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Minor child's right to legal representation
In any legal matter both parties are entitled to legal representation. That is each individual’s constitutional right. If a party in a criminal case cannot afford a legal representative, the court offers them legal aid. To qualify for free legal representation under legal aid you have to earn under a certain threshold per month.
Rule 43 applications in divorces
Even in divorce matters the court bends over backwards to allow each party legal representation. A party has the right to launch a “Rule 43” application and in it to ask the court that the other party contributes towards his or her legal fees. The courts almost always allow the contribution if justified.
The case of FB and Another v MB 2012 (2) SA 394 (GSJ) involved a father and his daughter as first and second applicant applying to court against the father’s ex-wife to change a divorce order. The divorce order stated that the Respondent (mother) had primary residence of the daughter with the father’s reasonable contact to the daughter (second applicant).
The applicants in their application wanted to change the divorce order so that first applicant, the father, had primary residence of his daughter, second applicant. He wanted to relocate to Portugal and wanted to take his daughter with.
Advocate to represent child
In terms of Section 14 of the Children’s Act 38 of 2005 every child has the right to bring and to be assisted in bringing a matter to court, provided that the matter falls within the jurisdiction of that court.
In this case the applicants were successful in asking the court for an advocate to be appointed to represent the second applicant, a minor. The court found that in this case one had to look at the best interests of the child. The best interests of the child would not be served if that child was refused legal representation.
The court found that a request for a legal representative by a child would only be refused in exceptional circumstances in the present case.
In my opinion this was the correct decision. It is every individual’s right to legal representation. A minor in a legal matter usually cannot afford financially to appoint a legal representative. That duty to provide legal representation then falls on the court.
-------------------------------------------------Family, Estate & notarial legal services
Other divorce-related issues
At the beginning
Should I advise my spouse of the impending divorce action?
Should you move out of the matrimonial house prior to divorce?
Remove your spouse as a beneficiary on your Life assurance.
Check your lawyer's credentials with the Legal Practice Council
Divorce rule 43 for maintenance prior to divorce & divorce costs
Can a "band-aid baby" save a marriage?
Divorce papers
If there are children involved, prioritise the divorce parenting plan.If there are minor children involved, the divorce summons must have an Annexure A attached to it.
Sheriff letter for divorce summons (combined summons)
Sheriff letter for divorce summons
The final order of divorce
Divorce & the particulars of claim
Divorce procedures
Jurisdiction in child custody matter (e.g. if child moved to another province)
Using Rule 43 to apply for interim custody entitlement
Chamber book application for parenting plan
Challenging the family advocate report
Divorce rule 43 for maintenance prior to divorce & divorce costs
Divorce when the children & spouse are overseas
Protecting a child's identity during divorce proceedingsDivorce cases in the Cape High Court
Divorce mediation
Marriage counselling to avoid divorce
Mediation to resolve child custody and maintenance issues
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
Divorce Psychological issues
Psychological impact of divorce on childrenChild custody when a parent is mentally unstable.
Custody of children upon divorce
Reckless driving and child custody
International Abduction of a child by a parent
Child custody when a parent is mentally unstable.
Custody when there's been drug use.
Child custody for the father
Custody granted to unmarried 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
Child custody post divorce
Application to terminate your ex's parental rights
Splitting up siblings post divorce
Which parent decides the school to attend?
Child custody on death of a parent
Child custody following the death of a parent.
Guardians appointed by deceased parent.
Surviving parent vs aunt child custody battle, after the murder of the mother.Adoption of a stepchild
Divorce and pets
Pets and divorce.Maintenance for children
Prioritise children over retirement contributions, entertainment and clothingChild maintenance to what age?
Maintenance & proof of paternity
Maintenance & custody of adopted children
Maintenance for the unborn child
Divorce & maintenance considerations for a handicapped child
Token or minimal maintenance when parent doesn't work
Impact of inheritance on child maintenance obligations
Maintenance for children over 18
Grandparents' maintenance & care obligations
Children suing for maintenance
Application for maintenance reduction
Arrest after failing to pay maintenance
Maintenance for spouse
Maintenance in a polygamous marriage
Maintenance when your spouse remarries
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
Keeping contact when your child and ex move overseas
Using Virtual Conferencing to keep contact with children post divorce.
Other child-related matters
Legal representation for children
Mental handicapped children & divorce rates
National register of those unsuited to working with children
Joint decisions with respect to minor children
Joint Guardianship of a child between Domestic worker & Employer, so as to enable the child to attend the local school.
Kidnapping of a child by the other parent.
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
Proposed two pot retirement system and impact on divorce settlements.
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 assurance actions you need to take when divorcing
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
Treatise on the Contract of Partnership: By Pothier ; with the Civil Code and Code of Commerce ... (1854)
Null declaration of customary union
Perjury & forgery
Divorce: Forging spouse's signature
Annulment instead of divorce
What is annulment of a marriage?
What are the grounds for annulment of a marriage?
