Tag: parental rights and responsibilities

Parenting Plan Basics

by slamatattorneys | May 22, 2021 | Family Law

The Parenting Plan basics – in collaboration with an expert attorney

A parenting plan is modern, useful method of enabling parents who experience difficulties to manage the rearing of their child(ren) post a divorce or uncoupling. This can be achieved with the input of an expert attorney.

Introduced into South African law by the Children’s Act 38 of 2005 (the Act), it originated in many western civilised countries as a means by which these difficulties can be managed towards a non-confrontational mindset and practical solution post the end of a relationship.

A number of pieces of legislation were repealed by the Act when it essentially came into law on 01 June 2007, these include the following:

the Children’s Act 33 of 1960;
the Age of Majority Act 57 of 1972;
the Child Care Act 74 of 1983;
Children’s Status Act 82 of 1987; as well as
the Guardianship Act 192 of 1993.

The implementation of certain chapters of the Act was delayed and those sections applicable to parenting plans were promulgated in 2010.

A parenting plan is the subject of regulation in sections 33 to 35 of the Act. While it is not mandatory in divorces or un-couplings, the Act does suggest that it be used when parents are experiencing difficulties in the decision-making pertaining to their children. Usually these difficulties arise or manifest more when parents are at the end of a relationship and when there are social or family related influences which affect their children, such as upbringing of the respective parents, differences in ideology, religion, race, financial means, culture, language and other social factors.

While the Act, in terms of sections 18(1) and (2) provides for the parental rights and responsibilities of both parents regarding the care and contact of the child(ren) and to have input in the major decisions regarding the child(ren)’s future, as well as the pivotal daily decisions pertaining to the care, contact, welfare, and personal development of the child, sometimes it does happen in life that parents do not or can no longer cooperate with each other on all or any of the decisions in regard to their child(ren), such as those like living arrangements, health, education, financial obligations, the involvement of new partners, step-parents, discipline, way of life, after school time, what the child(ren) do in the evenings and so forth. Some of these issues may seem trivial but invariably the aforesaid issues are actually the most frequent and hotly disputed.

The involvement of new partners or step-parents in the decision-making pertaining to a child(ren) is one which has always been contentious and recently the escalation of this issue has reached an unprecedented level and is one which must be considered very carefully when the terms of a parenting plan are considered and implemented.

While the primary objective of the parenting plan is to regulate the how, when, where parents will exercise their respective rights and responsibilities under the changed set of circumstances it is also intended to cater for the ever-changing needs of the minor child(ren) involved by considering the age, maturity and developmental stage of the child(ren), and always applying the best interests of the child principle in each particular case.

While the Act does not compel parents who are in agreement on co-parenting measures to conclude a parenting plan, it does stipulate that, in the event of disagreements and to avoid the risk of further litigation that they first attempt to on a parenting plan, prior to approaching the court for a determination on these rights and responsibilities. This implies meaningful consensus seeking from both parties.

From a purely legal perspective, certain basics would be attributes of a parenting plan. These are, inter alia, the following:

The plan needs to be customised to a particular family and their circumstances.
Full participation of both parents will be essential and nuances appreciated.
Child(ren) participation to a reasonable, logical extent with age appropriateness.

Common sense and the practicalities of modern life remain invaluable guiding principles.

Compromise and the acceptance of the other parent’s wishes and way of life are also attributes of a sensible parenting plan and the methodology to be applied in drafting the terms of the parenting plan in a collaborative manner with an expert attorney.

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Divorce Act 70 of 1979

by slamatattorneys | Mar 17, 2021 | Family Law

Divorce Act 70 of 1979-To amend the law relating to divorce and to provide for incidental matters.

Section 1 deals with definitions –

“Divorce Action” means an action by which a decree of divorce or other relief in connection thereto is applied for, and includes an application pendente lite for an interdict, interim maintenance order, access to minor child or payment of maintenance. It can also include an application made for a contribution towards the costs of such an application.

For the purposes of the Divorce Act 70 of 1979 a divorce action shall be deemed to be instituted on the date on which the summons is issued or the notice of motion is filed or the notice is delivered in terms of the rules of court.

Section 2 deals with the jurisdiction of courts in divorce actions. A court will have jurisdiction over a matter if the parties are domiciled or ordinarily resident for a period not less than one year in the area of jurisdiction of the court on the date on which the action is instituted.

Section 3 sets out the grounds on which a marriage can be dissolved –

The irretrievable break-down of the marriage(Section 4)

This is when the marriage relationship has reached such a state of disintegration that there is no reasonable prospect of the restoration of a normal marriage relationship between them.

The court will accept evidence hereof that –

The parties has not lived together as husband and wife for at least 1 year or
That one of the parties has committed adultery or
That one of the parties has been declared a habitual criminal and is undergoing imprisonment as a result of such a sentence.

The court will not order a decree of divorce if there is a reasonable possibility that the parties can become reconciled through marriage counseling, treatment or reconciliation.

The mental illness or the continuous unconsciousness of a party to the marriage (Section 5).

The court will order a decree of divorce if such party is in terms of the Mental Health Care Act 1973 –

admitted as a patient to a institution,
is detained as a state patient in an institution or
is detained as a mentally ill convicted prisoner at an institution.

The party must have been detained for at least two years prior to instituting of the proceedings and two psychologists, one appointed by the court, must have given evidence that there’s no reasonable prospect for recovery.

The court can also grant a decree of divorce when a party to a marriage is in a state of unconsciousness due to a physical disorder for at least 6 months prior to the proceedings and after evidence from two medical Attorney-at-Laws , one which must be a neurologist or neurosurgeon appointed by the court.

Except for the above, a court can also provide legal representation for either party to divorce proceedings and make an order with regard to providing security in respect of patrimonial benefits to which the party may be entitled to as a result of the dissolution of the marriage.

Section 5 ends by stating that a court will not dissolve a marriage if either or both of the parties will not be able to remarry because of religious reasons or barriers.

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The Civil Union Act 17 of 2006

by slamatattorneys | Mar 17, 2021 | Family Law

The purpose of the Civil Union Act 17 of 2006 is for solemnization of all civil unions by either a marriage or civil partnership, the legal consequences of civil unions and to provide for matters incidental thereto.

The Civil Union Act 17 of 2006 is according to the following sections of the Constitution of the Republic of South Africa:

9(1) – The right to equality.
9(3) – The state may not unfairly discriminate directly or indirectly against anyone on the grounds of race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
10 – The right to dignity and the respect and protection of dignity.
15(1) – The right to freedom of conscience, religion, thought, belief and opinion.
The rights in the Bill of Rights may only be limited in terms of law and general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.
The family law dispensation as it existed after the commencement of the Constitution did not provide for same-sex couples to enjoy the status and the benefits coupled with the responsibilities that marriage accords to opposite-sex couples.

Section 1: Definitions
“civil union” – the voluntary union of two persons who are both 18 years of age or older, which is solemnized and registered by way of either a marriage or a civil partnership, n accordance with the procedures prescribed in this Act, to the exclusion, while it lasts, of all others.

“civil union partner” – is a spouse in a marriage or a partner in a civil partnership, concluded in terms of this Act.

“marriage officer” – a marriage officer ex officio or so designated by virtue of section 2 of the marriage Act, or any minister of religion, or any person holding a responsible position in any religious denomination or organisation, designated as marriage officers under section 5 of this Act.

Section 4:
A marriage officer has all the powers, responsibilities and powers according to the Marriage Act to solemnize a civil union.

Section 5: Designation of Ministers of religion and other persons attached to religious denomination or organisation as marriage officers by the Minister –

Any religious domination/organization may apply in writing,
The Minister may designate such religious denomination as religious institution that may solemnize marriages under the Act and must publish particulars of such religious dominations in the Gazette.
The Minister may revoke a request as above, and must also publish it in the Gazette.
The Minister will authorize such a written request for any Minister of a religion or person holding a responsible position in a designated religious institution.

Section 6:
Marriage officer not compelled to solemnize a civil union

A marriage officer, other than a marriage officer referred to in Section 5, may inform the Minister in writing that he/she objects on the grounds of conscience, religion and belief to solemnizing a civil union between persons of the same sex, whereupon that marriage officer shall not be compelled to solemnize such a civil union.

Section 7
Prohibition of solemnization of civil union without production of identity document or prescribed Affidavit.

A marriage officer may only solemnize a marriage if both the parties produce their identity documents or
Both the parties furnish him with the prescribed Affidavit or
One party offer an identity document and the other the prescribed affidavit.

Section 8: Requirements for solemnization and registration of a civil union –

- A person may only be a party in one marriage or civil partnership at any given time,
- A person must furnish proof to the marriage officer of a certified copy of the divorce order or death certificate of the previous spouse/partner before he/she may be solemnized into a civil partnership.

Two parties may only be solemnized into a civil union if, apart from the fact that they are of the same sex, not be prohibited by law from concluding a marriage under the Marriage Act or Customary Marriages Act.

Section 9: Objections to civil unions –

A person who wants to raise an objection against a civil union must do so in writing with the marriage officer whom is going to solemnize the proposed civil partnership.
The marriage officer may only solemnize the civil union if he/she is satisfied that there is no grounds in the objections

Section 10:

A marriage officer may solemnize a civil union at any time during any day of the week, but is not compelled to solemnize it outside working hours (between 8 and 4).
A civil union must be solemnized by the marriage officer in a public office, private dwelling-house or on the premises used for such purposes by the marriage officer, with open doors and in the presence of the parties themselves and at least two competent witnesses. Notwithstanding the above a civil union may be solemnized in any other place other than is mentioned above, if the reason for this is the serious or longstanding illness of, or serious bodily injury to, one or both of the parties.
No person may enter into a civil union by way of another person acting as his representative.

Section 11: Formula for solemnization of a marriage or civil partnership

This must be done according to the parties’ wishes to have a marriage or civil partnership.
The provisions of this section relating to the questions being put to each party separately or to the declaration whereby the marriage shall be declared to be solemnized, or the requirement that the arties must give each other the right hand, have not been strictly complied with owing toi. error, omission, or oversight committed in good faith by the marriage officer;
ii. an error, omission or oversight committed in good faith by the parties; or
iii. the physical disability of one or both of the partiesand such civil union has in every other respect been solemnized n accordance with the provisions of this Act, that the civil union shall, provided there was no other lawful impediment thereto, be valid and binding.

Section 12: Registration of a civil union

The prospective civil union partners must individually and in writing declare their willingness to enter into a civil union with one another by signing the prescribed document in the presence of two witnesses.
Then the marriage officer as well as the two witnesses must also sign the document to certify that the declaration was done in their presence.
The marriage officer must furnish the parties with a certificate stating that they are entered into a marriage or civil partnership under this Act.
The above certificate is prima facie proof of the validation of the civil union and the marriage officer must keep record of civil unions conducted by him/her.

Section 14: Offences under the Civil Union Act 17 of 2006 –

Any marriage officer who solemnizes a civil union which he/she is not authorised to solemnize or which is legally prohibited and a person who is not a marriage officer who purports to solemnize a civil union.
Any marriage officer who demands or receives any fee, gift or reward for or by any reason of anything done by him or her as a marriage officer in terms of this Act.
Any marriage officer who knowingly solemnize a civil union in contravention of the provisions of this Act.
Any person who, for the purposes of this Act, makes any false representation or false statement knowing t to be false.

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The Children’s Act 38 of 2005

by slamatattorneys | Mar 16, 2021 | Family Law

The purpose of the Children’s Act 38 of 2005 is to:

Protect children’s Constitutional rights,
Set out principles for the care and protection of children,
Define parental responsibilities and rights,
Make provision for children’s courts,
Provide for issuing of providing orders,
To provide for guidelines for child adoption and surrogate motherhood,
To prohibit child abduction,
Create certain new offences relating to children.

The Act also creates the State’s responsibility to respect, protect, promote and fulfill the child’s Constitutional rights and the rights protected by International Human Rights instruments. Children should be integrated with their communities and families to enable them to grow up and assume their responsibilities within their communities with full development of their personality.

The Act consists of 20 chapters.

Chapter 1 deals with the interpretation, objects, application and implementation of the Act.

The interpretation includes definitions such as:

“Abuse” of a child is any form of harm or ill-treatment deliberately inflicted on a child.

“Care” means a person providing a child with a place to live, suitable living conditions and necessary financial support as well as safeguarding of the child, protecting the child against all forms of abuse, respecting, protecting, promoting and securing the fulfillment , and guarding against infringement of, the child’s rights as set out in the Bill of Rights. This also includes the guiding of the child’s education and upbringing, decision making in accordance with the child’s age, maturity and stage of development, maintaining a good relationship with the child, accommodating special needs and ensuring the best interests of the child is the paramount concern.

“Child” is a person under the age of 18.

“Contact” in relation to a child means to maintain a personal relationship with the child, and if the child lives with someone else, communication on a regular basis with the child, including visits and/or communication by post or telephone.

A “guardian” is a parent or other person who has guardianship of the child.

A “Parent” includes any person who has parental responsibilities and rights in respect to the child.

“Parental responsibilities and rights” are responsibilities and rights referred to in section 18 of the Act.

“Street child” means a child who has left his home, family or community because of abuse, neglect, poverty and live begs or works on the streets or because of inadequate care, begs or works on the streets but returns home at night.

The objects of the Act are to give effect to promote the strengthening of families, the protection of constitutional rights, the well-being of children in terms of International Instruments, promotion of structures for development of the child, strengthen community structures, protection of the child from abuse, discrimination, provide care and protection and recognition of special needs and care of children with disabilities.

The implementation of the Act is by organs of state in the national, provincial and local spheres of government by taking reasonable measures within available resources to achieve the realization of the objects of the Act.

Chapter 2:

Here the Act deals with the application of the “best interest of the child” principle as well the fact that children with disabilities, chronic illnesses have special provisions relating to them. Social, cultural and religious practices regarding a child must be dealt with according to the best interest of the child, access to health care information to the child, access to courts are dealt with as well as enforcement of rights of the child, responsibilities of children appropriately and according to his/her age and the age of majority, which is 18 years. The child may participate in expressing his/her views in matters concerning him/herself according to his/her age, maturity and stage of development and this views must be taken into consideration in matters concerning the child’s rights and best interest.

Chapter 3:

This chapter is divided into four parts.

Part 1 deals with parental responsibilities and rights regarding mothers, married and unmarried fathers and agreements in regards thereto. Contact and care can also be given to an interested person by order of the court. A court can assign guardianship and care to a person who is the sole guardian of a child or another fit and proper person claiming paternity. The Act describes further how parental responsibilities and rights can be terminated, extended, suspended or restricted and also the court proceedings to all of the above.

Part 2 describes the interaction with co-exercise of parental responsibilities and rights in major decision taking involving the child.

Part 3 includes the content and formalities of parenting plans.

All miscellaneous matters are dealt with in Part 4 of the Act, including the presumption of paternity in respect of child born out of wedlock and the taking of blood samples to determine paternity. The rights of children born in and out of wedlock, also of a voidable marriage and conceived by artificial fertilization are discussed and the child’s rights to gain access to information regarding genetic parents.

Chapter 4:

Part 1 of his chapter describes the establishment of Children’s Courts, access and settings, powers, their jurisdiction arising out of the application of this Act, relief which they can grant and how they promote and protect he rights of children according to legislature and the Constitution. Children’s Courts are every Magistrate court in the area which the child is an ordinary resident.

In Part 2 – 4, the procedures to be followed in a Children’s Court are set out and rights of the children promoted and protected by these courts. Pre-hearing conferences, family group conferences and all matters relating to this as well as settling maters in or out of court are described.

Chapter 5:

– Partial care is provided when a person takes care of more than six children on behalf of their parents or care-givers during specific hours of the day or night, or for a temporary period, by agreement between the parents or care-givers. This excludes the care of a child –

by a school as part of tuition, training and other activities provided by the school;
as a boarder in a school hostel or other residential facility managed as part of a school; or
by a hospital or other medical facility as part of medical treatment provided to the child.

The provisions, maintenance, funding, management requirements, registration and accessibility of facilities are prescribed in this chapter. The norms and standards must at all times be maintained according to the chapter and children with special needs provided for accordingly.

Chapter 6 deals with childhood developing programmes.

Chapter 7 sets out the functioning of Child Protection Services as well as the Child Protection Register, which is a record of abused and/or neglected children, their circumstances, the perpetrators in regards to the above and when their identity will be revealed. It’s also prescribed how and when children should be removed from parents, guardians or care givers, as well as the process regarding HIV-testing, the counseling thereto and also providing children with contraceptives and removal from the Republic.

Chapter 8 describes the process to be followed for early intervention and prevention programmes and how the courts get involved in the process in South Africa.

Chapter 9 – 10 goes further by identifying children in need of care and support, the decision if a child is in need of care and support and protection of that child by presiding officers or police officers removing them from their circumstances and putting them in alternative (Chapter 11), temporary care, foster care (Chapter 12), care centers or facilities. Chapter 13 described the rights of children in youth and child care centers, the norms and standards, registration, cancellation of registration, operation and management and regulations relating to these centers. Drop-in centers are described in Chapter 14.

Chapter 15 describes the application and procedures for adoption, which children can be adopted, which people may adopt, consent for adoption and the functioning of the register for adoption. Chapter 16 goes further to describe inter-country adoption and International law relating hereto.

The Act deals with Child abduction (Chapter 17), Trafficking in children (Chapter 18) according to International law and powers of the Courts in regards hereto.

Chapter 19 sets out the regulations regarding to surrogate motherhood. The legal aspects and cancellation of the agreement, consent of the persons involved, prohibitions like payment and revealing of the identities of the persons involved may not be published.

The final chapter (Chapter 20) of the Act stipulates enforcement and offences relating to the Act. Procedures regarding inspection of all the facilities and persons described in this Act can also be carried out.

Acts repealed by the Children’s Act:

Children’s Act 33/1960 – Whole
General Law Further Amendment Act 93/1962 – Section 1
Age of Majority Act 57/1972 – Whole
Child Care Act 74/1983 – Whole
Children’s Status Act 82/1987 – Whole
Prevention of Family Violence Act 133/1993 – Section 4
Guardianship Act 192/1993 – Whole
Hague Convention on the Civil Aspects of International Child Abduction Act 72/1996 – Whole
Natural Fathers of Children born out of Wedlock Act 86/1997 – Whole

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