Our team of Family Law Attorneys & Divorce Lawyers has over the years gained extensive experience and streamlined our approach to litigation into a skill. Our institutional knowledge gained from being a mainstream commercial law firm provides a unique set of skills to our team of specialist family law and divorce lawyers.
We have had the privilege of not only helping many clients with quick and effortless uncontested divorce settlements but also fighting aggressively for others in complex and trying disputes relating to child custody (care and contact) and the enforcement of accrual claims in divorces.
As a result of the emotive environment, which is often concomitant to divorce settlements and family law disputes, our Family Law Attorneys and our divorce lawyers focus on providing our clients with no-nonsense advice which is to the point and based on the principle of obtaining a solution which makes practical and commercial sense.
Some of the services of our Family Law Attorneys include:
When a client is going through a divorce, our divorce lawyers are mindful and sensitive to the fact that such a client should not be burdened with legal uncertainty and excessive legal fees. We understand that any divorce is a stressful and emotional event and we aim to assist our clients as swiftly and efficiently as possible.
Our expert team of family law attorneys and divorce lawyers will provide you with legal advice and assistance throughout the proceedings, whether during a contested or uncontested divorce. We follow a collaborative approach which ensures that our clients not only benefit from the knowledge of attorneys specialising in divorce proceedings but also from that of attorneys in our other departments including estate planning and tax.
The team (consisting of Directors, Associate Attorneys, Candidate Attorneys and Paralegals) have therefore designed an efficient approach to divorces wherein we can finalise your divorce as smartly and swiftly as possible.
- Once you have made contact with our offices, we will request that you provided us with certain information and documentation to enable us to assist you. We will then schedule a consultation with you as soon as practicably possible to advise you of your rights and the options available to you, even if it does not necessarily entail a divorce.
- During the consultation, we will ensure that we obtain any further information and documentation from you which we did not receive prior to the consultation. We will peruse and consider same with you whilst explaining in detail what the process of a contested and uncontested divorce entails, the time frames applicable and different payment plans to cater for your unique position.
- After the consultation, we will commence with the drafting of all the required court documentation to ensure that all the prescribed timelines are met. During this whole process, we will ensure that you are kept up to date with all developments of your contested or uncontested divorce. We are, however, dependent on your instructions but will put you in the best possible position to provide us therewith.
- We are able to assist our clients with any divorce process, whether contested or uncontested, and although we, in general, strive to assist our clients in a non-confrontational manner, we also successfully litigate when an amicable approach is not suitable. We understand the requirement of having to be one step ahead at all times and can assist you whether you are a CEO of a very successful company or an ordinary (wo)man on the street.
A marriage can be dissolved either by the death of one of the parties or by divorce. Grounds which a Court will consider when dissolving a marriage by way of a divorce, are the following:
The Divorce Act 70 of 1979 sets out circumstances when a court, if it is so proven, may accept the irretrievable breakdown of the marriage as a ground for divorce. These are when:
- The parties have not lived together as wife and husband for a continued period of at least one year immediately prior to the date of issuing summons for divorce;
- One of the parties has committed adultery and the other party finds it irreconcilable to continue with the marriage relationship;
- One of the parties has been declared as a habitual criminal and is (or will be) undergoing imprisonment;
- Any other facts or circumstances which may be indicative of the irretrievable break-down of a marriage.
The “other facts or circumstances” can include any aspect which would make the restoration of a marriage relationship between the parties impossible. Each marriage is different and hence these facts or circumstances will vary from marriage to marriage. It would, however, normally include physical, verbal and emotional abuse from one of the parties, lack of communication, divergent views on religion, lack of common interest, lack of day to day support and constant quarrels between the parties.
In accordance with Section 4 of the Divorce Act, a court may grant a divorce on the ground of an irretrievable breakdown of the marriage if the court is satisfied that the marriage relationship has disintegrated to such an extent that there is no reasonable prospect of the restoration of a normal marriage relationship between the parties.
A court, however, still has a discretion whether or not to grant a divorce based on the irretrievable breakdown. In accordance with the provisions of Section 4(3) of the Divorce Act, the court may postpone the divorce proceedings and order the parties to seek counselling as an attempt to restore the marriage relationship if the court is not convinced that the marriage has broken down irretrievably or that the parties did not try to save the marriage convincingly.
The fact that the court may grant a divorce if it is satisfied that there has been an irretrievable breakdown in the marriage relationship between the parties suggests that it is not a requirement for any of the parties to be “at fault” in order for a court to grant an order of divorce.
Although a court may grant a decree of divorce if the requirements of Section 4 of the Divorce Act are met, it SHALL NOT grant a decree of divorce where there are minor or dependent children involved and the court is not satisfied that their welfare is the best that can be effected in the circumstances.
For a court to grant a decree of divorce on the ground of mental illness, the court must, in accordance with section 5 of the Divorce Act, be satisfied that a party:
- has been admitted as a patient to an institution in terms of a reception order; or
- is being detained as a state patient at an institution or other place specified by the Minister of Correctional Services; or
- is being detained as a mentally ill convicted prisoner at an institution.
Further to the above, the court must be satisfied that such a party has for a period of at least two years immediately prior to the commencement of the divorce proceedings not been discharged from any of the above institutions and that there is no reasonable prospect that the party will be cured of the mental illness.
In accordance with Section 5 of the Divorce Act, a court may grant a divorce if it is satisfied that one of the parties suffer from continuous unconsciousness where:
- the unconsciousness has lasted for a continuous period of at least 6 months immediately prior to the institution of the divorce action; and
- from evidence of at least 2 medical practitioners (one of whom must be a neurologist or a neurosurgeon appointed by the court) there is no reasonable prospect that the party will regain consciousness.
A court has jurisdiction to adjudicate a divorce if one or both parties are:
- domiciled in the area of jurisdiction of the court on the date on which the action is instituted; or
- ordinarily resident in the area of jurisdiction of the court on the said date and has or have been ordinarily resident in South Africa for a period of not less than 1 year immediately prior to that date.
Unless the parties enter into a settlement agreement regulating the division of their assets, the answer to this question will mainly depend on the marriage regime applicable to your marriage at the time of the divorce. Regardless of the marriage regime, the parties may enter into a settlement agreement recording inter alia what will happen to their property after the divorce,. If the parties cannot reach a settlement agreement as to the manner in which their property should be divided, the court will adjudicate this as a dispute between the parties during trial.
MARRIED OUT OF COMMUNITY OF PROPERTY WITH THE INCLUSION OF THE ACCRUAL SYSTEM
The accrual of the estate of a spouse is the amount by which the net value of his or her estate at the dissolution of the marriage exceeds the net value of his or her estate at the commencement of the marriage. The spouse with the least growth, will have an accrual claim against the estate of the spouse which estate showed a larger growth.
Accrual can ensure that a spouse who indirectly contributed towards the growth of the estate of the other spouse is not left high and dry should the marriage be dissolved. The typical example would be where a husband leaves his full-time employment to care for the parties’ children and manage the family affairs at home. As a result of the husband leaving his full-time employment his personal estate will not continue to grow. However, due to the husband managing the family affairs at home and caring for the children, his wife has more free time to focus on her career and work longer hours.
The husband therefore puts his wife in the position to further her career and increase the value of her estate. If the husband did not leave his full-time employment to manage the family affairs at home and care for the children, the wife would not have been in a position to spend as much time in the furthering of her career. After some time, and as a result of the wife spending time in the furthering of her career, the wife’s estate will grow and increase in value while the husband’s estate will remain stagnant. The husband therefore contributes indirectly to the growth and accrual of his wife’s estate.
In the example above, if the wife’s estate has accrued more than the estate of the husband, the husband has a claim against the wife, when the marriage comes to an end, for an amount equal to half of the difference between the accrual of the respective estates.
In accordance with the provisions of the Matrimonial Properties Act 88 of 1984 every marriage entered into after 1 November 1984 out of community of property will automatically be subject to the accrual system, unless the application of the accrual system has expressly been excluded in the antenuptial contract.
In order to be married out of community of property, the parties have to sign an antenuptial contract prior to the commencement of the marriage. An antenuptial contract must be signed in the presence of a notary and thereafter be registered in the deeds office.
Upon the dissolution of the marriage, the accrual system will become applicable. The value of the accrual claim which one party may have against the estate of the other is determined by using a calculation, taking into consideration the commencement values of the spouses’ respective estates recorded in the antenuptial contract, the end values of the spouses’ respective estates at the dissolution of the marriage and all assets excluded from the accrual as recorded in the antenuptial contract.
Each party’s property acquired during the course of the marriage, will remain his or her own property after the divorce. The accrual claim will be claim in value and not for a share in any specific property.
When calculating the accrual of the estate of one of the spouses, not all of that spouse’s property will necessarily be considered when determining the end value of that spouse’s estate. Section 4 of the Matrimonial Property Act of 1984, notes the following to be excluded when the accrual is calculated:
- Any asset specifically excluded in the antenuptial contract ;
- Any inheritance, legacy, trust or donation received by a spouse during the marriage from any third party (Section 5 of the Matrimonial Property Act);
- Any donation between spouses;
- Any amount that has accrued to a spouse by way of damages, other than damages for patrimonial loss, by reason of a delict committed against him or her (e.g. slander or a personal injury)
MARRIED OUT OF COMMUNITY OF PROPERTY WITH THE EXCLUSION OF THE ACCRUAL SYSTEM
In this marriage regime, each party retains his or her own estate accumulated before marriage and throughout the course of their marriage. All assets gained or lost by any party, will be considered as assets gained or assets lost by that specific estate.
This system provides the parties absolute independence and protects each spouse’s estate against claims by the other spouse’s creditors.
As stated herein above, the provisions of the Matrimonial Properties Act 88 of 1984 determines that every marriage entered into after 1 November 1984 out of community of property will automatically be subject to the accrual system, unless the application of the accrual system has expressly been excluded in the antenuptial contract.
If parties therefore wish to be married out of community of property and that the accrual system must not be applicable to their marriage, they must specifically state in the antenuptial contract that the accrual system will not be applicable to their marriage. An antenuptial contract must be signed in the presence of a notary and thereafter be registered in the deeds office.
MARRIED IN COMMUNITY OF PROPERTY
Where parties are married in community of property they share in one joint estate. Upon the dissolution of marriage, the assets (and liabilities) of the joint estate will be divided equally between the parties (unless they enter into a settlement agreement during an uncontested divorce with alternative terms).
Parties may enter into a settlement agreement wherein they agree amongst themselves how the joint estate should be divided. If they cannot agree, the Court will order that the joint estate be terminated and that a liquidator be appointed to realise all the assets and liabilities of the joint estate and to divide the proceeds (if any) equally between the parties or as specified by the Court.
A good divorce lawyer will understand the client’s wishes from date of receipt of the instruction. The divorce lawyer and the client must work together on a strategy on how the divorce proceedings will be conducted and ensure that each of them is aware of the timing of the steps which must be taken to achieve their end goal.
Your divorce lawyer must also provide you with regular feedback on your matter and advise you on what the next steps in the process will be. Furthermore, your divorce lawyer must provide you with regular billing statements and cost estimates to ensure that you are financially prepared for your divorce, irrespective of whether it is a contested or uncontested divorce.
A good divorce lawyer will advise you to take care of yourself physically and emotionally and must him or herself be emotionally strong and level-headed with an objective view relating to your contested or uncontested divorce.
Our divorce lawyers will be able to assist you with:
- Advice regarding your rights during and subsequent to a divorce as well as the financial aspects relating to divorces (including the cost of a divorce and division of assets in divorces);
- Maintenance disputes (spousal maintenance, interim (temporary) maintenance);
- All factors relating to children, including care (child custody), contact, the drafting of a parenting plan, how to implement a parenting plan, calculation of child maintenance, how to file for child maintenance;
- Obtaining a protection order in domestic violence or abuse situations;
- Resolving your divorce dispute through mediation.
The question relating to what a divorce costs depends solely on whether your divorce will be a contested or uncontested divorce.
We provide our clients with various packages relating to uncontested divorces. An uncontested divorce may cost between R7 000.00 and R10 000.00, depending on the client’s specific needs and instructions.
The costs of a contested divorce are much higher and will depend on an array of factors, but mostly on the client’s instructions. Aspects such as minor children and division of accrual, all directly impact the costs involved in a contested divorce. Our offices aim to provide our clients with cost estimates on a regular basis to ensure that they are always aware of what the next steps in the contested divorce will be and what the cost implication will be.
Yes, you can have interim custody (care) of your child during contested divorce proceedings. This is done by way of a Rule 43 application (High Court) or a Rule 58 application (Magistrates’ Court) generally brought with the assistance of a divorce lawyer.
Interim custody (care) refers to custody (care) during the course of the divorce proceedings and until a final divorce order is granted. Since the inception of the Children’s Act, the concept of “custody” has been replaced with the concept of “care”. The term “custody” is however still widely used in our spoken language.
The Court will generally be unwilling to upset the status quo concerning the custody (care) of minor children. The principle of preserving the status quo is, however, subject to considerations that the paramount interest of the minor children must always triumph and that the status quo must not constitute an unreasonable state of affairs.
The Court may refer an application for interim custody to the Family Advocate for investigation.
Yes, you can have interim access (contact) to your child during contested divorce proceedings. This is done by way of a Rule 43 application (High Court) or a Rule 58 application (Magistrates’ Court) generally brought with the assistance of a divorce lawyer.
Interim access refers to access (contact) during the course of the divorce proceedings and until a final decree of divorce is granted.
In general, it is regarded to be in children’s best interest to have as much contact as possible with their parents. There are however various psychological and developmental factors which must be taken into account when determining how much contact is in the best interest of any particular child. The amount of contact granted to a parent is also not always indicative of that parent’s ability or inability to care for a child. It may simply be that the awarding of more contact is not practical in a set of circumstances or that a specific child requires a less complex routine with fewer interruptions.
The Court will generally be unwilling to upset the status quo concerning the access (contact) of minor children. The principle of preserving the status quo is, however, subject to considerations that the paramount interest of the minor children must always triumph and that the status quo must not constitute an unreasonable state of affairs.
Since the inception of the Children’s Act the previous concept of “access” has been replaced with the concept of “contact”. Contact can be in the form of visitation, telephonic contact or contact through other forms of communication, including sms, whatsapp and skype.
The Court may refer an application for interim contact to the Family Advocate for investigation.
Yes, you can claim interim (temporary) maintenance from your spouse during contested divorce proceedings. This is done by way of a Rule 43 application (High Court) or a Rule 58 application (Magistrates’ Court), generally brought with the assistance of a divorce lawyer.
In this type of application, you may request the Court to grant an interim (temporary) order that your spouse must contribute towards your and/or your child’s maintenance. This maintenance is intended to be an interim remedy and cannot be determined with the same degree of precision as would be possible in a trial where detailed evidence is produced to the court.
You are entitled to reasonable interim maintenance dependent upon the marital standard of living of the parties, your actual and reasonable requirements and the financial capacity of your spouse to meet such requirements. Although mostly determined by having regard to income, the Court may in some circumstances find that inroads on capital may be justified.
The Family Advocate is an impartial state institution appointed by the Minister of Justice in terms of the Mediation in certain Divorce Matters Act 24 of 1987. The Family Advocate can after the institution of a divorce action or an application for the variation, rescission or suspension of an order with regard to the custody (care), guardianship of, or access (contact) to a child, institute an enquiry to enable it to provide to the court a report and recommendations concerning the best interests of the child. Such an inquiry can be instituted upon request by one of the parties to the proceedings or on the instance of the court.
The Family Advocate may, if it deems it in the interest of any minor or dependent child of a marriage concerned, and shall if so requested by a court, appear at the trial of any divorce action and may adduce any available evidence relevant to the action and cross-examine witnesses giving evidence thereat.
The services of the Family Advocate are rendered to the public free of charge.
If you require any additional information regarding the services that the offices of the Family Advocate provide, you may find information on their website directly: Click here.
Parties to divorce proceedings may enter into a settlement agreement at any time before or during the divorce proceedings (whether summons has been issued or not), agreeing on all aspects relating to the dissolution of their marriage, which will include:
- Division of assets;
- Custody (care) of minor children;
- Maintenance of minor children;
There will be no formal trial (with examinations of parties by opposing legal representatives) and only one party is required to appear in court on the day of the divorce.
A divorce can also be finalised on an uncontested basis if your spouse (as the Defendant) failed to enter an appearance to defend within 10 (ten) days after the Sheriff has personally served him or her with the divorce summons. In such an instance you (as the Plaintiff) may proceed to enrol the divorce as an uncontested divorce on the court roll based on the fact that your spouse did not enter an appearance to defend the divorce.
It is important that, when you receive a divorce summons from your spouse and you do not agree with your spouse’s claims, you defend the summons timeously and within the 10 (ten) day period mentioned hereinabove.
One of the parties to the uncontested divorce action must appear in court on the day on which the uncontested divorce is enrolled for hearing.
The court must be satisfied by one of the parties to an uncontested divorce that the settlement agreement has indeed been signed by both parties and that they would like the divorce to be finalised as an uncontested divorce on the day. In general, it should be the party cited as the plaintiff who must appear in court.
Your divorce lawyer or her or his candidate attorney will accompany you to court for the finalisation of the uncontested divorce proceedings. Prior to the proceedings, you will also meet and consult with your Advocate, whom your divorce lawyer instructed to facilitate the uncontested divorce on the day.
An uncontested divorce can take between 2 and 6 months to finalise.
The sooner the parties sign a settlement agreement, the sooner the divorce summons can be issued to commence the uncontested divorce proceedings. Subsequent to the issue of the summons, it will be delivered to the Sheriff for personal service on the Defendant. If your spouse has not entered an appearance to defend after 10 (ten) days from the date of service of the divorce summons, your divorce lawyer may apply to the court for a date for the hearing of the uncontested divorce.
The court date will be communicated to you once it has been received from the Registrar of the court. This court date can be anywhere between a few weeks and a few months, depending on how congested the court roll is for uncontested divorces at the time.
During a contested divorce the parties will normally each have their own divorce lawyer. A divorce becomes a contested divorce if the parties cannot agree on the terms of a settlement agreement and one of the parties issues summons for a divorce wherein that party (acting as the Plaintiff) sets out the terms on which he or she wants the divorce to be concluded. Naturally, the other party (acting as the Defendant) would not agree with the terms claimed by the Plaintiff and does not only defend the Plaintiff’s claim but will usually also institute a counter-claim with the terms on which the Defendant wants the divorce to be concluded.
During a contested divorce, the parties go through all the stages and steps required to prepare for a trial. These stages include the exchange of pleadings, an application for a trial date, one or more pre-trial conferences, the discovery of documents, trial and judgment. During the trial, the parties will themselves testify in court and will also be allowed to call witnesses to provide evidence in support of their respective claims and defences.
Although a lot of divorces commences as contested divorces, the majority turn into uncontested divorces at some period prior to the commencement of the trial when the parties enter into a settlement agreement.
A good divorce lawyer will ensure that the time limits prescribed by the court rules are always adhered to which greatly contributes to a contested divorce being finalised as swiftly as possible.
A contested divorce can take between 2 to 5 years to finalise depending on the complexity of the disputes and conduct of the parties. To ensure that the divorce is finalised as swiftly as possible, however, it is important that a client keeps a divorce lawyer abreast of all aspects which may have an impact on the divorce
Contested divorces are generally more costly than uncontested divorces. The total costs, although heavily variable, is mainly dependent on the conduct of the parties during the proceedings. Another factor which contributes to the high costs is the fact that the parties often require assistance from several expert witnesses to prove their claims. These expert witnesses may include:
- Actuaries, to determine the amount and duration of maintenance contributions or child maintenance;
- Forensic accountants, to examine both parties’ estates for purposes of division of joint estates or the determination of a possible accrual claim;
- Child-care experts to assess with whom minor children should reside during and after the divorce.
Your spouse is not automatically entitled to spousal maintenance following a divorce. Section 7 of the Divorce Act 70 of 1979 states that:
“The Court may, having regard to
- the existing or prospective means of each of the parties,
- their respective earning capacities,
- financial needs and obligations,
- the age of each of the parties,
- the duration of the marriage,
- the standard of living of the parties prior to the divorce,
- the conduct in so far as it may be relevant to the breakdown of the marriage,
- an order in terms of Section 7(3) and
- any other factor which in the opinion of the Court should be taken into account,
make an order which the Court finds just in respect of the payment of maintenance by the one party to the other for any period until death or remarriage of the party in whose favour the order is given, whichever event may first occur.”
It is clear from the above that a spouse is certainly not entitled to spousal maintenance after the divorce. The Court, however, has a very wide discretion to award maintenance to a spouse after divorce and will take any such factor as it may deem relevant, in the circumstances, into consideration when considering an order for spousal maintenance.
The reasonable contribution which each parent has to make will depend on the need of the child, taking into consideration the standard of living of the applicable family to which the child has become accustomed to.
Maintenance amounts or responsibilities will be included in your divorce settlement or specified in the decree of divorce. If parents were not married to one another but are still obliged to pay maintenance, it will be stipulated either in a parenting plan or in a maintenance court order.
The parents’ duty to maintain their children exists irrespective of whether a maintenance order is in place. The mere fact that a maintenance order is not in place does therefore not absolve a parent from his or her responsibility and obligation to maintain his or her child.
The court will however still require that the child provide it with sufficient proof of the child’s needs for maintenance. In the event where one of the parents passes away, the child can lodge a claim against the estate of the deceased parent as the deceased parent’s estate will be liable for the maintenance of the child.
When the child does not have grandparents, who can maintain the child, the court can also make an order against one of the siblings of the child to contribute towards the maintenance of the child. When an order, including an order for maintenance, must be made regarding any aspect relating to a child, the court will always consider what is in the child’s best interest.
It is important to note that these parental responsibilities and rights act independently from one another. A parent is, by law, obliged to maintain his or her child, irrespective of whether the parent has any contact with the child. The child is entitled to have contact with a parent (in the event that it is in the child’s best interest to have such contact) and the contact cannot be unreasonably withheld, even in the event of the parent not paying child maintenance as and when that parent is required to.
All children are to be maintained equally – if a parent has children from a previous relationship or marriage, maintenance in respect of a child may not be withheld or reduced by that parent because of his or her obligation towards his or her children from another relationship.
The child’s best interest is always paramount when it comes to decisions which may directly or indirectly affect a child.
As the child grows older, his or her reasonable monthly needs may change. It can also happen that a parent who is obliged to contribute towards a child’s maintenance, cannot do so any more due to unforeseen circumstances. The Maintenance Act allows any person seeking an adjustment to an existing maintenance order, to approach the maintenance court and request either one of the following:
- Amend an existing order;
- Decrease a current order;
- Make a new maintenance order;
- Set aside an existing maintenance order.
In such instances, a parent may apply to the maintenance court for a reduction in the amount of maintenance payable towards the child. Such an order, however, will be subject to a financial enquiry to determine whether the parent truly cannot afford to pay the maintenance amount previously ordered. The court will also take into consideration the child’s financial needs, as well as the other parent’s means and circumstances when making such an order.
- An order for the attachment of emolument (garnishee order against the defaulting parent’s salary);
- An order for the attachment of debt;
- Authorisation for a warrant of execution.
In order to make use of the above remedies, the party approaching the court must ensure that the court has the required jurisdiction to assist that party. The correct court to approach is the court in whose jurisdiction the child is resident. It can, therefore, transpire that the court having the required jurisdiction is not the same court which granted the maintenance order in the first instance. If an aggrieved party approaches a court which does not have jurisdiction to assist that party, the matter will not be considered by that court.
Furthermore, failure to comply with a maintenance order is a criminal offence and a defaulting parent can be fined or imprisoned for up to 1 year (or both) if convicted. If a defaulting parent can truly not afford to pay maintenance, that parent will have to convince the court that he or she could not pay maintenance due to a lack of funds or income. The often-used excuse of “I lost my job”, will simply not suffice as the defaulting party will have to convince the court that his or her failure to pay maintenance, was not due to his or her own conduct and that the defaulting party is actively attempting to seek alternative methods to contribute towards his or her maintenance obligations.
E-mail us at email@example.com or phone us on 0861 088 088 for our terms of service.
In terms of the South African law, surrogacy is a relatively recent and still evolving concept. In South Africa, surrogacy is regulated by the Children’s Act 38 of 2005 (hereinafter referred to as “the Children’s Act”). In terms of the Children’s Act, a surrogate mother can be defined as a woman whom undergoes pregnancy and so doing carries a baby on behalf of delegating (biological) parents.
Ever so often the question of how surrogacy works and what exactly it entails gets raised. It is of the essence to comprehend how surrogacy is implemented. For the purposes hereof, the natal aspects of surrogacy can simply be explained as set out below:
- The parties involved are the surrogate mother and the parent and/or parents that instruct the surrogate to carry the child.
- The instructing parents’ (or that of a donor in the instance where the parents are barren or there is only one parent present) biological cells are harvested to enable procreation.
- The abovementioned cells are merged, so as to be fertilised in a laboratory. Once fertilised, it is referred to as an “embryo”.
- The embryo is then implanted into the surrogate mother’s uterus. If the implantation was successful, the embryo will develop into a foetus.
- The surrogate mother will then carry the foetus until birth.
- Once the child is born, the child will be handed over to the natural parent/s.
It is noteworthy that the surrogate is not the biological mother of the child, she rather only acts as a vessel through whom the child’s livelihood is carried to full term. It is enshrined in the Children’s Act that the child born ought to be regarded as the child of the biological parents whom instructed the surrogate. The process of surrogacy has been codified by the Children’s Act and thus regulates the prerequisites that has to be complied with.
- The instructing (commissioning) parent(s) should not be able to naturally conceive a child.
- The commissioning parent(s) must be able and competent to sign a Surrogate Motherhood Agreement (hereinafter referred to as “the Agreement”). Section 1 of the Children’s Act defines the Agreement as follows:
Means an agreement between a surrogate mother and a commissioning parent(s) in which it is agreed that the surrogate mother will be artificially fertilized for the purpose of bearing a child on behalf of the commissioning parent and in which the surrogate mother undertakes to hand over such a child to the commissioning parent(s) upon birth, or within a reasonable time thereafter, with the intention that the child concerned is the legitimate child of the commissioning parent(s).
- The surrogate mother must intend to reside within South Africa as well as have permanent residency. Furthermore, at least one of the commissioning parents must reside in South Africa as well as intend to have permanent residency in South Africa.
- The Agreement must be: in writing, entered into within the borders of the Republic and duly signed by all the relevant parties.
- The Agreement must be approved and indorsed by a High Court of South Africa. Jurisdiction of the relevant High Court will depend on the residential area of the parties concerned. Validation of the agreement is required prior to implantation of the embryo (into the surrogate’s womb).
- Where applicable, spouses of the surrogate and/or delegating parent(s) are also essential.
- The following documents must be submitted to the High Court for approval:
- The original signed Agreement;
- A social worker report, as well as a psychological report of both the commissioning parent(s) and the surrogate;
- A medical report by the fertility specialist for both the commissioning parent(s) and the surrogate;
- A certified affidavit as signed by the surrogate (and her partner if applicable).
After the entire process has been concluded, it is significant to remember that neither the surrogate mother, nor any of her relatives will have any rights pertaining to the child (unless specifically provided for in the Agreement).
The name(s) of the commissioning parent(s) will reflect on the birth certificate, therefore no adoption is necessary. The commissioning parent(s) will have parental rights over the child at all times.
Therefore, it is our goal to provide you with the best possible professional assistance in order to make this process more comfortable and easy to understand. For assistance kindly email us at firstname.lastname@example.org or phone us on 0861 088 088.
Since the commencement of the Children’s Act 38 of 2005 on 1 April 2010, the concept of a parenting plan became one of the new “buzz words” where solutions to disputes pertaining to children in divorce actions were considered. Parenting plans, of course, do not only apply to disputes as a result of divorce actions, but we will deal therewith further below.
Our family law attorneys have assisted many parents and other holders of parental responsibilities and rights to successfully conclude a parenting plan whether by acting as appointed mediator or by assisting a client during settlement negotiations.
Should you wish our assistance to act as mediator between you and another holder of parental responsibilities and rights or to act as your attorney during mediation proceedings, you can e-mail us at email@example.com.
A parenting plan is a written contract in terms of which the co-holders of parental responsibilities and rights in respect of a child agree on the method of exercising their respective responsibilities and rights in respect of a child.
A parenting plan may deal with the following issues:
- Where and with whom the child is to live (primary residence or care – previously known as “custody”);
- Maintenance of the child;
- Contact (or previously known as “access”) between the child and any of the parties to the parenting plan or other persons;
- Schooling of the child; and
- Religious upbringing of the child.
If parties enter into a parenting plan, it must comply with the best interest of the child standard as provided for in Section 7 of the Children’s Act;
Subsequent to entering into a parenting plan one or both of the parties may have the parenting plan made an order of Court by way of an application in the prescribed format.
If drafted properly, a parenting plan can represent the best possible arrangements pertaining to a child in the circumstances and avoid future litigation between the parties. It also aims to ensure the ideal participation of both parents as well as the child, especially where a parenting plan is drafted after a proper process of mediation.
- To care for the child (custody);
- To maintain contact with the child (access);
- To act as guardian of the child; and
- To contribute to the maintenance of the child.
It is therefore not only the biological parents of a child who may enter into a parenting plan. A parenting plan may also be entered into by any party who is a holder of the above responsibilities and rights in respect of a child. A parenting plan may as such be entered into by the following persons:
- The biological mother of a child;
- The biological father of a child if he is married to the child’s mother or was so married during the child’s conception, birth or any time between conception and birth;
- The unmarried biological father who complies with the requirements provided for in Section 21 of the Children’s Act;
- Persons whom acquired parental responsibilities and rights through parental responsibilities and rights agreements as provided for in Section 22 of the Children’s Act;
- The adoptive parents of a child; and
- Persons whom acquired parental responsibilities and rights through orders of Court.
It is clear from the above that the option of entering into a parenting plan is therefore not only available to parties involved in divorce proceedings, but all parties who has parental responsibilities and rights in respect of a child.
In other words, parties who are involved in a dispute pertaining to where a child is to live, their rights of contact or the amount of maintenance payable must first seek to enter into a parenting plan before the intervention of a court is sought. This is where mediation can be a very useful tool to assist the parties to reach a solution through a process which is less confrontational than litigation.
Mediation, in contrast to litigation, rather focusses on seeking an amicable solution to a dispute and not to enforce an outcome on any party. This is especially important when considering that the parties will after the divorce encounter, and have to solve, various challenges pertaining to their children often not thought of before the decision to divorce was taken. It is in the best interests of a child that the parties, after their divorce, are able to work together and communicate effectively when making arrangements involving their child. Solving disputes through mediation can form the foundation for such a situation where the parties can communicate constructively when dealing with the day-to-day issues of raising their children post-divorce.
Regulation 11 to the Children’s Act prescribes in no uncertain terms that the child must be consulted and given an opportunity to express his or her views during the development of the parenting plan. However, when doing so, the regulation stipulates that the child’s age, maturity and stage of development must be borne in mind and the child’s views must be considered accordingly. Furthermore, when a parenting plan has been agreed upon and entered into by the parties, the child, again bearing in mind his or her age, maturity and stage of development, must be informed of the contents of the parenting plan by the Family Advocate, a social worker, social service professional, psychologist, the mediator or the child’s legal representative.
Although the child must therefore be afforded an opportunity to express his or her views, it does not necessarily mean that it should be followed. Each matter will have to be determined on its own merits. The test always remains as to what is in the child’s best interest. However, the child’s voice may often assist in determining what is in his or her best interest.
During the course of preparing the parenting plan, there may on occasion be issues concerning the child that require urgent or immediate attention. These should be addressed without delay. The child should be given top priority and, most importantly, the parenting plan should be negotiated as an issue distinct and apart from financial or other issues between the parties, save for the child’s maintenance which must form part of the parenting plan. To link it to any other issue, for example spousal maintenance or the division of assets and liabilities, would be equivalent to giving spouses free rein to use the child as a pawn to extract concessions from one another.
In order to maximise the advantages of the option of a parenting plan, both parents should commit to the following:
- Resolve conflict without putting the child in the middle of the dispute or using the child as a pawn against the other party;
- Share parenting responsibilities and rights;
- Take all decisions based on the principle of: what will be in the child’s best interest;
- Demonstrate positive conflict resolution; and
- Treat the other parent with respect.
From the above it is clear that it is in the interests of the parties and the child that the parties endeavour to make use of a mediator in order to prepare a parenting plan in divorce actions where children are involved prior to approaching a court. Not only may this process be less confrontational and emotionally draining but it will in all likelihood be more cost effective to the parties.
It is also advisable that, in the event of parties reaching a parenting plan with the assistance of a mediator with no- or limited legal knowledge, that the parenting plan be canvassed with an Attorney to ensure that all terms agreed upon between the parties, comply with the relevant legislature of the Republic of South Africa.
Should you require our assistance with a parenting plan, please send us an e-mail on firstname.lastname@example.org.
- within available means, providing the child with:
- a suitable place to live;
- living conditions that are conducive to the child’s health, wellbeing and development; and
- the necessary financial support;
- safeguarding and promoting the wellbeing of the child;
- Protecting the child from maltreatment, abuse, neglect, degradation, discrimination, exploitation and any other physical, emotional or moral harm or hazards;
- respecting, protecting, promoting and securing the fulfilment of, and guarding against any infringement of, the child’s rights set out in the Bill of Rights and the principles set out in Chapter 2 of this Act;
- guiding, directing and securing the child’s education and upbringing, including religious and cultural education and upbringing, in a manner appropriate to the child’s age, maturity and stage of development;
- guiding, advising and assisting the child in decisions to be taken by the child in a manner appropriate to the child’s age, maturity and stage of development;
- guiding the behaviour of the child in a humane manner;
- maintaining a sound relationship with the child;
- accommodating any special needs that the child may have; and
- generally, ensuring that the best interests of the child is the paramount concern in all matters affecting the child.”
Both parents to a marriage are automatically clothed with the responsibility and right to care for (have custody of) their child. Joint care or custody may continue to vest in both parents after divorce or separation, if it is so ordered by the court. In respect of an extra-marital child, however, care or custody vests in the biological mother of the child alone. Care or custody will vest in the father if the father of that child was living with the child’s mother in a “permanent life-partnership” at the time of the child’s birth or if the court granted him such parental responsibilities and rights subsequent to an application mentioned in terms of Section 21 of the Act.
- if at the time of the child’s birth he is living with the mother in a permanent life- partnership; or
- if he, regardless of whether he has lived or is living with the mother-
- consents to be identified or successfully applies in terms of Section 26 of the Children’s Act, to be identified as the child’s father or pays damages in terms of customary law;
- contributes or has attempted in good faith to contribute to the child’s upbringing for a reasonable period; and
- contributes or has attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period.
Section 26 of the Children’s Act entitles a person who is not married to the mother of a child and who is or claims to be the biological father of the child, to apply to a court for an order confirming his paternity of the child and for such an amendment to be affected to the registration of birth of the child if:
- the mother refuses to consent to such an amendment;
- the mother is incompetent to give consent due to mental illness;
- the mother cannot be located or is deceased.
The care or custody of a child may also be assigned by a parent in terms of Section 27 of the Children’s Act. A parent who has the sole care of a child may appoint a fit and proper person to be vested with care or custody of the child in the event of the death of that parent – this, however, must be contained in a valid will made by the parent.
- the biological father of the child who does not have parental responsibilities and rights in respect of the child by virtue of neither being married to the child’s mother, nor in accordance with Section 21 of the Act or a Court order; or
- any other person having an interest in the care, well-being and development of the child.
A parental responsibilities and rights agreement must be in the prescribed format and must contain the prescribed particulars as provided for by the Children’s Act. Such an agreement, however, only takes effect if:
- it is registered with the Office of the Family Advocate;
- made an order of the High Court either on application or during divorce proceedings; or
- made an order of the Children’s Court on application by the parties to the agreement.
Prior to registering a parental responsibilities and rights agreement or declaring it an order of court, the Office of the Family Advocate or the court concerned must be satisfied that the parental responsibilities and rights agreement is in the best interests of the child. The Office of the Family Advocate will conduct an investigation pertaining to the child’s best interest and will subsequently file a report to the relevant court with its recommendations.
It is important to note that a parental responsibilities and rights agreement differs from a parenting plan. The former may be entered into and between the mother of a child and the biological father of a child or any other person having an interest in the care, well-being and development of the child neither of whom (the biological father or other person) previously possessed such parental responsibilities or rights. A parenting plan is entered into between parties whom already possess parental responsibilities and rights, such as parents of a child conceived and born from a marriage between his/her parents.
When considering such an application, the court must take into account:
- the best interests of the child;
- the relationship between the Applicant and the child, and any other relevant person and the child;
- The degree of commitment that the Applicant has shown towards the child;
- the extent to which the Applicant has contributed towards the expenses in connection with the birth and maintenance of the child; and
- any other factor that should, in the opinion of the Court, be taken into account.
The Advocate may request the Office of the Family Advocate, a social worker or a psychologist to assist it with a report and recommendations as to what is in the best interests of the child as it is not always possible for the court to determine on the papers before it, what the best order will be pertaining to the child and his/her best interests.
- maintaining a personal relationship with the child; and
- if the child lives with someone else –
- communication on a regular basis with the child in person, including
- visiting the child;
- being visited by the child; or
- communication on a regular basis with the child in any other manner, including
- through the post; or
- by telephone or any other form of electronic communication.
Where a child’s parents do no reside together, contact serves as a tool to promote a continuing parental relationship between the non-custodian parent and his or her child. Contact to a child may also be granted to persons other than the child’s parents, as long as the intended contact will be in the child’s best interest.
The right to contact vests primarily in a child. A child’s welfare is usually best promoted by contact with his or her other parent, especially where there is already a well-established relationship between that parent and the child. However, no-one has an undisputable right of contact with a child – an entitlement to reasonable contact will always depend on whether the contact is in the child’s best interests.
In considering the parameters within which contact should be permitted, a Court must balance the competing interests of the custodian parent (whose discretion to control the child’s day-to-day needs and upbringing) should not be unduly disrupted, with those of the non-custodian parent, whose contact should not, without good reason, be so confined as to impede on his or her relationship with the child. The right which a party has towards contact with a child, does not entitle the custodian parent to impose unreasonable restrictions or restrictions so severe as to render contact a nullity.
However, no parent’s claim to contact is unassailable and all such claims is dependent on whether it will be in the child’s best interest. Some categories of fathers do not have parental responsibilities and rights (as discussed herein before) and do not, therefore, have a right to contact with their child. Accordingly, if a child’s mother is not willing to allow contact with a child to the child’s father, the father will have to apply to the High Court or Children’s Court for an order regulating contact. The main criteria which the court will consider is whether the proposed contact will be in the child’s best interest.
In general, once a bond has been formed between a child and a parent, it will usually be in the child’s best interests that the bond be maintained.
Although contact usually allows the non-custodian parent to remove the child to his or her home during contact periods, it may under certain circumstances be restricted to visitation at the custodian parent’s home only or in the presence of a third party. Any conditions imposed on the non-custodian parent must not be so burdensome as to unduly restrict his or her personal freedom.
Where there is a poor relationship between the child and the non-custodian parent, a court may order that contact be phased in, in a controlled environment, thus allowing both child and parent to foster a relationship.
- the nature of the personal relationship between—
- the child and the parents, or any specific parent; and
- the child and any other caregiver or person relevant in those circumstances;
- the attitude of the parents, or any specific parent, towards—
- the child; and
- the exercise of parental responsibilities and rights in respect of the child;
- the capacity of the parents, or any specific parent, or of any other caregiver or person, to provide for the needs of the child, including emotional and intellectual needs;
- the likely effect on the child of any change in the child’s circumstances, including the likely effect on the child of any separation from
- both or either of the parents; or
- any brother or sister or other child, or any other caregiver or person, with whom the child has been living.
- the practical difficulty and expense of a child having contact with the parents, or any specific parent, and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with the parents, or any specific parent, on a regular basis;
- the need for the child—
- to remain in the care of his or her parent, family and extended family; and
- to maintain a connection with his or her family, extended family, culture or traditions;
- the child’s—
- age, maturity and stage of development;
- background; and
- any other relevant characteristics of the child;
- the child’s physical and emotional security and his or her intellectual, emotional, social and cultural development;
- any disability that a child may have;
- any chronic illness from which a child may suffer;
- the need for a child to be brought up within a stable family environment and, where this is not possible, in an environment resembling as closely as possible a caring family environment;
- the need to protect the child from any physical or psychological harm that may be caused by—
- subjecting the child to maltreatment, abuse, neglect, exploitation or degradation or exposing the child to violence or exploitation or other harmful behaviour; or
- exposing the child to maltreatment, abuse, degradation, ill treatment, violence or harmful behaviour towards another person;
- any family violence involving the child or a family member of the child; and
- which action or decision would avoid or minimise further legal or administrative proceedings in relation to the child.
Should you require our assistance with a custody dispute, please e-mail us at email@example.com.