Most family law matters come with heightened emotions and stress. It, however, does not always have to be that way. Staying focused and rational is important to get the best results.

Many legal practitioners will tell you, the one aspect of family law, that differentiates it from other branches of law, is the emotions that it brings to their clients. It would often happen that a client breaks down, or sheds a tear in your office. This is understandable, as family law issues have a lot of history behind it. Even simple family law legal matters, for example, the terms of an antenuptial contract, can stir emotion. The lawyer under such cases has to act as a mediator, pacifier and legal advisor at the same time.

Types of family law matters that cause heightened emotions and anxiety

Before we delve into this topic, let us first bring things into perspective. These are some of the family law matters we are referring to:

Divorces (Contested or Undefended);
Domestic Violence matters;
Child maintenance disputes; and
Child custody disputes.

The actual list is more extensive. You may even want to consider including last wills and testaments and winding up of deceased estates. As can be seen from the types of matters mentioned, there are always children involved or personal relationships. Some of these relationships have lasted for decades. We often see people who were married for more than 30 years, getting divorced. And in other cases, the relationship, albeit personal, could have been for a very short while, but still, elicit a lot of emotions. For example, a domestic violence family legal matter.

The personal nature of family matters makes it harder to deal with

One of the challenges for a legal practitioner is to try to convince the client that he or she should trust the law, and not focus too much on the other party. For example, in a divorce matter, where a spouse has been abused or constantly been bullied during the relationship. The abused spouse would very often agree to sign away everything just to get divorced speedily. This is not only unfair but could lead to many issues in the future. This situation must be avoided at all costs.

Intimidation in abusive relationships

Then we have the challenge in a domestic violence matter. A party who has been abused would agree on withdrawing an application for a protection order, even though it is dangerous to do so. Or there is the situation where a party would agree that a protection order is issued against them due to being intimidated either by the other party or by his or her lawyer. This they do not do because of having committed domestic violence, but just to get the matter over and done with. The consequence of that is the applying party would have an interdict and a warrant of arrest against you which may be abused.

Intimidation in child maintenance or alimony cases

We cannot count the number of times we have been told that the reason why a parent does not want to approach the maintenance court, is due to being told by the other parent that he or she will get much less than what they are currently receiving. This is emotional and psychological abuse and not in the child’s best interest. One reason for believing the abuser is due to the relationship the parties had. The abuser was controlling and abusive during the relationship, and the victim has been brainwashed into believing everything the abuser said.

What people must try to understand in family legal matters?

Although it is understandable for someone to be anxious when dealing with family law related matters, it is important to note that issues need to be dealt with properly. If your spouse was abusive during your relationship, that does not mean it has to continue after your relationship ended. There are laws in place to protect people from abuse and violence. For example, the Domestic Violence Act. If you make use of the law, you would have a better chance of getting the legal results you want. Go to the police if necessary.

Final words to people who are intimidated by, or is afraid of the other party

Although it is easier said than done, we implore people not to allow themselves to be bullied when it comes to family law matters. This includes being intimidated by the other party, or his or her lawyer. If you have rights; enforce them. Believe in yourself and your cause and others will learn to respect it. Many cases are won by unrepresented litigants who were up against a team of lawyers. Moreover, no one has the right to belittle you or deny you of your rights. Take a stand and fight for what is right.

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Posted on 11 February 2025 by Telelaw

Most family law matters come with heightened emotions and stress. It, however, does not always have to be that way. Staying focused and rational is important to get the best results.

Types of family law matters that cause heightened emotions and anxiety

Before we delve into this topic, let us first bring things into perspective. These are some of the family law matters we are referring to:

Divorces (Contested or Undefended);
Domestic Violence matters;
Child maintenance disputes; and
Child custody disputes.

The personal nature of family matters makes it harder to deal with

Intimidation in abusive relationships

Intimidation in child maintenance or alimony cases

What people must try to understand in family legal matters?

Final words to people who are intimidated by, or is afraid of the other party

Should you require business advice or services, feel free to click on these links:

Business SA | Private Legal | Envirolaws

What are the Legal Principles applicable to minor Children’s Relocation matters? Are there differences between Local or provincial and International Relocation?
If parents cannot agree on the issue of relocation of minor children with a parent, a court of law would have to step in. If the parent who wishes to relocate is successful, it would mean the other parent would not have contact with the minor child as he or she used to. This is a difficult situation to deal with if you are not the custodial parent of the minor child. For one, you may not see you child face to face every day or every weekend as you used to. You will, therefore unfortunately not see your child grow and be there during his or her various developmental stages in life.
The challenges with minor children relocation matters
That is why relocation matters can be difficult to deal with by the parents due to the high amount of emotions involved. The usual issues that parents would “fight” over are contact and care issues while the parents are living in the same town or suburb. The court would decide whether a parent can see a child from 11:00 or from 14:00 or on a Monday or Sunday. However, in relocation matters, the effect of the court order is that contact would not take place in person, and as often and regularly by the nature of the relief sought.
How contact is exercised when minor children relocation
We do agree that there are other means of contact if relocation is allowed. That includes video contact, text and email etc. The minor child can also visit the parent during school holidays, or the parent can visit the minor child. In the case of international relocation, the option can become very costly and sometimes impossible. Therefore, parties should strongly look into those alternative means of contact in the event the application for relocation is successful.
Minor children relocaiton and the Legal Principles applicable
This article deals with the issue of the best interest of minor children in relocation matters and the principles applicable. Each case is different, just as each family and its dynamics differs vastly from the next. What follows is an extract of a court case that dealt with the issue of relocation. You can apply those principles to your case.
What does our courts say in relocation matters?
In the matter of LW v DB 2020 (1) SA 169 (GJ), the Gauteng High Court dealt with the issue of the best interest of minor children specifically in relocation matters. It outlined the principles that follows.
Principles applicable to relocation of children Certain guidelines may be distilled from the Constitution, judgments of South African courts, and conventions to which South Africa is a signatory: (a) The interests of children are the first and paramount consideration. (b) Each case is to be decided on its own particular facts. (c) Both parents have a joint primary responsibility for raising the child and, where the parents are separated, the child has the right and the parents the responsibility to ensure that contact is maintained. (d) Where a custodial parent wishes to emigrate, a court will not lightly refuse leave for the children to be taken out of the country if the decision of the custodial parent is shown to be bona fide and reasonable. (e) The courts have always been sensitive to the situation of the parent who is to remain behind. The degree of such sensitivity and the role it plays in determining the best interests of children remain a vexed question. The best interests of the child Our courts adhere to the ‘best interests’ approach as they are required to do by the Constitution. On the papers, which include the founding, answering and supplementary affidavits as also the report emanating from the Office of the Family Advocate, reference was made to a number of issues associated with the life, circumstances, wellbeing activities, relationships, dependencies of R — all of which contribute to a greater or lesser extent, and in isolation or in conjunction, to determining his ‘best interests’. Amongst these issues are R’s attachment to both parents and grandparents, the disruption of R’s bond with his father if he were to move to Cape Town, the somewhat conflicted relationship between LW and DB, the demands made on both parents to hold down employment and earn livings to support their child, the arrangements made for the care of R in Vereeniging, Vanderbijlpark and Cape Town, the personal needs and desires of all adults involved in this issue, taking into account the constitutional acknowledgments of the rights of human dignity, freedom and equality. In the unreported judgment dissenting from the majority of the court in Ford v Ford WLD 5001/04, I discussed the manner in which one may attempt to give meaning and content to the concept of the ‘best interests of the child’. The majority of the court expressed no view on this issue and the Supreme Court of Appeal did not disagree therewith. It is convenient to repeat those portions of the judgment which are relevant to the issue before us today. Our law has developed the ‘best interests of the child’ approach which has now been enshrined in the Constitution which, in s 28(2), proclaims that ‘a child’s best interests are of paramount importance in every matter concerning the child’. This principle has become known, in one form or another, in many national legal systems and has been recognised in international instruments. However, some writers suggest that the principle has yet to acquire much specific content or to be the subject of any sustained analysis designed to shed light on its precise meaning. The result is that diverse interpretation may be given to the principle in different settings. I suggested that care also be taken to avoid slavish adoption of such content as has been given to specific legislation or instruments, since language, as also constitutional, cultural, familial, social and other traditions, inform contrasting interpretations. The full complexity of the South African Constitution is continually being explored. Section 28(2) and the ‘best interests’ principle do not represent and are not situate within a Constitution which envisages a monolithic or unidimensional approach reflecting a single, unified philosophy of children’s rights. There can be no specific and readily ascertainable recipe for resolving the inevitable tensions and conflicts that arise in each given situation. The respective concerns and entitlements of different actors involved cannot be assumed to always be clearly defined and delineated. In different situations, other interests to be balanced may include, not only the particular child but also siblings, parents, nuclear and extended families and sometimes the local community, society and the state. The ‘best interests’ principle is used to provide a framework for addressing the entire range of major issues affecting children. The principle may be invoked in relation to and in the context of the separation of the child from the family setting, adoption and comparable practices, parental responsibility for the upbringing and development of the child, the child’s involvement with the police and the justice system, the provision of housing and social services, access to schooling and so on.
If you wish to relocate with your minor child to a different province or abroad, consider the above principles. It would make your case much easier if you understand them.

Posted on 11 February 2025 by Telelaw

Changing your matrimonial property regime from in community of property to out of community of property

Are you married? Do you know what is your matrimonial property regime?

To register your Antenuptial Contact, Click here. Are you married in Community of Property? Do you want to change your matrimonial property regime to Out of Community of Property? Did you not know that a marriage Out of Community of Property was possible when getting married? There is legal relief for you and your spouse.

In Community of Property

All civil marriages are automatically In Community of Property. This means that there is one estate shared between wife and husband. Therefore, if anyone of the spouses incurs a debt, that debt belongs to both of them.

Out of Community of Property

The other option is to get married Out of Community of Property. This means that there are two separate estates and each party is responsible for his or her own debt. For some people, this would be a better option, especially if you are a business person.

Accrual system

The usual process to be married Out of Community of Property is to enter into an antenuptial contract before the marriage. The contract will have clauses in it stating:

That there shall be no community of property;
That there shall be no community of profit or loss; and
That the accrual system provided for in Chapter 1 of the Matrimonial Property Act, no 88 of 1984 is expressly excluded from the marriage.

However, if you did not do so, there is a way of changing your matrimonial property regime from In Community of Property to Out of Community of Property. For this, you need the consent of the High Court in your Jurisdiction. Here you will make use of section 21 of the Matrimonial Property Act 88 of 1984.

Getting the High Court’s Consent to change your matrimonial property regime to Out of Community of Property

Once you and your spouse have decided to change your matrimonial property regime to Out of Community of Property, you would need to approach the High Court in your area for consent. If you know the law, legal process, Court rules, and procedure, you and your spouse can do it on your own. If you cannot do it on your own, an attorney would be able to do it for you. This the attorney may attend to with or without the assistance of an Advocate.

Drafting a post-nuptial contract

What they do is draft a post-nuptial contract for you which would outline what matrimonial property regime you want and also how the joint estate should be divided.

Application to the High Court for consent to change your matrimonial property regime to Out of Community of Property

Then they draft a Notice of Motion (notifying the Court what you want) and Founding Affidavit (your affidavit outlining your case etc.). Your case must satisfy the Court that:

There are sound reasons for the proposed change of the matrimonial property regime;
There has been sufficient notice to creditors regarding the proposed change; and
No other person will be prejudiced by the proposed change.

If, however, you cannot make a case for the above, your application may be unsuccessful.

Costs involved in changing your matrimonial property regime

As stated, you have to approach the High Court for consent to change your matrimonial property regime. There, therefore, would be the costs of an attorney who may instruct and advocate, and further costs in drafting and registration of the postnuptial contract. Furthermore, there is advertisement cost involved as you would have to give notice in the Government Gazette and in one or two local newspapers. You would further have to serve your application on the Registrar of Deeds and give notice to your creditors via registered mail. The total costs can range from R 25 000 – 00 should your matter be straight forward, to R 30 000 – 00 should it be more complicated.

Complicated applications to change your matrimonial property regime to Out of Community of Property

Complicated would mean the joint estate has many creditors. Furthermore, there may be many assets in the joint estate that needs to be divided, especially if they are not easily describable. The above-mentioned fee is obviously dependent on your application not being opposed by any interested party. One reason for opposing the application could be that the Joint Estate is deeply indebted to a creditor, and she feels that her claim would be prejudiced by the proposed change. Should your application be opposed for any reason, many more hours will be spent fighting for the success of your application which could costs you a small fortune and you may even be ultimately unsuccessful. Therefore, you would need to advise your legal team of all relevant facts before the application is made.

Time estimates to change your matrimonial property regime to Out of Community of Property

The estimated time in preparing your application, your post-nuptial contract and ultimately obtaining consent from the High Court is about 4 weeks. This is also dependent on whether or not the High Court is sitting within 4 weeks after the drafting of your application. If the High Court is in recess, a few extra weeks may apply. The Court may also want a report from the Registrar of Deeds which could cause delays.

Registering the postnuptial contract

Once your application is successful and the High Court, therefore, gave consent, you will usually have 3 (three) months to register the postnuptial contract. So once consent is granted, you need to see a Notary Public before whom you will sign your post-nuptial contract and then have it registered. This, therefore, needs to be done within the three months of obtaining the consent of the High Court.

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Posted on 11 February 2025 by Telelaw

Digitalising the Maintenance Courts – Going Online

Should the maintenance system be digitalised in South Africa? In other words, should you be able to apply for child maintenance online, or be informed of hearing dates and so on through digital means? See what the panel has to say. Host: Felicity An Guest (Child Maintenance Difficulties SA) Panel: Muhammad Abduroaf (Advocate) – www.ourlawyer.co.za Lenina Rassool Writer, Journalist, Editor Producer: The Womxn Show Tel: 064 46O 4O99 Email: [email protected] Panel: Ayesha Karim (Attorney) – Director at Ayesha Karim Attorneys – Durban (KZN) [email protected] Farhana Ismail – Attorney, JHB

What are child custody disputes? Read some questions and answer from mother and father.

Child custody disputes are one aspect of family law that keeps both lawyers and the courts busy. Although child custody disputes may seem simple in the eyes of the outside observer, it is not always so for the parties involved. Parents care much more for their children than they do for worldly things. Therefore, should they experience problems concerning their children, it often causes a lot of anxiety and stress. Below are some questions mothers and fathers usually pose online when it comes to child custody disputes. Feel free to pose your questions below.

What are the rights of an unmarried father to his children?

Fathers of children born out of wedlock do not automatically have rights towards their children. For you to form part of such a child’s life you need to fulfil the requirements of section 21 of the Children’s Act, which in short states:

At the time of the child’s birth, you are living with the mother in a permanent life-partnership; and
You contribute or have attempted in good faith to contribute to the child’s upbringing for a reasonable period;
You contribute or have attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period.

May an unmarried father be the primary caregiver of a child born out of wedlock?

Many fathers would have been married to the mother. Others would have meaningfully partaken in the child’s life from birth. Therefore, there should generally be no difference between a child born from a marriage and a child born outside of marriage when it comes to fathers’ rights. To take the statement further, it is possible for a father of a child born out of wedlock to be the primary caregiver of the child, where the mother is only entitled to see the child at certain times and circumstances, or not at all.

How hard is it for a father to get custody or primary care over a child?

If the mother has primary care over a minor child, and the father has parental rights and responsibilities over such a child, he can obtain custody or primary care over the child. What the law looks at is what is in the child’s best interest should such a request be made. If it is indeed in the child’s best interest for the father to have custody over the minor child, then, under those circumstances, the court would make such an order.

How can a father get full custody of his kids?

If the mother has full custody over the minor child, a father would have to prove that such a situation is not in the minor child’s best interests. Therefore, he would have to make a case for the minor children to be in his primary care or that he should have full custody over the child.

Does the court make use of child care experts when deciding who should have custody?

For a court to determine whether or not to change the primary caregiver of the minor child, the court may require assistance from other parties. For example, a social worker, psychologist, or the office of the family advocate. This is not a legal requirement. However, a court would be guided by other experts especially so if the primary care of the minor child is to change.

Does the dad ever get custody?

Fathers often get custody over minor children. In other words, the child would primarily reside with the father. You could say he would have primary care over the minor child. This can be done by the parents agreeing to the father having custody or primary care. The other way is if the father approaches the court and the court determines that it is in the child’s best interest if the father has custody over the child or primary care.

What can be used against you in a custody battle?

The ultimate decider on the outcome of a child custody battle would be what is in the child’s best interest. Therefore, various factors have to be considered in determining what is in the child’s best interest. If a party can prove that a child is being unreasonably neglected while in the other party’s care, then that would be information that can be used against the other party. One such factor would be the abuse of alcohol, drugs, and abusing and neglecting the child.

How often do fathers get full custody?

Fathers often get full custody in child care matters. The law does not have a preference over whether or not a father should have custody or whether or not a mother should have custody over a minor child. What the law is concerned with, is what is best for the minor child. Many fathers can better care for a minor child than the mother. In such a case the court would grant full custody to the father.

Why do mothers have more rights than fathers?

In most cases, it is the mother who takes primary care over a child after birth. This is so as a child needs the care of a mother from birth. A mother would usually breastfeed a child and the father would be the one who takes on other responsibilities. This role of the mother as the primary caregiver for the child usually continues until the child can look after his or her self. This role of caring for the child works well if both the father and mother and children live in the same household.

What happens when parents separate in child custody matters?

When parents separate or do not live together, the issue arises as to where the child should live. In most cases, the parties would agree that the child should reside with the mother. When they do not agree on this issue the matter usually makes its way to the court. This is when the court will have to determine what is best for the minor child. If the court determines that the minor child would best be cared for by the mother, then the court would make such an order. However, if the court determines that even though the mother cared for the minor children since their birth and now unable to do so, the court would have to determine what is best for the child. If the father should care for the minor child, then, under those circumstances, the court would order that the primary care of the minor children be awarded to the father.

What do judges look for in child custody cases?

It would be difficult to give a general overview of what judges look for in child custody cases. This is so as each family is different and the facts surrounding a custody case would be different. However, the court is guided by the best interest of the child principle. The court would have to consider the age of the child, his or her needs, as well as the capability of either parent properly caring for the minor child. In many cases, the issues that the court will have to look at will be simple, but this is not always the case.

Why is it so hard for fathers to get custody?

Generally, fathers are not the primary caregivers of minor children. If a father was the primary caregiver of a minor child since his or her birth, and should a dispute arise sometime later, then under the circumstances, the father’s case would be much easier. However, because mothers are generally the primary caregivers of minor children and they looked after the children for quite some time and has gained a lot of experience and knowledge into how to care for a specific child, it would be easier for the mother, under those circumstances, to convince the court that the child would be best cared for should he or she remain in her care.

What makes a mother unfit in the eyes of the court?

A mother would be seen as being unfit if she neglects the child. For example, she abuses alcohol and does not feed the child or clean the child. Furthermore, she would not care for the child reasonably. The child would be allowed to miss school, or not do homework etc. Objectively speaking, and considering everything, the child is being neglected.

How can a woman lose custody of her child?

She can lose a child if she proves that she cannot take care of a child. The child is being neglected in her care and being abused in the process.

Why do mothers automatically receive custody?

As mothers give birth to a child and usually care for them from their birth, it is easy to demonstrate that they can care better for the child than the father. This is not always factually the case and a father can prove that he can care for the child much better than the mother and obtain custody over the child.