Have an Ante – Nuptial Contract in place

It is not uncommon for people wanting to change their property regime. When we deal with legal matters of this nature, we urge people to make sure that they understand the process and what it means going forward once this has been done. For those of you contemplating marriage, the legal expert would advise that you have an Ante – Nuptial Contract in place. Here he explains why this is crucial in protecting your assets: The usual process to be married Out of Community of Property is to enter into an ante nuptial 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. For more on this topic, see How to Change Your Matrimonial Property Regime . The creators of this website had made free, expert legal advice easily accessible for your convenience. For more on your legal options and ideas, see the following links:

1. How to Change your Matrimonial Property Regime
2. Do your own Unopposed Divorce. No lawyers needed and its Free.
3. Parental Rights of Divorced Muslim parents after a Talaq or Faskh
4. Free Online Divorce Assistance Form – DIY Cape Town South Africa

comprising of:

1. Divorce guide

• Sample of High Court Summons
• Particulars of Claim
• Notice of Set Down

For a one on one professional legal consultation with the family legal expert, call our law offices for an online legal appointment today!

Registering an Ante – Nuptial Contract

• Debt incurred by the other party, will not be affect you financially due to the ANC in place.
• The ANC allows the parties to remain separate in estates.
• Parties will not need each other’s consent in financial dealings.
• Parties can maintain their own financial independence.

Professional legal drafting services

• Child Maintenance
• Ante-nuptial Contact
• Change Matrimonial Property Regime
• Child Adoption
• Child Custody and Access
• Domestic Violence Protection
• Family Trust Registration
• Fast Unopposed Divorces
• Non-Compliance with maintenance orders
• Parenting Plans
• Postnuptial Contract Registration
• Pre-nikkah Agreement

In Community of Property VS Out of Community of Property

Relocation with my minor child to India, Chennai (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 Chennai, India

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 one or two) 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 Constantia or Ulundi, South Africa, and you want to relocate to Chennai, India, 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 Chennai, India?

The same applies when it comes to your minor child applying for a South African passport to relocate to India, 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 Chennai, India 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 Chennai, India.

What can I do if the other parent does not want to consent to the minor child’s relocation to Chennai, India?

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 Chennai, India, 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 Chennai, India. 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 Chennai, India, 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 Chennai, India?

If the other parent does not want to consent to the passport application and/or the relocation of the minor child to Chennai, India – 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 Chennai, India, 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 Chennai, India

If you require legal assistance or representation with relocating to Chennai, India 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.

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

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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:

How does it work

An Example of a Rule 43 Notice

IN   THE   HIGH   COURT OF SOUTH   AFRICA

NOTICE OF APPLICATION IN TERMS OF RULE 43

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.

3. The Parties shall have telephonic contact with the minor child on a regular basis whilst the minor child is in the other’s care;
4. 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
5. 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.
6. 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.

7. Costs of this Application if opposed; and
8. Further and/or alternative relief.

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