Relocation with your minor child from South Africa – What are my rights?

In today’s modern times, many people decide to leave South Africa and seek employment overseas or in a nearby country. The reason for that could be many. But usually, it’s because they feel they can earn much more in a different country or live a better life. Furthermore, safety and security, and medical benefits are on the list. What often happens is one parent wants to relocate, with a child, however, the other parent has an issue with it. As you will see later, the consent of both guardians is required for a minor child to leave the Republic of South Africa.

Parents need to first discuss the issue of relocation before making a decision

We are often approached by the parent wishing to relocate with the minor child for legal advice. It is often the mother. She wants to know what her rights are regarding the child relocating with her. Now the ideal situation would be for both parents to sit down and discuss the issue. It would obviously have a big impact on their lives should relocation with the child take place. They should discuss aspects regarding contact and maintenance should relocation be a viable option. However, meeting eye to eye and having a sensible discussion on the issue is not always the case.

Effects of relocation on the parents

It often happens when parents do not agree on the issue of relocation; the parent wishing to relocate has to make some drastic decisions. Should she remain in South Africa and continue in her current employment, or remain unemployed? By remaining in South Africa, she would remain the primary caregiver of the minor child. The other option is for the parent to not fight the issue but decide to relocate and leave the child with a parent in South Africa. This could become problematic. Especially so in the case where the parent residing in South Africa was never a primary caregiver of the minor child. In other words, he or she cannot care for the child as well as the parent wishing to relocate.

What does South African law say?

Now in terms of the law, if a child should be removed from the Republic of South Africa, for traveling, or relocation, he or she requires the consent of both guardians. We will not go into the finer details of who is a guardian and what are the rights of a guardian. However, in terms of the Children’s Act, both guardians should consent for the minor child to be removed from the Republic of South Africa, and his or her return. Therefore, if the parents come to an agreement that the minor child may relocate, then the consenting parent should only sign necessary consent documents. Those documents can be obtained from the Department of Home Affairs. At the same time additional assisting documents will be of use. For example, an affidavit from the father stating that he has no issue with a minor child relocating and he provides a mother with the authority to make certain decisions regarding the minor child. These decisions could relate to the enrolment of schools, medical consent, and consent to travel within the country.

What happens if consent for relocation is refused by one parent?

Let’s say consent is not provided. What can the parent do under those circumstances? Unfortunately, the parent would have to approach the court to dispense with the consent of the other. He or she will have to convince the court that it would be in the minor child’s best interest for the relocation to take place. The parent who remains in South Africa will have to do the opposite. He or she would have to convince the court that it would be in the child’s best interest for them to remain in South Africa. Valid reasons could be that the country that they wish to relocate to is dangerous, or the child would be better suited to remain in South Africa.

More on approaching the Court when it comes to relocation of minor children

Now the problem arises as mentioned earlier. The parent wishing to relocate is left with a predicament. Does he or she remain in South Africa caring for the child or does he or she relocate and leave the child behind if consent is not given. As stated earlier, he or she would have to approach the Court. All these factors will have to be ventilated before the court and then the court will decide what is in the minor child’s best interest. We pause here to state that should a parent follow the specific route in approaching the court, he or she may want to at the same time apply for certain sole guardianship rights to the minor child. The parent would have to ask the court for certain rights, for example, should the minor child have to apply for a passport while overseas; only that parent’s consent is required. The same applies should the minor child have to be enrolled in a school, and as stated earlier, attend to a medical procedure.

If the parent relocating is a mother, she can bring up a constitutional argument. She may argue that because she is a mother of the child and gave birth to the child, it is unfair for her to obtain the father’s consent under the circumstances. He, on the other hand, may decide to travel anywhere in the world and do not require the consent of the mother, because he is not the primary caregiver of the minor child.

Summary of the issue of consent for the relocation of minor children

So in short, if the parties cannot come to an agreement on the relocation of the minor child to another country, the parents wishing to relocate should approach the court to dispense with the consent of the other parent. The other parent can oppose the application stating various reasons why it would not be in the minor child’s best interest for them to relocate. If that parent was not much involved in the minor child’s life and cannot care for the minor child; more than likely the court would not find in that parent’s favour. The bottom line is as stated, the court will decide what is best for the child.

Posted on 11 February 2025 by Telelaw

Relocation with your minor child from South Africa – What are my rights?

Parents need to first discuss the issue of relocation before making a decision

Effects of relocation on the parents

What does South African law say?

What happens if consent for relocation is refused by one parent?

More on approaching the Court when it comes to relocation of minor children

We pause here to state that should a parent follow the specific route in approaching the court, he or she may want to at the same time apply for certain sole guardianship rights to the minor child. The parent would have to ask the court for certain rights, for example, should the minor child have to apply for a passport while overseas; only that parent’s consent is required. The same applies should the minor child have to be enrolled in a school, and as stated earlier, attend to a medical procedure.

Summary of the issue of consent for the relocation of minor children

International Family Law matters, applicable to South Africa
Divorces are not only limited to people living in the same country. Often, you will find that one spouse lives in South Africa and the other in a different country. They want to get divorced but do not know how to go about it. The question now is, which country and which court should divorce them? We regularly receive these types of queries from people living in the Middle East and the United Kingdom. The same problem arises in the case of parents living in different countries, but there are complications regarding contact and access to their minor children. Let’s say, one parent, lives in Cape Town and the other in Taiwan. How does the parent living in Taiwan enforce his contact rights to his child in South Africa? Does he or she approach the court in Taiwan? Or should he or she approach the Court in South Africa? And Lastly, there is an issue regarding child maintenance. What happens in the case where one parent lives in Cape Town and the other in New York? How does child maintenance work? Can the parent living in Cape Town with the children obtain a maintenance order against a parent in New York? This article will deal with the above three topics. Read on to learn more.

South Africans living abroad

South African expatriates are found all over the world. These include the following places:

The United Kingdom
United States of America
Canada
Chile
Taiwan
New Zealand
Japan
India
Brazil
China

Whatever the destination and/or location is, this article would be a useful read. Especially so if you find yourself in an international family law dispute.

We regularly receive enquiries and requests for legal advice and/or assistance from people who have a legal connection to South Africa, but do not live here. This may include an intended divorce, where one of the spouses reside in South Africa, or a child contact issue, where a parent would like to have contact with his or her child living here.

With the advances in technology, providing advice and assistance to clients abroad becomes very easy, and convenient. There is Skype, WhatsApp Video, FaceTime, to mention a few that can bridge the communication gap. But for now, let us deal with the legal issues involved and fly away with divorces.

I live in the United Kingdom, and want to divorce my spouse living in Cape Town

Many people believe that because they got married in South Africa, any court in South Africa can divorce them. Or because they lived in Cape Town, that the Western Cape High Court in Cape Town can divorce them, even though they live in London at present. That is not the case. You will see why not. The issue is that of the Jurisdictional authority of the relevant Court.

Jurisdiction of the Divorce Courts in South Africa

Section 2(1) of the Divorce Act, states the following when it comes to the Court’s Jurisdiction: “A court shall have jurisdiction in a divorce action if the parties are or either of the parties is- (a) domiciled in the area of jurisdiction of the court on the date on which the action is instituted; or (b) ordinarily resident in the area of jurisdiction of the court on the said date and have or has been ordinarily resident in the Republic for a period of not less than one year immediately prior to that date.”

So, as you can see, you need to have fulfilled one of those latter requirements. Therefore, if you and your spouse moved to England, to settle there, you may not get divorced in Cape Town if the marriage broke down. This is so even though your marriage took place in Cape Town and you own property there. If, however, the husband lives in England, and the wife in Cape Town and she is resident there, then the divorce is possible in Cape Town. Now let us move on to other family law related matters. We will tackle the issue of child contact next.

I live in the United States of America, and I am not allowed to have contact with my child living in Cape Town, South Africa

It often happens that parents would have a relationship and bring a child into this world. The relationship deteriorates, and one parent then moves and relocates to another country. In our experience, this is usually work related. Everything would seem to go well until the relocating parent has problems exercising contact with his or her child in South Africa. The challenge for the parent that relocated is the distance. He or she is not able to pop into the child’s home should they not answer the phone or visit the children at school should he or she not be able to get hold of them. Luckily, in this case, because the children are living in a specific province, for example, the Western Cape, the parent who relocated can have his or her attorney approach the Court locally to enforce his or her rights. So, for example, let’s say in this case, the father relocated, he can enlist the services of an attorney in Cape Town to make an Urgent Application to the Western Cape High Court for an Order for immediate telephonic, or video contact. An Application in the Children’s Court would be problematic as he would have to be present at the Court. This, of course, would not be an issue if he is willing to fly down for each of the Court hearings. The Court would then hear the matter and decide what is best for the children involved. If it would be best for them to have telephonic and/or video contact with the father on a regular basis; the court would then make the appropriate order. The party can also consider incorporating a clause which would entail the minor children traveling to him overseas.

How to claim child maintenance for my children if the other parent lives in New York

International child maintenance is always a complicated issue. This is so as the parent who is supposed to pay maintenance is out of the country. For this very reason, a parent living in South Africa will have to make use of international law.

The parent will approach the maintenance court in South Africa who in turn will approach the court in the country where the parent who is supposed to pay maintenance lives. We will not go into detail in this article on how exactly the process works. However, it basically entails a court making an order in Cape Town and then later having it registered in the foreign country. The applicable legislation is the Reciprocal Enforcement of Maintenance Orders Act 80 of 1963. The reverse also applies. Let’s say a parent lives in California and requires maintenance from a parent in South Africa. Then the same process would be applied. The parent would make an application for a maintenance order in California, and then have it registered in Cape Town. The Reciprocal Enforcement of Maintenance Orders Act 80 of 1963 would also apply to South Africa. If this is applicable to you, we advise that you approach your local maintenance court as soon as possible.

Posted on 11 February 2025 by Telelaw