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, Continue Reading
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What are the legal implications of a step-parent adopting a child in South Africa? Is it possible and what are the rights of the biological parents?
It often happens that a couple marries and there are step-children involved. A spouse would therefore have a child from a previous relationship. The previous relationship could either have been a marriage or just a romantic experience. Sometimes, the step-parent would want to adopt the child, affording him or her legal rights and responsibilities over the child. This is the case, even if the other parent is still alive and in the picture. It may happen that a parent is not much involved in a child’s life and would not mind that the other parent who cares for the child have his or her spouse adopt the child. By doing so, the child would have the step-parent’s surname. The responsibility towards the child would now also fall on the step-parent. Whatever the reason, this article deals with the legal aspects. As you would see further below, an adoption order has the following effect: (a) confers full parental responsibilities and rights in respect of the adopted child upon the adoptive parent; (b) confers the surname of the adoptive parent on the adopted child, except when otherwise provided in the order; (c) does not permit any marriage or sexual intercourse between the child and any other person which would have been prohibited had the child not been adopted; and (d) does not affect any rights to property the child acquired before the adoption. (3) An adopted child must for all purposes be regarded as the child of the adoptive parent and an adoptive parent must for all purposes be regarded as the parent of the adopted child. The law dealing with adoptions is the Children’s Act 38 of 2005 (the Act). Chapter 15 of the Act which deals with it is quite extensive. It starts at section 228 and ends at section 253. We will first deal with the issue as which child may be adopted. For a full view of the Act and the relevant sections, click here. Child who may be adopted 230.(1) Any child may be adopted if- (a) the adoption is in the best interests of the child; (b) the child is adoptable; and (c) the provisions of this Chapter are complied with. (2) An adoption social worker must make an assessment to determine whether a child (3) A child is adoptable if – (a) the child is an orphan and has no guardian or caregiver who is willing to adopt the child; (b) the whereabouts of the child’s parent or guardian cannot be established; (c) the child has been abandoned; (d) the child’s parent or guardian has abused or deliberately neglected the child, or has allowed the child to be abused or deliberately neglected; or (e) the child is in need of a permanent alternative placement. Next, we deal with who may adopt a child. Persons who may adopt child 231.(1) A child may be adopted- (a) jointly by- (i) a husband and wife; (ii) partners in a permanent domestic life-partnership; or (iii) other persons sharing a common household and forming a permanent family unit; (b) by a widower, widow, divorced or unmarried person; (c) by a married person whose spouse is the parent of the child or by a person whose permanent domestic life-partner is the parent of the child; (4 by the biological father of a child born out of wedlock; or (e) by the foster parent of the child. Lastly, should all go well, the court would make an adoption order. The next section of the Act deals with the effect of the adoption order. Effect of adoption order 242.(1) Except when provided otherwise in the order or in a post-adoption agreement confirmed by the court an adoption order terminates – (a) all parental responsibilities and rights any person, including a parent, step-parent or partner in a domestic life partnership, had in respect of the child immediately before the adoption; (b) all claims to contact with the child by any family member of a person referred to in paragraph (a); (c) all rights and responsibilities the child had in respect of a person referred to in paragraph (a) or (b) immediately before the adoption; and (d) any previous order made in respect of the placement of the child. (2) An adoption order – (a) confers full parental responsibilities and rights in respect of the adopted child upon the adoptive parent; (b) confers the surname of the adoptive parent on the adopted child, except when otherwise provided in the order; (c) does not permit any marriage or sexual intercourse between the child and any other person which would have been prohibited had the child not been adopted; and (d) does not affect any rights to property the child acquired before the adoption. (3) An adopted child must for all purposes be regarded as the child of the adoptive parent and an adoptive parent must for all purposes be regarded as the parent of the adopted child.What are the rights of step-parents and his or her spouse after the step-parent adopted the child?
Once a child has been adopted by a step-parent, the court can order that both the step-parent and spouse (other biological parent) are the holders of parental responsibilities and rights. This issue was dealt with in the case of Centre for Child Law v Minister of Social Development (21122/13) [2013] ZAGPPHC 305; 2014 (1) SA 468 (GNP) (30 October 2013). The court stated the following: [14] The advice allegedly given by officials of the Children’s Court to prospective applicants for adoption that, in terms of s. 242 of the Act, the granting of an application for adoption by a step-parent will automatically terminate all rights and responsibilities of the parent in respect of the child, ignores the exception provided for in the preamble of s. 242. In terms thereof, an adoption order terminates those rights “except when provided otherwise in the order…………… The Children’s Court therefore has a discretion to order that the rights and responsibilities of a child’s parent or guardian will not terminate upon the grant of an adoption order in favour of the step-parent. It will, save in exceptional circumstances, clearly be in the best interests of the child that such an order be made. The Children’s Court is obliged to function in a manner which in each case promotes the best interests of the child and should, except where there are sound reasons not to do so, make an order that the granting of an adoption order in favour of a step-parent will not terminate the responsibilities and rights of the child’s parent or other guardian. In this case, the court made the following order: [17] In the result, I grant the following order: 1.It is declared that section 230(3) of the Children’s Act, 38 of 2005, does not preclude a child from being adoptable in instances where the child has a guardian and the person seeking to adopt the child is the spouse or permanent domestic life-partner of that guardian. 2.It is declared that section 242 of the Children’s Act, 38 of 2005, does not automatically terminate all the parental responsibilities and rights of the guardian of a child when an adoption order is granted in favour of the spouse or permanent domestic life-partner of that guardian, having regard to the discretion which section 242 affords the court to order otherwise. 3… What are the rights of the step-parent and the biological parent’s post-adoption?
Once the step-parent adopts the child, he or she has full parental responsibilities and rights as outlined above., The court can also order that you retain your parental responsibilities and rights over your child. At the same time, unless there is a post-adoption agreement stating otherwise, the other parent loses all his or her rights over the child.
What are the legal implications of a step-parent adopting a child in South Africa? Is it possible and what are the rights of the biological parents? It often happens that a couple marries and there are step-children involved. A spouse would therefore have a child from a previous relationship. The Continue Reading
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Zoom Link for Live Q&A Registration Form Kindly complete the online form above. After submitting the form, it will take you to the page with the Zoom login details. Do not close the page until you have logged onto Zoom as the Zoom details wont be emailed to you. Only Continue Reading
Top tips and tricks from a Senior Family Law Advocate on claiming maintenance for a five-year-old child in Worcester.
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 Worcester
Whether you claim child maintenance in Worcester, 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 Worcester.
The maintenance scenario – Worcester 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 Worcester
- The child is cared for by the mother who works in Worcester
- 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 Worcester
- 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 Worcester, it would be the maintenance court in Worcester. 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 Worcester, 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 Worcester Maintenance Court?
Once you have been notified of the maintenance court date by the Worcester 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 Worcester?
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 Worcester 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 Worcester 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, Worcester, 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 Worcester. 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
Best advice on finding a top divorce lawyer for your divorce case in Constantia – Cape Town
Do you live in Constantia, and are you considering divorcing your spouse? Or have you been threatened with divorce? Either way, a divorce is a legal matter, and it is best to find sound legal advice or assistance. Furthermore, divorcing someone has potential severe legal consequences you may not know of. The first consequence, of course, is that you are no longer married to your former spouse, and there is no legal obligation to maintain each other (unless you qualify for alimony). You may also not inherit from your former spouse’s intestate. Lastly, and obviously, you are free to marry someone else. However, do you know of the proprietary (property) consequences of getting a divorce? What about the assets and debt you and your spouse incurred in Constantia or elsewhere during your marriage? Do you know what should happen to it? If not, it is best you find out about these critical aspects and others before getting divorced. Then there is the issue of parental responsibilities and rights after the divorce should there be minor children involved. This article aims to provide guidance on finding the best attorney or advocate for your divorce matter that can adequately and properly advise you or handle your divorce. The advice would apply whether you live in Constantia or anywhere else in South Africa. The issues we shall deal with are the following.- Gender of the Advocate or attorney;
- Location of the Advocate or attorney;
- Experience of the Advocate or attorney;
- Costs of the Advocate or Attorney; and
- The personality of the Advocate or Attorney.
What is the best gender of the Advocate or Attorney I need to use for my divorce? Is a male or female better?
Generally, the gender of your Advocate or Attorney should not play a role at all in a legal matter. However, depending on your background and the issues involved in your divorce, you may prefer a specific gender where you may feel more comfortable. A female who has been emotionally, physically and psychologically abused may be more comfortable with a female Attorney or Advocate. However, the same female client may prefer a male Advocate or Attorney. No more will be said on this issue.What is the ideal office location of the Advocate or attorney? Does it have to be in Constantia?
The location or office of your attorney or Advocate is essential if you wish to consult with them in person. It is also ideal, but not necessary, for their offices to be close to the Court where the divorce would be handled. However, many lawyers make use of correspondent lawyers for this purpose. Furthermore, location should not be an issue if you want a specific lawyer to handle your case. This is so especially seeing that people are making use of virtual meetings.What level of experience should the Advocate or attorney have?
It is important to remember that not all legal matters require the best lawyer. If your divorce is straightforward, finding the best lawyer in the field is unnecessary. The best may be very busy and lack the time to give your case the attention it deserves. However, if your matter is complicated, then in that case, the most experienced and best lawyer out there is not warranted.What about the Costs of an Attorney or Advocate?
For many, the costs of the Attorney or Advocate are the most crucial consideration when it comes to enlisting their services. Usually, the more experienced the Attorney or Advocate, the more they would charge. Another aspect that affects costs is the nature of the expertise of the Advocate or Attorney. If the issues in your matter are highly technical and complicated, an Advocate or Attorney with expertise and experience may charge more.What about the personality of the Advocate or Attorney?
Many may discard the Advocate or Attorney’s personality as not important. However, it is essential to note that it may be time to change lawyers if you do not get along well with the Advocate or Attorney because of their personality. A lawyer and their client would develop a professional relationship in family law matters. This is especially so when the lawyer must discuss many personal issues regarding you, your marriage, children, finance, spouse etc. If you cannot get along well with your Attorney or Advocate, you may not divulge important information relevant to your case.What is our best advice to a client looking for an Advocate or Attorney in a divorce matter?
Considering all the factors mentioned above, before enlisting the services of an Advocate or Attorney, ensure you enlist the right one. Do not look for the most experience or best, or the top one in family law. You may have to change lawyers if you do so and cannot afford legal bills. Therefore consider the above and any other factors that you may consider necessary when deciding on enlisting the services of an Advocate or an Attorney. Best of luck.
Best advice on finding a top divorce lawyer for your divorce case in Constantia – Cape Town Do you live in Constantia, and are you considering divorcing your spouse? Or have you been threatened with divorce? Either way, a divorce is a legal matter, and it is best to find Continue Reading
Family Law Service – Advocate Muhammad Abduroaf – Finding the best lawyer for you.
Choosing the right law firm (Attorney or Advocate) can be a daunting task in the intricate landscape of legal matters. Whether you’re facing a complex litigation case, navigating corporate law, or seeking legal assistance for personal issues, the decision of which law firm to engage is crucial. At the firm Advocate Muhammad Abduroaf, we understand the significance of this decision, and we aim to demonstrate why choosing our firm can make all the difference.Expertise and Specialisation
One of the primary reasons for choosing our law firm is our expertise and specialisation in diverse legal areas. As you can see from this website, advocate Muhammad Abduroaf practices in various fields of law. This breadth of expertise ensures that no matter the nature of your legal issue, you will have access to knowledgeable and experienced professionals who can provide tailored solutions.Personalised Approach
We recognise that every client and every case is unique. That’s why we prioritise a personalised approach to legal representation. From the moment you engage our services, we take the time to understand your specific needs, concerns, and objectives. This allows us to develop strategies and solutions customised to your circumstances, ensuring the best possible outcome for your case.Commitment to Excellence
At Advocate Muhammad Abduroaf, excellence is not just a goal – it’s our standard. We are committed to providing our clients with the highest quality legal services, characterized by thorough research, meticulous attention to detail, and strategic thinking. Our track record of success speaks for itself, with numerous satisfied clients who have benefited from our dedication to excellence.Responsive and Accessible
Legal matters can be stressful and overwhelming, so we prioritise responsiveness and accessibility. Our team is readily available to address your questions, concerns, and needs throughout your case. Whether you prefer to communicate via phone, WhatsApp, email, or in-person meetings, we are here to provide you with the support and guidance you need when you need it.Cost-Effective Solutions
Legal representation shouldn’t break the bank. That’s why we are committed to providing cost-effective solutions that deliver value for our clients. We offer transparent billing practices and strive to minimise unnecessary expenses wherever possible, ensuring you receive top-notch legal services without the hefty price tag.Ethical and Professional Conduct
Integrity and ethics are at the core of everything we do. Our team adheres to the highest standards of professional conduct, ensuring your case is handled with the utmost integrity, honesty, and discretion. You can trust that your legal matters will be handled with care and respect, and your confidentiality will always be protected. In conclusion, choosing the right law firm can significantly impact the outcome of your legal matters. At Advocate Muhammad Abduroaf, we offer expertise, specialisation, personalised service, commitment to excellence, responsiveness, cost-effective solutions, and ethical conduct. These qualities set us apart and make us the ideal choice for clients seeking top-notch legal representation. Contact us today to learn how we can assist you with your legal needs. If you require an Advocate Law Firm to assist you in your legal matter, feel free to contact us using the following details:- Tel.: 021 111 0090
- Email.: [email protected]
We service clients throughout South Africa. These include: Cape Town Rustenburg Kimberley East London Nelspruit Polokwane Pietermaritzburg Bloemfontein Port Elizabeth Pretoria Durban Johannesburg
- Tel.: 021 111 0090
- Email.: [email protected]
Family Law Service – Advocate Muhammad Abduroaf – Finding the best lawyer for you. Choosing the right law firm (Attorney or Advocate) can be a daunting task in the intricate landscape of legal matters. Whether you’re facing a complex litigation case, navigating corporate law, or seeking legal assistance for personal Continue Reading
Changing your matrimonial property regime from in community of property to out of community of property
Are you married? Do you know what is your matrimonial property regime?
To register your Antenuptial Contact, Click here. Are you married in Community of Property? Do you want to change your matrimonial property regime to Out of Community of Property? Did you not know that a marriage Out of Community of Property was possible when getting married? There is legal relief for you and your spouse.In Community of Property
All civil marriages are automatically In Community of Property. This means that there is one estate shared between wife and husband. Therefore, if anyone of the spouses incurs a debt, that debt belongs to both of them.Out of Community of Property
The other option is to get married Out of Community of Property. This means that there are two separate estates and each party is responsible for his or her own debt. For some people, this would be a better option, especially if you are a business person.Accrual system
The usual process to be married Out of Community of Property is to enter into an antenuptial contract before the marriage. The contract will have clauses in it stating:- That there shall be no community of property;
- That there shall be no community of profit or loss; and
- That the accrual system provided for in Chapter 1 of the Matrimonial Property Act, no 88 of 1984 is expressly excluded from the marriage.
However, if you did not do so, there is a way of changing your matrimonial property regime from In Community of Property to Out of Community of Property. For this, you need the consent of the High Court in your Jurisdiction. Here you will make use of section 21 of the Matrimonial Property Act 88 of 1984.Getting the High Court’s Consent to change your matrimonial property regime to Out of Community of Property
Once you and your spouse have decided to change your matrimonial property regime to Out of Community of Property, you would need to approach the High Court in your area for consent. If you know the law, legal process, Court rules, and procedure, you and your spouse can do it on your own. If you cannot do it on your own, an attorney would be able to do it for you. This the attorney may attend to with or without the assistance of an Advocate.Drafting a post-nuptial contract
What they do is draft a post-nuptial contract for you which would outline what matrimonial property regime you want and also how the joint estate should be divided.Application to the High Court for consent to change your matrimonial property regime to Out of Community of Property
Then they draft a Notice of Motion (notifying the Court what you want) and Founding Affidavit (your affidavit outlining your case etc.). Your case must satisfy the Court that:- There are sound reasons for the proposed change of the matrimonial property regime;
- There has been sufficient notice to creditors regarding the proposed change; and
- No other person will be prejudiced by the proposed change.
If, however, you cannot make a case for the above, your application may be unsuccessful. Costs involved in changing your matrimonial property regime
As stated, you have to approach the High Court for consent to change your matrimonial property regime. There, therefore, would be the costs of an attorney who may instruct and advocate, and further costs in drafting and registration of the postnuptial contract. Furthermore, there is advertisement cost involved as you would have to give notice in the Government Gazette and in one or two local newspapers. You would further have to serve your application on the Registrar of Deeds and give notice to your creditors via registered mail. The total costs can range from R 25 000 – 00 should your matter be straight forward, to R 30 000 – 00 should it be more complicated.Complicated applications to change your matrimonial property regime to Out of Community of Property
Complicated would mean the joint estate has many creditors. Furthermore, there may be many assets in the joint estate that needs to be divided, especially if they are not easily describable. The above-mentioned fee is obviously dependent on your application not being opposed by any interested party. One reason for opposing the application could be that the Joint Estate is deeply indebted to a creditor, and she feels that her claim would be prejudiced by the proposed change. Should your application be opposed for any reason, many more hours will be spent fighting for the success of your application which could costs you a small fortune and you may even be ultimately unsuccessful. Therefore, you would need to advise your legal team of all relevant facts before the application is made.Time estimates to change your matrimonial property regime to Out of Community of Property
The estimated time in preparing your application, your post-nuptial contract and ultimately obtaining consent from the High Court is about 4 weeks. This is also dependent on whether or not the High Court is sitting within 4 weeks after the drafting of your application. If the High Court is in recess, a few extra weeks may apply. The Court may also want a report from the Registrar of Deeds which could cause delays. Registering the postnuptial contract
Once your application is successful and the High Court, therefore, gave consent, you will usually have 3 (three) months to register the postnuptial contract. So once consent is granted, you need to see a Notary Public before whom you will sign your post-nuptial contract and then have it registered. This, therefore, needs to be done within the three months of obtaining the consent of the High Court.Sharing is Caring
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
Changing your matrimonial property regime from in community of property to out of community of property Are you married? Do you know what is your matrimonial property regime? To register your Antenuptial Contact, Click here. Are you married in Community of Property? Do you want to change your matrimonial property Continue Reading
Family Law Service – Advocate Muhammad Abduroaf – Finding the best lawyer for you.
Choosing the right law firm (Attorney or Advocate) can be a daunting task in the intricate landscape of legal matters. Whether you’re facing a complex litigation case, navigating corporate law, or seeking legal assistance for personal issues, the decision of which law firm to engage is crucial. At the firm Advocate Muhammad Abduroaf, we understand the significance of this decision, and we aim to demonstrate why choosing our firm can make all the difference.Expertise and Specialisation
One of the primary reasons for choosing our law firm is our expertise and specialisation in diverse legal areas. As you can see from this website, advocate Muhammad Abduroaf practices in various fields of law. This breadth of expertise ensures that no matter the nature of your legal issue, you will have access to knowledgeable and experienced professionals who can provide tailored solutions.Personalised Approach
We recognise that every client and every case is unique. That’s why we prioritise a personalised approach to legal representation. From the moment you engage our services, we take the time to understand your specific needs, concerns, and objectives. This allows us to develop strategies and solutions customised to your circumstances, ensuring the best possible outcome for your case.Commitment to Excellence
At Advocate Muhammad Abduroaf, excellence is not just a goal – it’s our standard. We are committed to providing our clients with the highest quality legal services, characterized by thorough research, meticulous attention to detail, and strategic thinking. Our track record of success speaks for itself, with numerous satisfied clients who have benefited from our dedication to excellence.Responsive and Accessible
Legal matters can be stressful and overwhelming, so we prioritise responsiveness and accessibility. Our team is readily available to address your questions, concerns, and needs throughout your case. Whether you prefer to communicate via phone, WhatsApp, email, or in-person meetings, we are here to provide you with the support and guidance you need when you need it.Cost-Effective Solutions
Legal representation shouldn’t break the bank. That’s why we are committed to providing cost-effective solutions that deliver value for our clients. We offer transparent billing practices and strive to minimise unnecessary expenses wherever possible, ensuring you receive top-notch legal services without the hefty price tag.Ethical and Professional Conduct
Integrity and ethics are at the core of everything we do. Our team adheres to the highest standards of professional conduct, ensuring your case is handled with the utmost integrity, honesty, and discretion. You can trust that your legal matters will be handled with care and respect, and your confidentiality will always be protected. In conclusion, choosing the right law firm can significantly impact the outcome of your legal matters. At Advocate Muhammad Abduroaf, we offer expertise, specialisation, personalised service, commitment to excellence, responsiveness, cost-effective solutions, and ethical conduct. These qualities set us apart and make us the ideal choice for clients seeking top-notch legal representation. Contact us today to learn how we can assist you with your legal needs. If you require an Advocate Law Firm to assist you in your legal matter, feel free to contact us using the following details:- Tel.: 021 111 0090
- Email.: [email protected]
We service clients throughout South Africa. These include: Cape Town Rustenburg Kimberley East London Nelspruit Polokwane Pietermaritzburg Bloemfontein Port Elizabeth Pretoria Durban Johannesburg
- Tel.: 021 111 0090
- Email.: [email protected]
Family Law Service – Advocate Muhammad Abduroaf – Finding the best lawyer for you. Choosing the right law firm (Attorney or Advocate) can be a daunting task in the intricate landscape of legal matters. Whether you’re facing a complex litigation case, navigating corporate law, or seeking legal assistance for personal Continue Reading
Parenting Plans and the Law – Draft and Register you Plan
Sections 33 and 34 of the Children’s Act 38 of 2005 (the Act) came into operation on 1 April 2010. These sections make provision for “parenting plans”. Like many parents, legal practitioners, social workers, psychologists, social services professional and other suitably qualified persons would be faced with the task of acting in accordance with sections 33 and 34 of the Act; this guide attempts to facilitate a quick understanding.What is a parenting plan?
The Act does not provide a definition of a parenting plan. However, looking at the provisions of the Act and its Regulations dealing with parenting plans, one could define it as a written agreement between co-holders of parental responsibilities and rights outlining in detail their respective responsibilities and rights of care, contact, guardianship and maintenance with regard to a child. Below I shall outline the relevant provisions of the Act and its Regulations dealing with parenting plans and how they should be applied in practice.Who should agree on a parenting plan?
Not all holders of parental responsibilities and rights need to agree on a parenting plan and have it registered with a Family Advocate or made an Order of the High Court. Parenting Plans should be entered into only if there is a need for it. However, the choice is always there for the parties should they wish to formalise one. Section 33 of the Act provides for two (2) situations in which a parenting plan comes into play. This I shall refer to as the optional situation and the mandatory situation.Optional situation – section 33(1)
Section 33(1) of the Act states the following:
| “(1) The co-holders of parental responsibilities and rights in respect of a child may agree on a parenting plan determining the exercise of their respective responsibilities and rights in respect of the child.” |
Mandatory situation – section 33(2)
The other situation where a parenting plan comes into play is where the parties are experiencing difficulties in exercising their responsibilities and rights. In this case, the Act prescribes to them to first try to agree on a parenting plan before going to Court. Section 33(2) states:| “If the co-holders of parental responsibilities and rights in respect of a child are experiencing difficulties in exercising their responsibilities and rights, those persons, before seeking the intervention of a court, must first seek to agree on a parenting plan determining the exercise of their respective responsibilities and rights in respect of the child.” |
What must the parenting plan deal with according to the Act?
The contents of both optional and mandatory parenting plans can vary, however, according to section 33(3) of the Act:| “A parenting plan may determine any matter in connection with parental responsibilities and rights, including- (a) where and with whom the child is to live; (b) the maintenance of the child; (c) contact between the child and- (i) any of the parties; and (ii) any other person; and (d) the schooling and religious upbringing of the child.” |
| (1) Bearing in mind the child’s age, maturity and stage of development, such child must be consulted during the development of a parenting plan, and granted an opportunity to express his or her views, which must be accorded due consideration. (2) When a parenting plan has been agreed the child must, bearing in mind the child’s age, maturity and stage of development, be informed of the contents of the parenting plan by the family advocate, a social worker, social service professional, psychologist, suitably qualified person or the child’s legal representative. |
| “(1) A parenting plan- (a) must be in writing and signed by the parties to the agreement; and (b) subject to subsection (2), may be registered with a family advocate or made an order of court. (2) An application by co-holders contemplated in section 33 (1) for the registration of the parenting plan or for it to be made an order of court must- (a) be in the prescribed format and contain the prescribed particulars; and (b) be accompanied by a copy of the plan. (3) An application by co-holders contemplated in section 33 (2) for the registration of a parenting plan or for it to be made an order of court must- (a) be in the prescribed format and contain the prescribed particulars; and (b) be accompanied by- (i) a copy of the plan; and (ii) a statement by- (aa) a family advocate, social worker or psychologist contemplated in section 33 (5) (a) to the effect that the plan was prepared after consultation with such a family advocate, social worker or psychologist; or (bb) a social worker or other appropriate person contemplated in section 33 (5) (b) to the effect that the plan was prepared after mediation by such social worker or such person. (4) A parenting plan registered with a family advocate may be amended or terminated by the family advocate on application by the co-holders of parental responsibilities and rights who are parties to the plan. (5) A parenting plan that was made an order of court may be amended or terminated only by an order of court on application- (a) by the co-holders of parental responsibilities and rights who are parties to the plan; (b) by the child, acting with leave of the court; or (c) in the child’s interest, by any other person acting with leave of the court.” |
| “A parenting plan must comply with the best interests of the child standard as set out in section 7”. |
Optional parenting Plan – sec 33(1)
With regard to an optional parenting plan (sec. 33(1)), the parties may attend to preparing the parenting plan without the assistance of the Family Advocate, Social Worker or psychologist but they need to make sure it complies with this Act. It is however suggested that they approach a legal practitioner to assist them in this regard. As outlined later, once the parenting plan has been agreed upon and signed, it needs to be attached to Form 8. With regard to mandatory parenting plans, other parties get involved to either assist in preparing the parenting plan or for mediation.Mandatory parenting plan – section 33(2)
According to section 33 (5) of the Act:| “In preparing a parenting plan as contemplated in subsection (2) the parties must seek- (a) the assistance of a family advocate, social worker or psychologist; or (b) mediation through a social worker or other suitably qualified person.” |
| (1) An application for the registration of a parenting plan at the office of the family advocate or for it to be made an order of court must be completed in writing in a form identical to Form 8 and must- (a) be signed by the parties to the parenting plan or, if a person whose signature is required is incapable of furnishing a signature, a thumbprint of that person must be effected and duly attested by a commissioner of oaths; (b) contain the titles, full names, dates of birth, identity numbers or passport numbers (as the case may be), residential, work addresses, and contact details of all co-holders of parental responsibilities and rights named in the parenting plan; and (c) contain the full names, dates of birth, identity numbers or passport numbers (as the case may be), residential addresses and contact details of any child or children named in the parenting plan. (2) Where parental responsibilities and rights are to be exercised in the same manner by the holders of those responsibilities and rights with respect to more than one child in the same family, the application for registration of the parenting plan must be completed for each child. (3) The applicant or applicants for the registration of a parenting plan must file copies of such plan with the family advocate, children’s court or High Court, as the case may be, to enable each co-holder to retain a copy of the registered parenting plan. |
| (1) The co-holders of parental responsibilities and rights as contemplated in section 30 and who are experiencing difficulty in exercising their responsibilities and rights as envisaged in section 33(2) of the Act must seek to agree on a parenting plan on matters referred to in section 33(3) of the Act. (2) The parenting plan contemplated in sub-regulation (1) must be prepared: (a) with the assistance of a family advocate, social worker or psychologist as contemplated in section 33(5)(a) of the Act, and must be completed in writing in a form identical to Form 9; or (b) after mediation by a social worker or other suitably qualified person as contemplated in section 33(5)(b) of the Act, and must be completed in writing in a form identical to Form 10. |
| “Section 29 applies to an application in terms of subsection (2).” |
| The court may for the purposes of the hearing order that – a report and recommendations of the family advocate, a social worker or other suitably qualified person must be submitted to the court; a matter specified by the court must be investigated by a person designated by the court; a person specified by the court must appear before it to give or produce evidence; or the applicant or any party opposing the application must pay the costs of any such investigation or appearance. |
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Parenting Plans and the Law – Draft and Register you Plan Sections 33 and 34 of the Children’s Act 38 of 2005 (the Act) came into operation on 1 April 2010. These sections make provision for “parenting plans”. Like many parents, legal practitioners, social workers, psychologists, social services professional and Continue Reading
Relocation with my minor child to China, Guangzhou (Consent and Refusal) – Advocate Muhammad Abduroaf
The world is becoming a much smaller place, and technology plays a huge role. People are moving across the world for employment, love and happiness, something that was not the norm a few decades ago. There is no reason why you should remain in South Africa if you can find a better life for yourself and your family overseas. Moving overseas may provide you with the quality of life you want or the possibility of experiencing things you always wanted. The same applies to your child or children relocating with you. Relocation of your minor child to Guangzhou, China
If you are single and do not have any minor children, then moving around the world would not be too complicated. All you need to do is ensure that you have the necessary travel documentation and travel ticket (and spending money), and off you go. However, if you want to travel with your minor children (for example, ages one or two) or relocate to another country, things may not be that simple. Firstly, if there is another parent, and he or she has parental responsibilities and rights, then his or her consent is required. For example, let us say you live in Randburg or Lebowakgomo, South Africa, and you want to relocate to Guangzhou, China, you would require the other parent’s consent to leave South Africa with your minor child. This can cause challenges, especially if the staying parent (in South Africa) does not agree to the relocation. What about Passport Consent to travel or relocate to Guangzhou, China?
The same applies when it comes to your minor child applying for a South African passport to relocate to China, or any country. Both parents who have parental responsibilities and rights of guardianship will have to consent to the minor child’s passport application as well. In this regard, both parents have to be at the Department of Home Affairs (or the relevant bank that also assists with passport application) when making the Application with the minor child. This can be challenging if you have a disinterested parent who does not want to cooperate with the passport application. As you will see later, legal action would need to be taken. What are the steps to follow when I want to relocate to Guangzhou, China with my minor child? There is another parent.
To simplify the process for relocation, the first step would be to receive the other parent’s consent in principle for the relocation and that he or she will co-operate in this regard. Once that has been resolved, the parent relocating would need to make the appointment for the minor child’s passport application as well as the application for the relevant VISA. Each country has different requirements; however, seeing that it is a relocation, you need to apply for the correct VISA. For that, you need the Passport.
Once the visa and travel arrangements have been finalised, the parent remaining behind will sign a parental consent letter for the international travel. That letter can be found on the Department of Home Affairs website. Basically, the parent remaining behind would state that he or she gives consent for the minor child to leave the Republic of South Africa and travel and/or relocate to Guangzhou, China. What can I do if the other parent does not want to consent to the minor child’s relocation to Guangzhou, China?
If the parent remaining in South Africa does not want to consent to the minor child’s passport application and/or his or her relocation to Guangzhou, China, then you would need to approach the Court. The Court, as upper guardian of the minor child, may order that the parent’s consent for the passport application and relocation be dispensed with. What this entails is submitting Court documents explaining why you want to relocate to Guangzhou, China. The other parent would also have an opportunity to give reasons why he or she objects.
At the end of the process, the Court would determine what is in the minor child’s best interests. If it is in the minor child’s best interests to relocate to Guangzhou, China, the Court would make it possible despite the issue of consent or refusal. What is the first step I should take if the other parent does not want to consent to the minor child’s passport application and/or relocation to Guangzhou, China?
If the other parent does not want to consent to the passport application and/or the relocation of the minor child to Guangzhou, China – in that case, we suggest you approach an attorney or advocate (trust account) to assist you with the legal process. He or she would then contact the other parent explaining the reasons for the relocation and request the necessary consent. If the parent remaining in South Africa does still not agree to the passport application and/or to the relocation to Guangzhou, China, then the attorney or advocate will proceed to take the matter to court. The legal route can be expensive. However, it is necessary to make the relocation of the minor child possible. You may also attend to the legal process yourself. Getting legal assistance or help with your relocation application to Guangzhou, China
If you require legal assistance or representation with relocating to Guangzhou, China due to the other parent not cooperating or providing consent, then feel free to contact us for assistance. The Firm Advocate, Muhammad Abduroaf, deals with these types of matters.
Relocation with my minor child to China, Guangzhou (Consent and Refusal) – Advocate Muhammad Abduroaf The world is becoming a much smaller place, and technology plays a huge role. People are moving across the world for employment, love and happiness, something that was not the norm a few decades ago. Continue Reading