"An Attorney near me" - Cape Town legal directory
lawyer@capetownlawyer.co.za or WhatsApp
Request Quote for family (Divorce) Lawyer
Child custody in South Africa
Many a client advises me that their child wants to live with them and not their soon to be ex, and asks me how relevant that is, in a divorce matter. The reality of the matter is that these days the views of the minor child are taken into account when a court must make a decision on care and contact arrangements.
Section 10 of the Children’s Act 38 of 2005 came up recently in our case-law in the Eastern Cape decision of HG v CG 2010(3) SA 352. Section 10 of the Act states that if a child is of the age of maturity and has reached the necessary state of development in his/her life, then he or she can actively participate in any decisions which are made relating to him or her.
In the case of HG v CG the parties had four minor children and had been divorced. The settlement agreement stated that the parties had joint custody of the minor children and would spend an equal amount of time with them. In my experience this is becoming quite a popular way of settling custody matters these days.
However three years after the divorce the lady in the divorce brought an application to the court to have the terms of the divorce order changed. She wanted to be named the primary care provider of the children and also wanted authority to move with the children to Dubai to be with the man she wanted to marry.
Social workers and psychologists, giving evidence on behalf of the lady, testified in her favour that it would be in the childrens’ best interest that she be named primary care provider. The oldest child was now fourteen years old and the triplets were eleven.
However the man’s evidence from his own witnesses was that it would not be in the best interest of the children to relocate, and that they would miss their father and school friends in Port Elizabeth. This was good evidence.
In the end the court dismissed the application. The court found that the Children’s Act gives a child an opportunity to participate in decision- making affecting him.
In my opinion the court was quite correct in dismissing the application. Consideration has to be given to the views of the children. The children in this case were old and mature enough to give their own views. They wanted the status quo to be preserved of joint custody and didn’t want to relocate. The court accepted their views. The above case also goes to show how important it is when getting divorced to make the correct decisions on custody and contact rights. This however isn’t always possible in today’s society.
The new Children’s Act is quite correct in my opinion in taking into account the views of the children. The children are clearly the innocent victims in a divorce or separation situation and surely must have a say, provided of course that they are of the necessary maturity to do so.
Child-related divorce matters
Can a "band-aid baby" save a marriage?
Annexure A
If there are minor children involved, the divorce summons must have an Annexure A attached to it.
Custody of children upon divorce
Jurisdiction in child custody matter (e.g. if child moved to another province)
Joint decisions with respect to minor children
Using Rule 43 to apply for interim custody entitlement
Child custody for the father
When a child won't see his/her father or mother
An unborn child when divorcing
Grandparents & divorce
When Grandparents want custody ahead of parents
Challenging the family advocate report
Child maintenance matters
Maintenance & custody of adopteed children
Maintenance for the unborn child
Children suing for maintenance
Abduction & kidnapping of children
Abduction of a minor - Latest case law
The kidnapping of minor children by a parent
The international abduction of children from South Africa.
International divorces, children & overseas issues
Divorce when the children & spouse are overseas
Child contact rights for an overseas parent
When your child and ex move overseas - keeping contact
Other child-divorce matters
Handicapped children & the divorce rate
National register of those unsuited to working with children
Affairs
Affairs and their impact on divorce settlements.
Assets/debt and divorce
The duty to disclose your financials when divorcing.
Insufficent disclosure from a spouse on their assets/liabilities; the section 7 notice remedy (in terms of the Matrimonial Property Act)
Division of the joint estate in the event of a divorce.
- Antenuptial contracts
- When parties cannot agree on the accrual calculation; the court may appointment a referee to assist with the accrual calculation
- When parties cannot decide how to divvy the assets : The court may nominate someone to collect, realise and divide the estate (called a liquidator, receiver or curator).
- How affairs impact the division of assets on divorce
Movable assets - what to take if you move out.
Protection of assets using a trust
Divorce & pension fund assets
Divorce and pension fund payouts
Get your info directly from spouse's pension fund, not indirectly from your spouse.
Undisclosed Pension Interest at divorce results in amendment to divorce order
Pension interest in the accrual calculation, and the related tax liability
State pension fund is unconstitutional
Navy pension payout post-divorce
Property and divorce
Be careful with how you word the clauses about selling the property upon divorce
Should you move out of the matrimonial house prior to divorce?
Property in your spouse's name
When parents have rights to stay at the property you want to sell on divorce.
Life insurance, death & divorce
Life insurance & divorce in South Africa
Death in the middle of divorce
Divorce & future expenses
Divorce & Future medical expenses
Marriage (COP vs ANC), cohabition and Universal partnerships
Marriage in community of property
Short definition of a marriage in community of property
Forfeiture of benefits of marriage in community of property - Wijker v Wijker 1993
Kooverjee v Kooverjee
Rights for those in Universal partnerships
- Universal partnership: Asset sharing
- The distribution of assets from the dissolution of universal partnerships
Treatise on the Contract of Partnership: By Pothier ; with the Civil Code and Code of Commerce ... (1854)
Null declaration of customary union
Divorce orders
Vary or rescind a divorce order
Change divorce order without court application
Non-compliance with a divorce order
Spangenberg & Another vs De Waal; Rule 43 order is set aside
Perjury & forgery
Divorce: Forging spouse's signature
Divorce courts
Divorce cases in the Cape High Court
Annulment instead of divorce
What is annulment of a marriage?
What are the grounds for annulment of a marriage?
Family, Estate & notarial legal services