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Divorces – Is it possible to increase my chances of getting a fair outcome? Here are some Tips and Tricks to assist you.

Divorce cases can be straightforward or riddled with issues. Not only legal issues but also emotional issues, especially when there are children involved. What about the proprietary aspects of your marriage? Well, that is the easy bit. If parties are married in community of property, there should not be much to argue about. The law is the law. Each party should get what the law says they are entitled to – in this case, an equal division of the joint estate. Click here to find out how to attend to your own unopposed divorce.

Divorces should be straightforward and simple, but this is not always the case.

In our view, the simplest divorce would be when the couple married with an ante-nuptial contract. They excluded community of property and the accrual regime. Furthermore, there are no minor children born from the marriage. In such a case, all that is required is a decree of divorce. However, if there are minor children involved, then the parties may be at loggerheads as to who should have custody, or how visitation should be exercised. Then there is the issue of child maintenance, which can be a tedious and complicated matter to resolve.

Focus less on emotions, but what is best in the long run

In this article, advice is provided on how to get the best out of your divorce. This is done by focusing on what is necessary, fair, and what you are entitled to. Many people focus too much on emotions and irrelevant issues. This is where the wisdom of experts comes into play. What follows are some of the tips and tricks provided by Advocate Muhammad Abduroaf, a family law expert with more than a decade and a half of experience on family law, divorce, child custody and child maintenance matters. Read on to find out some tips and tricks of the trade. Valuable advice is given on what to do through the divorce court process.

A divorce scenario – Father cares for the children

Let say a couple was married for 10 years – they married in community of property. In other words, they share everything. There are 2 (two) children born from the marriage. They live in a home that is bonded but purchased by the wife before the marriage. The bond is only registered in her name and gets deducted from her personal banking account. The father, however, does not work but attends to the household, which includes cleaning, taking the kids to school, making food etc. When the children are ill, the father would be the one who stays up caring for them. School projects and homework is also attended by the father. The father does some web designing work for an income, but his income is minimal compared to that of his wife. Should this couple divorce, the best for them would be to enter into a parenting plan outlining their contact and care rights after the divorce.

Divorces and properly law – Who gets what?

Now in a case of divorce, the wife would find it unfair that the husband should have half the value of the home. This is so as she is the one who purchased it before the marriage and paid up all the monthly instalments. Our advice to the mother would be not to waste her time on this issue. The parties were married in community of property, forming one joint estate. If she came into the marriage with the property, then it forms part of the joint estate. The same advice goes to the husband. All that he needs to do is stick to what the law says he is entitled to. The judge would agree with him.

Child Custody and the Law – Know your parental rights

Then there is the issue of child custody. The mother believes that she is entitled to be the primary caregiver because she gave birth to the children. She also believes that all mothers should have custody over minor children no matter what the circumstances are. Apparently, someone told her that. However, the reality of the matter is that the father, in this case, cared for the minor children for most of their lives. It would further be in their best interests if he continues to do so. He knows their routine, needs, and how to care for them better than the mother. And besides that, the mother is a career woman, who works long, hard hours. She does not have the time, patience or skills to care for the minor children, as efficiently as the father has. The same principles may apply in matters of relocation.

Child Maintenance Tips and Tricks

Now, what advice do we have for parents where there is a dispute regarding the amount of Child Maintenance to Claim? Have a look at this article on Tricks and tips on how to win your child maintenance case. Similar principles can be applied to child maintenance issues in a divorce court, whether in the High Court, or Regional Court. With regard to the scenario above, the father would be the one claiming child maintenance from the mother. Unless he is successful in claiming personal maintenance (or alimony) from the mother, he would have to get a job, or earn more in his web designing business and support himself and contribute towards the expenses of the minor children.

The financial impact of Divorce on the household

The sad reality of divorce for most people is that their standard of living drops post-divorce. This is so as there are now two households that need to be maintained. When the couple lived together, there was only one bond or rental amount to pay, one municipal bill, and the entire family used the family car. Now it has doubled, placing a strain on the resources the parents have. Therefore, one needs to be practical as to what amount of maintenance one claims under these situations. The belt needs to be tightened when it comes to non-essentials. However, the parents must try their utmost to ensure that the minor children’s standard of education does not drop.

Child Custody Tips and Tricks

This aspect is one of the trickiest aspects regarding a divorce matter. Have a look at this article on How to win your child custody and access court case – Tips and Tricks. Here as well, similar principles can be applied to child custody issues in a divorce court. With regard to the scenario above, it would make sense that the father is awarded custody over the minor children and the mother reasonable contact. Her contact rights should accommodate her busy work schedule. That may either be every second weekend, every second day after school or once a month. It all depends on the facts of the case.

Busy Parents when it comes to Access

No parent should be punished for their work schedule. If the mother in the future gets more time off work, then provision should be made for that. In the same manner, should the father be gainfully employed in the future, then the mother would also need to come to the party and make more time for the children.

Fights over Child Custody

If the parties are in a battle regarding who should get custody of the minor children, then focus should be centred as to what is in the minor children’s best interests. The focus should be as to who can care better for the children in substance, and not in theory. Many parents say they can care better or will care better than the other parent, but have nothing to back up such bold allegations. No one is perfect, but if you demonstrated that you cared well for your child in the past, it may be best to leave things the way they are.

Badmouthing the other parent – Not a good idea

The focus should not be on badmouthing or finding faults in the other parent. You will annoy the court and your lawyer. Nonetheless, it won’t assist you in any way. If you truly care for your children, place personal issues aside, and put your children first. Even if the reason for the divorce is domestic violence, a level head should still be maintained.

Final words on how to win your divorce case

The advice in this article is not intended to trick the courts into finding in your favour. In our view, winning is getting what you are entitled to. To state it differently, losing would be not getting what is fair. So even if you paid for everything in the joint estate, and leave with half, that is still winning. Many people ask for the impossible in the divorce summons and do not receive it. This is either due to bad legal advice, or a case based on unsound judgment. Losing would be leaving with less than half if there was no legal basis for it. But if you feel that you want to give your spouse more than half, then do so.

Have a family Law appointment with us

We have an online appointments system which enables you to save valuable time and cut straight to the chase. There is, therefore, no need for you to visit our offices (unless it is best for you to do so, or is your most preferred option). You may set up telephonic or video consultations should you wish to do so. You can, therefore, stay in the office or on the couch in the comfort of your own home when dealing with us. We are therefore physical, online, set-up and ready to meet with you. Make your appointment online for a consultation today. 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    
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[caption id="attachment_10799" align="alignnone" width="720"]Relocation consent for minor child to Brazil - Advocate Muhammad Abduroaf Relocation consent for minor child to Brazil – Advocate Muhammad Abduroaf[/caption]

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

Brazil is a popular destination to emigrate to. People emigrate from South Africa for many reasons. It ranges from better employment opportunities, family relations, or for a better standard of living. Whatever the reason a parent wants to relocate to Brazil, if a minor child will be joining that parent and also relocating to Brazil, then the parent remaining in South Africa’s consent would usually be required. Let us unpack the legal issues a parent may encounter when wanting to emigrate to Brazil. Before we do so, let us list the various cities and towns in Brazil to which you may want to relocate: Acre, Rio Branco, Alagoas, Maceió, União dos Palmares, Amapá, Macapá, Amazonas, Itacoatiara, Manaus, Tefé, Bahia, Alagoinhas, Feira de Santana, Ilhéus, Itabuna, Jequié, Juazeiro, Paulo Afonso, Salvador, Vitória da Conquista, Ceará, Aracati, Crato, Fortaleza, Juazeiro do Norte, Sobral, Distrito Federal, Brasília, Espírito Santo, Cachoeiro de Itapemirim, Colatina, Fundão, Vila Velha, Vitória, Goiás, Anápolis, Catalão, Goiânia, Goiás, Ipameri, Jataí, Maranhão, Alcântara, Caxias, São Luís, Mato Grosso, Cuiabá, Mato Grosso do Sul, Campo Grande, Corumbá, Três Lagoas, Minas Gerais, Araguari, Barbacena, Belo Horizonte, Congonhas, Conselheiro Lafaiete, Diamantina, Divinópolis, Governador Valadares, Juiz de Fora, Mariana, Montes Claros, Nova Lima, Ouro Prêto, Passos, Patos de Minas, Poços de Caldas, Sabará, São João del Rei, Sete Lagoas, Teófilo Otoni, Uberaba, Uberlândia, Pará, Belém, Bragança, Monte Alegre, Óbidos, Santarém, Campina Grande, Paraíba, Campina Grande, João Pessoa, Paraná, Curitiba, Londrina, Maringá, Paranaguá, Ponta Grossa, Pernambuco, Caruaru, Garanhuns, Jaboatão, Olinda, Petrolândia, Petrolina, Recife, Piauí, Floriano, Parnaíba, Teresina, Rio de Janeiro, Angra dos Reis, Barra Mansa, Campos dos Goytacazes, Copacabana, Duque de Caxias, Nilópolis, Niterói, Nova Friburgo, Nova Iguaçu, Petrópolis, Resende, Rio de Janeiro, São Gonçalo, São João de Meriti, Teresópolis, Volta Redonda, Rio Grande do Norte, Mossoró, Natal, Rio Grande do Sul, Bagé, Bento Gonçalves, Canoas, Caxias do Sul, Novo Hamburgo, Passo Fundo, Pelotas, Porto Alegre, Rio Grande, Santa Maria, São Leopoldo, Uruguaiana, Rondônia, Guajará-Mirim, Pôrto Velho, Roraima, Boa Vista, Santa Catarina, Blumenau, Criciúma, Florianópolis, Itajaí, Lajes, Tubarão, São Paulo, Americana, Araçatuba, Araraquara, Barretos, Bauru, Botucatu, Campinas, Catanduva, Cubatão, Franca, Guaratinguetá, Guarujá, Guarulhos, Itapetininga, Jacareí, Jaú, Jundiaí, Limeira, Marília, Mogi das Cruzes, Osasco, Ourinhos, Piracicaba, Presidente Prudente, Ribeirão Prêto, Rio Claro, Santo André, Santos, São Bernardo do Campo, São Caetano do Sul, São Carlos, São José do Rio Prêto, São José dos Campos, São Paulo, São Vicente, Sorocaba, Taubaté, Sergipe, Aracaju, São Cristóvão, Tocantins, Palmas. (https://www.britannica.com/topic/list-of-cities-and-towns-in-Brazil-2055400)

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

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

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

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

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

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

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

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

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

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

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

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

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

Suppose the other parent also has parental responsibilities and rights over the minor child, and he or she does not want to consent to the relocation of the minor child to Brazil, then in such a case, the Court needs to be approached. Here I refer you back to section 18(5) of the Children’s Act referred to above where it states: (5) Unless a competent court orders otherwise, the Consent of all the persons that have guardianship of a child is necessary in respect of matters set out in subsection (3)(c). Therefore, after your Court Application has been launched an both sides have been heard, the Court would make the necessary Order. If you are successful in your application for the relocation of your minor children to Brazil, then the Court will make an Order similar to that which is shown below. [caption id="attachment_10798" align="alignnone" width="694"]Relocation consent for minor child to Brazil - Advocate Muhammad Abduroaf Relocation consent for minor child to Brazil – Advocate Muhammad Abduroaf[/caption] [caption id="attachment_10799" align="alignnone" width="690"]Relocation consent for minor child to Brazil - Advocate Muhammad Abduroaf Relocation consent for minor child to Brazil – Advocate Muhammad Abduroaf[/caption]  

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Top tips and tricks from a Senior Family Law Advocate on claiming maintenance for a five-year-old child in Giyani.

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 Giyani

Whether you claim child maintenance in Giyani, 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 Giyani.

The maintenance scenario – Giyani South Africa

In this article, we will deal with the following fictitious scenario, in a child maintenance matter:

  1. The Child is seven years old and attends school in Giyani
  2. The child is cared for by the mother who works in Giyani
  3. The mother works and earns a Salary of R 10 000
  4. The father sees the child every second weekend. He also lives and works in Giyani
  5. The child’s monthly expenses are R 6000 – 00 which includes food, clothing, accommodation, education, travel etc.
  6. The father earns a reasonable salary and can afford the R 20 000 – 00 per month
  7. 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 Giyani, it would be the maintenance court in Giyani. 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 Giyani, 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 Giyani Maintenance Court?

Once you have been notified of the maintenance court date by the Giyani 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 Giyani?

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 Giyani 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 Giyani 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, Giyani, Constantia, George, Hopefield, Oudtshoorn, Paarl, Simon’s Town, Stellenbosch, Swellendam, Worcester

 

 

 

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