Frequently asked questions regarding relocation and consent when it comes to minor children

Frequently asked questions regarding relocation and consent when it comes to minor children

Relocation – Are you planning on relocating to another country or moving to a different province within South Africa with your minor child? Are you concerned about the issue of consent from the other parent? Below are some frequently asked, and related questions on the topic. We would encourage you to post and answer some of the questions, or just leave a comment.

advice-child-maintenance-child-custody-divorce

Parents often decide to relocate with their minor children. However, they do not always understand the legal requirements and implications involved. For example, can they just leave the country with the minor child or do they require the other parents’ consent? Furthermore, if consent is required and refused; what are the remedies available to that parent? With regard to the issue of moving from one province to another, unless a court order stipulates otherwise, consent is not required. However, the relocation from one province to another could have an effect on existing parental responsibilities and rights. Under these circumstances, a variation of the court order would be warranted.

There are therefore also other issues involved when it comes to relocation. For example, what contact would the other parent who remains in South Africa have to the minor children after relocation? The aforementioned questions and a range of other related questions may be posed and answered below. Feel free to post your question should this blog post not have answered it.

Can I move from South Africa to the United Kingdom with my child without the father’s permission?

If the father has parental responsibilities and rights of guardianship, his consent is required for the relocation to the United Kingdom. For example, if the father and the mother were married, then under those circumstances unless an order of court determines otherwise, the father’s consent is required. If the father was not married to the mother, but in a long term relationship when the child was born, and involved in the child’s life after birth, then his consent under the circumstances would also be required.

What do I do if the father refuses to consent to relocate to Germany?

advice-child-maintenance-child-custody-divorceIf a parent refuses to provide the necessary consent for relocation to another country, in this case, Germany, then the Court must be approached. Basically, you would ask the court to dispense with the requirement of the father’s consent. The court would determine the case based on what is best for the minor children involved.

What type of care and contact would the other parent exercise if I relocate to Saudi Arabia?

In this digital age, there is no reason why a parent cannot have regular contact to his or her child if they live in different countries. Usually, contact would take place via Skype, WhatsApp, FaceTime, or other digital means. Email and other messaging services are also effective. When the children returns for holidays or the parent visits them overseas, then contact should be reasonable. For example, a few days with the non-custodial parent.

May I relocate with my child to Canada or the United States?

advice-child-maintenance-child-custody-divorceYou may relocate with your minor child to Canada, the United States, or to any other country if you have the father’s consent. However, consent is not always required if the father does not have guardianship rights. If you were married to the father or he was involved in the child’s life, by visiting and paying maintenance, then his consent would be required.

My child does not have a passport. Do I require the father’s consent to obtain one?

In terms of the Children’s Act, if a father has parental responsibilities and rights of Guardianship, his consent is required for the minor child’s application for a passport. If the father’s name is on the birth certificate, more than likely the Department of Home Affairs would insist on having his consent.

Can a mother move a child away from the father?

Under normal circumstances, a mother cannot move a child away from the father. However, if it is in the child’s best interest, it will be allowed. It is best to obtain a court order dealing with the parties’ parental responsibilities and rights under the circumstances. Alternatively, a social worker or childcare expert should have advised the mother that that would be in the child’s best interest.

When can a child legally decide which parent to live with?

In South Africa, a child is no longer under the guardianship of a parent when he or she turns 18 (eighteen) years old. Therefore when the child turns 18 (eighteen) years old, he or she can decide where he wants to stay, and with whom he wants to stay. The same applies in the case of the relocation. The father’s consent would not be required should the minor child decide to relocate to another country with a mother. The opposite also applies.

Can I get a passport for my child without the father’s consent?

advice-child-maintenance-child-custody-divorceIn terms of South African law, both guardians’ consent is required for a child applying for a passport. Therefore, if the father is a holder of guardianship, his consent is required. The Department of Home Affairs may insist on the father being present at their offices to give consent.

Can I move with my child without the father’s permission?

If you wish to move to a different province or to a different city within South Africa; technically you do not require the father’s permission unless there is a Court Order stating that you require his consent.

Can I change my child’s last name without the father’s consent?

The Department of Home Affairs would require both parents’ consent. If the child has the father’s surname, you would definitely require the father’s consent. If the mother remarried and wants the child to have the surname of the step-father, and the child currently has a mother’s maiden surname, then in those circumstances the Department of Home Affairs might decide not to persist with the father’s consent if he cannot be found.

Can a mother take a child out of the country without the father’s permission?

This depends on whether or not the father has guardianship rights over the minor child. If the father has guardianship rights over the minor child then, he would require the mother’s consent. Furthermore, the Department of Home Affairs would require the father’s consent before the child may leave the Republic of South Africa if the father has guardianship rights.

Can I take my child overseas without the child’s father’s permission?

If the father has rights of guardianship over the child then you require his permission to take the child out of the Republic of South Africa. This applies whether or not you intend to relocate to another country or you would like to take the child away on a holiday.

Can a mother move a child away from the father in South Africa?

advice-child-maintenance-child-custody-divorceA parent (in this case the mother) has to always act in the child’s best interest. However, under certain circumstances, the mother may have to move to a different province or to another country. Under those circumstances, the court would look at what is best for the minor child. Should the child remain in the province or in the country with the other parent who cannot care for him or her? Obviously not, unless the situation warrants it. Those are the factors that the court would have to look at.

May grandparents take the minor child abroad?

Yes, a grandparent may take a minor child abroad. However, the grandparent would require the consent of both the minor child’s parents if they are both guardians.

Can I get my child a passport without the father’s consent?

In terms of the Children’s Act, both guardians are required to give consent for the minor child’s application for a passport. Therefore, if the father has guardianship rights over the minor child, then his consent is required.

Can a mother terminate a father’s parental rights when she moves overseas?

advice-child-maintenance-child-custody-divorceA mother cannot terminate a father’s parental rights and responsibilities. Even if she moves overseas, she can’t. Only a court of law can do that. However, it is possible under certain circumstances that the father does not have parental responsibilities and rights. In those cases, he can acquire parental responsibilities and rights if he gets involved in the child’s life.

 

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Related Post

Various Matrimonial Property Regimes focusing on the Accrual System

Getting married is a legal act. With it comes certain responsibilities and rights. For example, you have a legal obligation to maintain your spouse. You cannot marry anyone else, and furthermore, your spouse can inherit from you interstate. Depending on the matrimonial property regime you entered into, certain legal consequences would apply regarding the proprietary (or money) aspects of your marriage. For example, to whom do money and assets belong to acquired during the marriage and before it. In South Africa, a person has three (3) choices when it comes to getting married in relation to your matrimonial property regime. They are explained briefly below.
Marriage Contract - Antenuptial - Prenuptial Agreement In Community of Property (Default system) A marriage in community of property is the default matrimonial property regime. You do not need to enter into an antenuptial contract in order to be married like this. Basically, when getting married, both spouses’ assets, money, liabilities and so on becomes one single joint estate. You can compare it to placing it all in one pot. And from that pot would the spouse’s finances be dealt with. If either spouse gets themselves into financial trouble, it is the joint estate, or the pot that would have to be looked at in order to sort it out. This would apply to financial trouble which arose even before the marriage.   Lastly, at death or divorce, the joint estate, or the pot would be divided and each party’s estate would leave with half. If you are worried about the financial implications of your marriage, you need to read further. Out of Community of Property and Profit or Loss (Without Accrual) Being married out of community of property and profit or loss is basically the exact opposite of being married in community of property. Here we are dealing with out of community of property with the exclusion of the accrual regime. Under this matrimonial property regime, there remain two separate estates just as there was before the spouses got married. Each spouse is responsible for their own wealth and debt. Creditors can therefore only claim from the estate of the relevant spouse. Not the other. At death or divorce, the situation remains exactly the same. Each estate leaves with whatever it has, being it money, assets or debt. In order for a couple to be married out of community of property and profit or loss, they need to stipulate it in an antenuptial contract and have it registered. The antenuptial contract would be executed before a Notary Public and registered at the Deeds Office. If this is not done,  then the marriage would be In Community of Property as above.  Next, we deal with a hybrid regime. You may find it more beneficial to you. Read more on antenuptial contracts by clicking here. Out of Community of Property and Profit or Loss (With Accrual) The third option a couple has is to get married out of community of property and profit or loss with the inclusion of the accrual regime. The accrual regime or system is outlined in the Matrimonial Property Act 88 of 1984. Basically, what it entails is that during the marriage you are married out of community of property and profit or loss as in the latter section, but at divorce or death, you share in the accrual or profits of the marriage. Each spouse still retains full control over their assets and estate during the marriage. Just as out of community of property and profit or loss without the accrual. If, however, the parties divorce or one dies, they will share in the accrual or profits. If you want the accrual regime to apply to your marriage, that would be stated in your antenuptial contract. It would then also be registered at the Deeds Office. In order to work out the accrual, one needs to know the net commencement value of each party’s estate. That would be stipulated in the antenuptial contract. The Accrual system is regulated in Chapter 1 of the Matrimonial Property Act 88 of 1984. In terms of the Act, certain items are excluded when calculating the accrual unless otherwise agreed upon. This is dealt with next.

Items or amounts excluded in the accrual calculation (unless otherwise agreed upon)

  1. Amounts which accrued to that estate by way of damages, other than damages for patrimonial loss. E.g. pain and suffering;
  2. An asset which has been excluded from the accrual system in terms of the antenuptial contract of the spouses, as well as any other asset which he or she acquired by virtue of his or her possession or former possession of the first-mentioned asset;
  3. An inheritance, a legacy or a donation which accrues to a spouse during the subsistence of his or her marriage, as well as any other asset which he acquired by virtue of his or her possession or former possession of such inheritance, legacy or donation (except in so far as the spouses may agree otherwise in their antenuptial contract or in so far as the testator or donor may stipulate otherwise);
  4. Donations between spouses, other than a donation mortis causa [anticipation of the death of the donor], is not taken into account either as part of the estate of the donor or as part of the estate of the donee.
Below find the relevant sections of the Matrimonial Property Act 88 of 1984 Marriage Contract - Antenuptial - Prenuptial Agreement

Matrimonial Property Act 88 of 1984

Extracts of the Matrimonial Property Act: CHAPTER I ACCRUAL SYSTEM 2.Marriages subject to accrual system Every marriage out of community of property in terms of an antenuptial contract by which community of property and community of profit and loss are excluded, which is entered into after the commencement of this Act, is subject to the accrual system specified in this Chapter, except in so far as that system is expressly excluded by the antenuptial contract. 3.Accrual system (1) At the dissolution of a marriage subject to the accrual system, by divorce or by the death of one or both of the spouses, the spouse whose estate shows no accrual or a smaller accrual than the estate of the other spouse, or his estate if he is deceased, acquires a claim against the other spouse or his estate for an amount equal to half of the difference between the accrual of the respective estates of the spouses. (2) Subject to the provisions of section 8(1), a claim in terms of subsection (1) arises at the dissolution of the marriage and the right of a spouse to share in terms of this Act in the accrual of the estate of the other spouse is during the subsistence of the marriage not transferable or liable to attachment, and does not form part of the insolvent estate of a spouse. 4.Accrual of estate (1) (a) The accrual of the estate of a spouse is the amount by which the net value of his estate at the dissolution his marriage exceeds the net value of his estate at the commencement of that marriage. (b) In the determination of the accrual of the estate of a spouse— (i) any amount which accrued to that estate by way of damages, other than damages for patrimonial loss, is left out of account; (ii) an asset which has been excluded from the accrual system in terms of the antenuptial contract of the spouses, as well as any other asset which he acquired by virtue of his possession or former possession of the first-mentioned asset, is not taken into account as part of that estate at the commencement or the dissolution of his marriage; (iii) the net value of that estate at the commencement of his marriage is calculated with due allowance for any difference which may exist in the value of money at the commencement and dissolution of his marriage, and for that purpose the weighted average of the consumer price index as published from time to time in the Gazette serves as prima facie proof of any change in the value of money. (2) The accrual of the estate of a deceased spouse is determined before effect is given to any testamentary disposition, donation mortis causa or succession out of that estate in terms of the law of intestate succession. 5.Inheritances, legacies and donations excluded from accrual (1) An inheritance, a legacy or a donation which accrues to a spouse during the subsistence of his marriage, as well as any other asset which he acquired by virtue of his possession or former possession of such inheritance, legacy or donation, does not form part of the accrual of his estate, except in so far as the spouses may agree otherwise in their antenuptial contract or in so far as the testator or donor may stipulate otherwise. (2) In the determination of the accrual of the estate of a spouse a donation between spouses, other than a donation mortis causa, is not taken into account either as part of the estate of the donor or as part of the estate of the donee. 6.Proof of commencement value of estate (1) Where a party to an intended marriage does not for the purpose of proof of the net value of his estate at the commencement of his marriage declare that value in the antenuptial contract concerned, he may for such purpose declare that value before the marriage is entered into or within six months thereafter in a statement, which shall be signed by the other party, and cause the statement to be attested by a notary and filed with the copy of the antenuptial contract of the parties in the protocol of the notary before whom the antenuptial contract was executed. (2) A notary attesting such a statement shall furnish the parties with a certified copy thereof on which he shall certify that the original is kept in his protocol together with the copy of the antenuptial contract of the parties or, if he is not the notary before whom the antenuptial contract was executed, he shall send the original statement by registered post to the notary in whose protocol the antenuptial contract is kept, or to the custodian of his protocol, as the case may be, and the last-mentioned notary or that custodian, shall keep the original statement together with the copy of the antenuptial contract of the parties in his protocol. (3) An antenuptial contract contemplated in subsection (1) or a certified copy thereof, or a statement signed and attested in terms of subsection (1) or a certified copy thereof contemplated in subsection (2), serves as prima facie proof of the net value of the estate of the spouse concerned at the commencement of his marriage. (4) The net value of the estate of a spouse at the commencement of his marriage is deemed to be nil if— (a) the liabilities of that spouse exceed his assets at such commencement; (b) that value was not declared in his antenuptial contract or in a statement in terms of subsection (1) and the contrary is not proved. 7.Obligation to furnish particulars of value of estate When it is necessary to determine the accrual of the estate of a spouse or a deceased spouse that spouse or the executor of the estate of the deceased spouse, as the case may be, shall within a reasonable time at the request of the other spouse or the executor of the estate of the other spouse, as the case may be, furnish full particulars of the value of that estate. Power of court to order division of accrual (1) A court may on the application of a spouse whose marriage is subject to the accrual system and who satisfies the court that his right to share in the accrual of the estate of the other spouse at the dissolution of the marriage is being or will probably be seriously prejudiced by the conduct or proposed conduct of the other spouse, and that other persons will not be prejudiced thereby, order the immediate division of the accrual concerned in accordance with the provisions of this Chapter or on such other basis as the court may deem just. (2) A court making an order under subsection (1) may order that the accrual system applicable to the marriage be replaced by a matrimonial property system in terms of which accrual sharing as well as community of property and community of profit and loss are excluded. (3) When an order is made under subsection (2), the registrar shall send a copy thereof to the registrar of deeds concerned, who shall cause an appropriate reference to the new matrimonial property system to be made on the registry duplicate of the antenuptial contract concerned and on every copy thereof tendered to him for endorsement. (4) A registrar of deeds who receives notice of a new matrimonial property system in terms of subsection (3), shall notify all other registrars of deeds accordingly and furnish each of them with a copy of the court order, and every registrar of deeds so notified shall cause an appropriate reference to the new matrimonial property system to be endorsed on the copy, if any, of the antenuptial contract concerned filed in his registry and on every copy thereof tendered to him for endorsement. 8.Forfeiture of right to accrual sharing The right to share in the accrual of the estate of a spouse in terms of this Chapter is a patrimonial benefit which may on divorce be declared forfeit, either wholly or in part. Deferment of satisfaction of accrual claim A court may on the application of a person against whom an accrual claim lies, order that satisfaction of the claim be deferred on such conditions, including conditions relating to the furnishing of security, the payment of interest, the payment of instalments, and the delivery or transfer of specified, assets, as the court may deem just. Marriage Contract - Antenuptial - Prenuptial Agreement

Relocation with my minor child to the United States of America, Los Angeles (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 Los Angeles, United States of America

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 nine or ten) 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 Bellville or Pietermaritzburg, South Africa, and you want to relocate to Los Angeles, United States, 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 Los Angeles, United States?

The same applies when it comes to your minor child applying for a South African passport to relocate to United States of America, 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 Los Angeles, United States of America with my minor child? There is another parent.

To simplify the process for relocation, the first step would be to receive the other parent’s consent in principle for the relocation and that he or she will co-operate in this regard. Once that has been resolved, the parent relocating would need to make the appointment for the minor child’s passport application as well as the application for the relevant VISA. Each country has different requirements; however, seeing that it is a relocation, you need to apply for the correct VISA. For that, you need the Passport. Once the visa and travel arrangements have been finalised, the parent remaining behind will sign a parental consent letter for the international travel. That letter can be found on the Department of Home Affairs website. Basically, the parent remaining behind would state that he or she gives consent for the minor child to leave the Republic of South Africa and travel and/or relocate to Los Angeles, United States of America.

What can I do if the other parent does not want to consent to the minor child’s relocation to Los Angeles, United States of America?

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 Los Angeles, United States, 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 Los Angeles, United States. 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 Los Angeles, United States, 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 Los Angeles, United States of America?

If the other parent does not want to consent to the passport application and/or the relocation of the minor child to Los Angeles, United States – 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 Los Angeles, United States, 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 Los Angeles, United States of America

If you require legal assistance or representation with relocating to Los Angeles, United States 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.

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