domestic abuse, domestic violence, abuse, violence, assault, legal rights, protection order
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How do I strategies my child maintenance case? I am struggling to grasp how to approach my maintenance matter. Please give me some advice?
As with any legal matter where you have a dispute, you need to have a strategy or a plan to be successful. Without a strategy or plan, you are just hoping for the best. However, hope does not steer a boat to shore. There are some, and in most cases, a lot of work, planning and thinking. Let’s face it, the other party or parent in your legal matter also has a plan or strategy. Suppose they put the necessary energy into executing it for the intended results, or at least more than what you are putting into it; their results will favour them much more. That is so, despite all the hope you put into it.Understand the maintenance laws and how it works
But before we move on, with any plan or strategy, comes knowledge. It would do little good if you did not research how child maintenance works, the legal process, and what outcomes are possible. With all the information online, it is expected that you would watch some online videos on child maintenance and read some of the many articles on the topic. Knowledge is key, and that is what is going to get you through your case.What are the basic principles in a child maintenance matter?
We would not say child maintenance matters are simple. Very few, if any, legal matters are simple. But anyone can learn. However, if you are guided by the principle that the maintenance amount payable is based on what the child costs, you are getting somewhere. That is your starting point and stay focused on that. Not what the parents earn or what they own. That is secondary. It does not mean that if a parent earns R 50 000 – 00 a month, that they should pay R 10 000 – 00 a month, despite the child costing R 1 000 – 00 a month. At best, the most the parent would pay is R 1 000 – 00. It would help if you worked from the ground up.You need to focus on two words, “reasonable”, and “necessary.”
The child’s expenses must be reasonable and necessary for you to convince a Court to allow those expenses. In other words, force a parent to contribute towards it. In determining what is reasonable and necessary, one would look at what the child needs for daily living and whether that falls within the standard of living of the parents and the child. For example, if the parents are modest salary earners, living in humble homes, and were brought up in the same way, then that would be what the minor child would be entitled to when calculating child maintenance. If the parents never had ponies as pets, then a pony would not amount to a reasonable and necessary expense for the minor child. However, it is up to you to explain to the court why an expense is “reasonable” and “necessary”. If you can do so for a pony, then you did a good job.Look at the means or money available in the maintenance equation
The principle one must move towards is that parents have to contribute towards the minor child based on their means. Remember, their contribution is firstly based on what the child costs and not what the earnings and wealth of the parents are. Then we need to look at what the parents can afford. Now affordability is not only based on your income, but also on your assets. If a parent does not have an income but owns expensive assets, then that has to be taken into account. Think of it this way – a parent can convert that asset into money by selling the asset.Remember, parents have to live as well (They also have expenses)
It is not that simple just to take the gross or net salary of the parent and then work out the maintenance payable from there, based on the needs of the child. If that was the case, then maintenance matters would be resolved much quicker. Parents have expenses that need to be factored into the equation. Hold that in mind all the time because that principle applies to you. Therefore, in order for a parent to earn a salary to pay child support, he or she needs to eat at work, buy clothes for work, travel to work and so on. Circumstances need to be assessed on what they are and not what one hopes them to be. If the parents cannot afford for the child to be enrolled at a specific school, then that is what one must accept and be happy with a less expensive school for your child.Analyse the situation from all angles
Once you have analysed the situation, take stock of the fact that all factors need to be looked at. You need to focus on what is reasonable. Reasonability applies to all aspects of the child maintenance equation. This includes the reasonable needs of the minor child, considering the income and means of the parents. When focusing on the child, determine whether or not his or her expenses are reasonable considering the standard of living and your position in life. Does the child need everything, or are there some items that you now require seeing that the child is older or circumstances have changed?Are the parents spending reasonably?
Look at your situation and that of the other parent as well. Is it reasonable for him or her to spend R 2000 – 00 on fuel to go to work when he or she can take public transport? This is so even though this parent earns R 6000 – 00 a month. This must be considered in conjunction with what the needs of the child are. If the parent says he or she cannot afford to pay half the school fees, which is a reasonable amount, then one needs to question whether under the circumstances using up a third of your income for fuel is reasonable, where after you are unable to pay towards your child’s school fees.Create arguments to support your point of view
Remember, you need to convince the maintenance court that what you are requesting as child support is reasonable. Reasonable based on the facts before the court or at hand, and not what one party wishes it to be. And those facts are also your income, expenses, as well as that of the other parent. Let us not forget the standard of living. This is important as we all want what is best for our children. However, not all families can afford to send their children to the most expensive schools. For many, it is not sustainable. On the other hand, parents should contribute toward their minor children, which is fair and reasonable. What is fair and reasonable is determined based on the information and facts at hand. Furthermore, what is fair and reasonable for one family will definitely not be fair and reasonable for another family. This is so despite both families having the same number of children and ages. All families and children are unique. In conclusion, if you understand the above general principles, you would find it easier to deal with and handle your child maintenance case. You will focus on what is necessary in order to be successful. Good luck with your maintenance matter.
Posted on by Telelaw
Relocation with my minor child to Mexico, Cancún (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 Cancún, Mexico
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 three or four) 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 Paarl or Musina, South Africa, and you want to relocate to Cancún, Mexico, 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 Cancún, Mexico?
The same applies when it comes to your minor child applying for a South African passport to relocate to Mexico, 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 Cancún, Mexico 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 Cancún, Mexico. What can I do if the other parent does not want to consent to the minor child’s relocation to Cancún, Mexico?
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 Cancún, Mexico, 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 Cancún, Mexico. 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 Cancún, Mexico, 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 Cancún, Mexico?
If the other parent does not want to consent to the passport application and/or the relocation of the minor child to Cancún, Mexico – 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 Cancún, Mexico, 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 Cancún, Mexico
If you require legal assistance or representation with relocating to Cancún, Mexico 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.
Posted on by Telelaw