outweighs any inconvenience that might be suffered by the mother and the child. With regard to the law, the Court stated the following: [18] The law on the topic of compulsory blood or DNA testing in parental disputes is not satisfactory. There is no legislation which specifically regulates the position in civil cases. Judicial pronouncements on the topic have not been unanimous in their approach to the issues and have differed on the proper legal basis for ordering tests. In relation to the child the courts have relied on their inherent jurisdiction as upper guardian, while in relation to the non-consenting adult some judges have invoked the inherent jurisdiction of a court to regulate its own procedures while others have refused to do so. In all cases the courts have been mindful of the need on the one hand to protect the privacy and bodily integrity of those to be subjected to tests, but on the other hand have asserted the court’s role to discover the truth whenever possible and to make use of scientific methods for that purpose. [23] In short, I agree with those judges and commentators who contend that as a general rule the more correct approach is that the discovery of truth should prevail over the idea that the rights of privacy and bodily integrity should be respected – see Kemp ‘Proof of Paternity: Consent or Compulsion’ (1986) 49 THRHR 271 at 279 – 81. I also take the position, and I will return to this more fully later, that it will most often be in the best interests of a child to have any doubts about true paternity resolved and put beyond doubt by the best available evidence.
[47] The present case is one in which a clearing of the air is called for. Both parties have at various times admitted and denied that the applicant is the biological father. The respondent was intimate with a second party, her husband, within the period of possible conception. The child is barely 1 year old and thus there is no established relationship that might be unduly disturbed or harmed by a determination of non-paternity. If the applicant is established to be the father, the child will benefit in time from knowing the truth and from the applicant’s commitment to her financial wellbeing. The possible stigma of a disputed paternity will also be removed. And, furthermore, legislative safeguards exist for the assignment and monitoring of appropriate parental rights and responsibilities to the applicant, should that prove permissible. I accordingly consider that it will be in the best interests of the child that paternity be scientifically determined and resolved at this early stage. [48] I agree that the order sought by the applicant is the one that should be granted. It is ordered as follows:- The respondent is ordered to submit herself and her minor child Y to DNA tests for the purpose of determining whether the applicant is the biological father of the child Y within 30 days of this order.
- Prayers 2 and 3 of the notice of motion are postponed sine die.
- The applicant is ordered to pay the costs of the tests referred to in D para 1 of this order.
- The costs of this application are reserved.
The numbers in the square brackets denote the number of the paragraph you would find it in the judgment should you decide to make use of it. We agree with Judge Murphy. It is clear that the Courts can and should compel parents and children to submit to a blood test/DNA test when it is in the child’s best interests. Each case is different, and whereby a compelled blood test/DNA test would be warranted in one scenario, it may not be in the other. Nonetheless, with modern technology at our disposal, a simple paternity test is currently less intrusive than it was in the past.
Paternity disputes and Scientific DNA Testing in Child Legal Matters Paternity disputes are not uncommon in our courts of law. What sparks them varies, however, all disputes are messy. For one, the mere allegation that he is not the father of the child may directly or indirectly affect the dignity Continue Reading
Relocating from South Africa with your child – When do you need consent from the father?
Relocation – If you were born and raised in South Africa, it does not mean that you have to live there for the rest of your life. There are opportunities elsewhere in the world to live and continue your life’s journey. This may include a neighbouring country, or on another continent like Europe. Wherever it is, there are a few things to consider should you wish to relocate with your minor child. This is especially so if you are not relocating with the father. If you are the only parent to your child, then this article may not apply to you. This is where we will start off this article.The other parent when it comes to relocation
If you are a mother and was never married to the father of your child, the father may have guardianship rights. This would be the case even though the father’s name is not mentioned on the child’s birth certificate. This is so as the Children’s Act affords certain rights to unmarried fathers. Therefore, if an unmarried father has parental rights and responsibilities of guardianship, his consent is required. This we deal with next. Guardian’s Consent for relocation and passport – What does the law say?
The Children’s Act states the following: 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) .Consent to the child’s departure or removal from the Republic of South Africa and Passport
As can be seen above, section 18(3)(c)(iii) and (iv), read with section 18(5) of the Children’s Act; both guardians’ consent is required for the minor child’s departure or removal from South Africa and for a passport. Therefore, should a mother decide to relocate to Canada, for example, she would need the father’s consent if he is a guardian. Now it is clear that not all fathers are guardians of their children. Here the law differentiates between married and unmarried fathers.Parental responsibilities and rights of married fathers
Section 20 of the Children’s Act deals with the 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. From the above, it is a given, that fathers who were married to the mother, as described above should consent for the relocation and application for a passport of the minor child. This is so as full parental responsibilities and rights include the right of guardianship over the child. Parental responsibilities and rights of unmarried fathers
Section 21 of the Children’s Act deals with Parental responsibilities and rights of unmarried fathers. It 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. Analysing the above, it is clear that only if an unmarried father played a material role in the child’s life, as stipulated, he acquired the parental responsibility and right of guardianship over the child. Therefore, his consent would be required for the relocation and application for a passport.What if a father does not want to consent to the relocation and application for a passport?
If the father does not want to consent to the relocation and application for a passport of the minor child and he has legal guardianship over that child; section 18(5) of the Children’s Act referred to above finds application. The mother would then have to approach the High Court to dispense with the father’s consent. 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
Relocating from South Africa with your child – When do you need consent from the father? Relocation – If you were born and raised in South Africa, it does not mean that you have to live there for the rest of your life. There are opportunities elsewhere in the world Continue Reading
Children born out of wedlock now have the same rights as children born to married couples
The case below was successfully argued by Advocate Muhammad Abduroaf. Because of this case, a mother can now claim child maintenance from paternal grandparents of children born out of wedlock. The case can be found on the link: https://www.news24.com/SouthAfrica/News/Pay-support-its-legit-20031112 . It is also copied below. “‘Pay support – it’s legit’
2003-11-13 08:29Willemien BrummerCape Town – Children born out of wedlock now have the same rights as children born to married couples, under a ground-breaking High Court ruling made in Cape Town on Wednesday.
Judge Lester Fourie overturned a 1930 court ruling that stated only maternal grandparents of illegitimate children could be held responsible for their upkeep. Mother’s of children born out of wedlock could until now only claim from their own parents for maintenance. Now the paternal grandparent’s of an illegitimate child can also be held responsible for their upkeep. The ruling came after Jade Lee Petersen from Muizenberg approached the Simon’s Town maintenance court for maintenance for her 10-month-old son, Jordan. Jordan’s father, Faghmie Abrahams, claimed he could only afford R200 maintenance per month. Petersen wanted R1 000 per month. She requested that Jordan’s grandparents on his father’s side be ordered to cover the balance. When Petersen was informed that the law did not allow this, she took her case to the High Court. After the ruling, Petersen’s advocate, Muhammad Abduroaf, said the case was not just a victory for Petersen but that it was also a victory for other mothers in her position.” https://www.news24.com/SouthAfrica/News/Pay-support-its-legit-20031112 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
“‘Pay support – it’s legit’
2003-11-13 08:29Willemien Brummer
Cape Town – Children born out of wedlock now have the same rights as children born to married couples, under a ground-breaking High Court ruling made in Cape Town on Wednesday.
Judge Lester Fourie overturned a 1930 court ruling that stated only maternal grandparents of illegitimate children could be held responsible for their upkeep. Mother’s of children born out of wedlock could until now only claim from their own parents for maintenance. Now the paternal grandparent’s of an illegitimate child can also be held responsible for their upkeep. The ruling came after Jade Lee Petersen from Muizenberg approached the Simon’s Town maintenance court for maintenance for her 10-month-old son, Jordan. Jordan’s father, Faghmie Abrahams, claimed he could only afford R200 maintenance per month. Petersen wanted R1 000 per month. She requested that Jordan’s grandparents on his father’s side be ordered to cover the balance. When Petersen was informed that the law did not allow this, she took her case to the High Court. After the ruling, Petersen’s advocate, Muhammad Abduroaf, said the case was not just a victory for Petersen but that it was also a victory for other mothers in her position.” https://www.news24.com/SouthAfrica/News/Pay-support-its-legit-20031112 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 | EnvirolawsChildren born out of wedlock now have the same rights as children born to married couples The case below was successfully argued by Advocate Muhammad Abduroaf. Because of this case, a mother can now claim child maintenance from paternal grandparents of children born out of wedlock. The case can be Continue Reading
Top tips and tricks from a Senior Family Law Advocate on claiming maintenance for a five-year-old child in Welkom.
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 Welkom
Whether you claim child maintenance in Welkom, 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 Welkom.
The maintenance scenario – Welkom South Africa
In this article, we will deal with the following fictitious scenario, in a child maintenance matter:
- The Child is seven years old and attends school in Welkom
- The child is cared for by the mother who works in Welkom
- The mother works and earns a Salary of R 10 000
- The father sees the child every second weekend. He also lives and works in Welkom
- The child’s monthly expenses are R 6000 – 00 which includes food, clothing, accommodation, education, travel etc.
- The father earns a reasonable salary and can afford the R 20 000 – 00 per month
- 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 Welkom, it would be the maintenance court in Welkom. 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 Welkom, 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 Welkom Maintenance Court?
Once you have been notified of the maintenance court date by the Welkom 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 Welkom?
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 Welkom 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 Welkom 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, Welkom, Constantia, George, Hopefield, Oudtshoorn, Paarl, Simon’s Town, Stellenbosch, Swellendam, Worcester
Top tips and tricks from a Senior Family Law Advocate on claiming maintenance for a five-year-old child in Welkom. 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 Continue Reading
Top tips and tricks from a Senior Family Law Advocate on claiming maintenance for a five-year-old child in Alice.
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 Alice
Whether you claim child maintenance in Alice, 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 Alice.
The maintenance scenario – Alice South Africa
In this article, we will deal with the following fictitious scenario, in a child maintenance matter:
- The Child is seven years old and attends school in Alice
- The child is cared for by the mother who works in Alice
- The mother works and earns a Salary of R 10 000
- The father sees the child every second weekend. He also lives and works in Alice
- The child’s monthly expenses are R 6000 – 00 which includes food, clothing, accommodation, education, travel etc.
- The father earns a reasonable salary and can afford the R 20 000 – 00 per month
- 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 Alice, it would be the maintenance court in Alice. 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 Alice, 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 Alice Maintenance Court?
Once you have been notified of the maintenance court date by the Alice 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 Alice?
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 Alice 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 Alice 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, Alice, Constantia, George, Hopefield, Oudtshoorn, Paarl, Simon’s Town, Stellenbosch, Swellendam, Worcester
Top tips and tricks from a Senior Family Law Advocate on claiming maintenance for a five-year-old child in Alice. 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 Continue Reading
Top tips from a Senior Family Law Advocate on how to deal with your Child Custody matter in the Empangeni Children’s Court
Family law legal matters can be very stressful. This is so whether you live in Empangeni or any other city in South Africa. Especially so if you have no idea how the legal processes work. It is one thing to know that you are entitled to child support, but it is a totally different matter to know the law and procedure on how to claim child support. Luckily in child maintenance matters, the maintenance court is there to assist you in completing the application form. However, many times that is not enough. Especially so if the other parent has a lawyer and knows how to present the case for his or her client.
This article, however, deals with some top tips in care and contact or custody matters in the Children’s Court in Empangeni. It would explain the processes involved and advise on how to be best prepared for your matter. This advice is applicable whether you live in Empangeni or any other city in South Africa.
What to do before visiting the Empangeni Children’s Court
Before you approach the Children’s Court in Empangeni, first try to resolve the issues with the other parent. Therefore, if you want more contact with your child and the other parent is refusing, try to resolve the matter first with that parent. If that does not work, try mediation. The mediator can be anyone, from a trusted mutual friend, priest, or other religious leaders, or a professional like an attorney, psychologist, or the office of the Family Advocate. Empangeni has many professionals that can assist you in this regard. If resolving the matter by yourselves is not possible, or mediation fails, then we suggest you approach the Empangeni Children’s Court for assistance.
TIP: Focus on getting someone neutral to assist in mediating your matter. Organisations like FAMSA and FAMAC can be of assistance. Google them.
Approaching the Empangeni Children’s Court
The Empangeni Children’s Court should be approached if it is the closest Children’s Court to you. You need to verify with the Empangeni Children’s Court that you fall under their area of jurisdiction. If not, they would direct you to which Children’s Court is applicable to you.
Once you arrive at the Empangeni Children’s Court, they will provide you with a form headed “Bringing Matter to Court in Terms of Section 53 Children’s Act, 2005 (Act no. 38 of 2005) Regulation Relating to Children’s Court and International Child Abduction, 2008 [Regulation 6]. This form is also called Form 2.
In this form, you will provide all your particulars and that of the child or children and the other parent. The sections in the form are as follows:
- PART A: PARTICULARS OF CHILD(REN)
- PART B: PARTICULARS OF *CHILD WHO IS AFFECTED BY OR INVOLVED IN THE MATTER/PERSON *ACTING IN THE INTEREST OF THE CHILD/*ON BEHALF OF THE CHILD WHO CANNOT ACT IN HIS/HER OWN NAME/ *MEMBER OF A GROUP OF CLASS OF CHILDREN/*IN THE PUBLIC INTEREST (SECTION 53(2)
- PART C: PARTICULARS OF PERSONS HAVING AN INTEREST IN THE MATTER
- PART D: PARTICULARS OF MATTER
In part D, the following is stated which you need to provide in the form:
- Nature of matter brought to Court: (Please give full details of the matter e.g., registration/amendment of parenting plans, removal of child to safe care, children in need of care and protection, placement in youth care centers, adoption etc.
- Documents: Are there any documents relating to the matter? (If so please attach)
Once you have completed the form and attached the relevant documents to it, you must take it to a commissioner of Oaths to have it commissioned. It does not have to be in Empangeni.
TIP: Draft a separate affidavit explaining your case. Outline some background information and reasons why the Court should give you what you request. Attach it to Form 2.
Processing your Application at the Empangeni Children’s Court
Once you complete the Form A and submit it to the Clerk of the Empangeni Children’s Court, they will process it and allocate it a case number or reference number. The Clerk of the Court would then allocate a date to the matter and advise the parties accordingly when the court date is. Please note that some courts follow a different process for processing the application and informing the parties of the court date. Please enquire from the Court when making the application what process they follow.
TIP: Obtain the contact details of the Court for you to contact them to obtain the Court date or other information. Ask for their contact number and email address.
Appearing in the Empangeni Children’s Court
When notified of the Court date, both you and the other parent should attend. If you are making use of a lawyer (Advocate or Attorney), inform them timeously of the date. Depending on the Court, you may first see the Clerk or go directly to the Magistrate. The Children’s Court would do its best to try to resolve the matter. If the parents cannot come to an agreement, the Children’s Court may postpone the matter for either of the following:
- Get a social worker involved in the matter;
- Appoint a legal representative for the minor child;
- Implement interim care and contact arrangements;
- Having the parties attempt to agree on a parenting plan;
-
In serious matters, the Court may remove the minor child from both parents and place the child in foster care. The powers of the Children’s Court are extensive. It will, however, focus on what is in the child’s best interests.
TIP: Be as vocal as possible. Do not expect the Court to be understanding of your case or be on your side. It is your duty to explain your case and provide the Court with all the relevant information they require for them to make a fair decision.
Finalising the matter in the Empangeni Children’s Court
Once the Empangeni Children’s Court has enough information to make a final decision, it will do so. Depending on the facts of the matter, that could either be making a Parenting Plan, an Order of the Court or a final care and contact Order. The Court may even make further interim orders, where the parties are to return to Court after a few months, or a year later.
TIP: Do not agree to something just because the social worker, a lawyer, or the Court suggest it. You need to be happy with what is decided.
The above Empangeni Children’s Court Application tips 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, Empangeni, Constantia, George, Hopefield, Oudtshoorn, Paarl, Simon’s Town, Stellenbosch, Swellendam, Worcester
Top tips from a Senior Family Law Advocate on how to deal with your Child Custody matter in the Empangeni Children’s Court Family law legal matters can be very stressful. This is so whether you live in Empangeni or any other city in South Africa. Especially so if you Continue Reading
Commonly asked questions about divorce in South Africa.
The South African Courts are granting divorces to people on a daily basis. Some divorces were initiated a few weeks ago, and others go back several years. The distinction between couples who obtained a divorce in a matter of weeks and those who waited for years is straightforward. Those who chose to wait a few weeks realised that fighting was futile, and by getting divorced sooner, they could move on with their lives more quickly.Our unopposed divorce service
If your marriage has broken down and you and your spouse agree to get divorced, talk to us about your uncontested divorce options. We guarantee that your divorce will be resolved swiftly and with minimal stress and anxiety. Here are some frequently asked questions about divorce. If you have any particular questions, don’t hesitate to schedule a consultation with us.What are the costs of an unopposed divorce?
The costs of an unopposed divorce would vary. That would depend on the law firm and the issues involved. We offer an unopposed divorce at a fixed fee.What questions to ask when considering divorce?
The most important question to ask when considering divorce is whether your marriage can be saved. If your marriage cannot be saved, then a divorce may be the best thing for you.What is the requirement for a divorce in Court?
For a court to divorce you, the Court has to be convinced on a few aspects. They relate to the issue or jurisdiction; you are married, and the marriage has broken down irretrievably. If there are minor children involved, the Court would want to be convinced that their best interests are being upheld.What is the biggest challenge of divorce?
The biggest challenge in divorce is for the parties to accept that their marriage is over.What not to do when asking for a divorce?
Do not agree on things you may regret later—for example, agreeing to relinquish assets you may want to keep.What to do before telling your spouse you want a divorce?
Make sure you want a divorce.What to do before telling your wife you want a divorce?
Make sure you want a divorce.What is the first step when you want a divorce?
It would be best if you saw a lawyer.What are my rights as a wife in a divorce in South Africa?
If you were maintained by your husband during the marriage, you may have a right to personal maintenance or alimony.How do I start a divorce process?
The divorce process starts with a Summons.How much does divorce cost in South Africa?
It can range from a few thousand rands. You can also do it yourself for free.How long does a divorce take in South Africa?
I can take a few weeks if it is unopposed or a few years if opposed. It depends on the Court as well. Some courts are very busy.What is the first step to divorce in South Africa?
It is to institute if at Court.What is a free divorce in South Africa?
It is where you do not make use of a lawyer. You can do the divorce yourself.How can I speed up my divorce in South Africa?
Try to settle the divorce.What happens to the provident fund when you divorce?
If you are married in a community of property, the non-member spouse should receive half.How much is a wife entitled to in a divorce pension?
If you are married in a community of property, the wife is entitled to half.How long after divorce can you remarry in South Africa?
Immediately.Can I claim my husband’s pension after the divorce in South Africa?
Yes, you can.What is spousal maintenance in South Africa?
It is where your spouse has to continue supporting you after the marriage.How long does a pension fund take to pay out after divorce?
Usually between two to three months.How long does it take to get money from GEPF after divorce?
It is best to contact them. However, it is estimated to take about two to three months.Does GEPF pay a lump sum?
They should pay what the divorce order says.Who qualifies for GEPF?
A spouse is someone who is married to the member.How do I claim my spouse’s pension after divorce?
You should claim before the divorce. If after, you must approach the Court.What are the spousal benefits of GEPF?
You should contact them.How is the Gepf payout calculated?
You should contact them.What is the final salary for Gepf?
You should contact them.How much is a lump sum from the final salary pension?
It will usually be 50 % if you are married in a community of property.Can my wife claim half of my pension?
Yes.How is spouse pension calculated?
It is calculated at the value of the divorce.How can I check my GEPF balance?
Contact them.What is rule 43 in South Africa for divorce?
It is a procedure in the High Court where you claim child maintenance, custody or contribution towards legal costs pending the divorce finalisation.Who loses the most in a divorce?
The children, if the parties keep fighting.Do I have to support my wife after the divorce?
No, unless a court orders you to do so.What are the stages of divorce for a woman?
There are no specific stages.How do I decide when to divorce?
If your marriage has broken down and cannot be saved.What is the number 1 reason for divorce?
Parties are incompatible.What are the three effects of divorce?
It varies between people.Who initiates divorce more?
One would have to look at the divorce statistics.Can a divorce be denied in South Africa?
Yes, it can.What should I ask myself before divorce?
Can the marriage be saved?What are the disadvantages of divorce?
You are no longer together as a family unit.What should you think about before divorce?
Can the marriage relationship be saved?What to do before telling your spouse you want a divorce?
Speak to a divorce lawyer.What to do before telling your wife you want a divorce?
Speak to a divorce lawyer.Why should you never bring up divorce?
You should only bring it up if the marriage has broken down.What are my rights as a wife in a divorce in South Africa?
You have a right to alimony if you can prove your claim.What is the pensionable salary?
A salary where the pension is paid.How is pension calculated?
It would be best if you spoke to your employer.What is the rule 58 in divorce?
It is where you claim interim maintenance, custody or a contribution towards costs in the magistrates court.Is everything split 50-50 in a divorce in South Africa?
Only if you are married in a community of property.What happens to the provident fund when you divorce?
If you are married in a community of property, the non-member spouse will receive half the value as of the date of the divorce.How much tax do you pay on a divorce settlement in South Africa?
You should speak to an accountant.What documents are needed for divorce in South Africa?
Marriage certificate for the Court.How much does it cost to file for divorce in SA?
From free to a few thousand.What is a free divorce in South Africa?
It is where you do it yourself, or a lawyer does not charge you.How long does it take to Finalise a divorce in South Africa?
From a few weeks if all is agreed upon to a few years if the parties cannot.How long after divorce can you remarry in South Africa?
Immediately.Who should file for divorce first in South Africa?
Any spouse.Who gets custody of the child in divorce in South Africa?
The parent that can best care for the child.
Commonly asked questions about divorce in South Africa. The South African Courts are granting divorces to people on a daily basis. Some divorces were initiated a few weeks ago, and others go back several years. The distinction between couples who obtained a divorce in a matter of weeks and those Continue Reading
Domestic violence cases in South Africa
As a legal consultancy, we deal with domestic violence cases on a regular basis. Most of the situations are unique and comes with its own set of dynamics in which the legal expert will have to make the appropriate legal call. It is safe to say, if we may, that most times the cases we deal with involves women and children as the vulnerable targets in the process. The legal expert have cleverly compiled some free, expert legal advice articles that may be of help to the layperson who happens to stumble across our website. We are conveniently situated at The Pinnacle, corner of Strand and Burg Street in the CBD, Cape Town, South Africa. Make use of our online appointment system which is efficient and stress free. Call our offices for an online appointment today.Types of domestic violence in South Africa
Often, we mistake domestic violence as only physical and this is not the case. Below are some brief examples of the different types of domestic violence and abuse:- Control
- Physical
- Emotional and Domination
- Verbal Abuse
- Economic Abuse
- Physiological Abuse
Does any of this sound familiar to you? Then it’s time you make an online appointment with us today and speak to the legal expert for the necessary expert legal advice you require. Feel free to call our law offices on 021 424 3487 for an online appointment.How does the Domestic Violence Act protect citizens?
The Domestic Violence Act 116 or 1198, was introduced to afford woman the right to protect themselves by which they can enforce their rights legally if they fear for their life – the Act highlights that domestic violence as a serious offense. Victims of domestic violence, woman and children that is, can now stand up for themselves by virtue of a protection order or restraining order. Arrange for an online appointment for a professional legal consultation today and have the legal expert explain to you in context how your legal rights can be executed. Connect with us today!Defending Protection Order in South Africa
First of all, a Protection Order or harassment order serves as a direct order from court which should be adhered to. Any violation of a court’s instruction can be legally detrimental. The court order granted, will only be suitable to the person suffering any form of violence or harassment. A Protection Order is mainly applicable in cases of domestic violence in which the perpetrator lives with the victim. In a case of harassment, the perpetrator is not living with the victim. This is where a harassment order comes in. Do you fear for your life? Make an online appointment with us today and have your legal right asserted!
Domestic violence cases in South Africa As a legal consultancy, we deal with domestic violence cases on a regular basis. Most of the situations are unique and comes with its own set of dynamics in which the legal expert will have to make the appropriate legal call. It is safe Continue Reading
Dear Advocate Abduroaf. My child custody case is very complicated. How do I find the best child custody lawyer, attorney or advocate for my case in Pietermaritzburg?
A great child custody lawyer (attorney or advocate) is a legal practitioner who specializes in family law and has expertise in handling cases related to child custody and visitation rights. Family law matters can be very emotionally challenging for both parents. The same applies to the child concerned. Whether you live in Cape Town or in Pietermaritzburg, the law applicable would be the same throughout South Africa.Here are some qualities and characteristics that can define a great child custody lawyer, or the best one for your case:
Experience and Expertise:
- Specialization in family law, particularly child custody cases.
- Proven track record of successfully handling similar cases.
Knowledge of Family Law:
- In-depth understanding of family law.
- Awareness of recent legal developments and changes in family law.
Communication Skills:
- Effective communication skills to clearly articulate your case in court.
- Ability to negotiate and mediate to reach favourable settlements.
Compassion and Empathy:
- Understanding and empathy towards the emotional challenges involved in child custody disputes.
- Ability to provide emotional support to clients during a difficult time.
Strategic Thinking:
- Ability to devise a strategic legal approach tailored to the unique aspects of your case.
- Forethought and anticipation of potential challenges.
Availability and Responsiveness:
- Prompt responses to client inquiries and concerns.
- Availability for meetings, court appearances, and consultations.
Client Reviews and References:
- Positive reviews from previous clients.
- Recommendations from colleagues or other legal professionals.
Ethical Conduct:
- Adherence to professional and ethical standards.
- Transparent and fair billing practices.
Courtroom Experience:
- Comfort and confidence in a courtroom setting.
- Skillful presentation of arguments and evidence.
Resourcefulness:
- Resourcefulness in finding legal precedents and utilizing available resources to strengthen the case.
Problem-Solving Skills:
- Creative problem-solving skills to navigate complex family dynamics and legal issues.
Custody and Visitation Knowledge:
- In-depth knowledge of various custody arrangements and visitation schedules.
- Ability to advocate for the best interests of the child.
What should you consider when meeting with a family law attorney or advocate?
When looking for a great child custody lawyer, it’s essential to schedule consultations, discuss your case, and assess whether the lawyer, attorney, or advocate possesses the qualities and skills that align with your needs and goals. Additionally, consider seeking recommendations from trusted friends, family members, or other legal professionals. Finding the best child custody lawyer involves thorough research, careful consideration of your specific needs, and evaluation of the lawyer’s qualifications. Here are some steps you can take to find the right child custody lawyer for your situation:Define Your Goals and Needs:
- Clearly identify your goals and priorities in the child custody case.
- Determine the specific services you need from a lawyer, such as legal representation, mediation, or collaborative law.
Research Local Family Law Attorneys:
- Use online legal directories and referral services to identify family law attorneys or Trust Account Advocate in your area.
- Seek recommendations from friends, family, or colleagues who have gone through similar situations.
Check Credentials and Specialization:
- Look for lawyers who specialize in family law and, more specifically, child custody cases.
- Check their credentials, education, and any certifications related to family law.
Read Reviews and Testimonials:
- Read online reviews on legal review websites, social media, or the lawyer’s own website.
- Consider testimonials from previous clients to gauge the lawyer’s reputation and success rate.
Consult with Multiple Lawyers:
- Schedule consultations with several child custody lawyers to discuss your case.
- Prepare a list of questions to ask during the consultation, covering topics such as experience, approach to cases, and expected outcomes.
Evaluate Communication Skills:
- Assess the lawyer’s communication style and whether you feel comfortable discussing your case with them.
- Ensure that the lawyer listens actively and provides clear explanations of legal processes.
Consider Experience:
- Inquire about the lawyer’s experience in handling child custody cases similar to yours.
- Ask about their success rate and outcomes in past cases.
Review Legal Fees:
- Discuss the lawyer’s fee structure during the consultation.
- Clarify billing practices, retainer fees, and any additional costs associated with your case.
Check Disciplinary Records:
- Verify the lawyer’s standing with the Legal Practice Council of South Africa.
- Check for any disciplinary actions or complaints against the lawyer.
Seek Second Opinions:
- If you have initial concerns or uncertainties, consider seeking a second opinion from another attorney or advocate.
- Compare advice and recommendations from multiple sources.
Trust Your Instincts:
- Pay attention to your instincts and gut feelings about the lawyer.
- Choose a lawyer you feel comfortable working with and who understands your unique situation.
Negotiation and Mediation Skills:
Assess the lawyer’s ability to negotiate and mediate, especially if you prefer an amicable resolution.- Remember that finding the best child custody lawyer is a personalized process, and the right fit for one person may not be the best for another. Take the time to thoroughly research and evaluate potential lawyers to make an informed decision based on your specific needs and circumstances.
We service clients in all cities: Cape Town Rustenburg Kimberley East London Nelspruit Polokwane Pietermaritzburg Bloemfontein Port Elizabeth Pretoria Durban Johannesburg
Dear Advocate Abduroaf. My child custody case is very complicated. How do I find the best child custody lawyer, attorney or advocate for my case in Pietermaritzburg? A great child custody lawyer (attorney or advocate) is a legal practitioner who specializes in family law and has expertise in handling cases Continue Reading