The Litigo // May Newsletter 2018

CHILD RELOCATION AFTER A DIVORCE: WHAT DO YOU NEED TO KNOW?


Jacques Brits

You’re a single divorced parent with primary residence of your minor child. You decide to travel overseas, or alternatively to move overseas. The minor child’s father, with full rights and responsibilities pertaining to the minor child, refuses his permission in an effort to keep his child close. What now? This article will explain the law applicable to disputes of this nature, as well as the consequences of ignoring the rights of the other party.

Every person has the right to freedom of movement which includes the right to leave the Republic of South Africa with a valid South African passport.[1] In contradiction to the aforementioned, section 18 of the Children’s Act[2] warrants the consent of a co-guardian to allow the minor child to leave the country, or even to apply for a passport.

If consensus cannot be reached between the parties themselves, an application can be made to the applicable High Court who has the necessary jurisdiction, for an order indicating whether the relocation would be allowed or not. The application can only be made to a High Court, due to its common law power pertaining to upper guardianship over all children in its jurisdiction. The court will consider various factors including but not limited to:

  • The best interest of the child;[3]
  • The purpose of the relocation;
  • The reasonability and bona fides of the party considering relocation;
  • The interest of the non-relocating parent;
  • The impact that the relocation would have on the affected child and his/her relationship with his/her parents;

Ignoring the consent requirement

What happens if you have had enough of the constant fights and disagreements with your ex-partner pertaining to relocation and decide to dispense with the consent requirement? What then?

The Hague Convention on Civil Aspects of International Child Abduction prevents the removal of a child from the jurisdiction in which the child normally resides, without the consent of the other parent or caregiver. The aforementioned international treaty further facilitates the process of returning the child wrongfully removed. South Africa forms part of The Hague Convention and therefore has to abide by the rules and principles as set out therein.

The parent who failed to give his / her consent can therefore in these circumstances approach the designated central authorities, which is the office of the Chief Family Advocate or alternatively the central authority of the country where the child has been abducted to. The South African central authority will immediately consider the legal aspects, compile a bundle, forward the relevant application to the foreign central authority and request the prompt response of a child. The aforementioned procedure only applies where the child has been abducted to a contracting party of The Hague Convention.

What happens if the child has been abducted to a non-contracting party?

The route to follow in these circumstances are more complex. The parent who failed to give his / her consent must firstly obtain an order from a South African High Court that declares the removal of the child unlawful. The order must then be mirrored, alternatively an application for enforcement thereof must be made to the foreign jurisdiction where the child has been abducted to.[4]

In conclusion, I would like to urge all divorced parents to consider the best interest of their children above their own personal feelings. Should you have no other alternative than relocation, speak to your ex-partner, alternatively follow the correct procedures in obtaining consent to remove your child from the country.

Should you have any disputes relating to the removal, alternatively wrongful removal of your child from the country, kindly contact our family law department for assistance.

[1] Section 21 of the Constitution of the Republic of South Africa, 1996

[2] Act 38 of 2005

[3] Section 28(2) of the Constitution of the Republic of South Africa, 1996

[4] Anon “International Views on Justice: The Hague convention and International Child Abduction” , Justice Today, January/February 2009

TO ANTENUP OR NOT…


Mea Malan

Marriage is the beginning of a joyous journey between two people and an important part of every couple’s foundation should be to consider drawing up a suitable antenuptial contract.

As unpleasant as it may seem, securing a stable financial future is vital to the success of a marriage. Consulting with an attorney and / or notary public to draw up an antenuptial contract should be seen as the responsible caring for the wellbeing of one another. The antenuptial contract will only be applied when the marriage relationship between spouses dissolve, either by death or divorce.

Various factors should be considered by future spouses when drawing up an antenuptial contract, such as:

  • Should the accrual system apply to your marriage?
  • How are you going to share your income and wealth?
  • Whether you would like to include certain assets to the joint estate, although it was obtained before marriage.

An accrual claim will be paid out before any other inheritance and the tax implications should be considered by the future spouses.

There are a few reasons why people choose to apply the accrual system to their future marriage:

  • Protection of women who choose to stay at home and take care of the children;
  • Difference in earning capacity;
  • Dependency due to illness;
  • Career changes, or
  • Willingness to share wealth.

In essence, the antenuptial contract is a document between future spouses which regulates how assets owned before marriage are dealt with, what the value of each spouse’s estate is at inception of marriage, how the spouses’ estates will be divided and calculated upon termination of the marriage and how assets will be distributed, not only at divorce stage, but also after death.

In terms of the South African law, the antenuptial contract determines whether your marriage will exist:

  • In Community of Property – essentially there will be only one estate between the future spouses;
  • Out of Community of Property with the application of the accrual system – each spouse will place a value on his / her estate at the commencement of the marriage but after marriage and with implementation of the accrual each spouse’s assets and liabilities will be calculated and divided in the event of termination of the marriage;
  • Out of Community of Property with no accrual system – essentially this means “what is yours, is yours and what is mine, is mine”.

It is therefore essential that you appoint an attorney or notary public to draft your antenuptial contract, which contract should also be registered at the Department of Home Affairs to bind not only the spouses, but also persons who are not parties thereto.

COURT REAFFIRMS THE IMPORTANCE OF A RESOLUTION


Rich Redinger

The Johannesburg High Court recently confirmed the obligations of a trustee in the case of Goldex 16 (Pty) Ltd v Capper NO and Others[1]. In this matter, the trust bought a real right of extension (considered as property) from Goldex. Copper signed on behalf of the trust without a resolution or the other trustee as co-signatories. Goldex claimed performance in terms of the deed of sale and relied on the “standard” warranty of agreements of sale. This agreement set out the capacity of the Purchaser as follows:

 “Capacity of Purchaser

 12.1 Should the purchaser be a company, a close corporation or an existing trust, the signatory hereto warrants and binds himself in his personal capacity by virtue of his signature hereto-

12.1.1 that he is duly authorised to enter into this agreement on behalf of the company, close corporation or trust;

12.1.2 …

12.1.3 that all conditions have been complied with in order to make this agreement binding on the company, close corporation or trust; and

12.1.4 that the company, close corporation or trust will duly and punctually comply with all its obligations in terms of this agreement.”

The trust did not comply with its obligations in terms of the agreement and was therefore in breach.  Goldex claimed that Copper should be held personally responsible to comply with the conditions of the agreement.

The court held that in the absence of a written authority of one trustee to sign on behalf of the trust, such signatory cannot be regarded as an agent for and on behalf of the trust as contained in section 2(1) of the Alienation of Land Act[2], that provides that an agent can sign for and on behalf of another.

The sale agreement was therefore of no force and effect – the consequence of which was that the claim for specific performance in respect of the trust’s obligations in terms of the sale agreement, could not succeed.

Trustees, agents and sellers are therefore reminded of how important it is to ensure that trustees are duly authorised to sign an agreement on behalf of a trust, prior to entering into such an agreement, alternatively to ensure that all trustees sign the agreement.

This judgment reiterates the fact that non-compliance with the requirements of the Alienation of Land Act[3] that specifically calls for authorisation of an agent acting on behalf of another, will leave the agreement null and void – of no force and effect.  This is a pitfall that can easily be avoided by just requiring proof, which is normally in the form of a Trust Resolution, that the trustee signing for and on behalf of a trust, has the necessary written and signed authorisation in order to do so.

[1] (24218/2013) [2017] ZAGPJHC 305 (18 October 2017)

[2] Act 68 of 1981

[3] Act 68 of 1981

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

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