Frequently asked questions when it comes to parental responsibilities and rights of parents having issues or difficulties in co-caring for their children.

As things evolve, so does the legal question surrounding child custody, contact and care. For example, not too long ago, children were generally seen as best being cared for by mothers as opposed to fathers. Fathers would usually get custody if the mother was incapable of caring for a child. Now the law focuses solely on what is best for the child under specific circumstances. Therefore, it often happens that primary care is awarded to fathers where there are no social welfare issues involved. Moreover, a lot of attention is given to the voice of the child. This depends on the child’s age and level of maturity. We decided to answer various popular questions on parental rights and responsibilities when it comes to children. Below are 11 popular legal questions and answers Our Lawyer comes across. Further below are some frequently asked questions that you can apply your mind to.
  1. Does a mother have more rights over a child than a father?
  2. The father of my child never had contact with the child since before my child’s birth. Does he have any parental rights? We were never married.
  3.  Do I need a lawyer to obtain contact and care rights for my minor children? I never saw my children for the past 6 (six) months.
  4. I am not a working mother. Does that mean that I cannot have primary care (custody) over my child
  5. The father of my child is threatening to take our child away from me. Can he do that? He can afford lawyers. 
  6. Can I refuse the father to have contact with my child if he does not pay child support?
  7.  What happens if parents cannot agree on how to exercise their parental rights and responsibilities of care and contact? 
  8. Can a parent refuse the other parent’s contact with the minor child if there is no court order?
  9.  Can the minor child decide where he or she wants to live if the parents are separated?
  10. How can I get full custody of my child without going to court?
Read on to find the answers to the above questions.

Does a mother have more rights over a child than a father?

If the parents are married, then they have equal parental rights and responsibilities over their child. They, therefore, both have to agree on important aspects of the child’s life. If the parents were not married, then the issue is that of whether or not the father acquired full parental rights and responsibilities over the child. In short, this he would acquire, if he was actively involved in the child’s life since birth, and paid child support. As the child would generally live with the mother, she would decide what is best for the child during the time he spends with her, and the father the same when the child is with him. As he would have acquired parental rights and responsibilities, he would have to consent for guardianship issues. For example, an application for a passport or leaving South Africa with the mother. If the parents cannot agree on these issues, they would have to try to agree on a parenting plan. If that turns out futile, the court may be approached.

The father of my child never had contact with the child since before my child’s birth. Does he have any parental rights? We were never married.

If a father was not married to the child’s mother, he would only obtain parental rights if he was involved in the child’s life since birth and contributed to the child’s maintenance adequately. This is the long and short of it. Concerning the question above, the father does not have any parental responsibilities and rights. Therefore, he cannot come into the child’s life after 10 years and demand to have contact. This may not be in the child’s best interest. Each case is however decided on its own merits.

Do I need a lawyer to obtain contact and care rights for my minor children? I never saw my children for the past 6 (six) months

It is very sad if a parent refuses the other parent’s contact with their minor children. It is not only the parent who loses out but the children as well. The bond the children have been developing with the other parent would be severed and needs to be rebuilt again. Although children may not express it, they do know that things are wrong. A child would know that a parent is no longer visiting. One does not have to have a lawyer to assist you in obtaining a court order to see your children. However, it is advisable. If you cannot afford one, you can approach the Children’s Court to assist you. It is not necessary to have an attorney or advocate in the latter court.

I am not a working mother. Does that mean that I cannot have primary care (custody) over my child?

There are many parents out there who are not working and caring for their children. The law does not state that a child should reside with a parent who can afford to maintain him or her. If the primary caregiver of the child is unemployed, the maintenance court can order that the other parent pay adequate child support to the other parent. This would be in the child’s best interest. Therefore, primary caregivers of children should not be afraid to fight to keep their children with them despite them being unemployed. They should approach the maintenance court if the other parent is not paying adequate child support for the minor child. The amount they claim can be all the child’s monthly expenses. In other words, the parent caring for the child would not spend any money on the child as she does not have the means. However, caring for the child has great value in it.

The father of my child is threatening to take our child away from me. Can he do that? He can afford lawyers.

This question we often receive from mothers who are separated from the child’s father. They feel vulnerable because the father is bullying them into believing that they will get what they want if the mother does not listen to them. This is a sad reality. However, one that nonetheless needs to be addressed. The law looks at what is best for the child. And does not listen to the parent who has more money or more status in society. If it would indeed be best for the child to live primarily with, the father, then the Court would make such a ruling. However, depending on the age of the child, and how he or she is being cared for, if parents separate, the child would usually remain with the parent who primarily cared for the child. As stated, what is best for the child is the deciding factor. Nothing else.

Can I refuse the father to have contact with my child if he does not pay child support?

Child maintenance obligations and the right to have contact with your child are two separate issues. That is why we have the Maintenance Court and the Children’s court. If a parent is not paying child support or adequate child support for that matter, the primary caregiving parent must approach the maintenance court to decide on the matter. The Maintenance Court would then make a ruling as to what is fair under the circumstances. On the other hand, if a parent is paying more than reasonable child maintenance, it does not mean he or she can have more contact with the minor child. In other words, the more he or she pays, the more contact he or she would have. The law does not work that way. If a parent feels that the other parent is unreasonably withholding contact, then he or she must approach the competent court for relief. But at the same time, continue paying child maintenance.

What happens if parents cannot agree on how to exercise their parental rights and responsibilities of care and contact?

Parental responsibilities and rights refer to aspects of where the child would live, how contact is to be exercised, maintenance and guardianship issues. Parents should first try to agree on a parenting plan should they experience difficulties in exercising their rights. Difficulties in the sense that they cannot agree to the above-mentioned aspects of parenting. The plan would be drafted with the assistance of a social worker, mediator, lawyer, or another suitably qualified person. If the parents cannot agree on the parenting plan, then they may approach the court to deal with their issues. They may approach the Children’s Court or the High Court. The challenge here is that it can take very long, expensive if you make use of lawyers, and further, you are leaving the decision to the court to decide. If you try to mediate a parenting plan beforehand, you and the other parent are in control of the situation.

Can a parent refuse the other parent’s contact with the minor child if there is no court order?

If a parent has parental responsibilities and rights over a minor child, he or she has the right to form part of the child’s life. A parent, therefore, cannot refuse the other parent reasonable contact with the minor child. This would not be in the minor child’s best interest. However, it often happens that a parent believes that under certain circumstances, the other parent should not have contact with the minor child. This is so, despite both parents having full parental responsibilities and rights over a minor child. This attitude can be dangerous, as we have a situation where one parent believes he or she is the sole decider as to what is best for the child. A child has two parents, and both parents should decide. Therefore, if there is no court order, and one parent primarily cares for the minor child, we would expect that parent to act reasonably and, in the child’s, best interest and not in a bossy and controlling manner. If the other parent feels that the primary caregiver is being unreasonable, he or she should attempt to mediate the matter and for a parenting plan to be entered into. If that does not work, the court should be approached to grant a final parenting order.

Can the minor child decide where he or she wants to live if the parents are separated?

Children are to be cared for and therefore, need their parents to decide what is best for them. Therefore, the answer to the question above is, no. It is not up to the child to decide where he or she wants to reside if his or her parents are separated. The parents must resolve this issue between themselves. The child’s views must be considered, based on his or her age and level of maturity. It sometimes happens where a child resides with one parent, and the other parent wants to manipulate the situation. He or she would try to get the child to get the primary caregiver to agree that primary care is reversed. For example, by promising the child something so that the child would act in a certain way which would change the living arrangements. This is not in the child’s best interests.

How can I get full custody of my child without going to court?

Custody is a factual issue. In other words, a parent can be caring for a child on his or her own for years. In such a case, he or she is exercising sole custody over the child. The parents may even agree that the child remains with one parent. Therefore, in such a case, that parent would have full custody. Therefore, it is not necessary to go to court if you are already exercising sole custody over your child. However, it often happens that parents want to formalise this situation with a Court Order. In such a case, approaching the court is necessary. 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

Below are some examples of frequently asked questions on the above topic. If they apply to you, feel free to set-up a consultation with us to discuss them.

What are grounds for sole custody?

Is sole custody permanent?

What are the benefits of sole custody?

How do I fight for full custody?

What can be used against you in a custody battle?

What is the difference between full and sole custody?

Can you get child support with full custody?

Can you file for full custody Online?

Can a father take a child away from the mother?

Can you get a free lawyer for custody?

Do you need a lawyer to get child custody?

Can a parent with sole custody deny visitation?

Can I move if I have sole custody?

Can I deny visitation to the father?

Can you go to jail for denying visitation?

Do I have to allow visitation without a court order?

What do I do if my child refuses visitation?

Can I take my child with me if I leave my husband?

What custody arrangement is best for a child?

How do I get full custody of my child in South Africa?

What does it mean to have sole custody?

What is the definition of sole custody?

What does it mean when you have sole custody?

What do courts look for in a custody battle?

How do you act in court for child custody?

Is a custody battle worth it?

What are the benefits of sole custody?

What are good reasons to get full custody?

Can I move if I have full custody?

How a father can lose a custody battle?

What can be used against you in a custody battle?

Why do fathers lose custody?

Is there a difference between full custody and sole custody?

How does a parent get sole custody?

What rights do I have with sole physical custody?

Who has custody if there is no agreement?

Can I see my child without a court order?

Can a father take a child away from the mother?

Can a father take a child from the mother in South Africa?

What percentage of fathers get custody?

Do you have to go to court for custody?

How can I get full custody of my child without going to court?

Can sole custody be taken away?

What is the difference between sole custody and termination of parental rights?

Can a father get away without paying child support?

Can I take my child with me if I leave my husband?

How much does a custody modification cost?

Can a mother get custody with no job?

What happens when you file for full custody?

How do I get full custody in South Africa?

What can I expect in custody court?

How long can a child custody battle last?

How do I go to court for child custody?

What is the normal visitation for a father?

What is the average custody agreement?

How can a father get 50 50 custody?

How much child maintenance should a father pay South Africa?

At what age can a child choose which parent to live within South Africa?

What age can you legally leave a child home alone in South Africa?

How a father can lose a custody battle?

What can be used against you in a custody battle?

Why do fathers lose custody?

Can a father take a child away from the mother?

Can a mother legally keep her child away from the father?

Can a mother take away a father’s rights?

How can I get full custody of my child without going to court?

What can I do if my child is not given to me for visitation?

Can a parent kidnap their child South Africa?

Can a parent with sole custody deny visitation?

Is sole custody permanent?

Can I move if I have sole custody?

What do courts look for in a custody battle?

How do you prove you should have full custody?

Is a custody battle worth it?

What are grounds for sole custody?

Do you get child support with sole custody?

What are my rights if I have sole custody?

What are the benefits of sole custody?

Is sole custody the same as full custody?

What is the difference between sole custody and termination of parental rights?

What does it mean to have sole custody?

What custody arrangement is best for a child?

What does a father need to get full custody?

Can visitation be denied to a father?

Do I have to allow visitation without a court order?

How can a father lose his visitation rights?

Does a mother automatically have full custody?

How far can I move with full custody?

How can a woman lose custody of her child?

Can a father take a child away from the mother?

How can I get full custody of my child without going to court?

How do I get sole parental responsibility?

What can be used against you in a custody battle?

Why do fathers lose custody?

What age can a family advocate interview?

Can I stop my child seeing his father?

Can a father get away without paying child support?

Can I take my child with me if I leave my husband?

Do I need a lawyer for child support modification?

Can you get a free lawyer for custody?

Do you need a lawyer for a custody battle?

Is a custody battle worth it?

How do you fight a sociopath in custody?

What can I expect in custody court?

What do courts look for in a custody battle?

Can I get married during a custody battle?

How do you deal with a custody battle?

How do you win a custody battle against a narcissist?

Frequently asked questions when it comes to parental responsibilities and rights of parents having issues or difficulties in co-caring for their children.

As things evolve, so does the legal question surrounding child custody, contact and care. For example, not too long ago, children were generally seen as best being cared for by mothers as opposed to fathers. Fathers would usually get custody if the mother was incapable of caring for a child. Now the law focuses solely on what is best for the child under specific circumstances. Therefore, it often happens that primary care is awarded to fathers where there are no social welfare issues involved.

Moreover, a lot of attention is given to the voice of the child. This depends on the child’s age and level of maturity. We decided to answer various popular questions on parental rights and responsibilities when it comes to children. Below are 11 popular legal questions and answers Our Lawyer comes across. Further below are some frequently asked questions that you can apply your mind to.

  1. Does a mother have more rights over a child than a father?
  2. The father of my child never had contact with the child since before my child’s birth. Does he have any parental rights? We were never married.
  3.  Do I need a lawyer to obtain contact and care rights for my minor children? I never saw my children for the past 6 (six) months.
  4. I am not a working mother. Does that mean that I cannot have primary care (custody) over my child
  5. The father of my child is threatening to take our child away from me. Can he do that? He can afford lawyers. 
  6. Can I refuse the father to have contact with my child if he does not pay child support?
  7.  What happens if parents cannot agree on how to exercise their parental rights and responsibilities of care and contact? 
  8. Can a parent refuse the other parent’s contact with the minor child if there is no court order?
  9.  Can the minor child decide where he or she wants to live if the parents are separated?
  10. How can I get full custody of my child without going to court?

Read on to find the answers to the above questions.

Does a mother have more rights over a child than a father?

If the parents are married, then they have equal parental rights and responsibilities over their child. They, therefore, both have to agree on important aspects of the child’s life.

If the parents were not married, then the issue is that of whether or not the father acquired full parental rights and responsibilities over the child. In short, this he would acquire, if he was actively involved in the child’s life since birth, and paid child support. As the child would generally live with the mother, she would decide what is best for the child during the time he spends with her, and the father the same when the child is with him. As he would have acquired parental rights and responsibilities, he would have to consent for guardianship issues. For example, an application for a passport or leaving South Africa with the mother. If the parents cannot agree on these issues, they would have to try to agree on a parenting plan. If that turns out futile, the court may be approached.

The father of my child never had contact with the child since before my child’s birth. Does he have any parental rights? We were never married.

If a father was not married to the child’s mother, he would only obtain parental rights if he was involved in the child’s life since birth and contributed to the child’s maintenance adequately. This is the long and short of it. Concerning the question above, the father does not have any parental responsibilities and rights. Therefore, he cannot come into the child’s life after 10 years and demand to have contact. This may not be in the child’s best interest. Each case is however decided on its own merits.

Do I need a lawyer to obtain contact and care rights for my minor children? I never saw my children for the past 6 (six) months

It is very sad if a parent refuses the other parent’s contact with their minor children. It is not only the parent who loses out but the children as well. The bond the children have been developing with the other parent would be severed and needs to be rebuilt again. Although children may not express it, they do know that things are wrong. A child would know that a parent is no longer visiting.

One does not have to have a lawyer to assist you in obtaining a court order to see your children. However, it is advisable. If you cannot afford one, you can approach the Children’s Court to assist you. It is not necessary to have an attorney or advocate in the latter court.

I am not a working mother. Does that mean that I cannot have primary care (custody) over my child?

There are many parents out there who are not working and caring for their children. The law does not state that a child should reside with a parent who can afford to maintain him or her. If the primary caregiver of the child is unemployed, the maintenance court can order that the other parent pay adequate child support to the other parent. This would be in the child’s best interest.

Therefore, primary caregivers of children should not be afraid to fight to keep their children with them despite them being unemployed. They should approach the maintenance court if the other parent is not paying adequate child support for the minor child. The amount they claim can be all the child’s monthly expenses. In other words, the parent caring for the child would not spend any money on the child as she does not have the means. However, caring for the child has great value in it.

The father of my child is threatening to take our child away from me. Can he do that? He can afford lawyers.

This question we often receive from mothers who are separated from the child’s father. They feel vulnerable because the father is bullying them into believing that they will get what they want if the mother does not listen to them. This is a sad reality. However, one that nonetheless needs to be addressed.

The law looks at what is best for the child. And does not listen to the parent who has more money or more status in society. If it would indeed be best for the child to live primarily with, the father, then the Court would make such a ruling. However, depending on the age of the child, and how he or she is being cared for, if parents separate, the child would usually remain with the parent who primarily cared for the child. As stated, what is best for the child is the deciding factor. Nothing else.

Can I refuse the father to have contact with my child if he does not pay child support?

Child maintenance obligations and the right to have contact with your child are two separate issues. That is why we have the Maintenance Court and the Children’s court. If a parent is not paying child support or adequate child support for that matter, the primary caregiving parent must approach the maintenance court to decide on the matter. The Maintenance Court would then make a ruling as to what is fair under the circumstances.

On the other hand, if a parent is paying more than reasonable child maintenance, it does not mean he or she can have more contact with the minor child. In other words, the more he or she pays, the more contact he or she would have. The law does not work that way. If a parent feels that the other parent is unreasonably withholding contact, then he or she must approach the competent court for relief. But at the same time, continue paying child maintenance.

What happens if parents cannot agree on how to exercise their parental rights and responsibilities of care and contact?

Parental responsibilities and rights refer to aspects of where the child would live, how contact is to be exercised, maintenance and guardianship issues. Parents should first try to agree on a parenting plan should they experience difficulties in exercising their rights. Difficulties in the sense that they cannot agree to the above-mentioned aspects of parenting. The plan would be drafted with the assistance of a social worker, mediator, lawyer, or another suitably qualified person.

If the parents cannot agree on the parenting plan, then they may approach the court to deal with their issues. They may approach the Children’s Court or the High Court. The challenge here is that it can take very long, expensive if you make use of lawyers, and further, you are leaving the decision to the court to decide. If you try to mediate a parenting plan beforehand, you and the other parent are in control of the situation.

Can a parent refuse the other parent’s contact with the minor child if there is no court order?

If a parent has parental responsibilities and rights over a minor child, he or she has the right to form part of the child’s life. A parent, therefore, cannot refuse the other parent reasonable contact with the minor child. This would not be in the minor child’s best interest. However, it often happens that a parent believes that under certain circumstances, the other parent should not have contact with the minor child. This is so, despite both parents having full parental responsibilities and rights over a minor child. This attitude can be dangerous, as we have a situation where one parent believes he or she is the sole decider as to what is best for the child. A child has two parents, and both parents should decide.

Therefore, if there is no court order, and one parent primarily cares for the minor child, we would expect that parent to act reasonably and, in the child’s, best interest and not in a bossy and controlling manner. If the other parent feels that the primary caregiver is being unreasonable, he or she should attempt to mediate the matter and for a parenting plan to be entered into. If that does not work, the court should be approached to grant a final parenting order.

Can the minor child decide where he or she wants to live if the parents are separated?

Children are to be cared for and therefore, need their parents to decide what is best for them. Therefore, the answer to the question above is, no. It is not up to the child to decide where he or she wants to reside if his or her parents are separated. The parents must resolve this issue between themselves. The child’s views must be considered, based on his or her age and level of maturity.

It sometimes happens where a child resides with one parent, and the other parent wants to manipulate the situation. He or she would try to get the child to get the primary caregiver to agree that primary care is reversed. For example, by promising the child something so that the child would act in a certain way which would change the living arrangements. This is not in the child’s best interests.

How can I get full custody of my child without going to court?

Custody is a factual issue. In other words, a parent can be caring for a child on his or her own for years. In such a case, he or she is exercising sole custody over the child. The parents may even agree that the child remains with one parent. Therefore, in such a case, that parent would have full custody.

Therefore, it is not necessary to go to court if you are already exercising sole custody over your child. However, it often happens that parents want to formalise this situation with a Court Order. In such a case, approaching the court is necessary.

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

Below are some examples of frequently asked questions on the above topic. If they apply to you, feel free to set-up a consultation with us to discuss them.

What are grounds for sole custody?

Is sole custody permanent?

What are the benefits of sole custody?

How do I fight for full custody?

What can be used against you in a custody battle?

What is the difference between full and sole custody?

Can you get child support with full custody?

Can you file for full custody Online?

Can a father take a child away from the mother?

Can you get a free lawyer for custody?

Do you need a lawyer to get child custody?

Can a parent with sole custody deny visitation?

Can I move if I have sole custody?

Can I deny visitation to the father?

Can you go to jail for denying visitation?

Do I have to allow visitation without a court order?

What do I do if my child refuses visitation?

Can I take my child with me if I leave my husband?

What custody arrangement is best for a child?

How do I get full custody of my child in South Africa?

What does it mean to have sole custody?

What is the definition of sole custody?

What does it mean when you have sole custody?

What do courts look for in a custody battle?

How do you act in court for child custody?

Is a custody battle worth it?

What are the benefits of sole custody?

What are good reasons to get full custody?

Can I move if I have full custody?

How a father can lose a custody battle?

What can be used against you in a custody battle?

Why do fathers lose custody?

Is there a difference between full custody and sole custody?

How does a parent get sole custody?

What rights do I have with sole physical custody?

Who has custody if there is no agreement?

Can I see my child without a court order?

Can a father take a child away from the mother?

Can a father take a child from the mother in South Africa?

What percentage of fathers get custody?

Do you have to go to court for custody?

How can I get full custody of my child without going to court?

Can sole custody be taken away?

What is the difference between sole custody and termination of parental rights?

Can a father get away without paying child support?

Can I take my child with me if I leave my husband?

How much does a custody modification cost?

Can a mother get custody with no job?

What happens when you file for full custody?

How do I get full custody in South Africa?

What can I expect in custody court?

How long can a child custody battle last?

How do I go to court for child custody?

What is the normal visitation for a father?

What is the average custody agreement?

How can a father get 50 50 custody?

How much child maintenance should a father pay South Africa?

At what age can a child choose which parent to live within South Africa?

What age can you legally leave a child home alone in South Africa?

How a father can lose a custody battle?

What can be used against you in a custody battle?

Why do fathers lose custody?

Can a father take a child away from the mother?

Can a mother legally keep her child away from the father?

Can a mother take away a father’s rights?

How can I get full custody of my child without going to court?

What can I do if my child is not given to me for visitation?

Can a parent kidnap their child South Africa?

Can a parent with sole custody deny visitation?

Is sole custody permanent?

Can I move if I have sole custody?

What do courts look for in a custody battle?

How do you prove you should have full custody?

Is a custody battle worth it?

What are grounds for sole custody?

Do you get child support with sole custody?

What are my rights if I have sole custody?

What are the benefits of sole custody?

Is sole custody the same as full custody?

What is the difference between sole custody and termination of parental rights?

What does it mean to have sole custody?

What custody arrangement is best for a child?

What does a father need to get full custody?

Can visitation be denied to a father?

Do I have to allow visitation without a court order?

How can a father lose his visitation rights?

Does a mother automatically have full custody?

How far can I move with full custody?

How can a woman lose custody of her child?

Can a father take a child away from the mother?

How can I get full custody of my child without going to court?

How do I get sole parental responsibility?

What can be used against you in a custody battle?

Why do fathers lose custody?

What age can a family advocate interview?

Can I stop my child seeing his father?

Can a father get away without paying child support?

Can I take my child with me if I leave my husband?

Do I need a lawyer for child support modification?

Can you get a free lawyer for custody?

Do you need a lawyer for a custody battle?

Is a custody battle worth it?

How do you fight a sociopath in custody?

What can I expect in custody court?

What do courts look for in a custody battle?

Can I get married during a custody battle?

How do you deal with a custody battle?

How do you win a custody battle against a narcissist?

Related Post

Rule 43 Application – Maintenance Pendente Lite – High Court – Cape Town

Whilst you are in the process of divorcing your spouse, you may require the Western Cape High Court to assist you with regard to maintenance, or contact with your child. You may want the Court to Order t your spouse pays a portion of your legal fees, as well. This can all be done while the divorce is still pending. In the High Court, the court procedure to follow is outlined in its Uniform Rule 43.  That is where the term “Rule 43 Applications” come from.

Family Law Questions and Answers

Should you not find what you are looking for, feel free to post your questions on our blog, by clicking on the following links:

Divorces – Questions and Answers

Child Custody – Questions and Answers

Child Maintenance – Question and Answers

Domestic Violence – Questions and Answers

You are welcome to call us on 021 424 3487 / 0870735800

For other legal and business services, feel free to visit:

Business SA or Private Legal.

Below was provide you with the entire rule 43, as well with an example of the Notice when making use of the rule.

The entire rule 43 is as follows:

43 Matrimonial Matters (1) This rule shall apply whenever a spouse seeks relief from the court in respect of one or more of the following matters: (a) Maintenance pendente lite; (b) a contribution towards the cost s of a pending matrimonial action; (c) interim custody of any child; (d) interim access to any child. (2) The applicant shall deliver a sworn statement in the nature of a declaration, setting out the relief claimed and the grounds therefor, together with a notice to the respondent as near as may be in accordance with Form 17 of the First Schedule. The statement and notice shall be signed by the applicant or his attorney and shall give an address for service within eight kilometres of the office of the registrar, and shall be served by the sheriff. (3) The respondent shall within ten days after receiving the statement deliver a sworn reply in the nature of a plea, signed and giving an address as aforesaid, in default of which he shall be ipso facto barred. (4) As soon as possible thereafter the registrar shall bring the matter before the court for summary hearing, on ten days’ notice to the parties, unless the respondent is in default. (5) The court may hear such evidence as it considers necessary and may dismiss the application or make such order  as it thinks fit to ensure a just and expeditious decision. (6) The court may, on the same procedure, vary its decision in the event of a  material change taking place in the circumstances of either party or a child, or the  contribution towards costs proving inadequate.

How does it work

In short, you or your attorney would file an Affidavit with a Notice outlining in concise form, what you require. Then the other party would respond. The documents should be simple and straight to the point. The idea is to provide enough information for the court to make a quick decision. Now let’s look at an example of a rule 43 Notice used in the High Court.

An Example of a Rule 43 Notice

Below is an example of a Rule 43 Notice dealing with contact rights.

IN   THE   HIGH   COURT OF SOUTH   AFRICA

(WESTERN CAPE DIVISION, CAPE TOWN) CASE NO: In the matter between:   JOHN SMITH                                Applicant     and     JANE SMITH                               Respondent    

NOTICE OF APPLICATION IN TERMS OF RULE 43

  TO THE ABOVE MENTIONED RESPONDENT MADAM   TAKE NOTICE that the abovementioned Applicant claims from the Respondent the following, pendente lite:
  1. The minor child shall reside primarily with the Applicant who shall be her primary caregiver; and
  2. The Respondent shall have reasonable contact with the minor child as follows:
    • Every alternative weekend, commencing from the Friday until the Sunday. The collecting and drop-off times shall be agreed to by the Parties in advance, which may vary from time to time;
    • Equal sharing of long and short school holidays, in that the minor child shall reside one half with the Applicant and the other with the Respondent which shall alternate each year;
    • The Applicant and/or the Respondent, as the case may be, shall further have contact with the minor child on the following days for 3 (three) hours notwithstanding in whose care the minor child is in on those days:
      • Christmas Day;
      • The minor child’s birthday;
      • Father’s day and Mother’s Day; and
      • The Parties’ birthday.
  1. The Parties shall have telephonic contact with the minor child on a regular basis whilst the minor child is in the other’s care;
  2. Notwithstanding the above, the Parties shall have reasonable contact with the minor child at all times, provided that any additional contact shall be arranged telephonically and shall only take place by prior arrangement and consensus between the Parties; and
  3. The Parties shall respect each other’s privacy and shall not enter each other’s homes at any time without prior invitation, whether for the purpose of fetching or returning the minor child or any other reason whatsoever.
  4. JOINT DECISION MAKING
    • The Parties shall make joint decisions about the following aspects of the minor child’s life:
      • Major decisions about the minor child’s schooling and tertiary education;
      • Major decisions about the minor child’s physical care, mental health care and medical care;
      • Major decisions about the minor child’s religious and spiritual upbringing;
      • Decisions about the minor child’s residence both within and outside the Cape Peninsula;
      • Decisions which are likely to significantly change the minor child’s living conditions or to have an adverse effect on her well-being; and
      • Decisions which affect the minor child’s everyday care and daily routine shall be made by the party in whose care the minor child is in at the relevant time.
  1. Costs of this Application if opposed; and
  2. Further and/or alternative relief.
  TAKE NOTICE FURTHER that if you intend to defend this claim you must, within in 10 (ten) days, file a reply with the Registrar of this Honourable Court, Keerom Street, Cape Town, giving an address for service as referred to in rule 6(5)(b), and serve a copy on the Applicant’s attorneys.   If you do not do these things, you will automatically be barred from defending and judgment may be given against you as claimed. Your reply must indicate what allegations in the Applicant’s statement you admit or deny and must concisely set out your defence.   TAKE NOTICE FURTHER that the affidavit of JOHN SMITH (the Applicant) annexed hereto with confirmatory affidavits shall be used in support of this application.   DATED AT SIGNED AT CAPE TOWN THIS___DAY OF __________________2018.         ——————————————                                   ABC  Attorneys     _____________________ Per.:   TO:        THE REGISTRAR HIGH COURT CAPE TOWN     AND TO:  JANE SMITH (RESPONDENT) Working at: XX WESTERN CAPE c/o   AND TO: THE OFFICE OF THE FAMILY ADVOCATE  CAPE TOWN ______________________o0o____________________  

Do you need a lawyer or attorney?

It is always advisable to make use of a lawyer or an attorney when litigating in the High Court, or any court for that matter. However, sometimes the issue of costs comes into play. If however, you cannot afford the services of an attorney, we advise that you still proceed with the application.  

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