Uncontested divorces – Notice of Set Down for undefended and uncontested divorce matters – The document used to place your divorce on the divorce court roll

Undefended, unopposed or uncontested divorce cases are what all divorcing couples should strive towards. If the marriage broke down completely and there is no possibility of saving it, then why fight any longer? If both parties act fairly, there is no need to spend thousands of Rands on legal fees. That money can be used on starting a new life. If there are minor children involved, then the money saved in avoiding litigation can be used on them. At the end of the day, no one really benefits from a long drawn out or protracted contested divorce process.

What is the simplest divorce?

The simplest divorce is when the parties are married out of community of property and profit and loss, with the exclusion of the accrual regime. What this means, it that whatever property a spouse owns during the marriage, still belongs to him or her after the marriage. There is also no need to pay the other spouse any amount after the divorce as an accrual. The simplest divorce would also require there to be no minor children born from the marriage. In other words, all the children are adults or there were none. Lastly, neither party claims personal maintenance or alimony from the other spouse. If the above scenario applies, then all that the divorce court would have to do is ascertain whether or not the marriage has irretrievably broken down, and grant a decree of divorce. There is no issue regarding child maintenance, custody issues, or proprietary rights. It’s a simple divorce and easily finalised.

What do couples usually fight over in the divorce process?

As can be seen from the above, if a couple has children, things may turn out to be complicated. The parents may dispute who should have primary care or custody over the minor children. Then there is the issue of child maintenance, and the amount thereof. This latter issue is usually a stumbling block when it comes to the finalisation of a divorce. Some parents are unreasonable in their request, and others again don’t want to pay or contribute what is fair and reasonable.

The matrimonial property regime

If the parties are married in community of property, there should be an equal division of the joint estate. However, parties still find a way to argue on this aspect which makes the divorce a contested one. The same applies should the spouse be married out of community of property with the inclusion of the accrual regime. Most of the time, the divorce gets settled just days before the divorce date, after both parties spent thousands of Rands on legal fees.

The notice of set down in divorce matters

After the divorce, summons has been issued and served, and the divorce is uncontested, a notice of set down must be filed at the divorce court. Usually, it’s 10 days after the divorce summons was served on the other party. Basically, the notice of set down advises the court and the other party that the divorce is going to be heard on a certain date. Once the notice of set down is filed, the divorce matter would be placed on the court roll for the divorce to be finalised.

What happens on the unopposed divorce court date?

Once the notice of set down has been filed and the divorce date has arrived, one of the parties, usually the plaintiff would have to appear at court to give evidence. Basically, he or she needs to confirm that the marriage has broken down, the court has jurisdiction and that all aspects have been resolved. This is usually done with a consent paper. If the parties were married out of community of property without the accrual regime and there are no minor children, then there is no need for any other documents to be filed.

What happens after the divorce has been granted?

Once the divorce has been granted, the parties can move on with their lives. They may remarry incur debt in their own name and so on. A few days after the divorce, and depending on the specific court, the parties would be able to collect a document called a final decree of divorce. This document would confirm to the world that they are divorced.

Free Online Divorce Form and Guide

If you want to attend to your own uncontested divorce, we can to help you kick start it at no charge. Fill in the form below, and then our system will send you an email with the details you provided, which you should include in the divorce documents. [ninja_form id=35] Have a family Law appointment with us We have an online appointments system which enables you to save valuable time and cut straight to the chase. There is, therefore, no need for you to visit our offices (unless it is best for you to do so, or is your most preferred option). You may set up telephonic or video consultations should you wish to do so. You can, therefore, stay in the office or on the couch in the comfort of your own home when dealing with us. We are therefore physical, online, set-up and ready to meet with you. Make your appointment online for a consultation today. If you find any of our articles, free resources and posts interesting, or possibly useful to others, please like  

IN THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE DIVISION, CAPE TOWN)

Case no.: JOHN WILLIAMS PLAINTIFF (Identity Number: 0000000000000) And JANE WILLIAMS DEFENDANT (Identity Number: 1111111111111  

NOTICE OF SET – DOWN

  KINDLY BE ADVISED that Plaintiff hereby sets the above matter down for hearing for 2015 at 10:00 or so soon thereafter. Kindly enrol the matter accordingly. DATED AT SIGNED AT CAPE TOWN THIS___DAY OF __________________2017.   ______________________ Per: JOHN WILLIAMS (Plaintiff in Person) 4 Green Street, Greenland, WESTERN CAPE TO: THE REGISTRAR HIGH COURT CAPE TOWN AND TO: JANE WILLIAMS 1 Apple Street, Apple Town, WESTERN CAPE _________________o0o_________________    
Posted on by Telelaw

Uncontested divorces – Notice of Set Down for undefended and uncontested divorce matters – The document used to place your divorce on the divorce court roll

Undefended, unopposed or uncontested divorce cases are what all divorcing couples should strive towards. If the marriage broke down completely and there is no possibility of saving it, then why fight any longer? If both parties act fairly, there is no need to spend thousands of Rands on legal fees. That money can be used on starting a new life. If there are minor children involved, then the money saved in avoiding litigation can be used on them. At the end of the day, no one really benefits from a long drawn out or protracted contested divorce process.

What is the simplest divorce?

The simplest divorce is when the parties are married out of community of property and profit and loss, with the exclusion of the accrual regime. What this means, it that whatever property a spouse owns during the marriage, still belongs to him or her after the marriage. There is also no need to pay the other spouse any amount after the divorce as an accrual. The simplest divorce would also require there to be no minor children born from the marriage. In other words, all the children are adults or there were none. Lastly, neither party claims personal maintenance or alimony from the other spouse.

If the above scenario applies, then all that the divorce court would have to do is ascertain whether or not the marriage has irretrievably broken down, and grant a decree of divorce. There is no issue regarding child maintenance, custody issues, or proprietary rights. It’s a simple divorce and easily finalised.

What do couples usually fight over in the divorce process?

As can be seen from the above, if a couple has children, things may turn out to be complicated. The parents may dispute who should have primary care or custody over the minor children. Then there is the issue of child maintenance, and the amount thereof. This latter issue is usually a stumbling block when it comes to the finalisation of a divorce. Some parents are unreasonable in their request, and others again don’t want to pay or contribute what is fair and reasonable.

The matrimonial property regime

If the parties are married in community of property, there should be an equal division of the joint estate. However, parties still find a way to argue on this aspect which makes the divorce a contested one. The same applies should the spouse be married out of community of property with the inclusion of the accrual regime. Most of the time, the divorce gets settled just days before the divorce date, after both parties spent thousands of Rands on legal fees.

The notice of set down in divorce matters

After the divorce, summons has been issued and served, and the divorce is uncontested, a notice of set down must be filed at the divorce court. Usually, it’s 10 days after the divorce summons was served on the other party. Basically, the notice of set down advises the court and the other party that the divorce is going to be heard on a certain date. Once the notice of set down is filed, the divorce matter would be placed on the court roll for the divorce to be finalised.

What happens on the unopposed divorce court date?

Once the notice of set down has been filed and the divorce date has arrived, one of the parties, usually the plaintiff would have to appear at court to give evidence. Basically, he or she needs to confirm that the marriage has broken down, the court has jurisdiction and that all aspects have been resolved. This is usually done with a consent paper. If the parties were married out of community of property without the accrual regime and there are no minor children, then there is no need for any other documents to be filed.

What happens after the divorce has been granted?

Once the divorce has been granted, the parties can move on with their lives. They may remarry incur debt in their own name and so on. A few days after the divorce, and depending on the specific court, the parties would be able to collect a document called a final decree of divorce. This document would confirm to the world that they are divorced.

Free Online Divorce Form and Guide

If you want to attend to your own uncontested divorce, we can to help you kick start it at no charge. Fill in the form below, and then our system will send you an email with the details you provided, which you should include in the divorce documents.

No Fields Found.

Have a family Law appointment with us

We have an online appointments system which enables you to save valuable time and cut straight to the chase. There is, therefore, no need for you to visit our offices (unless it is best for you to do so, or is your most preferred option).
You may set up telephonic or video consultations should you wish to do so. You can, therefore, stay in the office or on the couch in the comfort of your own home when dealing with us. We are therefore physical, online, set-up and ready to meet with you. Make your appointment online for a consultation today.

If you find any of our articles, free resources and posts interesting, or possibly useful to others, please like

 

IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)

Case no.:

JOHN WILLIAMS PLAINTIFF
(Identity Number: 0000000000000)

And

JANE WILLIAMS DEFENDANT
(Identity Number: 1111111111111

 

NOTICE OF SET – DOWN

 

KINDLY BE ADVISED that Plaintiff hereby sets the above matter down for hearing for 2015 at 10:00 or so soon thereafter.
Kindly enrol the matter accordingly.
DATED AT SIGNED AT CAPE TOWN THIS___DAY OF __________________2017.

 

______________________
Per: JOHN WILLIAMS
(Plaintiff in Person)
4 Green Street,
Greenland,
WESTERN CAPE

TO: THE REGISTRAR
HIGH COURT
CAPE TOWN

AND TO: JANE WILLIAMS
1 Apple Street,
Apple Town,
WESTERN CAPE
_________________o0o_________________

 

 

Related Post

28 Relocation with my minor child to Saudi Arabia, Medina (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 Medina, Saudi Arabia 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 seven or eight) 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 Roodepoort or Phalaborwa, South Africa, and you want to relocate to Medina, Saudi Arabia, 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 Medina, Saudi Arabia? The same applies when it comes to your minor child applying for a South African passport to relocate to Saudi Arabia, 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 Medina, Saudi Arabia with my minor child? There is there 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 Medina, Saudi Arabia. What can I do if the other parent does not want to consent to the minor child’s relocation to Medina, Saudi Arabia? 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 Medina, Saudi Arabia, 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 Medina, Saudi Arabia. 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 Medina, Saudi Arabia, 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 Medina, Saudi Arabia? If the other parent does not want to consent to the passport application and/or the relocation of the minor child to Medina, Saudi Arabia – 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 Medina, Saudi Arabia, 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 Medina, Saudi Arabia If you require legal assistance or representation with relocating to Medina, Saudi Arabia 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.

Posted on by Telelaw

Amendments to the Maintenance Act – Final Changes that took place in 2018 – Know your rights

advice-child-maintenance-child-custody-divorce

Parents have a legal obligation to maintain their children. The same applies to spouses who have to maintain each other, and so on. This obligation should be exercised naturally. In other words, even if a parent did not know of the law enforcing child support, he or she should have a natural inclination to do so. Unfortunately, the true reality is that it is not the case. Countless parents are taken to the maintenance court every year due to not supporting, or inadequately supporting their children. And to be fair, there are parents who abuse the maintenance process who takes the parent to court who is already adequately contributing. Now, for the maintenance enforcement process to function, working mechanisms need to be in place. This is where the Maintenance Act 99 of 1998, and the Maintenance Amendment Act, 9 of 2015 come into play. Read on to learn more.

The Maintenance Act 99 of 1998

Since or about 1998, the Maintenance Act 99 of 1998 was the main piece of legislation that was used for parents to obtain maintenance for their children. Other legal tools would be making an application in terms of High Court Rule 43 for interim maintenance in a divorce matter, and the Divorce Court would make a final order. In the Magistrate’s Court, rule 58 would apply. Then there is the Domestic Violence Act, which allows for emergency monetary relief. Notwithstanding the Maintenance Act being a great and useful tool, as time changed, so too did it have to do the same.

Maintenance Amendment Act (Act No.9 of 2015)

advice-child-maintenance-child-custody-divorce

On 5 January 2018, the entire Maintenance Amendment Act came into operation. In our view, it placed some sharp claws into the already existing Maintenance Act. Some changes to the Maintenance Act were cosmetic in a sense and other changes (or additions) toughened up the law. Sections 2, 11 and 13(b) of the Amendment Act, which is dealt with below, were not initially in operation due to it requiring Regulations to be created to make it work. It is however now in place. To make things easy, we unpacked the Maintenance Amendment Act (Act No.9 of 2015) and give our explanation as to how it better serves South Africans. Below we provide a summary of the amendments we find relevant to mention, as well as the actual amendments for your reference. You, therefore, do not need to read the entire article, unless you have to use it for court or other purposes. For your convenience, just click on the relevant summary below and it will jump to the relevant section of the Act further below.

Summary of Changes brought by the Maintenance Amendment Act (Act No.9 of 2015)

  1. If there was a verbal or written maintenance agreement (which was not made an order of the court), the maintenance court can be approached to substitute or discharge it. [Section 6(c)]
  2. You may lodge a complaint at the maintenance court within the area of jurisdiction of where you reside, carry on business or are employed. [Section 6(2)]
  3. The maintenance court may issue a direction directing one or more electronic communications service providers to furnish the court with the contact information of the person a complaint has been made against to obtain his or her whereabouts. For example, Vodacom, MTN or Cell C can be approached to provide their client’s contact details. [Section 7(3)]
  4. The maintenance court can make an interim maintenance order even if the other party does not agree to it. [Section 10(6)]
  5. The maintenance court can provide your details to credit bureaus if you are in default and civil execution of a maintenance order took place. [Section 26(2A)]
  6. Non-compliance with maintenance orders could have you imprisoned for up to 3 (three) years. [Section 31]

advice-child-maintenance-child-custody-divorce

Below are the relevant sections of the Maintenance Amendment Act (Act No.9 of 2015)

 

[ps2id id=’6c’ target=”/]

Substitution of section 6 of Act 99 of 1998

  1. The following section is hereby substituted for section 6 of the Maintenance Act, 1998 (hereafter referred to as the principal Act):

‘‘Complaints relating to maintenance

  1. (1) Whenever a complaint to the effect—
(a) that any person legally liable to maintain any other person fails to maintain the latter person; [or] (b) that good cause exists for the substitution or discharge of a maintenance order; or (c) that good cause exists for the substitution or discharge of a verbal or written agreement in respect of maintenance obligations in which respect there is no existing maintenance order, has been made and is lodged with a maintenance officer in the prescribed manner, the maintenance officer shall investigate that complaint in the prescribed manner and as provided in this Act. [ps2id id=’62’ target=”/] (2) After investigating the complaint, the maintenance officer may institute an enquiry in the maintenance court within the area of jurisdiction in which the person to be maintained, or the person in whose care the person to be maintained is, resides, carries on business or is employed with a view to enquiring into the provision of maintenance for the person so to be maintained.’’. [ps2id id=’73’ target=”/] 

Amendment of section 7 of Act 99 of 1998

  1. Section 7 of the principal Act is hereby amended by the addition of the following
subsection: ‘‘(3) (a) If a complaint is lodged with a maintenance officer in terms of section 6 and the maintenance officer, after all reasonable efforts to locate the whereabouts of the person who may be affected by an order which may be made by a maintenance court pursuant to the complaint so lodged, have failed, the  maintenance officer may apply to the maintenance court, in the prescribed manner, to issue a direction as contemplated in this subsection. (b) If a maintenance court is satisfied that all reasonable efforts to locate the whereabouts of a person have failed, as contemplated in paragraph (a), the court may issue a direction in the prescribed form, directing one or more electronic communications service providers to furnish the court, in the prescribed manner, with the contact information of the person in question if that person is in fact a customer of the service provider. (c) If the maintenance court issues a direction in terms of paragraph (b) the maintenance court shall direct that the direction be served on the electronic communications service provider in the prescribed manner. (d) The information referred to in paragraph (b) shall be provided to the maintenance court within the time period set out by the court in the direction. (e) An electronic communications service provider on which a direction is served may, in the prescribed manner, apply to the maintenance court for— (i) an extension of the period referred to in paragraph (d) on the grounds that the information cannot be provided timeously; or (ii) the cancellation of the direction on the grounds that— (aa) it does not provide an electronic communications service in respect of the person referred to in the direction; or (bb) the requested information is not available in the records of the electronic communications service provider. (f) After receipt of an application referred to in paragraph (e), the maintenance court shall consider the application, give a decision in respect thereof and inform the electronic communications service provider, in the prescribed manner, of the outcome of the application. (g) The list of electronic communications service providers referred to in section 4(7) of the Protection from Harassment Act, 2011 (Act No. 17 of 2011), may be used by maintenance courts for purposes of this subsection. (h) The tariffs payable to electronic communications service providers for providing information as determined by the Minister in terms of section 4(8) of the Protection from Harassment Act, 2011, apply in the case of information required in terms of this subsection. (i) If the maintenance officer is of the opinion that the person lodging the complaint referred to in paragraph (a) is unable to pay the costs involved in the furnishing of information referred to in paragraph (b), the maintenance officer may at any time after the maintenance court issues a direction under the said paragraph (b), request the maintenance court to hold an enquiry into— (i) the means of the complainant; and (ii) any other circumstances which, in the opinion of the maintenance court, should be taken into consideration. (j) At the conclusion of the enquiry referred to in paragraph (i) the maintenance court may make such order as the court may deem fit relating to the payment of the costs involved in the furnishing of information referred to in paragraph (b), including an order directing the State, subject to section 20, to pay such costs within available resources, in the prescribed manner. (k) The maintenance court may, if it has ordered the State to pay the costs referred to in paragraph (j), upon the application of the maintenance officer, order the person affected by the order to refund the costs so paid by the State in terms of paragraph (j), in the prescribed manner. (l) For purposes of this subsection, ‘‘electronic communications service provider’’ means an entity or a person who is licensed or exempted from being licensed in terms of Chapter 3 of the Electronic Communications Act, 2005 (Act No. 36 of 2005), to provide an electronic communications service.’’.  

Amendment of section 9 of Act 99 of 1998

  1. Section 9 of the principal Act is hereby amended by the substitution for subsection (1) of the following subsection:
‘‘(1) (a) A maintenance officer who has instituted an enquiry in a maintenance court may cause any person, including any person legally liable to maintain any other person or any person in whose favour a maintenance order has already been made, to be subpoenaed— (i) to appear before the maintenance court and give evidence; or (ii) to produce any book, document or statement. (b) A book, document or statement referred to in paragraph (a)(ii) includes— (i) any book, document or statement relating to the financial position of any person who is affected by the legal liability of a person to maintain any other person or in whose favour a maintenance order has been made; and (ii) in the case where such person is in the service of an employer, a statement which gives full particulars of his or her earnings and which is signed by the employer.’’.

advice-child-maintenance-child-custody-divorce

[ps2id id=’106′ target=”/]

Amendment of section 10 of Act 99 of 1998, as amended by section 16 of Act 55 of

2003

 
  1. Section 10 of the principal Act is hereby amended by the addition of the following
subsection: ‘‘(6) (a) A maintenance court shall conclude maintenance enquiries as speedily as possible and shall ensure that postponements are limited in number and in duration. (b)A maintenance court may, where a maintenance order has not been made and a postponement of the enquiry is necessary and if the court is satisfied that— (i) there are sufficient grounds prior to such postponement indicating that one of the parties is legally liable to maintain a person or persons; and (ii) undue hardship may be suffered by the person or persons to be maintained as a result of the postponement, subject to paragraph (c), make an interim maintenance order which the maintenance court may make under section 16(1)(a). (c) When the maintenance court subsequently makes any order under section 16, the maintenance court may— (i) make an order confirming the interim maintenance order referred to in paragraph (b); or (ii) set aside such interim maintenance order or substitute it with any other order which the maintenance court may consider just in the circumstances.’’.  

Amendment of section 16 of Act 99 of 1998, as amended by section 17 of Act 55 of

2003

  1. Section 16 of the principal Act is hereby amended by the substitution for paragraph
(a) of subsection (2) of the following paragraph: ‘‘(2) (a) Any court— (i) that has at any time, whether before or after the commencement of this Act made a maintenance order under subsection (1)(a)(i) or (b)(i); (ii) that makes such a maintenance order; or (iii) that convicts any person of an offence referred to in section 31(1), shall, subject to paragraph (b)(i), make an order directing any person, including any administrator of a pension fund, who is obliged under any contract to pay any sums of money on a periodical basis to the person against whom the maintenance order in question has been or is made, to make on behalf of the latter person such periodical payments from moneys at present or in future owing or accruing to the latter person as may be required to be made in accordance with that maintenance order if that court is satisfied— (aa) where applicable, in the case of subparagraph (i), after hearing such evidence, either in writing or orally, as that court may consider necessary; (bb) where applicable, in the case of subparagraph (ii), after referring to the evidence adduced at the enquiry or the application for an order by default, as the case may be; or (cc) where applicable, in the case of subparagraph (iii), after referring to the evidence adduced at the trial; and (dd) where applicable, after hearing such evidence, either in writing or orally, of any person who is obliged under any contract to pay any sums of money on a periodical basis to the person against whom the maintenance order in question has been or is made, that it is not impracticable in the circumstances of the case: Provided that nothing precludes the court from making an order in terms of this subsection if it is of the opinion that any further postponement of the enquiry in order to obtain the evidence of the person referred to in subparagraph (dd) will give rise to an unreasonable delay in the finalisation of the enquiry, to the detriment of the person or persons to be maintained.’’.

Substitution of section 17 of Act 99 of 1998

  1. The following section is hereby substituted for section 17 of the principal Act:
‘‘Orders by consent
  1. (1) Any order referred to in section 16(1)(a) or (b) may be made [against any person not present] at the enquiry in the absence of one or both of the parties involved in the enquiry, if it is made in accordance with his or her or their consent in writing handed in by the maintenance officer at the enquiry.
(2) A copy of an order made [against any person not present] at the enquiry in the absence of one or both of the parties as provided for in subsection (1), shall be delivered or tendered to him or her or them, as the case may be, by any maintenance officer, police officer, sheriff or maintenance investigator, and the return of any such officer, sheriff or investigator showing that such copy was delivered or tendered to the particular person or persons shall be deemed to be sufficient proof of the fact that he or she was or they were aware of the terms of the order in question.’’.

Amendment of section 18 of Act 99 of 1998

  1. Section 18 of the principal Act is hereby amended—
(a) by the substitution for subsection (1) of the following subsection: ‘‘(1) If a maintenance court is satisfied on the grounds of sufficient proof or otherwise— (a) that any person against whom an order may be or has been made under section 16(1)(a) or (b) or that any person in whose favour such an order has been made— (i) has knowledge of a subpoena issued under section 9; or (ii) has appeared before the court and was warned by the court to appear at a later date, time and place before the court; and (b) that he or she has failed to appear before the maintenance court on the date and at the time and place— (i) specified in such subpoena; or (ii) in accordance with a warning referred to in paragraph (a)(ii), the maintenance court may, on application of the maintenance officer for an order by default, call upon the person who has lodged the complaint to adduce such evidence, either in writing or orally, in support of his or her complaint as the maintenance court may consider necessary.’’; (b) by the substitution for subsection (3) of the following subsection: ‘‘(3) A copy of an order made [against] in respect of any person not present at the enquiry shall be delivered or tendered, as soon as may be practicable in the circumstances, to him or her by any maintenance officer, police officer, sheriff or maintenance investigator, and the return of any such officer, sheriff or investigator showing that such copy was delivered or tendered to the particular person shall be deemed to be sufficient proof of the fact that he or she was aware of the terms of the order in question.’’; and (c) by the substitution for paragraph (a) of subsection (4) of the following paragraph: ‘‘(a) The person [against] in respect of whom a maintenance court has made an order by default may apply to the maintenance court for the variation or setting aside of the order.’’.  

Substitution of section 20 of Act 99 of 1998

  1. The following section is hereby substituted for section 20 of the principal Act:
‘‘Orders as to costs of service and directions
  1. The maintenance court holding an enquiry may, having regard to the conduct of the persons involved in the enquiry so far as it may be relevant, make such order as the maintenance court may consider just relating to the costs of—
(a) the service of process; and (b) obtaining the information contemplated in section 7(3).’’.  

Substitution of section 22 of Act 99 of 1998

  1. The following section is hereby substituted for section 22 of the principal Act:
‘‘Notice of substitution or discharge of maintenance orders
  1. Whenever a maintenance court—
(a) makes an order under section 16(1)(b) in substitution of a maintenance order; or (b) discharges a maintenance order under section 16(1)(b), the maintenance order shall cease to be of force and effect only insofar as the court expressly, or by necessary implication, replaced that order or part thereof, and the maintenance officer shall forthwith give notice of the decision to the registrar or clerk of the court in the Republic where the maintenance order was issued or where the sentence concerned was imposed, as the case may be, who shall deal with the relevant records or registers in the prescribed manner.’’.  

Amendment of section 23 of Act 99 of 1998

  1. Section 23 of the principal Act is hereby amended by the substitution for subsection (1) of the following subsection:
‘‘(1) Subject to the directions prescribed in connection with the transfer of maintenance orders, the maintenance officer [may] shall, in writing, direct the clerk of the court where a maintenance order was made to transmit the maintenance order, together with the prescribed records, to the clerk of the maintenance court within the area of jurisdiction of which the person in whose favour the maintenance order was made, or the person in whose care that person is, resides, carries on business or is employed.’’.

advice-child-maintenance-child-custody-divorce

 [ps2id id=’262a’ target=”/]

Amendment of section 26 of Act 99 of 1998, as amended by section 18 of Act 42 of

2001 and section 18 of Act 55 of 2003

  1. Section 26 of the principal Act is hereby amended by the insertion after subsection (2) of the following subsection:
‘‘(2A) On the granting of an application contemplated in subsection (2) by a maintenance court, the maintenance officer or clerk of the court at the request of the maintenance officer, shall, notwithstanding anything to the contrary contained in any law, in the prescribed manner, furnish the particulars of the person against whom a maintenance order has been made and a certified copy of the order of the court contemplated in subsection (2)(a)(i), (ii) or (iii), to any business which has as its object the granting of credit or is involved in the credit rating of persons.’’.  

Amendment of section 28 of Act 99 of 1998

  1. Section 28 of the principal Act is hereby amended by the substitution for
subsection (1) of the following subsection: ‘‘(1) A maintenance court may— (a) on the application of a person referred to in section 26(2)(a); [or] (b) when such court suspends the warrant of execution under section 27 (4)(b)[,]; (c) when such court suspends the order for the attachment of debt under section 30(1); and (d) where applicable, after hearing the evidence, either in writing or orally, of the employer of the person in question, make an order for the attachment of any emoluments at present or in future owing or accruing to the person against whom the maintenance or other order in question was made to the amount necessary to cover the amount which the latter person has failed to pay, together with any interest thereon, as well as the costs of the attachment or execution, which order shall authorise any employer of the latter person to make on behalf of the latter person such payments as may be specified in the order from the emoluments of the latter person until such amount, interest and costs have been paid in full: Provided that nothing precludes the court from making an order in terms of this subsection if it is of the opinion that any further postponement of the enquiry in order to obtain the evidence of the person referred to in paragraph (d) will give rise to an unreasonable delay in the finalisation of the enquiry, to the detriment of the person or persons to be maintained.’’.  [ps2id id=’31’ target=”/]

Amendment of section 31 of Act 99 of 1998

  1. Section 31 of the principal Act is hereby amended—
(a) by the substitution for subsection (1) of the following subsection: ‘‘(1) Subject to the provisions of subsection (2), any person who fails to make any particular payment in accordance with a maintenance order shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding [one year] three years or to such imprisonment without the option of a fine.’’; and (b) by the substitution for subsection (4) of the following subsection: ‘‘(4) If a person has been convicted of an offence under this section, the maintenance officer [may] shall, notwithstanding anything to the contrary contained in any law, in the prescribed manner, furnish that person’s personal particulars to any business which has its object the granting of credit or is involved in the credit rating of persons.’’.  

Substitution of section 35 of Act 99 of 1998

  1. The following section is hereby substituted for section 35 of the principal Act:
‘‘Offences relating to maintenance enquiries
  1. Any person who wilfully interrupts the proceedings at a maintenance enquiry or who wilfully hinders or obstructs the maintenance court in the performance of the maintenance court’s functions at the enquiry shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding [six months] one year or to both [such] a fine and such imprisonment.’’.
 

Substitution of section 38 of Act 99 of 1998

  1. The following section is hereby substituted for section 38 of the principal Act:
‘‘Offences relating to certain notices
  1. Any person who—
(a) without sufficient cause, refuses or fails to make any payment in accordance with a notice under section 16(3)(a), 29(1) or 30(1); or (b) refuses or fails to give notice to a maintenance officer as required by section 16(3)(b) or 29 (2), shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding [six months] two years.’’.  

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Substitution of section 39 of Act 99 of 1998

  1. The following section is hereby substituted for section 39 of the principal Act:
‘‘Offences relating to notice of change of address
  1. Any person who refuses or fails to give notice of any change of his or her place of residence or employment as required by section 16(4) shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding [six months] one year.’’.
 

Insertion of section 39A in Act 99 of 1998

  1. The following section is hereby inserted in the principal Act after section 39:
‘‘Offences relating to maintenance investigators 39A. (1) Any person who wilfully hinders or obstructs a maintenance investigator in the exercise of his or her powers or the performance of his or her duties shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding one year. (2) Any person, other than a clerk of the court who is requested to assist a maintenance investigator in the performance of his or her functions, who has not been appointed as a maintenance investigator in terms of this Act and who— (a) performs any function entrusted to a maintenance investigator under any law; or (b) pretends to be or makes use of any name, title or addition or description creating the impression that he or she is a maintenance investigator or is recognised by law as such, shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding two years.’’.  

Substitution of section 41 of Act 99 of 1998

  1. The following section is hereby substituted for section 41 of the principal Act:
‘‘Conversion of criminal proceedings into maintenance enquiry
  1. If during the course of any proceedings in a magistrate’s court in
respect of— (a) an offence referred to in section 31(1); or (b) the enforcement of any sentence suspended on condition that the convicted person make periodical payments of sums of money towards the maintenance of any other person, it appears [to the court] on good cause shown that it is desirable that a maintenance enquiry be held, [or when the public prosecutor so requests, the court shall] the court may, of its own accord or at the request of the public prosecutor, convert the proceedings into such enquiry.’’.

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Top tips from a Senior Family Law Advocate on how to deal with your Child Custody matter in the Paarl Children’s Court

 

Family law legal matters can be very stressful. This is so whether you live in Paarl or any other city in South Africa. Especially so if you have no idea how the legal processes work. It is one thing to know that you are entitled to child support, but it is a totally different matter to know the law and procedure on how to claim child support. Luckily in child maintenance matters, the maintenance court is there to assist you in completing the application form. However, many times that is not enough. Especially so if the other parent has a lawyer and knows how to present the case for his or her client.

This article, however, deals with some top tips in care and contact or custody matters in the Children’s Court in Paarl. It would explain the processes involved and advise on how to be best prepared for your matter. This advice is applicable whether you live in Paarl or any other city in South Africa.

What to do before visiting the Paarl Children’s Court

Before you approach the Children’s Court in Paarl, first try to resolve the issues with the other parent. Therefore, if you want more contact with your child and the other parent is refusing, try to resolve the matter first with that parent. If that does not work, try mediation. The mediator can be anyone, from a trusted mutual friend, priest, or other religious leaders, or a professional like an attorney, psychologist, or the office of the Family Advocate. Paarl has many professionals that can assist you in this regard. If resolving the matter by yourselves is not possible, or mediation fails, then we suggest you approach the Paarl Children’s Court for assistance.

TIP: Focus on getting someone neutral to assist in mediating your matter. Organisations like FAMSA and FAMAC can be of assistance. Google them.

Approaching the Paarl Children’s Court

The Paarl Children’s Court should be approached if it is the closest Children’s Court to you. You need to verify with the Paarl Children’s Court that you fall under their area of jurisdiction. If not, they would direct you to which Children’s Court is applicable to you.

Once you arrive at the Paarl Children’s Court, they will provide you with a form headed “Bringing Matter to Court in Terms of Section 53 Children’s Act, 2005 (Act no. 38 of 2005) Regulation Relating to Children’s Court and International Child Abduction, 2008 [Regulation 6]. This form is also called Form 2.

In this form, you will provide all your particulars and that of the child or children and the other parent. The sections in the form are as follows:

  • PART A: PARTICULARS OF CHILD(REN)
  • PART B: PARTICULARS OF *CHILD WHO IS AFFECTED BY OR INVOLVED IN THE MATTER/PERSON *ACTING IN THE INTEREST OF THE CHILD/*ON BEHALF OF THE CHILD WHO CANNOT ACT IN HIS/HER OWN NAME/ *MEMBER OF A GROUP OF CLASS OF CHILDREN/*IN THE PUBLIC INTEREST (SECTION 53(2)
  • PART C: PARTICULARS OF PERSONS HAVING AN INTEREST IN THE MATTER
  • PART D: PARTICULARS OF MATTER

In part D, the following is stated which you need to provide in the form:

  • Nature of matter brought to Court: (Please give full details of the matter e.g., registration/amendment of parenting plans, removal of child to safe care, children in need of care and protection, placement in youth care centers, adoption etc.
  • Documents: Are there any documents relating to the matter? (If so please attach)

Once you have completed the form and attached the relevant documents to it, you must take it to a commissioner of Oaths to have it commissioned. It does not have to be in Paarl.

TIP: Draft a separate affidavit explaining your case. Outline some background information and reasons why the Court should give you what you request. Attach it to Form 2.

Processing your Application at the Paarl Children’s Court

Once you complete the Form A and submit it to the Clerk of the Paarl Children’s Court, they will process it and allocate it a case number or reference number. The Clerk of the Court would then allocate a date to the matter and advise the parties accordingly when the court date is. Please note that some courts follow a different process for processing the application and informing the parties of the court date. Please enquire from the Court when making the application what process they follow.

TIP: Obtain the contact details of the Court for you to contact them to obtain the Court date or other information. Ask for their contact number and email address.

Appearing in the Paarl Children’s Court

When notified of the Court date, both you and the other parent should attend. If you are making use of a lawyer (Advocate or Attorney), inform them timeously of the date. Depending on the Court, you may first see the Clerk or go directly to the Magistrate. The Children’s Court would do its best to try to resolve the matter. If the parents cannot come to an agreement, the Children’s Court may postpone the matter for either of the following:

  • Get a social worker involved in the matter;
  • Appoint a legal representative for the minor child;
  • Implement interim care and contact arrangements;
  • Having the parties attempt to agree on a parenting plan;
  •  

In serious matters, the Court may remove the minor child from both parents and place the child in foster care. The powers of the Children’s Court are extensive. It will, however, focus on what is in the child’s best interests.

TIP: Be as vocal as possible. Do not expect the Court to be understanding of your case or be on your side. It is your duty to explain your case and provide the Court with all the relevant information they require for them to make a fair decision.

Finalising the matter in the Paarl Children’s Court

Once the Paarl Children’s Court has enough information to make a final decision, it will do so. Depending on the facts of the matter, that could either be making a Parenting Plan, an Order of the Court or a final care and contact Order. The Court may even make further interim orders, where the parties are to return to Court after a few months, or a year later.

TIP: Do not agree to something just because the social worker, a lawyer, or the Court suggest it. You need to be happy with what is decided.

The above Paarl Children’s Court Application tips should apply to the following provinces and cities:

Eastern Cape:

Alice, Butterworth, East London, Graaff-Reinet, Grahamstown, King William’s Town, Mthatha

Port Elizabeth, Queenstown, Uitenhage, Zwelitsha

Free State:

Bethlehem. Bloemfontein, Jagersfontein, Kroonstad, Odendaalsrus, Parys, Phuthaditjhaba, Sasolburg, Virginia, Welkom

Gauteng:

Benoni, Boksburg, Brakpan, Carletonville, Germiston, Johannesburg, Krugersdorp, Pretoria, Randburg, Randfontein, Roodepoort, Soweto, Springs, Vanderbijlpark, Vereeniging

KwaZulu-Natal:

Durban, Empangeni, Ladysmith, Newcastle, Pietermaritzburg, Pinetown, Ulundi, Umlazi

Limpopo:

Giyani, Lebowakgomo, Musina, Phalaborwa, Polokwane, Seshego, Sibasa, Thabazimbi

Mpumalanga:

Emalahleni, Nelspruit, Secunda, North West, Klerksdorp, Mahikeng, Mmabatho, Potchefstroom, Rustenburg, Northern Cape, Kimberley, Kuruman, Port Nolloth

Western Cape:

Bellville, Paarl, Constantia, George, Hopefield, Oudtshoorn, Paarl, Simon’s Town, Stellenbosch, Swellendam, Worcester

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