headingFAQ

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Q: MY EX IS NOT PAYING MAINTENANCE FOR OUR CHILDREN – WHAT CAN I DO?
A: The biological parents of a child has an obligation to maintain that child. The obligation rests on both parents, according to their abilities. If the father or mother of your children is not contributing to the maintenance of said children, you can approach the maintenance court for an order forcing them to pay.

The court will determine the amount that he or she needs to pay, taking into consideration the children’s financial needs and the parent’s financial abilities. If you already have such an order, and the father/mother of your children is not complying, you need to approach the court again to lodge a complaint. The court will then summons him/her to appear in court and explain why he/she is not paying.

ALTERNATIVELY, you can approach a mediator and invite the father/mother of your children to a mediation session, where the mediator will assist you and your ex-partner in discussing your maintenance concerns and your respective financial abilities, in order to help you reach a fair solution. The agreed-upon solution can then be encapsulated in a written parenting plan, which plan can be registered with the family advocate or made an order of court.


Q:IS MY EX ALLOWED TO SEE OUR CHILDREN IF HE DOES NOT PAY MAINTENANCE?
A: The duty to pay maintenance is a PARENTAL RESPONSIBILITY, while the right to have contact with your children is a PARENTAL RIGHT. The holder of parental rights must also exercise his parental responsibilities, as the two goes together. That being said, a father/mother who refuses to maintain his/her child cannot be kept away from his/her children for this reason alone. If there is a dispute regarding the exercising of parental rights and responsibilities you need to approach the court (either a children’s court or a maintenance court, depending on the exact nature of the dispute) to settle the matter.

ALTERNATIVELY , you can invite the other party to a session with an experienced mediator, who will assist you in discussing your concerns without taking sides and coming to an agreement which is acceptable to both parties. This agreement can then be incorporated into a written Parenting Plan, which plan can be registered with a family advocate or made an order of court.


Q: AT WHAT AGE CAN CHILDREN SLEEP OVER WITH THEIR FATHER/MOTHER/GRANDPARENTS?
A: The law does not prescribe a minimum age at which children can start sleeping over. This is a decision that the parents or care-givers of a child must make for themselves, based on the child’s age, stage of development, maturity, special needs, existing routine and so on.

If there is a dispute regarding the age at which a child can start sleeping over this can best be settled by inviting the parties concerned to a session with an experienced mediator, who will assist everybody in discussing their concerns and coming to a mutually acceptable agreement.


Q: WHAT DO I DO IF I SUSPECT A CHILD IS BEING NEGLECTED OR ABUSED?
A: In cases where you have information, or a reasonable suspicion, that a child is being sexually abused, you have a DUTY to report your concerns or relay your information to the police or a registered child protection organisation, such as for example Childline. A person who has information relating to sexual abuse who does not report that information can be criminally prosecuted.

If you think that a child is being abused or neglected in any way, or that he is in danger of suffering physical or emotional harm, report your concerns to a registered child protection organisation such as Child Line or approach a social worker.


Q:DO GRANDPARENTS HAVE PARENTAL RIGHTS AND RESPONSIBILITIES?
A: Family members, such as step-parents, grandparents, aunts and uncles et cetera are not automatically the holders of parental rights, BUT they can approach a court and apply to be awarded such rights.

ALTERNATIVELY, the existing holders of parental rights and responsibilities can agree to share their rights and responsibilities with significant other persons in the child’s life, such as step-parents or grandparents. This is done by drafting a parental rights agreement. This agreement can be drafted with the help of a mediator and/or a social worker, but it is advisable to involve an attorney to ensure that all the legal aspects are appropriately addressed and all parties are fully informed about their rights and about the effects of the agreement.


Q:WHERE IS THE CHILDREN’S COURT SITUATED?
A: Every magistrate’s court is also a children’s court. Most magistrate’s court will designate a specific set of offices to serve as the children’s court, and the Clerk of the Children’s Court will be seated in one of these offices and are trained to assist members of the public with enquiries.


Q:CAN I GET DIVORCED IF MY HUSBAND/WIFE REFUSES TO SIGN FOR IT?
A: In the South African legal system you can get divorced without your partner’s consent. You need to issue a divorce summons, which will be served on your husband/wife to let them know that you want to divorce them. They are allowed to defend the action, and if they choose to do so they have to deliver a document called a Plea, in which they set out what aspects of your divorce summons they do not agree with.

It is not required that they sign any documentation indicating that they agree to the divorce. If the court is satisfied that your marriage had broken down irretrievably and that there is no prospect for the restoration of a normal marriage relationship, the court will not refuse to grant a divorce order merely because one party refuses to accept the divorce.


Q:IS IT TRUE THAT IF I LIVE WITH MY PARTNER FOR A CERTAIN AMOUNT OF YEARS THE LAW REGARDS US AS MARRIED?
A: It is a common misperception among the general public that living together with your boyfriend or girlfriend for a certain amount of years means that you are regarded as married by the legal system. This is false. An arrangement like that of partners living together has limited legal protection in the South African legal system. It can cause untold complications when the relationship ends, because the law does not prescribe how the property should be divided.

Parties living together must either register a civil union in terms of the Civil Unions Act (the effects are practically identical to that of getting married), or enter into a private contract with each other determining how their communal property will be divided if they break up. Such a contract will only bind the parties thereto and not third parties such as creditors or family members. It is also advisable to draw up a Will which specifies what assets your partner will inherit from you if you die, as he or she can not automatically inherit from you if you die without a Will, like spouses or children can.

If a live-in relationship should break up and there is a dispute over property, the law will require that you prove ownership of all the assets that you wish to claim. The parties can also refer the matter to a mediator, who will assist them in voicing their needs and concerns to each other and coming to an amicable and mutually agreed-upon solution.


Q:CAN I GET A PROTECTION ORDER AGAINST SOMEBODY WHO STALKS ME EVEN IF I DO NOT HAVE HIS/HER NAME OR ADDRESS?
A: In terms of the Harassment Act you can get a protection order in the Magistrate’s Court protecting you against a stalker. If you do not have an address for this person, the Magistrate can adjourn the proceedings and order the police to do an investigation to determine his or her address, so that a protection order can be served on him or her.

If you only have a cell phone number or perhaps an IP address or BBM Pin and do not know the identity of your stalker, the court can make an order that the relevant electronic communications provider (for example the cell phone network provider or internet provider) must make available to the court records, information or documents that will allow the identity of your stalker to be determined (such as for example RICA records.) Before the identity of a person is not known, the court cannot issue any order against him or her.


Q:HOW LONG DOES IT TAKE TO GET A DIVORCE?
A: There are several procedural steps that need to be taken before a person can get divorced. A summons needs to be issued (in other words assigned a case number by the court) and served on the Defendant (the person who you are divorcing.) This can take up to a month or more, depending on the circumstances.

If your husband/wife wants to defend the matter they have ten days after they had been served to let you and the court know about this, and a further twenty days thereafter to stipulate on which grounds they want to defend the matter. You will then have fifteen days after that to reply before the matter can be placed on the court roll to be heard by a magistrate. Settlement negotiations can shorten or lengthen the process.

However, the only way you can be divorced in under a month is if your husband/wife agrees to the divorce and works with you and your attorney to pick up the summons from the sheriff immediately, and if he/she signs a settlement agreement waiving his/her right to wait out the dies (the prescribed minimum days in which he/she must state their intention to defend and the grounds on which they want to defend it.)

About us

Endriëtte Barnard Attorneys is a law firm that specializes in child and family law matters. We also assist in both civil and criminal law matters, and is available for 24 hour bail application. We focus on mediation because we believe that in all matters concerning the child a less adversarial approach is needed to protect the best interest of the child concerned. We have three qualified mediators in our team, and can render mediation services in Afrikaans, English, Xhosa, Tswana, Sesotho and Zulu.

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