FAQ Family Law in South Africa

Family Law

Q My ex-husband fails to return the minor children in terms of a court order.

Ex-Spouses often fail to return childen on time after exercising access.

Your attorney should advise your ex-husband that he is in contempt of the order of court incorporating the settlement agreement and that if the conduct persists application will be made for an order of committal.

In terms of S28 of The Children Act 2005, a court (High Court, Divorce Court, Childrens Court) may suspend or vary the rights of access.

Permalink.

Q How do I get the court to award more maintenance for my children

 

  • An Application for the substitution of an existing maintenance order is made at the Maintenance Court. A “Form B” in terms of the Maintenance Regulations.
  • The Applicant must state the reason or cause that she relies on for requesting the substitution.
  • Full details of the Applicant’s assets, income and monthly expenditure in respect of herself and the children will have to be provided.
  • An investigation is launched, followed by a formal enquiry.
  • The parties involved will be subpoenaed to appear in Court where evidence will be presented under oath.
  • The Magistrate will then consider the evidence presented to him/her  and may make an order substituting the existing maintenance order.

Permalink.

Q What is the purpose of a Rule 43 application?

  • A Rule 43 Application is an interim application which is brought mainly in cases of contested divorces in order to obtain interim relief pending finalisation of the divorce.
  • The relief which can be requested include the following:
    • Maintenance for the wife;
    • Maintenance for the children
    • Interim custody and control or access to the children and;
    • Interim contributions towards legal costs.

Permalink.

Q Do I have to pay my ex Spouse maintenance forever?

  • Marriage creates a reciprocal duty of support, that is to say either spouse could be ordered to pay maintenance depending on the circumstances.
  • In marriages of long duration where one spouse has not worked for some time the court may order maintenance to be paid until death or remarriage.
  • In marriages of short duration where a spouse has not worked the court may award maintenance for a time to allow that spouse to reestablish work or income.
  • Where both spouses are able to work and support themselves there is usually no need to pay maintenance
  • If a spouse cannot work due to mental or physical disability  this would give rise to a maintenance claim.

Permalink.

Q I want to get divorced, where can I get divorced?

  • The High Court normally entertains Divorce cases.
  • Section 29(1B) allows Regional Magistrates Court to handle divorce cases. However, the courts jurisdiction is limited  to cases where the estates of the parties in question do not amount to more than R 300 000.00 (three hundred thousand rand).

Permalink.

Q Does a father have any rights in respect of his children born out of wedlock??

 

Section 21 of the Children’s Act provides that a father acquires full parental responsibilities and rights in respect of a child born out of wedlock if:

  • He is in a permanent relationship and living with the mother when the child is born; or
  • He consents to be identified as the biological father of the child; or
  • He contributes to the child’s upbringing for a reasonable time; and
  • He contributes or has attempted to contribute to the expenses of the child.

Section 18 of the Children’s Act states that parental rights and responsibilities include:

  • To care for the child;
  • To maintain contact with the child;
  • To act as guardian of the child; and
  • To contribute to the maintenance of the child.

A father must always pay maintenance for his child, regardless of whether or not he has parental responsibilities and rights.

Permalink.

Read our articles on Family Law

 


Comments

FAQ Family Law in South Africa — 25 Comments

  1. I have been paying maintenance without default since 1998 for my two daughters, this includes maintenance, med aid, schooling, extra murals amongst others, this is ordered till they are both 21. My ex wife has never been gainfully employed nor attempted to take a job. My eldest daughter over whom I have no control and who resides with her mother @ age 19 is now pregnant, has no workable skills and stays at home. I would like to know that if my daughter takes me to maintenance court for maintenance for both her and her child after age 21 what recourse do I have if her mother has basically NEVER contributed financially but has used the childs maintenance and her x3 ex husbands to live off. Surely there must be a measure of fairness if one parent has continually contributed and the other never made an attempt. My ex wife also has a terrible credit rating for not paying numerous clothing accounts etc. Would greatly appreciate your feedback. Thanks and regards

    • Maintence is payable until such time as a child is self supporting. Why has your daughter of 19yr not found a job. Notwitstanding the agreement she may not be entitled to maintenance. The child may expect maintainance first from the parents (I presume the child has a father) and failing that from the grandparents on both sides. You probably need to consult with an attorney.

      Regards

      Ian

  2. What is the father’s responsibilities towards the mother? Does he have to support her (child born out of wedlock)

    • The duty of support is reciprocal depending on the parties respective means.
      In plain English both parties need to support the child, in or out of wedlock
      Regards
      McLarens

  3. I am currently going through a divorce initiated by my husband. A family enquiry was held and my husband was given custody of both kids limiting my visitations to alternate weekends! From the report it is clear that this is a buyist decision. How do I take this matter further? My kids are my life and I do everything for them daily but my husband is lying about so much and getting away with it. What do I do? Please can someone help me.

    • The family cannot determine who has custody of the children. The courts will normally award joint parental rights and then appoint a primary place of residence for the child.
      You need to see a good attorney

      Kind Regards
      McLarens

  4. Ive been divorced for almost a year now. My sons primary place of residence is with me. My ex wife has unrestricted access to see him when ever she pleases to. In the last 8 months or so, she wants to keep him every alternate week, and my child is happy with this arrangement, except she doesn’t fulfill this arrangement properly, she refuses to pay maintenance because she keeps him every second week, and she doesn’t take “full” responsibility during her week. I still have to make sure that he is taken care off, after school, till she can collect him, and most times she is even late at fetching him.
    How can I get it addressed, that during her week she has to take full responsibility for him?

    • Hi Mark
      The divorce agreement should make provision for maintenance.
      If there is an issue you may be able to correct the situation in maintenance court.
      Regards
      McLarens

  5. I have a ten year old daughter, born out of wedlock. I have always had full custody of my daughter and she has always lived with me. Her father and I were in relationship for 22 years and co- habited for many years. We were engaged briefly in 1994. I broke off the engagement. Our daughter was born some years later in 2003. I separated from her father when she was four years old. I now live in Cape Town and he in Johannesburg. He is in the legal profession. Save for brief periods between jobs, I have always worked and supported my child without much assistance from her father. However recently my firm has cut my hours by half, having lost some major clients. I have asked her father to make a committment to pay to a monthly sum to contribute and support our child. I am aware that he has been retained by a client for a reasonably substantial amount paid monthly. He ignores my requests. What are his obligations in terms of South African law? What recourse do I have if he fails to assist us? The amount I have requested I believe to be modest and fair (about one seventh of his retainer from a single client- I do not know if he is currently briefed in any other matters. He knows full well that I am not in a position to brief an attorney.

  6. Please help, My husband has a child of 11yrs old, him and the mother were never married. there was a court order for my husband to pay child support as well , which was deducted from his salary as well as school fees, which he has an arrangement with the school. A year ago he stopped working and the school fees went into arrears, during the time when he stopped working her did not pay any child support. The mother of the child in the interim has had a second baby and my hubby had bought clothes as well as stationery for his son, the mother went and changed all the things which my husband has bought (as the prices and tags were still on) for her new born baby clothes and supplies. Now since then he has not paid and just received a call from the court in the area she has moved to, indicating that they are going to garnish his salary for the full amount of school fees outstanding. Is this allowed, My husband has not received any court order or anything in writing.

    What are his rights, I fully agree that this is his responsibility to maintain the child, however we are married for ten years now and have 3 sons together, financially we are not surving yet the offical at the court indicates that he wont stand for this type of nonsense. If the mother of the child could do something like this, how do we know that this money is going to be used for the child. Is there something he can do.

    He has just contacted the school and made an arrangement with them to debit his account for the school fees. The mother is married in the interim.

    • You have raised two separate issues
      - The obligation to pay maintenance which is subject to need and ability to pay.
      - The misuse of the maintenance which may reflect on an entitlement.ie if you use the maintenance for another purpose it may not be needed.

      Regards

      McLarens

  7. Hi,I fell pregnant&the father they came to my house for lobola negotiations, left a bit of money then they said they will come back&finish off but that didn’t happen which they came before my son was born. Our son was born in 2007 & 2008 we moved in together with our child till. He told me to leave the house that he doesn’t want this relationship anymore in late 2010 which he was seeing someone else. I moved out with nothing to start afresh which he left in debt as I was taking loans , using my credit cards for life to go on in the house as he was not stable with Jobs. Ended up going into debt review while we still living together

    I left the child with him&our helper while getting back on my feet&will go pick him up during the week and weekends to sleep over @ my place. In 2012 Jan I took him on full time basis and the father was not happy , decided that he will only pay for the fees nothing else I must see to it because I took his son.

    Now he took me to child”s court that he wants a 50\50 parental care that the child is 1 week @ his place and 1 week @ my place and he also wants a freedom of letting my 6yr old to sleep over his girlfriend’s place with him not being around as sometimes he comes back late. Which the social worker&magistrate said they need to assess the girlfriends place. He is not even paying anything towards his son accept for the 1300 of school fees monthly.. I have never denied him any access he have him for weekends etc because I say I don’t want my child sleeping over @ the 3rd party that’s why his filing a court order. The social services. Advised me to file maintenance which I did..

    Do the court authorize such 50/50 week in & out for minor children?

  8. By High Couty Order, my husband is the primary caregiver of my son, aged 12 since May 2011. The child’s mother now wants to move to Germany with her boyfriend and presumably wont have a job there. my husband was recently retrenched and a maintennace order is in place. Can she stop paying if she moves to Germany.

    • Dear Madam,

      If a person fails to comply with their obligations in terms of an maintenance order there are various ways to enforce the order.

      However, a South African maintenance order will generally only be enforced in a foreign country in 2 (two) ways:
      1) Through the Reciprocal Enforcement of Maintenance Orders Act; or
      2) By launching formal maintenance proceedings in the foreign country.

      Presently South Africa does not have a reciprocal enforcement agreement with Germany and therefor the Reciprocal Enforcement of Maintenance Orders Act provides no assistance.

      In light of the above the only possible way to have the South African maintenance order made an order of court in Germany is to formally bring maintenance proceedings against the party resident in Germany and request that the German court grant a maintenance order incorporating the South African order.

      The process will likely be costly and it is advisable that you approach a Family Law practitioner who could assist you in pursuing the matter in Germany.

      Regards

      McLarens Attorneys

  9. My ex fiance has a daughter out of wedlock he was supporting her all along and had visitation a few months ago he picked up his daughter from school and the childs mother filed a restraining order against him saying he kidnapped the child he has not been supporting the child since as the mother is unemployed and currently on drugs what rights and procedures should he follow to gain visitation to pay child support and possibly gain full custody as the child skips school often he has been to family court and was told to retain all proof of support

    • Your Ex would first need to deal with the restraining order and then deal with access via the courts. He needs to see an Attorney.

      Kind Regards

      McLarens

  10. I urgently need advice!!! I’m a 19 year old mommy to a beautiful 6month old boy. I’m not married or in a relationship with my boys father. His family and him are threatening to take my child away by going for full custody they say because he works he will get my son. I’m going to study next year from home to build a good future for my son. I’m currently selling Avon to care for my son. We stay with my mom and dad and they help us a lot. His father has never paid anything towards his son. His friends only consists of people on drugs. His dad doesn’t appear on his birth certificate. I’ve been nice to his dad he gets to see his son but now I’m so fed up with them threatening me. I’m so afraid and don’t know what to do?

  11. I have a 2yrs daugther with him, I have had a stay in and out with him in a period of 2yrs…the reason to move out he kicks me out n dumps me for no reason, it happened twice! The first time he only stayed with us for only a month since the baby was born then he insisted we move out, second time we stayed for about four months and he insisted we move out! He started to pay maintenance when he was working the baby was 6months it only took 4months then he stopped, and started again just now, she’s on his medical aid and I too, but now he threatens to consult his lawyer to take the baby to stay with him that I’m staying far and he can’t see his baby well, its not my fault my home is far…so am I gonna lose staying with my baby now? I am unemployed…

    • Dear Madam,

      As an unmarried father of a child the father is entitled to seek primary care of the child.

      However, this does not mean the father will be awarded the primary care.

      Ultimately the situation that caters for the best interests of the child would be taken, as the court has a duty to uphold the best interests of a child.

      You should approach a Family Law practitioner who can properly advise you once they are aware of the full facts.

      Regards

      McLarens Attorneys

  12. hello. I want my baby dad to start supporting his child. the only problem its i dont have have his current workplace address. but i have the home address AND Previous employer ‘s adrress.so i want to know if the family court will be able to trace him down or its up to me to get the info?

    • Dear Malebo,

      If you have the father’s residential address this should be sufficient for the Sheriff of the Court to serve the necessary maintenance documents on him.
      If the Sheriff is unable to serve the documents you may have to investigate and obtain further details to locate the father.

      Regards
      McLarens Attorenys

  13. I live in the UK and pay maintanence to my ex-wife and her new husband who live in SA for my 10yr old son. She is now demanding full and unreserved custoday of our son. I was just wondering what this means to my rights as a father. Do I lose parental rights? Can her new husband adopt him? Can she change his surname? Any help would be greatly appreciated

Leave a Reply