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Violation of a divorce order

 

Violation of a divorce order and failure to abide by a parenting plan as well as contravention of the Hague Convention on the Civil Aspects of International Child Abduction, by taking the children out of the country without your ex-partner’s consent – Corr v Corr (2822/12) [2013] ZAWCHC 50 (19 March 2013)

This case was heard in the Cape High Court and the parties had been divorced on 29 April 2011. A consent paper had been entered into, and a parenting plan annexed thereto. The parties had agreed to be co-guardians of the minor children, sharing parental rights and responsibilities. They would have joint decision making power when it came to the children’s schooling and medical care.

In terms of the consent paper Mr Corr would have contact to the children every second weekend, every alternate public holiday and every Wednesday when he did not have weekend contact with the children.

On 5 January 2012, Mrs Corr left South Africa for Harare, Zimbabwe, with a one way ticket. In her opposing papers, Mrs Corr stated that she knew that Mr Corr knew that the children would be going on holiday to Zimbabwe. Mrs Corr stated that she had a new partner and was considering moving to Zimbabwe, but wanted the children to visit the country first. She claimed that she had discussed this with Mr Corr.

In this application the applicant claimed that the respondent had unlawfully removed the children from South Africa without his consent. He furthermore claimed that the children be returned pending the application in terms of the Hague Convention on the Civil Aspects of International Child Abduction. The applicant had established in January 2012 from the headmaster of Rhenish Primary, where the children attended school in South Africa, that in October 2011, the respondent had indicated an intention to enrol the children at St. John’s Prepatory School in Harare. The respondent had fallen pregnant with her new partner’s child in September 2011. 

In the end the Court found that the respondent was indeed in contempt of the court order and the parenting plan pertaining to the divorce. The respondent was found to have unlawfully removed the children from South Africa. The Court found that the minor children should be returned to the Western Cape subject to any finding of the High Court of Zimbabwe hearing the pending application brought by the applicant in terms of the Hague Convention on the Civil Aspect of International Child Abduction. The respondent was also ordered to pay the costs of the application. The Court was satisfied that the divorce order had been taken by consent, and that there was blameworthy conduct, which justified a punitive costs order.

From this case it is evident that the respondent had clearly breached the terms of the parenting plan. Clause 1.3.5 of the parenting plan provided that the parties should have joint decision making power relating to any decision to change the children’s residence or to remove the children from the Cape Peninsula.

It is important for parties in a divorce matter to realise that a consent paper and a parenting plan are valid binding legal contracts, which cannot be breached. A court order must be seen to be of an extremely serious nature, and if it is not abided by, a party can be heavily penalized.

article written by Cape Town divorce attorney, Peter M Baker
petermbaker@yahoo.com

Related Articles

Divorce Parenting Plan

International abduction of minors

Hague Convention on the Civil Aspect of International Child Abduction


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