Emotions and Stress in Family Legal Matters

Posted on 11 February 2025 by Telelaw

Top tips and tricks from a Senior Family Law Advocate on claiming maintenance for a five-year-old child in Zwelitsha.
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 Zwelitsha
Whether you claim child maintenance in Zwelitsha, 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 Zwelitsha.
The maintenance scenario – Zwelitsha 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 Zwelitsha
The child is cared for by the mother who works in Zwelitsha
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 Zwelitsha
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 Zwelitsha, it would be the maintenance court in Zwelitsha. 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 Zwelitsha, 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 Zwelitsha Maintenance Court?
Once you have been notified of the maintenance court date by the Zwelitsha 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 Zwelitsha?
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 Zwelitsha 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 Zwelitsha 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, Zwelitsha, Constantia, George, Hopefield, Oudtshoorn, Paarl, Simon’s Town, Stellenbosch, Swellendam, Worcester

Posted on 11 February 2025 by Telelaw

Parent Refusing Relocation, and Passport Application for Minor Child
[caption id="attachment_7084" align="alignleft" width="229"] Advocate Muhammad Abduroaf – Advocate of the High Court of South Africa[/caption] Often times, a parent would want to travel overseas, relocate or emigrate, and take the child with. However, the practical aspects thereof are not that easy. For starters, your child requires a passport. And what does the law say about passports of a minor child? As you would see later, both parents holding parental responsibilities and rights of guardianship should consent to a minor child obtaining a passport. That is a requirement in Law. But let’s say your child already has a passport. Can you still take your minor child out of the country or relocate? Yes, you can, as long as you have the consent of the other parent. This article does not only apply to parents of minor children who are not married to each other or separated. It applies to all parents of children holding parental responsibilities and rights over them, married, separated, or divorced. Before we move on, let us look at the most popular countries South African’s relocate to.
Popular relocation countries for South Africans
If you wish to emigrate from South Africa, there are many places in this world to consider. Some would be more ideal than others. But it all depends on the reason for the relocation. Here is a list of the top countries South Africans and emigrating to:
United Kingdom (UK)
Australia
United States of America (USA)
New Zealand
Canada
Angola
Botswana
Chile
Zimbabwe
Germany
Netherlands
Swaziland
Israel
Portugal
Mozambique
Ireland
Malawi
Switzerland
Namibia
Greece
If you intend to relocate to a country or region not mentioned above, read on, this article still applies to you.
The parent refuses to consent to emigration
Parents of minor children differ on many things. Sometimes it’s minor issues. For instance, which clothes the child should wear. However, some disagreements are serious and exhausting. For instance, what school should the minor child attend, or extra-mural activities to partake in? What school a child attend can affect the contact rights of parents when they live in separate homes. Now turning to this article. What if one parent wants to go away on holiday or relocate with the child, and the other parent refuses to give consent. One obvious reason to object to a relocation would be that the parent that remains in South Africa may not see the child for some time. This becomes a problem if the reason for the relocation is work-related, or for a better life. Does this now mean a parent must not better his or her situation in life in consideration of the other parent? And what if the other parent does not pay child maintenance? Must you still give up the job offer overseas? Worst yet, if the reason for the relocation is due to the parent having custody of the child remarried, and his or her spouse wants to relocate due to work reasons. Now let’s unpack the law.
The Right to a Passport
The South African Constitution, Act 108 of 1996 affords everyone certain basic human rights. These rights are entrenched in its Chapter 2, of the Bill of Rights. Section 21 of the Bill of Rights deals with freedom of movement and residence. It states the following: 21 (1) Everyone has the right to freedom of movement. (2) Everyone has the right to leave the Republic. (3) Every citizen has the right to enter, to remain in and to reside anywhere in, the Republic. (4) Every citizen has the right to a passport. Now, seeing that every child has a right to freedom of movement, and a passport, what does this mean to the parent who wants to take a child out of the Country for relocation or holiday?
The law on Consent for Passports for Minor children
Section 18 of the Children’s Act 38 of 2005 deals with Parental responsibilities and rights in relation to minor children. According to section18 (3) read with section 18(5) of the Act, a co-guardian of a child must consent to the child’s departure or removal from the Republic as well as to the child’s application for a passport. The only exception would be if a court decides otherwise. Therefore, even if the child lives with the father and he cares for her, if the mother has guardianship over the child, her consent is required.
What can be done if consent is refused for emigration?
Now that we know that everyone has the right to obtain a passport, and leave the Republic, what does this mean to the parent who now wants to relocate with the minor child, but the other parent does not want to give consent? An application to the competent court has to be made if this happens. And in this case, it would be the High Court where the child resides. The Court would have to determine what is in the minor child’s best interest. The High Court would listen to why the parent wants to leave, and also why the other parent does not want the child to accompany that parent. Once all the information is before the Court, the court would make a decision. The decision would be based solely on the minor child’s best interests. The Court may also consider reports and recommendations from other experts. For example, the Office of the Family Advocate, a Social Worker or Psychologist. Obviously, their experts need to consult with both parents and the child and have all the facts before them before they can provide recommendations to the Court. They may decide to consult with the child’s school teachers, family member etc. A good report would deal with the actual circumstances overseas. For example, verifying the job, the school the child will be going to, and so on.
What are the factors the court would look at in relation to emigration?
If one parent leaves the country with the child, it would mean no physical contact for the other parent. This would be the major objection. On the other hand, a parent could object due to the country visiting being dangerous. In the case of relocation, an objection could be that the child’s education would be compromised. One other obvious reason would be that the child would not see the remaining parent and his or her family in South Africa. Counter-arguments could be the use of Skype, and holiday visits etc.
Advice to parents who wants to relocate or temporary leave South Africa with the minor child
If you need to relocate, with a child, and the other parent refuses to give consent, speak to a legal advisor, or to us. They would advise you on your case, and if need be, assist or direct you to the proper people for an Application to court for an order that the requirement of consent is dispensed with. Should you be successful in such an application, the Order would be shown to the Department of Home Affairs when applying for a passport and when leaving the Country. The Officials would comply with the Order. The Order of Court can also be shown to the officials overseas should they want to know where the consent of the father is. In the same manner, should you want to leave South Africa to go overseas on holiday with the minor, approach us for advice should the other parent refuse to give consent. Your visit overseas could be to visit a family member, or just for a break. There should be no reason why you cannot take the minor child with you on holiday. [caption id="attachment_6387" align="alignleft" width="300"] Contact us today[/caption]

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Posted on 11 February 2025 by Telelaw

What all separated parents should know before the holiday season. Use this legal advice to ensure that the holidays go by smoothly.
During the festive season, school is out and the holidays are here. This is a time of year when children get a break from the long school hours, early mornings, homework and exams. It is a welcomed relief to most parents and children. Parents no longer have to deal with homework, washing of school clothing and making sure their children arrive at school on time. Of course, there are other challenges. For example, the children would need to be entertained and be cared for during the day. Sometimes whilst the parents are at work.
Contact arrangements during school holidays
During the school holidays, contact arrangements of separated parents concerning their children would change. Children would usually be one full-half of the holidays with one parent, which half would alternate each year. The split usually takes place after Christmas. Some parents follow a week-on, and week-off arrangement. On a rare occasion, the parent continues with contact as they have during the school term. This may apply to parents who are working during the holidays. So most of the time, during a period in the holidays, one parent cares for the child; then the other can take a break from caring. If the mother is the primary caregiver, she can use this time to go on a mini-vacation or catch up on her reading or go out on an outing with her friend. Therefore holiday time could be very beneficial to the child and parents concerned. Sometimes one parent wants to go on a holiday overseas with the child to visit a relative, but consent is not forthcoming from the other parent. And other times, a parent wants to have more contact than they usually exercise, which would infringe the other party’s contact rights. On the flip side, a parent may not be available to care for the child during the holidays due to work, or other reasons. These and other issues can arise during the school holidays. This article will try to address some of these scenarios, with some advice, and advise on when to approach the court should they not be able to resolve them. Now let us begin.

Parenting arrangements for separated parents during the holidays

Parenting arrangements for separated parents can come in various forms. It may either be in the form of a mediated parenting plan, informal documented arrangement, or an order of Court. In other cases, the parties have some type of verbal agreement which they follow and confirm via email or text messages. Some parents use the children as the go-between to arrange holiday contact. Should the parents adhere to the terms of the agreement; no problems would arise during the holidays. A well deserved holiday would be on the horizon. However, our experiences are that during the end of the year holiday, problems are more likely to arise than at any other time of the year. This would be so notwithstanding there is a binding legal agreement in place. This article will attempt to highlight those problems and also provide you with workable solutions to avoid them. Let us start with the usual holiday contact.

Holiday contact – All families are different

All families are different. The type of contact a parent would have to a child during the holidays would vary from family to family. This would depend on the various family dynamics. For example, the age of the children, and whether or not the parents are working during the school holidays. Another factor is whether or not they live close to each other. Whatever the Dynamics, the parenting arrangement should be workable and sensible.

Equal sharing of long and short school holidays

The usual parenting agreement would be for the parents to share school holidays equally. Of course, not all parents have the privilege of not having to work during school holidays. It is therefore important that prior to the holidays, parents come to a workable agreement on how contact should be exercised during that period. This is not only in the child’s best interest but in the interests of the parents concerned. Parents will not want to spend their entire holiday fighting over contact. They should use this time to spend quality time with the children and also to enjoy the holiday season.

What all separated parents should do before the holidays

A few months before the holidays, the parents should discuss contact for that period. What worked a few years ago when the children were young might not be applicable today. For example, now the children have to attend school camp or attend to additional tuition. Furthermore, they may want to go away to a sporting event for the holidays. Notwithstanding the various dynamics, the parents have to come to an agreement regarding how contact should be exercised during school holidays way in advance. Obviously, during the school term, their schedule is set.

What to do if an agreement cannot be reached

Should the parents not be able to come to an agreement regarding contact during the school holidays, it is important for them to have a look at the parenting plan or Order of court in this regard. Usually, the parenting plan would deal with facilitation or mediation, as well as the Court Order. If it does not, it is strongly advised that you approach a mediator to assist in resolving the care and contact issues for the holidays. If that is not possible, then read on to learn more regarding some possible solutions.

When to approach the Court regarding holiday contact?

The last resort for parents who cannot agree on contact during the holidays is for them to approach the court. Even if there is a court order in place, but it has since become impractical, one would expect parents to act reasonably. However, if one parent is adamant that the court order should be followed, then approaching the court is the route to follow. But before doing so, it may be wise to see a legal practitioner for legal advice on the specific issue. An attorney may also send the other parent a letter. This may resolve matters. Let us look at a few examples of when approaching the court would be necessary.

Refusal of Contact when there is no order in place

If there is no court order in place, and the primary caregiver refuses you contact to your child, then first try to mediate the matter. Trying to enter into a parenting plan would be a wise idea. If that is not possible, or fails, then approaching the court would be the next step to follow. A family law attorney would be able to assist you.

There is a Court Order in place

Let’s say there is a contact court order in place. However, it is outdated and not workable. This is so because the children are now teenagers, and contact should be no longer every second day, but for a week at a time. This is not only practical but also what the children want. If there is a parenting plan in place, that allows for the mediation of such a matter, then mediation should be followed. If not, then a variation of the court order would be warranted. The court would always look at what is best for the children, and not what the parents want.

Refusal to give consent to take the minor child on holiday overseas

Both parents who hold parental responsibilities and rights of guardianship should consent to the minor child leaving South Africa for visits overseas. However, it often happens that custody agreements or Court orders don’t deal with this scenario. When the party separated they did not foresee the possibility of the child wanting to leave the country with the other parent. Nonetheless, this scenario is a reality. The parties, therefore, have to be sensible and come to an amicable agreement regarding it. If they cannot come to an agreement regarding the minor child leaving the country with the other parent then, unfortunately, the court should be approached.

Refusal to give consent for the minor child to obtain a passport

When the children were young at the time of divorce or separation, the parents may not have seen the necessity for them to obtain a passport. However, things changed. Now that their children are teenagers they may want to travel overseas with a parent. Should this occur they would have to obtain a passport. Here too the law says that both parents should consent for the application of a passport if they are both guardians. Therefore, if one parent does not consent then the High Court should be approached. This would be very unfortunate seeing that High Court litigation is very expensive. The parties would have to appoint a legal practitioner to make the application to the court and oppose it if necessary. This would not be in the minor child’s best interest. Nonetheless, the court will decide what is best for the minor child concerned.

Child maintenance during the festive season

Lastly, we would like to touch on the issue regarding child maintenance during the festive season. During holiday times, children become more expensive. They eat more, want to go out more, and at the same time use more water and electricity at home. Unfortunately, these added expenses can burden a parent caring for children during the holiday season. We, therefore, advise parents to timeously discuss these issues and see whether or not they can come to an agreement regarding the expenses of the child during the holidays. Unfortunately, if a parent does not want to contribute more than he or she is currently contributing; the other parent would have to approach the maintenance court. The sad reality of this is that the maintenance court can take many months to finalize such an issue. We, therefore, implore on all separated parents to be cognizant of this fact and try to be more generous regarding child maintenance during the holiday season.

Final words of advice two parents who are separated during the festive season

As outlined above, it is important that parents timelessly come to an agreement regarding contact in relation to a minor child during the festive season. If they do not do that, many problems can arise in the future. Of them could be limited or no contact with a minor child. It could also mean that a court should be approached should one parent not decide to provide contact to the minor child. This can all be avoided should the parties work together in what is best for the minor child concerned. If however, the parents cannot come to an agreement regarding contact, consent to travel abroad, or apply for a passport for a minor child; then the parents would have to resolve this matter in the High Court. This is best to be avoided at all costs.

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Posted on 11 February 2025 by Telelaw

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