Call us on: 0211110090
Call us on: 0211110090
Call us on: 0211110090
Call us on: 0211110090
Call our offices on: 0211110090
Call our offices on: 0211110090Divorce Court Cape Town Divorce is an emotional, whip-lashing experience for every family. Each divorce is governed by its own set of rules and values. Many times, the manner in which a divorce is settled is influenced by tradition and religion. Having said that, a Hindu couple for instance, may Continue Reading
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17 Relocation with my minor child to Italy, Rome (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 Rome, Italy 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 Carletonville or Pietermaritzburg, South Africa, and you want to relocate to Rome, Italy, 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 Rome, Italy? The same applies when it comes to your minor child applying for a South African passport to relocate to Italy, 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 Rome, Italy with my minor child? There is there 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 Rome, Italy. What can I do if the other parent does not want to consent to the minor child’s relocation to Rome, Italy? 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 Rome, Italy, 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 Rome, Italy. 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 Rome, Italy, 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 Rome, Italy? If the other parent does not want to consent to the passport application and/or the relocation of the minor child to Rome, Italy – 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 Rome, Italy, 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 Rome, Italy If you require legal assistance or representation with relocating to Rome, Italy 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.
17 Relocation with my minor child to Italy, Rome (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 Continue Reading
Family Trust explained
To ensure that your assets are safe and protected, you may want to consider a family trust. Having a family trust means that your assets will be kept safe and secure for the trust beneficiaries – those who will be benefiting from the trust. Furthermore, the trustee will not enjoy personal benefits of the trust but will simply be holding the assets for the trust beneficiaries. [caption id="attachment_4576" align="alignleft" width="300"]
Call our law offices on: 0211110090
Email us at: [email protected][/caption] Exactly how is this different from your Last Will and Testament? It is simple. The will takes effect only after one’s death while the trust can be executed in your living days. For more legal advice on professional legal drafting of family trust and wills, call our law offices on 021 424 3487 today and have an online appointment made for you today.Trust registration South Africa
Before going forth with a trust, you need to understand why you’re getting a trust. The following are important pointers to consider when getting a trust:- Understand why you are setting up the trust: think about the purpose of the trust.
- What type of trust you would like to set up: find out more about the different type of trusts and make a call as to which trust you will require.
- Property and assets: think about how you like to set out the rules of the trust and think about how this will govern your property and assets.
- Beneficiaries: the person who will benefit from your assets. Think about who your beneficiaries are and how they will benefit – will it be a few beneficiaries or will it be an institution?
- Trustee: this is the one who is in charge of the trust. He/she must understand the expectations and rules of the trust and ensure that all is in order.
- Rules: different trusts have different rules. Your legal expert will explain this you when attempting to register your trust. It is important that the rules are carried out accordingly.
[caption id="attachment_4577" align="alignleft" width="300"]
Call our law offices on: 0211110090
Email us at: [email protected][/caption] For more information on the procedure of trust registration, call our law offices on 021 424 3487 for an online appointment for a professional legal consultation. If you’re residing out of Cape Town, then fell free to make use of our national number on 087 701 1124 today.Trust vs Will
First of all, a will is written document signed with witnesses which indicates how your assets will be distributed at the time of your death. A will is effective only after your death by which all wishes of the deceased must be carried out accordingly. [caption id="attachment_4578" align="alignleft" width="300"]
Call our law offices on: 0211110090
Email us at: [email protected][/caption] A trust on the other hand, can be effective before and after death and is associated with assets and property management. And while this may sound convenient and appealing, it does come with its own disadvantage as well. The trust can be more of a hassle due to it having to be funded and actively managed in your living days. Speak to your family legal expert today on family trusts and wills and have your will and trust professionally drafted with us. Call our law offices on 021 424 3487 for an online appointment today. Connect with us!
Family Trust explained To ensure that your assets are safe and protected, you may want to consider a family trust. Having a family trust means that your assets will be kept safe and secure for the trust beneficiaries – those who will be benefiting from the trust. Furthermore, the trustee Continue Reading
How do I find the best advocate in South Africa for my case?
Many searches are going around seeking the best advocate. It is not an easy question to answer. That is so because the law is very diverse, and the question is not very specific. Furthermore, the answer would be very subjective. For example, the best advocate in Family Law may not be the best advocate in Property Law. The same applies to criminal law. Furthermore, it would be difficult to find information from one advocate about how well he or she is doing for his or her clients compared to another advocate. Therefore, we suggest you find an advocate who speaks to your specific needs and circumstances. Here are some tips:- Define Your Needs: Identify the specific legal services you require (e.g., family law, criminal defence, corporate law).
- Research Online: Use legal directories;
- Check Reviews and Ratings: Look for client reviews and ratings to gauge the firm’s reputation and client satisfaction.
- Ask for Recommendations: Reach out to friends, family, or colleagues who may have had similar legal needs for personal recommendations.
- Evaluate Experience: Consider the firm’s experience in your specific legal issue, including years in practice and case outcomes.
- Schedule Consultations: Many firms offer free or less expensive consultations. Use this opportunity to meet attorneys, discuss your case, and assess their communication style.
- Assess Costs: Inquire about fees and billing practices. Understand whether they charge hourly rates, flat fees, or contingency fees.
- Trust Your Instincts: Choose a firm that you feel comfortable with and confident in their ability to handle your case.
- Verify Credentials: Check the attorneys’ qualifications and any disciplinary history.
- Consider Location: Proximity can be important for ease of communication and meetings.
Taking the time to research and evaluate different firms will help you find the right fit for your legal needs.
How do I find the best advocate in South Africa for my case? Many searches are going around seeking the best advocate. It is not an easy question to answer. That is so because the law is very diverse, and the question is not very specific. Furthermore, the answer would Continue Reading
Updated: 16 April 2020
New regulations have been issued on 16 April 2020. Click on the link below: The material change is that you do not have to have a court order or a parental responsibilities and rights agreement or parenting plan, registered with the family advocate. Possession of a birth certificate or certified copy of a birth certificate is now also allowed.Let’s talk Constitutionally – What about the parents whom the Minister of Social Development excluded from moving their children during the South African National Lockdown – Is this new law fair? Does it not discriminate between children and parents?
Written by Advocate Muhammad Abduroaf It is day 15 of the National Lockdown in South Africa. Our President last night announced that the lockdown would extend for a further two weeks. Lockdown, for now, would extend until the end of April 2020. What does this mean for parents who want to have contact with their children during the lockdown period? Can they collect or visit their children during the extended lockdown period? Let us unpack the legal situation.Moving of children during the National Lockdown Period
When the lockdown was announced, there was uncertainty as to whether parents may move children during this period. We are referring to parents and children living in separate homes. After the lockdown commenced, a directive was then issued stating that children may not be moved between homes. This brought certainty to the issue, however, had far-reaching consequences. The directive said that the child should remain with the parent he or she is at, at the start of the lockdown period.The current regulations on the movement of children between parents
On Tuesday 07 April 2020, the Minister of Social Development, Ms Lindiwe Zulu, MP, made changes to the regulations regarding the movement of children during the lockdown period. It is now possible for certain children to be moved between parents during the lockdown period. The regulations apply to the following parents only:- There are arrangements in place for the children to move for one parent to another in terms of a court order; or
- A parental responsibilities and rights agreement or parenting plan registered with the office of the Family Advocate; and
- In the household to which the child is to move, there is no person who is known to have come into contact with, or is reasonably suspected to have come into contact with, a person known to have contracted, or reasonably suspected to have contracted, COVID-19;
- The parent or caregiver transporting the child concerned must have in his or her possession, the court order or the latter agreement, or a certified copy thereof.
Are these new regulations potentially unconstitutional?
Any law that discriminates against a class of people unjustifiably is unconstitutional. The class of people this new regulation discriminates against are one or more of the following parents:- Parents who are not divorced, but separated;
- Never enforced their parental responsibilities and rights by obtaining a court order;
- Parents who do not have any co-parenting issues;
- Unmarried parents who did not see the need to approach the Court for a Court Order;
- Parents who did not see the need to register a parenting plan or responsibilities and rights agreement with the Office of the Family Advocate; and
- Parents who could not afford to obtain a court order or register a parenting plan or responsibilities and rights agreement with the Office of the Family Advocate; and
- So on.
Infringement of the right to equality of the aforementioned parents and children
Section 9 of our Constitution (Act 108 of 1996) states the following: (1) Everyone is equal before the law and has the right to equal protection and benefit of the law. (2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken. (3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. (4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination. (5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair. Parents and minor children are not being treated equally. Only parents and children who are part of court orders and a parenting plan or responsibilities and rights agreement with the Office of the Family Advocate are taken care of by the Minister. Not the rest of the South African population. This infringement of constitutional rights cannot be justified. Let us unpack it.Infringement of the right to human dignity
Concerning human dignity, section 10 of our Consitution states, “Everyone has inherent dignity and the right to have their dignity respected and protected.” I am sure, that all parents who do not have a court order or a parenting plan or responsibilities and rights agreement with the Office of the Family Advocate feel that their dignity has been violated. This is so as the government now allows another parent who has the latter documents to move their children. There is further no logical justification to preference some parents over others. Or to put it differently some children over others.What can parents do who do not have a court order or a parenting plan or responsibilities and rights agreement with the Office of the Family Advocate?
It seems that the only recourse for parents who do not have a court order or a parenting plan or responsibilities and rights agreement registered with the Office of the Family Advocate has two options:- Approach the court urgently for a court order;
- Approach the office of the family advocate to register a parenting plan or responsibilities and rights agreement.
Whether or not the court would be of adequate assistance during the lockdown and entertain your application, depends on many factors. However, in our view, if there is sufficient urgency, and as we are dealing with the best interests of children, the application would properly be dealt with. Concerning approaching the office of the family advocate to register a parenting plan or responsibilities and rights agreement; this could come with its challenges. But not necessarily so for all cases. Contacting their offices beforehand would be advised. Written by Advocate Muhammad Abduroaf (LL.B LL.M) – Advocate of the High Court of South Africa Advocate Muhammad Abduroaf is a member of the Legal Practice Council of South Africa 
No equality and dignity for parents without Court Order and Registered Plans and Agreements 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
Updated: 16 April 2020 New regulations have been issued on 16 April 2020. Click on the link below: The material change is that you do not have to have a court order or a parental responsibilities and rights agreement or parenting plan, registered with the family advocate. Possession of a Continue Reading
I am an unmarried mother. I want to take my child with me on a holiday overseas, but the biological father of my child does not want to give consent and co-operate. What are my, and our child’s rights for a passport and to visit the United Kingdom?
South Africa is one of the most beautiful countries in the world. We have mountains, seas, forests, lakes, and dams. It is the ideal holiday destination, and a countless number of people flock to our shores every year. But now and again, South Africans want to leave our borders and go on holiday to another country. For this, one usually only requires an air ticket, passport, and a visa. And of course, some money. Now the process of traveling overseas would be simple if you are an adult going on your own, or with another adult.What if a single parent wants to travel overseas with a minor child?
But what if you want to travel overseas with your minor child? When we say minor child, we refer to a child under the age of 18 years old. Under normal circumstances, both parents would co-operate in applying for a visa and a passport for the minor child. But what if this is not the case? What if one parent does not want to consent to the minor child going overseas with the other parent? Let us explore the issues and laws involved.The parenting scenario – unmarried parents and the child
Let’s say a couple had a child together and they are now separated. They were never married. The father was actively involved in the child’s life since the child’s birth. He paid child maintenance regularly and visited the child often. However, when the child was three (3) years old, he had challenges in obtaining regular contact with the minor child.Father approaches the Children’s Court
The father then approaches the children’s court and he was awarded reasonable contact. This entailed him having the minor child every second weekend and a half of the school holidays. Telephone and special days’ contact were also incorporated in the Court Order.The mother approaches the maintenance court
The mother then took the father to the maintenance court, as according to her, the amount he was currently paying was not enough. The matter was then resolved and it was ordered that the father pays for all the minor child’s school fees and medical costs. He also had to make a cash contribution which increased each year by 10%.Father approaches the domestic violence court
The mother was not happy with the child maintenance amount that was ordered by the Court. The father remarried and his wife was expecting a child. He then approached the maintenance court for a reduction in child maintenance. At the time, the mother also inherited a large sum of money. Arguments arose regarding maintenance, and the mother approached the Domestic Violence court for a Protection Order. The parties, however, managed to resolve the issue. The maintenance order was ultimately reduced and the mother never proceeded with the Domestic Violence Court matter.Things go well after the parties were tired of litigating against each other
The parties were now tired of litigating against each other. Contact and maintenance payments went well for years. Whenever the mother required consent for something where a co-guardian had to consent for, the father would provide it. For example, the application and enrolment for the minor child into a primary school. The relationship between the parent and the father went well for many years as well.The Mother wishes to take the minor child with her to the United Kingdom
The child is now 10 years old, and the mother wants to take him with her on a holiday to the United Kingdom to visit the child’s maternal grandparents. This would take place during the mother’s half of the school holidays as per the Children’s Court Order. The last time either the mother or the child saw the maternal grandparent was 5 years ago. This was when the grandparents visited South Africa.The father refuses to give his consent for the minor child to travel
The mother can afford to pay for both the minor child and her air ticket to the United Kingdom. Accommodation is also not an issue as they will be staying at the maternal grandparents. There are two problems. The child does not have a passport and the father does not want to consent to the minor child going with the mother on holiday overseas. His reason for refusing is because he believes the child is too young to travel overseas. Now let us unpack the parental rights of unmarried parents. Is he allowed to do that?Parental rights and responsibilities of unmarried parents?
Before we can advise on the scenario above, we first need to unpack the law. The first issue is, that of what are parental responsibilities and rights of parents? Thereafter, we must outline what the parental responsibilities and rights of unmarried mothers and fathers are. As can be seen from the scenario above, the two issues are those of an application for a passport, and for the child to go overseas. Section 18 of the Children’s Act deal with Parental responsibilities and rights. It 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). From the above, it is clear, if a parent has parental responsibilities and rights, he or she must consent for the application for a passport, and the minor child to travel overseas.What are the Parental responsibilities and rights of unmarried mothers?
Now let us unpack the law regarding parental responsibilities and rights of unmarried mothers as per our scenario above. This is where section 19 of the Children’s Act comes into play. It states:19 Parental responsibilities and rights of mothers
(1) The biological mother of a child, whether married or unmarried, has full parental responsibilities and rights in respect of the child. (2) If- (a) the biological mother of a child is an unmarried child who does not have guardianship in respect of the child; and (b) the biological father of the child does not have guardianship in respect of the child, the guardian of the child’s biological mother is also the guardian of the child. (3) This section does not apply in respect of a child who is the subject of a surrogacy agreement. It is clear from the above, that irrespective of whether a child’s mother gave birth in wedlock, or out, she has full parental responsibilities and rights over the minor child. Does the biological father have the same rights? What are the Parental responsibilities and rights of unmarried fathers?
This is the question of law the father in our scenario wants to know. What are his parental responsibilities and rights as he was not married to the mother? This is where section 20 of the Children’s Act comes into operation. 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-- 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. Looking at our scenario and the law above, it is clear that this father has full parental responsibilities and rights in respect of the minor child. This is so as he actively took part in the child’s life since his birth. He also paid maintenance since his son’s birth.What are the rights of the father in this scenario?
From the facts and law outlined above, it is clear that the mother requires the father’s consent to apply for the minor child’s passport and for him to travel with her overseas. The father, therefore, has the right to refuse consent. However, what can the mother do if she believes it is in the child’s best interest to travel with her overseas? This we deal with next.What can the mother do if the father refuses to give consent?
Section 18(5) of the Children’s Act quoted above states: 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). This means that the Court may be approached for the necessary consent. If the court feels that it would be in the minor child’s best interest to obtain a passport and to travel overseas, the court would so order it. Read this article written by us dealing with the latter court application. 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
I am an unmarried mother. I want to take my child with me on a holiday overseas, but the biological father of my child does not want to give consent and co-operate. What are my, and our child’s rights for a passport and to visit the United Kingdom? South Africa Continue Reading
Zoom webinar during Woman’s Month hosted by Advocate Muhammad Abdurof – Child Custody and Relocation
Below the video are some of the questions posed by the registrants that were not answered during the webinar held on 21 August 2020 at 11:00, hosted by Advocate Muhammad Abduroaf. Q: The father has only been paying half the maintenance – he was only covering the minor schooling. Now he has decided to study full time and stopped paying the minor school fees. The minors Contract at school has been terminated and is currently not attending school. I am unable to find a school at this time since half the year is gone. I am currently filing a maintenance application. A: We presume that there is no maintenance order in place. If that is the case, approaching the maintenance court is the correct thing to do. It sounds unreasonable for the father to only pay half the maintenance. The same applies to him stopping paying school fees. The court would listen to both sides and decide what is a fair amount for the father to pay despite him deciding not to work. If there is a court order in place, the court should enforce it and either attach his property and sell it, or proceed criminally. Q: greetings…my question is on Sole guardianship. The father has relocated and has never made contact with the minor. Its 9 years now. I want to travel with my child but hoe affairs won’t allow it. Please assist A: You have a very strong case for an order that you be given sole guardianship over your child. After the court granted you that order, you can travel without worrying about consent. Q: Which process should I follow to gain full child custody? A: You would have to approach the Court. If there is a court order in place, then you need to apply to have it varied granting you sole custody. If not, you can approach the court to grant you sole custody. The court would look at what is best for the child. Q: What happens when a father only saw a child on the day of the paternity test and never again when applying for access to the child I’m denied and immediately the child is moved to the Eastern Cape from Gauteng without my knowledge. Yet the court ordered me to carry on paying rent for a 3-year-old as the mother told the court that the child must also pay rent. Right now I’m paying for rent yet the child is not even staying there and I’m paying for creche in Gauteng but the child is in EC. When I lodged for reduction as the child no longer stays here and no longer going creche the court keeps on postponing as the mother doesn’t come to court anymore and no warrant of arrest is issued just postponed that all since May 2020. A: You followed the correct procedure by approaching the maintenance court. We advise you to keep putting pressure on the maintenance court to finalise the matter. Q: In terms of child custody can a parent apply at the Children’s court to have sole custody if the other parent (primary caregiver) contributes less towards the child’s financial maintenance? A: You can apply, but the order would be based on what is best for the child. However, a lower contribution by the primary caregiver does not sound like a sound reason. Q: How does a parent ( primary caregiver) deal with the other parent negatively influencing the child or having the child saying statements that are harsh and recording the child. A: We suggest that you see a parenting counsellor or a social worker to assist both parents in resolving those issues. If that does not help, then approaching the court may be the best option. Q: Just clarify related to this topic what are my options if I am indeed about to relocate but still in the process of the divorce pleadings have not been closed and there is no settlement agreement but have primary residence according to Rule 43 order. A: The divorce and the relocation are two separate issues. You would have to return to South Africa on the trial date of the divorce. Q: Should there be a dispute to relocation by either parent what is the required route to be followed by either of the parties?If the route is for the high court to be followed what are the parameters pertaining to the disputing party being informed notice periods required and mandatory rules for addressing high court? (can this be done as the individual alone or is an attorney/advocate mandatory? As the disputing party are there any recommendations if thorough understanding and recommendations or research into the case related circumstances are researched in terms of legal precedence/ cases relevant for the defence of the dispute to be undertaken onerously? A: Court rules need to be followed and all parties need to be properly informed about court dates etc. Q: Shared Custody. Children ages 12 and 17. Want to stay permanently with me. Daughter 18 already staying with me. A: If the children want to stay with you and the other parent does not want that, then it is best to see a mediator or social worker to assist in resolving the issue. If that cannot be done, then the court would need to get involved. Q: What can a father do to help his 16-year-old son to escape the emotional abuse of the child’s mother? The father is financially exhausted as the mother has NO regard for a High Court order that was obtained by the father when the child was 2 years old. Now the child wishes to stay with his father. A: The father needs to enforce the High Court Order. Otherwise, depending on the facts, he needs to approach the court for a variation of the order. Q: What are my rights as a father with regards to the child? Under what conditions is the mother allowed to “withhold” the child from interacting with the father? Does my financial instability give more rights to the mother enough to not allow a relationship between myself and the child? What is the best way to go about legally sharing (visitation responsibility etc) rights? A: This issue was dealt with at the start of the webinar. We would, however, like to advise you to try to see a mediator with the mother. If that is not possible, you should approach the Children’s Court or the High Court.
Zoom webinar during Woman’s Month hosted by Advocate Muhammad Abdurof – Child Custody and Relocation Below the video are some of the questions posed by the registrants that were not answered during the webinar held on 21 August 2020 at 11:00, hosted by Advocate Muhammad Abduroaf. Q: The father has Continue Reading
Hague Convention On The Civil Aspects Of International Child
On 20 November 1996 the President assented to the Hague Convention On The Civil Aspects Of International Child. The entire Act can be found at the end of this article. South Africa ratified the Convention in 1996 and the Act came into operation on 1 October 1997. The Convention’s main object is to enforce rights of custody over a child(ren) who has been wrongfully removed to or kept in a foreign country in breach of those rights and to secure the prompt return of the child(ren) to South Africa. https://www.justice.gov.za/hague/main.htm Below is the complete Convention found at https://www.gov.za/sites/default/files/gcis_document/201409/a72-96.pdf . NO. 72 OF 1996: HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD PRESIDENT’S OFFICE
No. 1872.
20 November 1996
NO. 72 OF 1996: HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD
ABDUCTION ACT, 1996.
It is hereby notified that the President has assented to the following Act which is hereby published for general information:-
ACT
To provide for the application in the Republic of the Hague Convention on the Civil Aspects of International Child Abduction; and to provide for matters connected therewith.
(English text signed by the President.)
(Assented to 6 November 1996.)
BE IT ENACTED by the Parliament of the Republic of South Africa. as
follows:-
Definitions
1. In this Act, unless the context otherwise indicates-
(i) “Central Authority” means the Central Authority designated in terms
of section 3; (v)
(ii) “Convention” means the Hague Convention on the Civil Aspects of
International Child Abduction, adopted on 25 October 1980 at The Hague, and set out in the Schedule; (ii)
(iii) “Minister” means the Minister of Justice; (iii)
(iv) “regulation” means a regulation made under this Act; (iv)
(v) “this Act” includes the regulations. (i)
Application of Convention
2. The Convention shall, subject to the provisions of this Act, apply in the Republic.
Designation of Central Authority
3. For the purposes of Article 6 of the Convention the Chief Family
Advocate appointed by the Minister in terms of the Mediation in Certain Divorce Matters
Act, 1987 (Act No. 24 of 1987), is hereby designated as the Central Authority
for the Republic.
Delegation
4. (1) The Central Authority may, subject to such conditions as he or she
may impose, delegate or assign any power or duty conferred or imposed upon him or her by or under the Convention to any Family Advocate appointed in terms of the Mediation in Certain Divorce Matters Act, 1987 (Act No. 24 of 1987).
(2) The delegation, assignment and conditions imposed shall be in writing.
Regulations
5. (1) The Minister may make regulations-
(a) to give effect to any provision of the Convention; and
(b) prescribing fees, and providing for the recovery of any expenditure
incurred, in connection with the application of the Convention.
(2) A regulation made under subsection (1) may prescribe a penalty of a fine or of imprisonment for a period not exceeding 12 months for any contravention thereof or failure to comply therewith.
(3) Any regulation made under subsection (1) shall be laid upon the Table in Parliament within 14 days after the publication thereof in the Gazette if Parliament is then in ordinary session, or, if Parliament is not in ordinary session, within 14 days after the commencement of the next ensuing ordinary
session.
(4) Any regulation referred to in subsection (3) or any provision thereof may, by resolution passed by both Houses of Parliament during the session in which such regulation has been laid upon the Table, be rejected, and if the
said regulation or provision is so rejected the provisions of section 12(2) of
the Interpretation Act, 1957 (Act No. 33 of 1957), shall apply as if such
resolution were a law repealing the regulation or provision in question.
Short title and commencement
6.This Act shall be called the Hague Convention on the Civil Aspects of
International Child Abduction Act, 1996, and shall come into operation on a
date fixed by the President by proclamation in the Gazette.
SCHEDULE
CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION
The States signatory to the present Convention-
Firmly convinced that the interests of children are of paramount importance
in matters relating to their custody. Desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access. Have resolved to conclude a Convention to this effect, and have agreed upon the following provisions-
CHAPTER I
SCOPE OF THE CONVENTION
Article 1
The objects of the present Convention area to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and
b to ensure that rights of custody and of access under the law of one
Contracting State are effectively respected in the other Contracting States.
Article 2
Contracting States shall take all appropriate measures to secure within
their territories the implementation of the objects of the Convention. For this purpose they shall use the most expeditious procedures available.
Article 3
The removal or the retention of a child is to be considered wrongful wherea
it is in breach of rights of custody attributed to a person, an institution
or any other body, either jointly or alone, under the law of the State in
which the child was habitually resident immediately before the removal or
retention; and
b at the time of removal or retention those rights were actually exercised,
either jointly or alone, or would have been so exercised but for the removal
or retention.
The rights of custody mentioned in subparagraph a above, may arise in
particular by operation of law or by reason of a judicial or administrative
decision, or by reason of an agreement having legal effect under the law of
that State.
Article 4
The Convention shall apply to any child who was habitually resident in a
Contracting State immediately before any breach of custody or access rights.
The Convention shall cease to apply when the child attains the age of 16 years.
Article 5
For the purposes of this Conventiona
rights of custody” shall include rights relating to the care of the person of
the child and, in particular, the right to determine the child’s place of residence
b “rights of access” shall include the right to take a child for a limited
period of time to a place other than the child’s habitual residence.
CHAPTER II
CENTRAL AUTHORITIES
Article 6
A Contracting State shall designate a Central Authority to discharge the
duties which are imposed by the Convention upon such authorities.
Federal States, States with more than one system of law or States having
autonomous territorial organizations shall be free to appoint more than one
Central Authority and to specify the territorial extent of their powers.
Where a State has appointed more than one Central Authority, it shall designate the
Central Authority to which applications may be addressed for transmission to the appropriate Central Authority within that State.
Article 7
Central Authorities shall co-operate with each other and promote co-operation amongst the competent authorities in their respective States to secure the prompt return of children and to achieve the other objects of this Convention.
In particular, either directly or through any intermediary, they shall take
all appropriate measures a to discover the whereabouts of a child who has been wrongfully removed or
retained;
b to prevent further harm to the child or prejudice to interested parties by
taking or causing to be taken provisional measures;
c to secure the voluntary return of the child or to bring about an amicable
resolution of the issues;
d to exchange, where desirable, information relating to the social background
of the child;
e to provide information of a general character as to the law of their State
in connection with the application of the Convention;
f to initiate or facilitate the institution of judicial or administrative
proceedings with a view to obtaining the return of the child and, in a
proper case, to make arrangements for organizing or securing the effective exercise
of rights of access;
g where the circumstances so require, to provide or facilitate the provision
of legal aid and advice, including the participation of legal counsel and
advisers;
h to provide such administrative arrangements as may be necessary and
appropriate to secure the safe return of the child;
i to keep each other informed with respect to the operation of this Convention
and, as far as possible, to eliminate any obstacles to its application.
CHAPTER III
RETURN OF CHILDREN
Article 8
Any person, institution or other body claiming that a child has been removed or retained in breach of custody rights may apply either to the Central Authority of the child’s habitual residence or to the Central Authority of any other Contracting State for assistance in securing the return of the child.
The application shall contain a information concerning the identity of the applicant, of the child and of
the person alleged to have removed or retained the child;
b where available, the date of birth of the child;
c the grounds on which the applicant’s claim for return of the child is based:
d all available information relating to the whereabouts of the child and the identity of the person with whom the child is presumed to be. The application may be accompanied or supplemented by e an authenticated copy of any relevant decision or agreement;
f a certificate or an affidavit emanating from a Central Authority, or other
competent authority of the State of the child’s habitual residence, or from
a qualified person, concerning the relevant law of that State;
g any other relevant documents.
Article 9
If the Central Authority which receives an application referred to in
Article 8 has reason to believe that the child is in another Contracting
State, it shall directly and without delay transmit the application to the Central
Authority of that Contracting State and inform the requesting Central
Authority or the applicant, as the case may be.
Article 10
The Central Authority of the State where the child is shall take or cause
tobe taken all appropriate measures in order to obtain the voluntary return of
the child.
Article 11
The judicial or administrative authorities of Contracting States shall act
expeditiously in proceedings for the return of children.
If the judicial or administrative authority concerned has not reached a
decision within six weeks from the date of commencement of the proceedings,
the applicant or the Central Authority of the requested State, on its own
initiative or if asked by the Central Authority of the requesting State, shall
have the right to request a statement of the reasons for the delay. If a
reply is received by the Central Authority of the requested State, that Authority
shall transmit the reply to the Central Authority of the requesting State, or
to the applicant, as the case may be.
Article 12
Where a child has been wrongfully removed or retained in terms of Article 3
and, at the date of the commencement of the proceedings before the judicial or
administrative authority of the Contracting State where the child is, a period
of less than one year has elapsed from the date of the wrongful removal or
retention, the authority concerned shall order the return of the child
forthwith.
The judicial or administrative authority, even where the proceedings have
been commenced after the expiration of the period of one year referred to in
the preceding paragraph, shall also order the return of the child, unless it
is demonstrated that the child is now settled in its new environment.
Where the judicial or administrative authority in the requested State has
reason to believe that the child has been taken to another State, it may stay
the proceedings or dismiss the application for the return of the child.
Article 13
Notwithstanding the provisions of the preceding Article, the judicial or
administrative authority of the requested State is not bound to order the
return of the child if the person, institution or other body which opposes its
return establishes that a the person, institution or other body having the care of the person of the
child was not actually exercising the custody rights at the time of removal
or retention, or had consented to or subsequently acquiesced in the removal
or retention; or
b there is a grave risk that his or her return would expose the child to
physical or psychological harm or otherwise place the child in an
intolerable
situation.
The judicial or administrative authority may also refuse to order the
return of the child if it finds that the child objects to being returned and has
attained an age and degree of maturity at which it is appropriate to take
account of its views.
In considering the circumstances referred to in this Article, the judicial
and administrative authorities shall take into account the information
relating to the social background of the child provided by the Central Authority or
other competent authority of the child’s habitual residence.
Article 14
In ascertaining whether there has been a wrongful removal or retention
within the meaning of Article 3, the judicial or administrative authorities of
the requested State may take notice directly of the law of, and of judicial or
administrative decisions, formally recognized or not in the State of the
habitual residence of the child, without recourse to the specific procedures
for the proof of that law or for the recognition of foreign decisions which
would otherwise be applicable.
Article 15
The judicial or administrative authorities of a Contracting State may,
prior
to the making of an order for the return of the child, request that the
applicant obtain from the authorities of the State of the habitual residence
of
the child a decision or other determination that the removal or retention was
wrongful within the meaning of Article 3 of the Convention, where such a
decision or determination may be obtained in that State. The Central
Authorities of the Contracting States shall so far as practicable assist
applicants to obtain such a decision or determination.
Article 16
After receiving notice of a wrongful removal or retention of a child in the
sense of Article 3, the judicial or administrative authorities of the
Contracting State to which the child has been removed or in which it has been
retained shall not decide on the merits of rights of custody until it has been
determined that the child is not to be returned under this Convention or
unless
an application under this Convention is not lodged within a reasonable time
following receipt of the notice.
Article 17
The sole fact that a decision relating to custody has been given in or is
entitled to recognition in the requested State shall not be a ground for
refusing to return a child under this Convention, but the judicial or
administrative authorities of the requested State may take account of the
reasons for that decision in applying this Convention.
Article 18
The provisions of this Chapter do not limit the power of a judicial or
administrative authority to order the return of the child at any time.
Article 19
A decision under this Convention concerning the return of the child shall
not be taken to be a determination on the merits of any custody issue.
Article 20
The return of the child under the provisions of Article 12 may be refused
if
this would not be permitted by the fundamental principles of the requested
State relating to the protection of human rights and fundamental freedoms.
CHAPTER IV
RIGHTS OF ACCESS
Article 21
An application to make arrangements for organizing or securing the
effective
exercise of rights of access may be presented to the Central Authorities of
the
Contracting States in the same way as an application for the return of a
child.
The Central Authorities are bound by the obligations of co-operation which
are set forth in Article 7 to promote the peaceful enjoyment of access rights
and the fulfilment of any conditions to which the exercise of those rights may
be subject. The Central Authorities shall take steps to remove, as far as
possible, all obstacles to the exercise of such rights. The Central
Authorities, either directly or through intermediaries, may initiate or assist
in the institution of proceedings with a view to organizing or protecting
these
rights and securing respect for the conditions to which the exercise of these
rights may be subject.
CHAPTER V
GENERAL PROVISIONS
Article 22
No security, bond or deposit, however described, shall be required to
guarantee the payment of costs and expenses in the judicial or administrative
proceedings falling within the scope of this Convention.
Article 23
No legalization or similar formality may be required in the context of this
Convention.
Article 24
Any application, communication or other document sent to the Central
Authority of the requested State shall be in the original language, and shall
be accompanied by a translation into the official language or one of the
official languages of the requested State or, where that is not feasible, a
translation into French or English.
However, a Contracting State may, by making a reservation in accordance
with
Article 42, object to the use of either French or English, but not both, in
any
application, communication or other document sent to its Central Authority.
Article 25
Nationals of the Contracting States and persons who are habitually resident
within those States shall be entitled in matters concerned with the
application
of this Convention to legal aid and advice in any other Contracting State on
the same conditions as if they themselves were nationals of and habitually
resident in that State.
Article 26
Each Central Authority shall bear its own costs in applying this
Convention.
Central Authorities and other public services of Contracting States shall
not impose any charges in relation to applications submitted under this
Convention. In particular, they may not require any payment from the
applicant
towards the costs and expenses of the proceedings or, where applicable, those
arising from the participation of legal counsel or advisers. However, they
may
require the payment of the expenses incurred or to be incurred in implementing
the return of the child.
However, a Contracting State may, by making a reservation in accordance
with
Article 42, declare that it shall not be bound to assume any costs referred to
in the preceding paragraph resulting from the participation of legal counsel
or
advisers or from court proceedings, except insofar as those costs may be
covered by its system of legal aid and advice.
Upon ordering the return of a child or issuing an order concerning rights
of
access under this Convention, the judicial or administrative authorities may,
where appropriate, direct the person who removed or retained the child, or who
prevented the exercise of rights of access, to pay necessary expenses incurred
by or on behalf of the applicant, including travel expenses, any costs
incurred
or payments made for locating the child, the costs of legal representation of
the applicant, and those of returning the child.
Article 27
When it is manifest that the requirements of this Convention are not
fulfilled or that the application is otherwise not well founded, a Central
Authority is not bound to accept the application. In that case the Central
Authority shall forthwith inform the applicant or the Central Authority
through
which the application was submitted, as the case may be, of its reasons.
Article 28
A Central Authority may require that the application be accompanied by a
written authorization empowering it to act on behalf of the applicant, or to
designate a representative so to act.
Article 29
This Convention shall not preclude any person, institution or body who
claims that there has been a breach of custody or access rights within the
meaning of Article 3 or 21 from applying directly to the judicial or
administrative authorities of a Contracting State, whether or not under the
provisions of this Convention.
Article 30
Any application submitted to the Central Authorities or directly to the
judicial or administrative authorities of a Contracting State in accordance
with the terms of this Convention, together with documents and any other
information appended thereto or provided by a Central Authority, shall be
admissible in the courts or administrative authorities of the Contracting
States.
Article 31
In relation to a State which in matters of custody of children has two or
more systems of law applicable in different territorial unitsa
any reference to habitual residence in that State shall be construed as
referring to habitual residence in a territorial unit of that State;
b any reference to the law of the State of habitual residence shall be
construed as referring to the law of the territorial unit in that State
where
the child habitually resides.
Article 32
In relation to a State which in matters of custody of children has two or
more systems of law applicable to different categories of persons, any
reference to the law of that State shall be construed as referring to the
legal
system specified by the law of that State.
Article 33
A State within which different territorial units have their own rules of
law
in respect of custody of children shall not be bound to apply this Convention
where a State with a unified system of law would not be bound to do so.
Article 34
This Convention shall take priority in matters within its scope over the
Convention of 5 October 1961 concerning the powers of authorities and the law
applicable in respect of the protection of minors, as between Parties to both
Conventions. Otherwise the present Convention shall not restrict the
application of an international instrument in force between the State of
origin
and the State addressed or other law of the State addressed for the purposes
of
obtaining the return of a child who has been wrongfully removed or retained or
of organizing access rights.
Article 35
This Convention shall apply as between Contracting States only to wrongful
removals or retentions occurring after its entry into force in those States.
Where a declaration has been made under Article 39 or 40, the reference in
the preceding paragraph to a Contracting State shall be taken to refer to the
territorial unit or units in relation to which this Convention applies.
Article 36
Nothing in this Convention shall prevent two or more Contracting States, in
order to limit the restrictions to which the return of the child may be
subject, from agreeing among themselves to derogate from any provisions of
this
Convention which may imply such a restriction.
CHAPTER VI
FINAL CLAUSES
Article 37
The Convention shall be open for signature by the States which were Members
of the Hague Conference on Private International Law at the time of its
Fourteenth Session. It shall be ratified, accepted or approved and the
instruments of ratification, acceptance or approval shall be deposited with
the
Ministry of Foreign Affairs of the Kingdom of the Netherlands.
Article 38
Any other State may accede to the Convention.
The instrument of accession shall be deposited with the Ministry of Foreign
Affairs of the Kingdom of the Netherlands.
The Convention shall enter into force for a State acceding to it on the
first day of the third calendar month after the deposit of its instrument of
accession.
The accession will have effect only as regard the relations between the
acceding State and such Contracting States as will have declared their
acceptance of the accession.
Such a declaration will also have to be made by any Member State ratifying,
accepting or approving the Convention after an accession. Such declaration
shall be deposited at the Ministry of Foreign Affairs of the Kingdom of the
Netherlands: the Ministry shall forward through diplomatic channels, a
certified copy to each of the Contracting States.
The Convention will enter into force as between the acceding State and the
State that has declared its acceptance of the accession on the first day of
the
third calendar month after the deposit of the declaration of acceptance.
Article 39
Any State may, at the time of signature, ratification, acceptance, approval
or accession, declare that the Convention shall extend to all the territories
for the international relations of which it is responsible, or to one or more
of them. Such a declaration shall take effect at the time the Convention
enters into force for that State.
Such declaration, as well as any subsequent extension, shall be notified to
the Ministry of Foreign Affairs of the Kingdom of the Netherlands.
Article 40
If a Contracting State has two or more territorial units in which different
systems of law are applicable in relation to matters dealt with in this
Convention, it may at the time of signature, ratification, acceptance,
approval
or accession declare that this Convention shall extend to all its territorial
units or only to one or more of them and may modify this declaration by
submitting another declaration at any time.
Any such declaration shall be notified to the Ministry of Foreign Affairs
of
the Kingdom of the Netherlands and shall state expressly the territorial units
to which the Convention applies.
Article 41
Where a Contracting State has a system of government under which executive,
judicial and legislative powers are distributed between central and other
authorities within that State, its signature or ratification, acceptance or
approval of or accession to this Convention, or its making of any declaration
in terms of Article 40 shall carry no implication as to the internal
distribution of powers within that State.
Article 42
Any State may, not later than the time of ratification, acceptance,
approval
or accession, or at the time of making a declaration in terms of Article 39 or
40 make one or both of the reservations provided for in Article 24 and Article
26, third paragraph. No other reservation shall be permitted.
Any State may at any time withdraw a reservation it has made. The
withdrawal shall be notified to the Ministry of Foreign Affairs of the Kingdom
of the Netherlands. The reservation shall cease to have effect on the first
day of the third calendar month after the notification referred to in the
preceding paragraph.
Article 43
The Convention shall enter into force on the first day of the third
calendar
month after the deposit of the third instruments of ratification, acceptance,
approval or accession referred to in Articles 37 and 38.
Thereafter the Convention shall enter into force-
1 for each State ratifying, accepting, approving or acceding to it
subsequently, on the first day of the third calendar month after the deposit
of its instrument of ratification, acceptance, approval or accession;
2 for any territory or territorial unit to which the Convention has been
extended in conformity with Article 39 or 40, on the first day of the third
calendar month after the notification referred to in that Article.
Article 44
The Convention shall remain in force for five years from the date of its
entry into force in accordance with the first paragraph of Article 43 even for
States which subsequently have ratified, accepted, approved it or acceded to
it.
Any denunciation shall be notified to the Ministry of Foreign Affairs of
the
Kingdom of the Netherlands at least six months before the expiry of the five
year period. It may be limited to certain of the territories or territorial
units to which the Convention applies.
The denunciation shall have effect only as regards the State which has
notified it. The Convention shall remain in force for the other Contracting
States.
Article 45
The Ministry of Foreign Affairs of the Kingdom of the Netherlands shall
notify the States Members of the Conference, and the States which have acceded
in accordance with Article 38, of the following-
1 the signatures and ratifications, acceptances and approvals referred to in
Article 37;
2 the accessions referred to in Article 38;
3 the date on which the Convention enters into force in accordance with
Article
43;
4 the extensions referred to in Article 39;
5 the declarations referred to in Articles 38 and 40;
6 the reservations referred to in Article 24 and Article 26, third paragraph
and the withdrawals referred to in Article 42; and
7 the denunciations referred to in Article 44.
In witness whereof the undersigned, being duly authorized thereto, have
signed this Convention.
Done at The Hague, on the 25th day of October 1980 in the English and
French
languages, both texts being equally authentic in a single copy which shall be
deposited in the archives of the Government of the Kingdom of the
Netherlands,$
and of which a certified copy shall be sent through diplomatic channels to
each
of the States Members of the Hague Conference on Private International Law at
the date of its Fourteenth Session.
Hague Convention On The Civil Aspects Of International Child On 20 November 1996 the President assented to the Hague Convention On The Civil Aspects Of International Child. The entire Act can be found at the end of this article. South Africa ratified the Convention in 1996 and the Act came Continue Reading
Top tips and tricks from a Senior Family Law Advocate on claiming maintenance for a five-year-old child in Sasolburg.
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 Sasolburg
Whether you claim child maintenance in Sasolburg, 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 Sasolburg.
The maintenance scenario – Sasolburg 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 Sasolburg
- The child is cared for by the mother who works in Sasolburg
- 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 Sasolburg
- 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 Sasolburg, it would be the maintenance court in Sasolburg. 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 Sasolburg, 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 Sasolburg Maintenance Court?
Once you have been notified of the maintenance court date by the Sasolburg 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 Sasolburg?
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 Sasolburg 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 Sasolburg 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, Sasolburg, 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 Sasolburg. 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 Emalahleni Children’s Court
Family law legal matters can be very stressful. This is so whether you live in Emalahleni 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 Emalahleni. 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 Emalahleni or any other city in South Africa.
What to do before visiting the Emalahleni Children’s Court
Before you approach the Children’s Court in Emalahleni, 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. Emalahleni 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 Emalahleni 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 Emalahleni Children’s Court
The Emalahleni Children’s Court should be approached if it is the closest Children’s Court to you. You need to verify with the Emalahleni 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 Emalahleni 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 Emalahleni.
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 Emalahleni Children’s Court
Once you complete the Form A and submit it to the Clerk of the Emalahleni 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 Emalahleni 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;
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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 Emalahleni Children’s Court
Once the Emalahleni 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 Emalahleni 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, Emalahleni, 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 Emalahleni Children’s Court Family law legal matters can be very stressful. This is so whether you live in Emalahleni or any other city in South Africa. Especially so if you Continue Reading