When you do divorce, act like an adult

Children and Divorce

The well-being of children in a divorce or separation is the most essential aspect of any divorce. Although most couples believe children’s well-being is one of the most important factors to consider in a divorce, a great percentage of parents that divorce or separate see conflict as an unavoidable part of the process and are determined to fight battles in court.

From time to time one comes across an stubborn parent who is incapable of objectivity when considering what is best for the child. It may well be that you do not like your partner, but the child’s view of the parent is different. He/she will have love and trust for that person, capable of transcending even the most dreadful scenes that may have been witnessed.

Unfortunately it happens often that one parent use the mechanisms of the law in a unlawful manner in an attempt to “legally abduct” or alienate a child by making false allegations against or about the other parent.  Often one would find that a parent will for example falsely accuses the other parent of sexually molesting the child or accusing the other parent of emotional abuse towards the child. In a recent matter a mother who was the custodian parent brought an application for a protection order against the father on behalf of their 8 year old daughter because according to her the father abused the child emotionally, when the father in fact only disciplined the child. The father was trying to make telephonic contact with his daughter for days but the mother frustrated the contact by not answering the phone and replying to his sms messages. When the father eventually did manage to speak to his daughter he disciplined her over the phone for not contacting him. The child burst out in tears and the mother used the incident as the basis for a protection order against the father for alleged emotional abuse of the child. The court granted an interim protection order in the father’s absence and the father was only able to see his child under supervision, previously the father had contact with his child every alternate weekend. A social worker was then appointed as well as a psychologist to investigate. Needless to say the child was dragged through court appearances at the Children’s court.

A child prevented from seeing a parent, they still love will eventually turn the resentment against the one trying to enforce the unenforceable. Parents often fail to comprehend the impact on the children of the conflict in their relationship. The adults in the child’s life, can make the divorce and separation experience for a child much less harmful by being aware of several ways to help the child:

The child must feel and experience unconditional love from each parent.

The child must feel free of fault for the divorce and separation.

The child must feel that each parent respects the rights of the other parent.

The child must feel that he/she will be okay after the divorce and separation.

The child must feel that each parent will be okay after the divorce and separation.

Children sense and feel their parent’s emotions and especially the parent’s emotions toward one another. During a divorce and separation, adults experience some very strong and difficult emotions. It is difficult for a human being to understand how he/she could have so much love and passion for another person at one point in time, and then later have so much disdain and even hatred for that same person. It is okay for parents to talk to the child about the fact that they don’t love each other any more  but the child must hear, sense, and feel that while the parents don’t love each other any more and don’t want to live in the same house, they do respect each other’s rights as a parent to the child. For example, both parents should encourage the child to spend time with the other parent, to respect to the other parent, to obey the other parent, and to love the other parent. This can be very difficult when a parent thinks the other is making poor decisions.

The goal for divorced or separated parents should always be to maintain the best co-parenting relationships possible by moving past previous relationship issues and focusing on children’s well-beings. Conflict within a relationship or marriage where there are children involved or after a divorce or separation is the most harmful thing parents can do for their children’s development. If children go through their parents’ divorce, they have lost some access to both their parents to an extent. If the parental combat continues, the children have not only lost that access, they are still involved in that conflict and it harms children. Focusing on the children instead of the relationship problems can help divorced couples to be better parents, not messed up parents.

Bertus Preller

Family Law Attorney

Bertus Preller & Associates Inc – Cape Town

Twitter: bertuspreller

Web: http://www.divorceattorney.co.za

Facebook: http://www.facebook.com/divorceattorneys 

Cape Town divorce lawyer Bertus Preller writes South Africa’s first Book on Divorce and Separation for the general public, published by Random House Struik

CAPE TOWN, WC, SOUTH AFRICA, August 7, 2013 /EINPresswire.com/ —

Everyone’s Guide to Divorce and Separation by Bertus Preller will help with the following crucial aspects: your rights when you get divorced in South Africa, and the monetary aspects relating to divorce (including the consequences relating to assets and the divisions thereof, spousal maintenance and support, parental rights and responsibilities of children, how to implement a parenting plan, how much child maintenance will likely be required, and how to file for maintenance and child support, the procedures to obtain a protection order when there is domestic violence or abuse, an unmarried father’s rights and how to acquire parental rights and the law on cohabitation, same-sex marriages, and how to draft a proper cohabitation agreement.
In the Foreword of the book, Judge Denis Davis says the following:

“Bertus Preller has filled a very significant gap with this timely book, in that in plain language, he provides a comprehensive guide to the broader community through the thicket of law that now characterises this legal landscape. Having said that, many lawyers, particularly those who do not specialise in the field, will also find great assistance in this work. Early on in the text, Mr Preller makes a vital point – litigation is truly the option of last resort in the event of a matrimonial dispute. The adversarial process which is the manner in which law operates is not at all conducive to a settlement of issues, particularly custody of minor children, which have a long-lasting and vital impact on the lives, not only of the antagonists but also the children who have not, in any way, caused the problem giving rise to the forensic battle. Often in my experience on the Bench, I have wondered how such vicious and counter productive litigation can be allowed to continue. Lawyers will point to clients, whose disappointment in the breakdown of the marriage now powers such adverse feelings to their erstwhile partner, as the core reason for the ‘legal fight to the finish’. Whatever the context, however, it is important that arcane and often incomprehensible legal jargon be made accessible to those affected by the law. In this way, ordinary citizens can ensure that their rights work for them and at the same time they are assisted to grasp fully the implications of the obligations that the law imposes upon them. – Judge Dennis Davis”

The book is on the shelves of all major book stores on and also at Amazon.com

About the Author:

Bertus Preller is a Family and Divorce Law Attorney and Mediator at Bertus Preller & Associates Incoss in Cape Town. He acts in divorce matters across South Africa He matriculated at Grey College, studied at the University of the Free State and the University of Johannesburg and was admitted as an attorney in 1989. He has nearly 25 years of experience in law. He was appointed as a part time mediator and arbitrator in 1996 by the CCMA. He has also been quoted on Family Law issues in various newspapers such as the Sunday Times and Business Times and magazines such as Noseweek, Keur, Living and Loving, Longevity, Woman and Home, Women’s Health, You, Huisgenoot and Fairlady and also appeared on the SABC television show, 3 Talk, Morning Live and on the 5FM Breakfast show with Gareth Cliff. His clients include artists, celebrities, sports people and high net worth individuals. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Parenting Plans, Parental Responsibilities and Rights, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, child abduction and Hague Convention cases and domestic violence matters and international divorce law. He is also the founder of iDivorce an online uncontested divorce service.

Tel: 021 422 2461

 

Follow Bertus Preller on Twitter: http://www.twitter.com/bertuspreller
Follow Bertus Preller on Facebook: http://www.facebook.com/divorceattorneys
To visit the book’s official website go to: http://www.divorcelaws.co.za

Divorce Attorney Cape Town
Bertus Preller & Associates Inc.
+27214222461

Divorce – Don’t play chess by using your children as pawns

DIVORCE – Don’t play chess by using your children as pawns

This world is rife of parents using their children as pawns in the dirty game of divorce or where children are born out of wedlock. We have all heard of the old saying “no maintenance no kids” or “you left me so you won’t see your kids”. Parents don’t realise the damage they are doing in using their children as a means to get back at the other parent.

By isolating or alienating the children from the other parent is damaging not only to the other parent but even more damaging to the children. As a family law attorney I have seen cases where one parent will go to immeasurable lengths to isolate the other parent from building a parental relationship with his/her children, thereby depriving the children in the process of the only stability they may have left.

So often you hear about the mother that lays sexual molesting charges, with no substance against the father simply in an attempt to isolate the father from having a relationship with the children or a mother obtaining a Domestic Violence interdict against a father simply to interdict the father from having a relationship with his children. Although it seems to be mostly women that play this deadly game, there are also fathers who use their children as pawns against the mother. Unfortunately in battles of this sort there are also attorneys who fuel the battles on behalf of their clients and who somehow lose sight of what the best interests of the child really means. Depriving the other parent of a relationship with his/her children is possibly one of the most devious methods to ruin a solid society.

In terms of section 33 (2) of the Children’s Act parents who experience difficulties in exercising their parental responsibilities and rights in respect of a child must, before seeking the intervention of a court, first seek to agree on a parenting plan. The section discourages co-holders of parental responsibilities and rights from approaching the court as a first resort when they experience difficulties in exercising those rights and responsibilities.  This section does not compel parents to enter into a parenting plan, it simply instructs them to attempt to agree on one. Looking at this section closely it seems that where one parent refuse to engage in such discussions the court may be approached for then an attempt to agree on a plan was made, even if it was doomed from the start.  Section 33(5) instructs a person to seek the assistance of a family advocate, social worker or psychologist, or mediation through a social worker or suitably qualified person in preparing a parenting plan. It is therefore clear that before approaching the court, a person must first seek such assistance. If the other party is not amenable to engage then obviously a court may be approached.

Section 35 of the Act criminalises the refusal to allow someone who has access or holds parental responsibilities and rights in terms of a court order or a parental responsibilities and rights agreement that has taken effect to exercise such access. It also criminalises prevention of the exercise such access. Punishment is either a fine or imprisonment of up to one year.

About the Author:

Bertus Preller is a Divorce Attorney in Cape Town and has more than 20 years experience in most sectors of the law and 13 years as a practicing attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. in Cape Town. Bertus is also the Family Law expert on Health24.com and on the expert panel of Law24.com and is frequently quoted on Family Law issues in newspapers such as the Sunday Times and Business Times and magazines such as Noseweek, You and Huisgenoot, and also appeared on SABC television on the 3 Talk TV show. His clients include artists, celebrities, sports people and high networth individuals.

 

Egskeidings Prokureur gee raad oor egskeidings

Egskeiding Prokureur Kaapstad – Abrahams en Gross Inc.

Bertus Preller is in beheer van die Egskeiding en Familiereg Afdelings by  Abrahams en Gross ‘ n regsfirma in Kaapstad. Die firma is reeds in 1935 gestig. Hy word beskou as een van die top egskeiding prokureurs in Kaapstad en hanteer egskeidings en familie reg sake regoor Suid Afrika.

Wat is belangrik in ‘n egskeiding saak?

Wat belangrik is in enige egskeiding saak is strategie. My benadering tot enige egskeiding of familiereg dispuut is om dit so gou as moontlik te skik, in my klient se guns natuurlik of tot voordeel van beide partye waar ek namens beide van hulle optree. Die voordeel is dat dit dan koste-effektief is en minder emosionele letsels laat. Egskeiding, ongeag hoe vriendskaplik dit is, is altyd vol emosie en nooit maklik nie. Waar daar wel ‘n geleentheid is om te rekonsilieer moet beide partye dit ten alle koste probeer. ‘n Gesonde samelewing is die gevolg van ‘n stabiele gesinslewe en daarom is egskeiding nie altyd die uitweg nie. Ek glo dat baie egskeidings in die eerste plek nooit moes plaasvind nie.

Wat is die koste verbonde aan ‘n egskeiding?

Dit is belangrik om te onderskei tussen “vriendskaplike of onbestrede egskeidings” en “vyandige of bestrede egskeidings”. Waar die partye wel kan ooreenkom oor die verdeling van die bates, onderhoud en by wie die kinders gaan woon na egskeiding en watter vorm van toegang die ander ouer gaan kry is dit soms beter om gebruik te maak van ‘n selfdoen of DIY egskeidingsdiens soos eDivorce. In ‘n Onbestrede egskeiding kan die koste tot so min as R 950 wees indien beide partye gebruik maak van’ n aanlyn-doen-dit-self, of DIY egskeidingsdiens soos eDivorce, http://www.edivorce.co.za.  Wanneer partye gebruik maak van ‘n prokureur kan dit enigiets van R4500 af kos. Regskoste kan wissel na gelang van die kompleksiteit van ‘n egskeiding saak.

Hoe lank neem ‘n onbestrede egskeiding?

‘n Onbestrede egskeiding kan gefinaliseer word binne ‘n paar weke. Afhangende van jou prokureur kan dit enigiets neem van 3 tot 6 weke. In die hantering van egskeidingsaangeleenthede, doen ons gewoonlik ons bes om dit te probeer afhandel sou gou moontlik en benader ons elke saak om die bes moontlike resultaat tot verkry. Groot omstrede egskeiding aangeleenthede, waar meer bates op die spel is, kos ongetwyfeld meer en kan baie tydrowend wees.

Hoe lank neem ‘n bestrede egskeiding?

‘n Bestrede egskeiding kan tot 3 jaar of selfs langer neem om af te handel en die koste daaraan verbonde kan honderde duisende rande beloop.

Waarop is jy geregtig as jy binne gemeenskap of buite gemeenskap van goedere getroud is?

Indien jy getroud is binne gemeenskap van goedere, is jy geregtig op 50% van die gemeenskaplike boedel en as jy getroud is buite gemeenskap van goedere met die aanwasbedeling, is jy geregtig op die helfte van die verskil van jou en jou gade se aanwas, indien sy aanwas groter was as joune. As jy getroud is buite gemeenskap van goedere sonder die aanwasbedeling voor 1 November 1984, sal jy geregtig wees om te vra vir ‘n herverdeling van bates, wat behels dat jy in staat kan wees om 50% van die gesamentlike bates op te eis, maar indien jy getroud is buite gemeenskap van goedere sonder die aanwasbedeling na 1 November 1984 sal jy slegs kan eis vir onderhoud.

Wanneer is jy geregtig op onderhoud?

Daar is verskeie faktore wat in aanmerking geneem moet word om te bepaal of jy geregtig sal wees op lewenslange onderhoud. Jy kan onder sekere omstandighede ook rehabiliterende onderhoud eis. Rehabiliterende onderhoud is waar een gade die ander vir ‘n tydperk betaal, bv. vir drie jaar of meer.

Ek het nie geld om te skei nie, wat nou?

Jy kan ‘n hof aansoek bring hangende die finalisering van die egskeiding om tussentydse onderhoud te verkry, terwyl die egskeiding in die proses is, jy kan jy ook in so’ n aansoek eis dat jou gade ‘n bydrae maak aan jou regskoste.

Watter raad kan jy vir vrouens gee wat wil skei?

  • Kry soveel finansiële inligting oor jou eggenoot moontlik, maak afskrifte van al die bankstate, kredietkaart state, sowel as ‘n skedule van al die bates en laste, bronne van inkomste, ens.
  • Stel ‘n gedetailleerde begroting van jou huidige maandelikse uitgawes en inkomste op. Vir jou en jou kinders maak voorsiening vir toekomstige uitgawes.
  • Jy kan selfs aandring op die sessie van’ n versekeringspolis op jou gade se lewe in die geval dat hy/sy gestremd raak of sterf om jou onderhoud te verseker.
  • Poog te alle tye om aan te bly in die gesamentlike woning (as dit naby aan die kinders se skool of jou werk is). Die feit dat die kinders bly in die omgewing waaraan hulle gewoont is sal meer stabiliteit teweeg bring.
  • Onthou dat jy nie noodwendig altyd die oordragkoste hoef te betaal vir ‘n eiendom wat aan jou oorgedra word tydens jou egskeiding nie. Jy kan verskeie opsies met betrekking tot die eiendom uit oefen, byvoorbeeld deur dit te behou en jou gade se gedeelte oor te dra op jou naam of dit te verkoop en die netto wins te verdeel ens.
  • Maak seker dat jou egskeiding Skikkingsooreenkoms ‘n bepaling het wat tot gevolg het dat jy beslag kan le op jou eggenote se salaris in geval hy nie onderhoud betaal nie.
  • Sorg dat jou egskeiding Skikkingsooreenkoms so opgestel word om ‘n deel van enige bates te bekom in die toekoms wat jou eggenoot dalk weggesteek het, en waarvan jy nie bewus is op datum van egskeiding nie.
  • Moenie skik vir minder as waarop jy geregtig is nie, baie vroue neem eenvoudig die pad uit as gevolg van emosionele druk. Onthou dat egskeiding altyd ‘n sake-besluit is en die besluite wat jy nou maak sal ‘n impak jare later in jou lewe he.
  • Egskeiding kan baie frustrerend en emosioneel wees en dit neem tyd en strategiese beplanning. Moenie van prokureurs verander in die proses bloot as gevolg van jou eie frustrasie nie.
  • Onthou dat jou ex se bates ook insluit aandeelhoudings in maatskappye, aftree-fondse, pensioenfondse en selfs belasting terugbetalings.
  • Dink met jou kop en nie met jou hart nie.
  • Onthou om jou testament te verander binnekort na die egskeiding.

Bertus Preller is ‘n egskeidings prokureur in Kaapstad. Hy spesialiseer in egskeidings en familiereg sake by Abrahams en Gross Ing en is ook die Familiereg kenner by die Health24.com forum, Co-Parenting forum en op die deskundiges paneel van Law24.com. Hy word dikwels aangehaal in koerante soos die Sunday Times, Sunday Tribune, Business Times, asook tydskrifte soos Noseweek, Huisgenoot en You aangehaal oor familiereg en egskeidings. Hy spesialiseer in egskeiding, familiereg, mediasie, ouerskap planne, ouerlike verantwoordelikhede, bewaring sorg en kontak van kinders, ongetroude vader regte, huishoudelike geweld sake, interdikte en internasionale egskeidings.

Kontakbesonderhede
E-pos adres :bertus@divorceattorney.co.za
Hotline Nommer: 083 5334428
021 422 1323

Divorce and Parenting Plans

The Children’s Act offers parenting plans as a method to regulate and assist parents to agree how to exercise their parental responsibilities and rights.

Section 33(1) of the Children’s Act provides that co-holders of parental rights and responsibilities may agree on a parenting plan that sets out the method and mode of how each parent will exercise his/her rights over the children. Parenting Plans must comply with the best interests of the child standard.

It frequently happens that one parent will experience difficulties in exercising his/her parental rights, with the other parent deliberately blocking contact or frustrating it where no parenting plan exist or where a court order was made years ago that did not keep track or became outdated with the changes in our family law over the years. Where parents do struggle or where they experience difficulties to exercise these rights, mediation in terms of the Children’s Act is a prerequisite. The Act stipulates that an aggrieved parent must first seek the assistance of the Family Advocate, social worker or psychologist. Alternatively they must go to mediation facilitated by a social worker or other suitably qualified person.

The Children’s Act discourages parents from approaching the court as a first resort when they experience difficulties in exercising their rights and responsibilities.  The Act use the word “must” in section 33(5) which means that parties’ are compelled to refer to seek assistance or mediation prior to embarking on court action. The Act also lays down certain guidelines concerning parenting plans, for example that it must be in writing and that it must be registered with a Family Advocate Office or made an order of court. To register a parenting plan at the office of the Family Advocate a prescribed form must be used.

Once a parenting plan is in place it may be amended, suspended or terminated. Where a plan was registered at the office of the Family Advocate the parties must apply to the Family Advocate Office to amend, suspend or terminate the plan and in the event that it was made an order of court an application should be made to court to vary the plan.

One must distinguish between Parental Responsibilities and Rights Agreements (PRR) made in terms of section 22 and Parenting Plans in terms of section 33 of the Act. PRR plans are usually entered into where a mother or other person comes to an agreement with the biological father of the child and encompass an agreement with a party that did not have rights in terms of section 21.  Such an agreement confers rights and the agreement is typically between unmarried parents.

Parenting Plans on the other hand are usually entered into by co-holders of PRR Plans, the agreement delineates existing rights and an attempt to agree is a prerequisite in going to court. Typically, such a plan is entered into by divorcing parents and an unmarried father who does qualify in terms of the Act.

Section 35 of the Act contains a provision with its aim to prevent a parent from frustrating the other parent’s rights. If a person under whose care a child is refuse contact with the other parent who is also a co-holder and do so contrary to a court order or registered plan, such person could be found guilty of a criminal offence. Such person can be liable on conviction to a fine or imprisonment for a period not exceeding one year. A person, with whom a child lives, must also notify the other parent of a change of address. Failure could result in a criminal offence.

About Divorce Attorney Cape Town:

Bertus Preller is a Divorce Attorney in Cape Town and has more than 20 years experience in most sectors of the law and 13 years as a practicing attorney. He specializes in Family law and Divorce Law at Bertus Preller & Associates Inc. in Cape Town. Bertus is also the Family Law expert on Health24.com and on the expert panel of Law24.com and is frequently quoted on Family Law issues in newspapers such as the Sunday Times and Business Times. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Parenting Plans, Parental Responsibilities and Rights, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters, international divorce law, digital rights, media law and criminal law.

Divorce and Child Abduction in South Africa

DIVORCE AND CHILD ABDUCTION

As a divorce attorney I frequently get instructions to assist a parent whose child has been abducted by the other parent to another country. Frequently it happens that a child visits the other parent in a foreign country by consent between the parents only to find when the child has to return that the other parent wrongfully keeps the child there. International child abduction also happens when one parent takes a child from the country where he or she usually lives to another country without the consent of the other parent.

The Hague Convention on International Child Abduction is applicable to matters because of its definition of “rights of custody”. The Hague Convention is broadly worded to also cover for situations where the child has been abducted by a person other than his/her parent.

The Hague Convention only applies if countries ratified the convention. South Africa ratified the Hague Convention and as such it is part of our domestic law. Also section 275 of the South African Children’s Act proclaims that the Hague Convention is part of South African law. The Hague Convention is only applicable to children under the age of 16 years.

The removal or retention of child is unlawful where it breaches the right of contact (custody) that a person obtained in terms of a court order in the area where the child was habitually resident. In order to succeed with an application under the Hague Convention a party must be able to show that a parent is exercising the custody rights at the time of removal or retention of a minor child. When it comes to making a decision to remove a child from the country where he is usually habitant both guardians (parents) must consent, thus if one parent removes a child without the consent of the other parent, the Hague Convention will apply.

If there is a delay in the proceedings of returning the child back to the country where he is usually habitant for more than a year after the proceedings have been lodged, the court is not bound to return the child if he or she has settled into a new environment. In such a case the court will consider the best interests of the child; although a court under a Hague Convention application does not do so. Regulations in the Hague Convention determine that such a matter must be concluded within 6 weeks after commencement of the court proceedings.

There are also exceptions to the rule of peremptory return of a child, namely:

  • Where the person does not have rights to custody or if the parent had consented in the removal of the child.
  •  Where there is a grave risk that the child would be exposed to psychological or physical harm if being returned.
  •  If the child objects being returned and is of such an age and maturity that it is inappropriate to take account of his/her views.

About the Author

Bertus Preller is a Divorce Attorney in Cape Town and has more than 20 years experience in most sectors of the law and 13 years as a practicing attorney. He specializes in Family law and Divorce Law at Bertus Preller & Associates Inc. in Cape Town. Bertus is also the Family Law expert on Health24.com and on the expert panel of Law24.com and is frequently quoted on Family Law issues in newspapers such as the Sunday Times and Business Times. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Parenting Plans, Parental Responsibilities and Rights, Custody (care and contact) of children, same sex marriages, unmarried father’s rights, domestic violence matters, international divorce law, digital rights, media law and criminal law.

Relocation of parents with children, you need the consent of the other parent

Relocation of parents to another province, town or country

Relocation disputes between parents are frequent in our courts. Relocation can involve relocation to another town, province or country.  Where both parents have guardianship it necessarily follows that consent from both parents will be needed when one parent decide to relocate with a minor child. It is important to note that there is no section in the Children’s Act that deals specifically with relocation.  The closest that the Children’s Act gets to relocation is section 45 that deals with the jurisdiction of the court in matters where a child is removed from the Republic of South Africa.

Typically a relocation dispute will arise where one parent, normally the parent of primary residence and with whom the child usually resides decides to leave the country or the province to live elsewhere. It then usually follows that the parent who is left behind refuses or disagrees to give consent that the child leaves with the other parent. Once the other parent disagrees or refuses to give consent, the primary caregiver can approach the High Court for an order dispensing with the other parent’s consent and remove the child to another country or province. It must be noted that it is not a given that the court will automatically give its consent.  The reason therefore is that the Children’s Act does not set criteria and our courts have to consider various facts and case law before it will grant an order to the other parent to move the child.

If one has regards to previous case law it is clear that our courts will only grant permission based on the best interests of the child. An important factor that the court will take into consideration is whether the decision by the parent to relocate is reasonable and bona fide and this will be part of the valuation whether the move will be in the child’s best interests. If the court does find that the plan is reasonable then obviously the court will allow the parent to move the child.  It is evident to note that our courts have taken a pragmatic approach and although the move may be to the detriment of the other parent who will have less contact with the child, life must go on.  Another issue that comes into play is the fact that our courts have to respect the freedom of movement of family life of relocating parents.

The following passage from the case F v F 2006 (3) SA 42 (CA) is of importance:

It is an unfortunate reality of marital breakdown that the former spouses must go their separate ways and reconstruct their lives in a manner that each chooses alone

 A court must however also consider the impact that the relocation will have on the other parent who will be left behind. In looking at what is in the best interests of the child, a court should also look at whether relocation will be compatible with the child’s welfare. In F v F as sited above the court stressed the importance that it had to evaluate, weigh and balance a myriad of competing factors, including the child’s wishes in appropriate cases. In this matter the court rejected the mother’s application to relocate with her daughter despite finding that the decision to leave was bona fide. What the court found was that the practicalities of her decision to move were ill-researched and were outweighed by the child’s need not to be separated from either parent.

In the case of MK v RK case number 17189/08 in the South Gauteng High Court, the court followed a similar approach as in F v F. In this matter the child was living with the father. Here the court found that the father was thwarting attempts by the mother to rebuild her relationship with her daughter. The issues between the parties were acrimonious and the father alleged that the mother sexually abused the daughter years ago, based on these and various other factors, the court awarded custody to the father at the time the parties divorced and the child lived for several years with her father. The father then sought to relocate to Israel, although the mother initially gave her consent because she believed that she would be allowed contact with her child. She did however later withdraw her consent when she realised that this will never materialise. The court refused the relocation based on the fact that the father could not provide sufficient information when and where he would be employed, where the child would be going to school and how she would be assisted to learn Hebrew. The court also placed emphasis on the fact that it was important for the child to re-establish her relationship with her mother. What was also interesting in this case was that the court criticized the experts (psychologists) who recommended the relocation based on the fact that they did not considered all the facts and moreover that they did not considered all the evidence in making such far-reaching recommendations.

Another interesting case was that of HG v CG 2010 (3) SA 352 (ECP). This matter concerned four children whose parents were divorced. The eldest was then aged eleven and his siblings, a set of eight year old triplets, comprising two boys and a girl. In terms of the settlement agreement the parents were awarded joint custody. The intention being that the children would spend an equal amount of time with each parent and the children were spending alternate weeks with each parent.

Three years after the divorce the wife approached the High Court by way of an urgent application for variation of the custody order. In the application she sought an order declaring her the primary care provider of the children as well as the authority to permanently remove them from South Africa to Dubai to live with a new man whom she planned to marry.

Experts commissioned by the applicant, being a social worker and clinical psychologist, recommended that the applicant be the primary care provider and that she relocate with the children to Dubai as proposed. Experts not commissioned by her held a different view, finding that relocation would not be in the best interest of the children as they would miss their father, school friends and the city of Port Elizabeth to which they were accustomed. The mother’s application was dismissed and the court did not consent to the relocation as it found that it was not in the best interests of the children.

About the author:

Bertus Preller is a Divorce and Family Law Attorney in Cape Town and has more than 20 years experience in most sectors of the law and 13 years as a practicing attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. in Cape Town. Bertus is also the Family Law expert on Health24.com and on the expert panel of Law24.com and is frequently quoted on Family Law issues in newspapers such as the Sunday Times and Business Times. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Parenting Plans, Parental Responsibilities and Rights, Custody (care and contact) of children, same sex marriages, unmarried father’s rights, domestic violence matters, international divorce law, digital rights, media law and criminal law.