What is An Advocate in South Africa?

An advocate in South Africa is a legal professional who specialises in courtroom advocacy and giving legal advice. They are usually trained and hold experience in representing clients in court (High Court and Magistrates Court), drafting legal documents (Affidavit and Pleadings) and providing legal advice on various legal matters. There are two types of Advocates in South Africa. One is a referral advocate, and the other is a Trust Account Advocate. A referral advocate may only take on work referred to it by an attorney. There are certain exceptions. A Trust Account Advocate may take on work directly from members of the Public. In some countries, such as the United Kingdom, barristers (advocates) are distinct from solicitors (attorneys), who are legal professionals but tend to focus more on advising clients outside of court and handling legal transactions.

Why can Trust Account Advocates take on work directly from members of the Public?

All Trust Account Advocates have Trust Banking Accounts and Fidelity Fund Certificates. The Client would then pay money into the Trust Account Advocates banking account, which funds are protected. Therefore, should a Trust Account Advocate misappropriate the capital of a client who paid money into the Trust Banking Account, the Client can claim from the Fidelity Fund.

What is child custody law?

Child custody refers to parents’ legal rights and responsibilities (Parental Responsibilities and Rights) over their children after a separation or divorce. This includes having access or contact with the child and making decisions about their child’s upbringing, such as their education, healthcare, and religious upbringing. A Trust Account Advocate may represent a client directly in a child custody matter.

What is child maintenance law?

Child maintenance law, also known as child support law, refers to the legal framework that governs the financial support a non-custodial parent must provide for their child. Child maintenance laws help ensure that both parents are financially responsible for their child’s upbringing and well-being, even after a separation or divorce. The law provides guidelines for determining how much child support should be paid, how often it should be paid, and how it is collected. In South Africa, we have the Maintenance Act and the Maintenance Courts. A Trust Account Advocate may represent a client directly in a child maintenance matter.

What is divorce law?

Divorce law refers to the legal rules and regulations that govern terminating a marriage. This includes the grounds for divorce, division of property, spousal support (alimony), child custody, and visitation rights. Divorce laws vary from country to country and even from state to state within a country. These laws ensure that the divorce process is fair and equitable for both parties involved. They provide a legal framework for resolving disputes and ensuring that the rights and interests of all parties, including any children involved, are protected. A Trust Account Advocate may represent a client directly in a divorce matter.

What does child relocation law mean and entail?

Child relocation law refers to the legal rules and regulations governing children’s movement from one geographical location to another. This can either relate to provincial or international relocation. This law concerns the child’s well-being and ensures that relocation is in their best interest. It entails a range of factors that need to be considered, such as the child’s relationship with each parent, the distance of the proposed move, and the child’s educational and social needs. Ultimately, the court will decide based on what is deemed in the child’s best interest. A Trust Account Advocate may represent a client directly in a child relocation matter.

What is a parenting plan?

A parenting plan is a legal document that outlines the rights and responsibilities of each parent in the upbringing of their child or children after a separation or divorce. This plan is created to ensure that each parent is aware of their obligations and that the child’s best interests are considered. It typically includes details about the child’s living arrangements, visitation schedules, decision-making responsibilities, and financial arrangements. Parenting plans are usually created through mediation or negotiation between the parents, with the assistance of a lawyer, social worker, psychologist or the Office of the Family Advocate. A parenting plan can reduce conflict and provide a stable and predictable environment for the child. A Trust Account Advocate may assist a client directly in a matter involving a parenting plan.

What is child guardianship?

Child guardianship is a legal term that refers to the responsibility and authority of a person to make decisions about the care, welfare, and upbringing of a child who is not their biological child. This can happen when the child’s parents are unable or unwilling to care for the child due to various reasons such as death, illness, or incarceration. The guardian then assumes the role of a parent, making decisions about the child’s health, education, and general well-being. Guardianship can be temporary or permanent and can be granted by a Court. The primary goal of child guardianship is to ensure that the child is provided with a safe and stable environment free from neglect or abuse. A Trust Account Advocate may represent a client directly in a child guardianship matter.

What is passport consent?

Passport consent is a legal requirement that specifies that both parents or legal guardians must provide their written consent before a child can obtain a passport. This is intended to prevent child abduction and ensure both parents have equal rights and responsibilities regarding their child’s travel. Passport consent is required for children under 18, although the age limit may vary depending on the country. Both parents must sign the consent, and in some cases, they may need to provide additional documentation, such as proof of custody or a court order. Without the consent of both parents or legal guardians, a child will not be allowed to obtain a passport or travel internationally. This is confirmed in the Children’s Act. A Trust Account Advocate may represent a client directly in a passport consent matter.

What is domestic violence?

Domestic violence is any form of abusive behaviour in a personal or family relationship. This can include physical, sexual, emotional, or psychological abuse, financial control or coercion. Domestic violence can occur between partners, spouses, parents and children, siblings, or other family members. It is a severe issue that affects people of all ages, genders, and socioeconomic backgrounds. Domestic violence can have severe and long-lasting effects on the victim’s mental and physical health, and it is a leading cause of injury and death for women worldwide. It is essential to seek help if you or someone you know is experiencing domestic violence, as resources are available for support and assistance. A Trust Account Advocate may represent a client directly in a domestic violence matter.

What is a prenuptial contract?

A prenuptial contract, also known as a prenuptial agreement or prenup, is a legal agreement between two people planning to marry. This agreement sets out how the couple’s assets will be distributed in the event of divorce, separation, or the death of one of the parties. A prenuptial contract can cover various issues, such as property ownership, spousal support, and inheritance rights. It is designed to protect each party’s financial interests and to provide clarity and certainty in the event of a relationship breakdown. Prenuptial contracts are not just for wealthy couples, and they can be helpful for anyone who wants to protect their assets and avoid prolonged and costly legal disputes in the event of a separation or divorce. A Trust Account Advocate may represent a client directly in an issue involving a prenuptial contract.

What is a pre-nikkah agreement?

A pre-nikkah agreement is a legal agreement between two people who plan to get married under Islamic law. This agreement sets out the rights and responsibilities of each party in the event of a divorce or separation. It can cover issues such as property division, financial support, and child custody. The purpose of a pre-nikkah agreement is to provide clarity and certainty to both parties in the event of a future dispute. It is important to note that the validity and enforceability of pre-nikkah agreements vary by jurisdiction and may be subject to certain legal requirements. A Trust Account Advocate may assist a client directly with a pre-nikkah agreement.  
Posted on by Telelaw

What is An Advocate in South Africa?

An advocate in South Africa is a legal professional who specialises in courtroom advocacy and giving legal advice. They are usually trained and hold experience in representing clients in court (High Court and Magistrates Court), drafting legal documents (Affidavit and Pleadings) and providing legal advice on various legal matters. There are two types of Advocates in South Africa. One is a referral advocate, and the other is a Trust Account Advocate. A referral advocate may only take on work referred to it by an attorney. There are certain exceptions. A Trust Account Advocate may take on work directly from members of the Public.

In some countries, such as the United Kingdom, barristers (advocates) are distinct from solicitors (attorneys), who are legal professionals but tend to focus more on advising clients outside of court and handling legal transactions.

Why can Trust Account Advocates take on work directly from members of the Public?

All Trust Account Advocates have Trust Banking Accounts and Fidelity Fund Certificates. The Client would then pay money into the Trust Account Advocates banking account, which funds are protected. Therefore, should a Trust Account Advocate misappropriate the capital of a client who paid money into the Trust Banking Account, the Client can claim from the Fidelity Fund.

What is child custody law?

Child custody refers to parents’ legal rights and responsibilities (Parental Responsibilities and Rights) over their children after a separation or divorce. This includes having access or contact with the child and making decisions about their child’s upbringing, such as their education, healthcare, and religious upbringing. A Trust Account Advocate may represent a client directly in a child custody matter.

What is child maintenance law?

Child maintenance law, also known as child support law, refers to the legal framework that governs the financial support a non-custodial parent must provide for their child. Child maintenance laws help ensure that both parents are financially responsible for their child’s upbringing and well-being, even after a separation or divorce. The law provides guidelines for determining how much child support should be paid, how often it should be paid, and how it is collected. In South Africa, we have the Maintenance Act and the Maintenance Courts. A Trust Account Advocate may represent a client directly in a child maintenance matter.

What is divorce law?

Divorce law refers to the legal rules and regulations that govern terminating a marriage. This includes the grounds for divorce, division of property, spousal support (alimony), child custody, and visitation rights. Divorce laws vary from country to country and even from state to state within a country. These laws ensure that the divorce process is fair and equitable for both parties involved. They provide a legal framework for resolving disputes and ensuring that the rights and interests of all parties, including any children involved, are protected. A Trust Account Advocate may represent a client directly in a divorce matter.

What does child relocation law mean and entail?

Child relocation law refers to the legal rules and regulations governing children’s movement from one geographical location to another. This can either relate to provincial or international relocation. This law concerns the child’s well-being and ensures that relocation is in their best interest. It entails a range of factors that need to be considered, such as the child’s relationship with each parent, the distance of the proposed move, and the child’s educational and social needs. Ultimately, the court will decide based on what is deemed in the child’s best interest. A Trust Account Advocate may represent a client directly in a child relocation matter.

What is a parenting plan?

A parenting plan is a legal document that outlines the rights and responsibilities of each parent in the upbringing of their child or children after a separation or divorce. This plan is created to ensure that each parent is aware of their obligations and that the child’s best interests are considered. It typically includes details about the child’s living arrangements, visitation schedules, decision-making responsibilities, and financial arrangements. Parenting plans are usually created through mediation or negotiation between the parents, with the assistance of a lawyer, social worker, psychologist or the Office of the Family Advocate. A parenting plan can reduce conflict and provide a stable and predictable environment for the child. A Trust Account Advocate may assist a client directly in a matter involving a parenting plan.

What is child guardianship?

Child guardianship is a legal term that refers to the responsibility and authority of a person to make decisions about the care, welfare, and upbringing of a child who is not their biological child. This can happen when the child’s parents are unable or unwilling to care for the child due to various reasons such as death, illness, or incarceration. The guardian then assumes the role of a parent, making decisions about the child’s health, education, and general well-being. Guardianship can be temporary or permanent and can be granted by a Court. The primary goal of child guardianship is to ensure that the child is provided with a safe and stable environment free from neglect or abuse. A Trust Account Advocate may represent a client directly in a child guardianship matter.

What is passport consent?

Passport consent is a legal requirement that specifies that both parents or legal guardians must provide their written consent before a child can obtain a passport. This is intended to prevent child abduction and ensure both parents have equal rights and responsibilities regarding their child’s travel. Passport consent is required for children under 18, although the age limit may vary depending on the country. Both parents must sign the consent, and in some cases, they may need to provide additional documentation, such as proof of custody or a court order. Without the consent of both parents or legal guardians, a child will not be allowed to obtain a passport or travel internationally. This is confirmed in the Children’s Act. A Trust Account Advocate may represent a client directly in a passport consent matter.

What is domestic violence?

Domestic violence is any form of abusive behaviour in a personal or family relationship. This can include physical, sexual, emotional, or psychological abuse, financial control or coercion. Domestic violence can occur between partners, spouses, parents and children, siblings, or other family members. It is a severe issue that affects people of all ages, genders, and socioeconomic backgrounds. Domestic violence can have severe and long-lasting effects on the victim’s mental and physical health, and it is a leading cause of injury and death for women worldwide. It is essential to seek help if you or someone you know is experiencing domestic violence, as resources are available for support and assistance. A Trust Account Advocate may represent a client directly in a domestic violence matter.

What is a prenuptial contract?

A prenuptial contract, also known as a prenuptial agreement or prenup, is a legal agreement between two people planning to marry. This agreement sets out how the couple’s assets will be distributed in the event of divorce, separation, or the death of one of the parties. A prenuptial contract can cover various issues, such as property ownership, spousal support, and inheritance rights. It is designed to protect each party’s financial interests and to provide clarity and certainty in the event of a relationship breakdown. Prenuptial contracts are not just for wealthy couples, and they can be helpful for anyone who wants to protect their assets and avoid prolonged and costly legal disputes in the event of a separation or divorce. A Trust Account Advocate may represent a client directly in an issue involving a prenuptial contract.

What is a pre-nikkah agreement?

A pre-nikkah agreement is a legal agreement between two people who plan to get married under Islamic law. This agreement sets out the rights and responsibilities of each party in the event of a divorce or separation. It can cover issues such as property division, financial support, and child custody. The purpose of a pre-nikkah agreement is to provide clarity and certainty to both parties in the event of a future dispute. It is important to note that the validity and enforceability of pre-nikkah agreements vary by jurisdiction and may be subject to certain legal requirements. A Trust Account Advocate may assist a client directly with a pre-nikkah agreement.

 

Related Post

[caption id="attachment_8911" align="alignleft" width="440"]Parental responsibilities and care during the coronavirus lockdown in South Africa Parental responsibilities and care during the coronavirus lockdown in South Africa[/caption]  

Updated: 16 April 2020

New regulations have been issued on 16 April 2020. Click on the link below: The material change is that you do not have to have a court order or a parental responsibilities and rights agreement or parenting plan, registered with the family advocate. Possession of a birth certificate or certified copy of a birth certificate is now also allowed.

Update: 07 April 2020

NEW LOCKDOWN REGULATIONS REGARDING THE MOVEMENT OF CHILDREN – CERTAIN PARENTS MAY MOVE CHILDREN DURING THE NATIONAL LOCKDOWN PERIOD (7 April 2020)

What separated and divorced parents should think about prior to the coronavirus lockdown

With the world working towards eradicating the spreading of the coronavirus, South Africans are going to be placed on lockdown from 11:59 on Thursday 26 March 2020. This will endure for a period of 21 (twenty-one) days. This is what President Cyril Ramaphosa announced yesterday on national television. The applicable legislation allowing for this is the Disaster Management Act. This is done to contain the spread of the coronavirus in South Africa. What this means, in essence, unless you fall under the categories of persons allowed to work and be out there, you should remain at home.

The Application of Contact and care Court Orders during the lockdown

Schools have already been locked down and its keys stored away. The number of people who may be in the same place at the same time was restricted to an amount of 100. Now things have escalated to everyone staying at home unless you are allowed to be outside. This, however, leaves us with uncertain legal challenges when it comes to the exercising of contact and parental responsibilities and rights to minor children. It becomes even more challenging if there is a court order allowing a parent to have contact, but the child is currently with the other parent during the lockdown. • Does the court order supersede what the President told us to do? • Can we go against the lockdown injunction to exercise contact? At this moment, the questions are hard to answer. And in our view, should not be answered, unless clearer directives are provided by the government, dealing with this situation.

What are the usual contact and care arrangements?

The usual contact and care rights are any or a combination of the following: • The minor child will reside primarily with one parent for a period, and then with the other parent for the same period; • One parent has primary care with the child during the week, and the other parent has contact during alternative weekends; • The child resides with one parent, and the other parent collects the minor child in the morning and takes and collects the minor child from school. Thereafter returning the minor child to the primary caregiver; • Supervised contact, where a parent has contact at the minor child’s primary home, supervised by the other parent or another person; • Contact which is supervised in a public space, or by a social worker; and • Other specific cases. Contact would also entail telephonic and video contact.

How should contact be exercised during a lockdown?

There are 2 (two) more days before the lockdown. What happens to weekend contact? Some parents are exercising holiday contact at present. • What happens at the end of a specific parent’s holiday period? • Can a parent go and collect the child or children and have them now stay at a different parent? • And then return the children later, still during a lockdown? These and other questions are unprecedented, and direction is required from the government, not only lawyers. At the very least, parents should use the next two (2) days to decide where the children would primarily reside, and if indeed they can only live in one home for the 21 days, how contact can take place via other means. For example, WhatsApp video, FaceTime, Skype or Zoom.

Final words on parental contact during the lockdown

• Do not take the law into your own hands. • Until there is certainty on this issue, presume that the child would need to remain with one parent during this period. • Arrange for alternative forms of contact as suggested above. • Also, ensure that the child has enough clothes and necessities at the home he or she will reside during the lockdown. • Use the next two (2) days to prepare for the worst, so that your child would have the best.

Update: 07 April 2020

NEW LOCKDOWN REGULATIONS REGARDING THE MOVEMENT OF CHILDREN – CERTAIN PARENTS MAY MOVE CHILDREN DURING THE NATIONAL LOCKDOWN PERIOD (7 April 2020)

 
Posted on by Telelaw

I was unhappy with the decision of the Maintenance Court, so I appealed to the High Court of South Africa

I had a very terrible experience in the maintenance court recently. I am the mother of two minor children, ages seven and eight. They were both born and raised in South Africa. The father of my minor children has not been involved in their lives since they were very young. Soon after my second child was born, the father of my minor children went missing. All I had was the details of his sister. However, she also did not know where he was. Or at least that is what she told me.

I had to care for the minor children on my own

It is hard being a single parent. I had to attend to all their needs and expenses without the assistance of the biological father. This was very hard as a single parent. I had some help from my parents, but they are retired and have limited means. At least I saved on daycare costs, as they would collect and take the minor children to daycare while I was at work.

Finding the biological father via Facebook

Two years ago, I found out all the whereabouts of their biological father via social media. He posted pictures of himself attending a work function on Facebook.  I then approached the biological father through his work and asked him for assistance regarding the maintenance of the minor children. Both the minor children would have attended school the following year, and I would not have been able to pay the school fees alone.

The father’s refusal to pay child support

The father was adamant that he could not afford to pay child support and told me to apply for a childcare grant. He must have been earning a considerable income, seeing that he was working in a senior position at the company. Furthermore, as shown on his social media profile, he lived an extravagant life. I could not accept that the father was not willing to take any responsibility for the minor children.

Seeking legal assistance from a lawyer and the maintenance court

I then approached an attorney for assistance in obtaining child maintenance from the biological father. I could not afford the legal fees to assist me going forward, as I could not afford to pay for the minor children’s school expenses. I then approached the maintenance court for assistance, and on his advice, the maintenance clerk assisted me in launching an application for child maintenance against the biological father. The biological father was a party in the maintenance court proceedings, and we both appeared before the maintenance officer.

Father’s lack of co-operation

The biological father was not very cooperative in this matter. He did not provide his banking details and said he had not been working for a very long time. After I complained about the documentation he disclosed, the maintenance court instructed the maintenance investigator to investigate the biological father’s affairs. The investigator then found out that the father was earning a large income and had been working since I last saw him many years ago. The maintenance officer uncovered the father’s pay slips and bank statements, revealing his substantial income. The maintenance officer’s investigation revealed the father’s investments and assets, including an immovable property and two cars.

Formal maintenance enquiry – What a disappointment

The matter is then sent for a formal maintenance enquiry before a maintenance magistrate. This is where the problems occurred. The maintenance court never considered any of the information I provided them regarding the expenditure of the minor children. They mainly focused on my ability to care for the minor children and simultaneously disregarded the fact that the father earned much more and could maintain the minor children. The maintenance court wanted me to look after the needs of the minor children on my own and for the father to pay a small amount of maintenance towards the minor children. Once all the evidence had been presented to the maintenance magistrate, she ruled that the father would pay a small amount of maintenance towards minor children. Although the father earns much more than me, he was only ordered to pay approximately 10% of the minor children’s expenditure. I was very disappointed about this.

Taking the Maintenance Court on Appeal

I then again approached an attorney for legal assistance in this regard. All I could do was ask the attorney for advice regarding my case. The attorney advised me that, given the circumstances and the evidence presented, I should appeal the decision of the maintenance magistrate. This is what I did. I appealed on my own and requested reasons for the magistrate’s decision. The magistrate decided that because I earn a salary and the minor children live with me, I should pay most of the minor children’s expenditures. According to my attorney, this was not in line with the law and should not be allowed. The magistrate made a mistake when it ordered the father to pay only 10% of the minor children’s expenditure despite him earning much more than me.

Appealing the maintenance court decision to the High Court

The appeal proceeded to the High Court, where I was successful. The High Court reviewed the maintenance court’s evidence and concluded that the magistrate erred in his decision. The High Court further ordered that the biological father should pay for half of all the minor children’s expenditures. This included medical aid, educational expenses, and day-to-day expenses. I am very grateful to the High Court for assisting me in this matter and collecting the significant state’s decision.

Assistance with an Appeal to the High Court, Supreme Court of Appeal or the Constitutional Court

Should you require assistance with an appeal to the high court, Supreme Court of Appeal, or constitutional court, feel free to contact the firm of Adv. Muhammad Abduroaf.      

Posted on by Telelaw

Failure to comply with a maintenance order

First of all, what is a maintenance order? A maintenance order is a direct instruction from the court to the parent, to pay child maintenance/child support. [caption id="attachment_4530" align="alignleft" width="300"] Call our law offices on: 0211110090
Email us at: [email protected][/caption] Maintenance defaulters very seriously and therefore, failure to comply with the order is classified as a criminal charge. This implies that the order is legally enforceable – in other words, the court can, and will intervene. The defaulting parent can therefore lay a criminal charge at the court after they have applied for a maintenance order at the Magistrates Court.

Maintenance Court Procedure

Every local area will have its own magistrate’s court which is also a maintenance court that deal with maintenance legal matters. You may visit your closest magistrate’s court in which the maintenance officer will advise you as to what to bring along. [caption id="attachment_4532" align="alignleft" width="300"] Call our law offices on: 0211110090
Email us at: [email protected][/caption] When trying to claim for maintenance or apply for an order, you will need to bring along:
  • Your identity document
  • Your child’s birth certificate
  • A payslip to show what you earn
  • Bills and receipts that could be of help
  • The name of the other parent, place of work, and other relevant details
  • A recent photograph of the other parent, if you have one.
Our Lawyer Pty Ltd are professional legal experts in family law who have dealt with a number of maintenance legal matters. What is it that sets us aside from the rest? [caption id="attachment_4533" align="alignleft" width="300"] Call our law offices on: 0211110090
Email us at: [email protected][/caption] First of all, you will avoid the long wait of gaining expert legal advice as opposed to the magistrates court. Once you call our offices for an online appointment, you will have an immediate set date for your professional legal consultation. Our law offices are set in a central, safe setting at Suit 702, 7th Floor, The Pinnacle, on the corner of Strand and Burg Street in the CBD. Our offices are neat and comfortable in which you can enjoy free Wi-Fi and confidential consultations. Call our offices today to make an appointment with us today.

Failure to comply with maintenance order

Have your spouse failed to pay child support? It is time you consider your family legal expert to help you execute the legal steps you entitled to take – dealt with child maintenance defaulters over many years and therefore, took out the time to comply original, expert legal advice article for your convenience. [caption id="attachment_4534" align="alignleft" width="300"] Call our law offices on: 0211110090
Email us at: [email protected][/caption] For free legal advice articles, click on the following links below. These article are thoroughly composed by a family legal expert: Make an online appointment with us today and call our offices on 021 424 34 87 or call our national number on 087 701 124.    
Posted on by Telelaw

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