The recent case of Paterson v Chinn and Another (14057/2014)  ZAKZDHC 73 concerned the relocation of two children with their mother from the South Africa to the UK. The court ruled that the children would have a better life with their mother in the UK than to remain with their father in South Africa.
The applicant (mother) in terms of section 18(5) of the Children’s Act 38 of 2005 (the Children’s Act) sought inter alia; an order authorising her to relocate with minor children; [J……] [M…..] [C…….], a boy born on 11 October 2009 and [J…..] [J……] [C….], a girl born on 21 June [2……], to the United Kingdom (UK), on permanent basis, and consent to obtain South African passports on behalf of the said minor children.
The aforesaid minor children were born out of love relationship between the applicant and respondent (the father). The parties were co-holders of full parental responsibilities and rights in respect of minor children, as contemplated by section 18(1) and (2) of the Children’s Act. The children were primarily residing with the applicant subject to the respondent’s right to maintain contact with them on reasonable basis. The respondent made monthly contribution to the maintenance of the minor children in the amount of R2000 per child. The applicant had the intention to settle in UK for an indefinite period. In terms of section 18(3)(c)(iii) and (iv) of the Children’s Act the consent of the non-custodian parent is required for the departure or removal of minor children from the Republic of South Africa and for the children’s application for the passports.
The respondent refused to grant the required consent and his refusal was mainly grounded on that the applicant had not properly investigated the practicalities of her decision as she inter alia had no structured plan for the proposed relocation. The respondent averred that the entire relocation application was based on nothing more than speculation and uncertainty in the hope for a potentially better life in England, when currently the applicant and minor children lived a good stable life in South Africa. According to the respondent, the application was neither bona fide nor reasonable. The respondent brought a counter-application for an order arranging his contact with minor children. However, it was agreed between the parties that it was not necessary to deal with such counter -application since the relief sough therein by the respondent was adequately covered in the applicant’s Notice of Motion.
As indicated above, the minor children were born out of a love relationship between the parties which was not legitimised by subsequent marriage. There was no parenting plan and nor was there a court order setting out the respondent’s specific rights of contact. However, the Family Advocate was been directed to hold an enquiry and submit a report pertaining to the best interests of the minor children in relation to the relocation application. The Family Counsellor had also submitted a report in this regard. Both the Family Advocate and the Family Counsellor in their reports stated that it would not be in the best interest of the minor children to grant the applicant leave to immigrate with the minor children to UK.
The applicant intended to relocate with the minor children from the Republic of South Africa to the UK, England, on permanent basis, before the commencement of the new school year which commence in September 2015.
The love relationship between the parties developed some time before 2007. However, the parties engaged in December 2007 and according to the applicant such relationship was due to the respondent’s alcohol abuse mendacity and infidelity terminated in June 2012. Hence, the parties officially separated in March 2013. As the respondent was at the time the minor children were born living in a permanent life partnership with the applicant, he thereby acquired full parental responsibilities in respect of both minor children.
Since March 2013 the minor children had been in the care of the applicant and primarily resided with her. However, the respondent maintained contact with the minor children since June 2013. After separation with the applicant, the respondent moved in with one someone else during March 2013 and they got married in June 2013 the same year.
Prior to her engagement to the respondent the applicant had lived and worked in England for eight (8) years. However, since her return to South Africa from England the applicant had been retrenched twice, in May 2010 and she remained unemployed for nine (9) months, and, second, in June 2013, and she was out of employment for five (5) months. This was the position despite that she attended numerous employment interviews, all was in vain. For eight years that she resided in England, the applicant had never been out of employment.
The applicant grew up in South Africa and her father had a British citizenship. The applicant started thinking of relocating in March 2013 since she was then a single mother. Pursuant thereto, in January 2014 the applicant started investigating employment opportunities in England and making school arrangements for the minor children. The applicant approached various recruitment agencies in England with the intention to ascertain whether with her qualifications and experience she would be able to secure employment. The applicant stated that without having determined dates for her arrival in England, it was not possible for her to obtain offers of employment. However, she had allegedly been advised that there were vacancies in the area where she intended relocating to, and for which she was suitably qualified.
The applicant was employed as a sales executive (representative) earning R22 576 and she had been so employed since 2013. She did not have any tertiary qualifications. According to the applicant in her current position there was no room for further promotion or development. She had found it difficult, if not impossible, for her to find higher income earning positions in South Africa and it was against this background she had chosen to investigate options in England. She thought that relocating to England would have helped to improve her earning capacity which would, in turn, enable her to maintain and provide for the minor children.
She intended to relocate to Chorley area in England where her brother resided. The latter offered to provide her with a support structure until such time she found employment and accommodation. The respondent refused to discuss with the applicant the reasons for the proposed relocation, and, as a consequence he refused to give his consent thereto. She found it impossible to relocate alone leaving the minor children with the respondent, as their primary care giver. She stated that the respondents though he loved the children he did not adequately fulfil his parental responsibilities and rights in respect of them. This, according to the applicant, was largely due to his sporadic contact with the minor children and his failure to spend quality time with the minor children while they were in his care. The respondent consumed alcohol in excess, and he took the minor children to adult venues such as pubs and bars. The applicant stated that to be separated from the minor children indefinitely would have a severe negative impact on the emotional and psychological well – being of the minor children as well as of herself. Her children were her first priority and she did everything within her power to see to it that they were brought up in a safe, loving and stable home environment.
The applicant stated that it was in the best interests of the minor children that she remained their primary care giver and that their primary place of residence remained with her. For the children’s upbringing the applicant heavily relied on the support and assistance of her parents, both financially and physically. Her parents assisted with caregiving and transporting of the minor children to various activities. The minor children enjoyed a close bond with their maternal grandparents and spent time with them three to four times a week. The applicant averred that if she was not be allowed to relocate with the minor children to England, they, the children, would be deprived of the close relationship they enjoyed with the grandparents and, the applicant would be deprived of a substantial support system. The children had no contact with their paternal grandparents.
The respondent alleged that the applicant’s decision to relocate was not bona fide, reasonable and genuinely taken. His ability to spend time with the children was going to be severely curtailed and his rights in this regard virtually nullified. The respondent claimed to be a South Africa by heart and so the children. He did not want them to be raised in England, in his absence. The respondent averred that the applicant had a good life in South Africa. Her career had grown exponentially over the years and by no means was she struggling financially. She had a stable employment and earned a salary almost double to that of the respondent though she possessed no tertiary education. This had not hampered her in any way in her career. In England the applicant was going to share a house with someone though temporarily, whereas in South Africa she lived in a two bedroom house. According to the respondent the applicant lived a better life in South Africa then she did in England before. In respondent’s submission the applicant’s allegation that she would have a better life in England were simply unfounded and speculative at best. It was not certain that the applicant would find better suitable accommodation in England. As a consequence, the respondent submitted that it was therefore not in the best interests of the minor children to relocate to the UK.
The issues for decision by the court were whether:
1. The applicant’s decision to relocate to England is bona fide, reasonable and genuinely taken;
2. It was in the best interests of the minor children to emigrate with the applicant to England.
In the case of Jackson v Jackson 2002(2) SA 303 (SCA) the judge said:
“…It is no doubt true that, generally speaking, where, following a divorce, the custodian parent wishes to emigrate, a Court will not lightly refuse leave for the children to be taken out of the country if the decision of the custodian parent is shown to be bona fide and reasonable. But this is not because of the so-called rights of the custodian parent; it is because, in most cases, even if the access by the non-custodian parent would be materially affected, it would not be in the best interests of the children that the custodian parent would be materially affected, it would not be in the best interests of the children that the custodian parent be thwarted in his or her endeavour to immigrate in pursuance of a decision reasonably and genuinely taken ….”
The court stated that whether the proposed move was in the best interest of the child, the court had to consider the custodian parent’s interests, the reasonableness of his or her decision to relocate, the practical and other considerations on which the decision is based, and the extent to which he or she had properly thought through the advantages and disadvantages to the children of the propose move. This was the position in the case of F v F 2006 (3) SA 42 (SCA) at p 50C-D.
In the case of Edge v Murray 1962(3) SA 603 (WLD) the Judge said:
“It is true that the custodian parent generally has the right to regulate the child’s life and determine such matter as the place where it should live and the school which it should attend, and any changes that should from time to time be made in those respects, and the court will not interfere with the exercise of that discretion if the custodian parent acts bona fide in what he or she believes to be the best interest of the child.”
Following her separation with the respondent in March 2013 the applicant had to raise the minor children single handily and secured accommodation for herself and children. Since she could not afford a two- bedroomed house she moved in with her parents. She and her two minor presently occupied a bedroom at her parental homestead. In May 2013 she was retrenched from her employment and as a consequence she was out of employment for five (months). During the period of her unemployment she was supported by her parents, both financially and physically. The children had a very close bond with their maternal parents. These were the people who provide the applicant with a support system. On the other hand, the respondent had undertaken to pay for a caregiver, to look after children and he failed to honour such an undertaking. Further, there had been a short payment of maintenance by the respondent and in which event the applicant’s parents had to step in and assist her with the support of the children. As a result, the applicant relied on her parents for financial support. According to the applicant it had been agreed between the parties that the respondent would pay R6, 448-50 towards maintenance. However, during the applicant’s period of unemployment the respondent reduced the agreed maintenance to R3, 838 which put the applicant under severe financial strain. The respondent was in terms of the agreement obliged to pay R6, 448-560 towards maintenance for the two minor children yet he only paid R4, 250 per month.
The applicant was employed as sales representative (representative) and earned R22 576 plus R4000 contributed by the respondent towards the maintenance of the minor children of the parties. However, the applicant stated that with such amount of money, the maintenance amount inclusive, she was not managing to make the ends meet. Her monthly expenses were running at R31 245, leaving a shorty fall of R4669. This raised fear in the applicant that as the years go by the expenses to maintain the minor children would increase to a level where she could not afford to provide for the children. She therefore found herself being forced to consider and explore other opportunities in order to increase her earning capacity so to be able to sustain herself and minor children. In South Africa the applicant was unable to increase her earning capacity due to her limited educational qualifications. The applicant’s parents were retired and they wished to relocate to the UK and the direct consequence of the intended relocation was that the applicant would no longer have any support system.
The court was of the opinion that the decision made by the applicant to relocate could not be faulted and that its bona fides could not be doubted. Instead, in the Judge’s view, it was a rational and well – balanced judgment as to what she considered to be best for her and children. The Judge also took cognisance of the fact that the applicant had also taken into account the access the children would have to their father and that she was willing to have such contact continued. The applicant even proposed that the respondent could suspend his monthly contribution towards the maintenance of the children so to save for the air tickets for the respondent’s and the minor children’s visits. As the custodian of the minor children, the court was of the opinion that the applicant had given mature and rational thought to the matter and exercised a value judgment as to where their best interests are. This was in line with the view expressed in the matter of Godbeer v Godbeer 200(3) SA 976(WLD).
The over-riding considerations whether the children’s interests would be best served by permitting their removal from the country. Section 28(2) of the Constitution of the Republic of South Africa 1996 enshrined the principle that:
“a child’s best interests are of paramount importance in every matter concerning the child.”
This was also confirmed in the matter of Minister of Welfare and Population Development v Fitzpatrick 2000(3) SA422 (CC) at P428C.
Section 9 of the Children’s act provides:
“In all matters concerning the care, protection and well-being of a child the standard that the child’s best interest is of paramount importance, must be applied.”
It is common cause that the applicant was the custodian parent in the present case. Myriad duties flow from custody, including the duty to provide the child with accommodation, food, clothing and medical care, the duty to educate and to train the child, the duty to maintain and support the child, and a duty to care for the child’s physical and emotional well-being. The court referred to the matter of J v J 2008(6) SA 30(C) where it was held that the custodian parent generally has the right to have the child with him or her, to regulate its life and to decide all questions of education, training and religious upbringing. This was also stressed in the matter of Calitz v Calitz 1939 AD 56 and Van Oubenhove V Gruber 1981(4) SA 857 (A).
The courts have over the years demonstrated that a custodian parent enjoys a broad discretion to act by their reluctance to displace his or her authority, this was confirmed in the matters of Edwards 1960(2) SA 523(D); Edge v Murray 1962(3) SA 603(W); Meyer v Van Niekerk 1976(1) SA 252(T); Bestuursligaam Van Gene Loow Laerskool v Roodtman  2 All SA 87(c); J v J case, supra.
The court said that in deciding whether the applicant as the custodian parent in this case should be allowed to relocate with minor children to UK, the minor children’s best interest must undoubtedly be the main consideration. What is actually in the child’s or children’s best interests depends on the facts of each particular case. See Lubbe v Du Plessis 2001(4) SA 57(C); F v F 2006(3) SA 42 at D 166E SA42 (SCA) at P 47E-F.
The judge was of the view that in deciding whether or not relocation would be in the child’s best interests, the court had to evaluate, weigh and balance a myriad of competing factors including the child’s wishes in appropriate cases. See F v F, supra, at P48c. In order to provide guidance in this regard the Legislature incorporated in section 7 of the Children’s Act a comprehensive check list of factors according to which the court can determine, on the facts of each individual case, what will best serve the interests of the child or children concerned:
“7. Best interests of child standard –
(1) whenever a provision of this Act requires the best interests of the child standard to be applied, the following factors must be taken into consideration where relevant, namely-
(a) The nature of the personal relationship between –
(i) The child and parents, or any specific parent; and
(ii) The child and any other care-giver or person relevant in those circumstances.
(b) The attitude of the parents, or any specific parent towards -
(i) The child; and
(ii) The exercise of parental responsibilities and rights in respect of the child;
(c) The capacity of the parent, or any specific parent, or of any other care-giver or person, to provide for the needs of the child including emotional and intellectual needs.
(d) The likely effect on the child if any change in the child’s circumstances including the likely effect on the child of any separation from
(i) both or either of the parents; or
(ii) any brother or sister or other child or any other caregiver or person with whom the child has been living;
(e) the practical difficulty and expense of a child having contact with the parents, or any specific parent, and whether that difficulty or expence 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;
(f) the need for the child –
(i) to remain in the care of his or her parent, family and extended family; and
(ii) to maintain a connection with his or her family, extended family, culture or tradition;
(k) The need for a child to be brought up within a stable family environment and, where that is not possible, in an environment resembling as closely as possible a caring family environment,-
(l) …. ”
The question which ultimately had to be decided was whether it was in the best interests of the minor children to emigrate with their mother to UK, leaving their father back in South Africa or whether their interests would be better served by the retention of the status quo, with the children spending more or less equal time with each parent. The court expressed the view that a child’s future should be balanced against the great benefits to be obtained if the child does not emigrate with a custodian parent to foreign country. However, according to the Judge, a non-custodian parent does not lose the right to reasonable access simply because the children have been removed from the jurisdiction. Accordingly, the Judge took the view that should the court found that the interest of the children would be best served by allowing the applicant to emigrate with them; it would be competent for the court to define the respondent’s rights of access before the removal of the children. See also Botes v Daily and Another 1976(2) SA 215(N) at p220H.
In the case of Du Preez v Du Preez1969 (3) SA 529(D), the court had the following to say:
“this is not to say that the opinion and desires of the custodian parent are to be ignored or brushed aside, indeed, the Court takes upon itself a grave responsibility if it decides to override the custodian parent’s decision as to what is best in the interest of his child and will only do so after the most careful consideration of all the circumstances, including the reason for the custodian parent’s decision and the emotions or impulses which have contributed to it.”
See also Baily v Bailey 1979(3) SA 128(A).
The applicant’s concern was that her lack of relevant educational qualifications would eventually render her unable to provide for her children, if she had to remain in South Africa. This concern arose from the fact that where she was currently employed there were no prospects of development and ultimately promotion. As a result her chances of improving her earning capacity were virtually nil, and so was the chances of finding alternative employment due to her lack of relevant qualifications. Whereas in England she would qualify for various jobs. To the contrary, the respondent submitted that the applicant’s intended relocation to England was based on hope and expectation of a potentially better life in England, with her minor children without their father, when they currently enjoyed a good life with their father. Further, the respondent expressed unhappiness about his children living with the applicant’s brother until the applicant found employment and accommodation and he stated that that would be extremely disruptive to the minor children though he did not disclose what type of disruption was anticipated. Further, the respondent stated that his son was at a crucial stage as he was five (5) years old and he needed his father and that it would not be adequate for him (the respondent) to visit his children on one occasion.
The respondent claimed to have a very stable employment which allowed him to provide for his children. Surprisingly, to the court, the respondent was failing to make the contribution agreed upon between the parties towards maintenance in the amount of R 6 448.50. Nor, according to the Judge did he state that he would increase his contribution towards the maintenance of the minor children. There was nothing, according to the court to show that he made any provision for the children. His statement was that he was earning R12 000.00, and R4000 of which he paid towards the maintenance of the minor children. This, in the court’s view, was indicative of the fact that the respondent were not able to increase his contribution towards the maintenance of the children. Nor could he make any provision for the care, wellbeing, welfare and the future of the children. Though the applicant averred that the respondent generated a substantial amount from the sale of snakes, the respondent concern was that that his children would essentially grow up without a stable father figure in their lives. He wanted to see his children on continuous basis and watch them grow up in front of him.
The respondent further stated that the applicant’s parents were now retired and that there was no evidence to show what their financial condition was. According to the applicant both her parents had their pensions and were, therefore, in a financial position to assist her should it become necessary. In the respondent’s submission the entire application was based purely on speculation and hope and she had not secured accommodation, employment, schooling and forensic psychologist report on the best interests of children.
The applicant on the other hand, stated that she was battling to find a good school for the children. The school fees were bewteen R2200 and R2375 per child. The respondent had not paid towards school uniforms, stationery and extra medical bills over the past years. Her parents were continuously meeting her financial short falls. The children were not on a good medical aid – they were only on a plan which she was not able to afford. She could not afford a two-bedroomed apartment for herself and children. As a result, she had to move in with her parents. She had to pay R6000 for a two-bedroomed apartment. She reached her ceiling career wise in South Africa and it would be difficult to improve. In UK she would be financially better off than in South Africa. She would earn between 24 and 30, 000 pounds. She had worked in England for 8 years. All her family would relocate to England. One of her brothers had already been in England for 12 years. He was employed as a car sales manager. Her parents and the other brother would also soon relocate to England. The applicant did not have any tertiary education and this hampered her ability to obtain lucrative employment. Not having their grandparents within close vicinity was certainly not in their best interests.
In response to the respondent’s endeavour to exercise his rights of contact with the children the applicant stated that in order for the respondent to maintain regular “face to face” contact with the minor children he could Skype them, at least twice a week. However, the respondent rejected this proposal and argued that he had a close relationship with his son and he will not be able to maintain this relationship if the applicant took the child out of the country. He stated further that he would like to teach his son his ways and habits, such as hunting. The respondent also rejected the applicants’ proposal that in order to be able to purchase an international travel air tickets and accommodation for himself when visiting the children in England and the children visiting him in SA, he must suspend his monthly contributions towards the maintenance of the minor children. She also undertook to pay her costs of her travel and accommodation when accompanying the children during their visit to SA, so to ensure the safety of the children.
The Family Advocate recommended that the children remain resident in the Republic of South Africa, and not relocate to the United Kingdom. The minor children should continue primarily residing with the applicant, on condition that the applicant remained resident in South Africa for so long as the children were residing with her. The Family Advocates recommendations were based on that the applicant had not yet secured any employment in England, and that she made application on the assumption that she would easily find employment because of her qualifications. Although the applicant claimed that both her parents and brother who live in South Africa would also relocate to England, all these family members, according to the Family Advocate, would have to rely on her brother who was employed as a salesman in England for support, in addition to herself and children. None of these family members according to the Family Advocate had settled there or secured employment. The Family Advocate went on to say that although the applicant was of the opinion that the younger children found it easier to adapt to new circumstances, the opposite could be said: children in the age group three to six years find it difficult to maintain a long distance relationship with a parent, especially the girl who required physical handling and care to form an attachment with the parent. Both children became attached to the respondent, despite the fact that contact was previously sporadic. Children develop and assimilate their parents’ heritage and culture, as well as traditions. Two of the children were both at the developmental stage, where they were still exploring their environment as points of reference. Granting consent for the applicant to relocate to England with the children according to the Family Advocate would deprive them of this learning experience in their personal development because they would only have their mother’s environment as point of reference on an on-going basis. There were other alternatives the Family Advocate said, for the applicant other than relocating to England. She was gainfully employed in South Africa and there could still be career opportunities for her ahead, as she had been with the current company for a period of one and half years. There was therefore no real urgency for her to relocate to England.
The Family Counsellor was also of the opinion that the applicant did not have sufficient reasons to deprive the children of their right to have an on-going relationship with the respondent by means of regular and frequent physical contact. The Family Counsellor concluded by saying that it stood to reason that the relocation to England would therefore not be in the children’s bests interests. Accordingly, the Family Counsellor recommended that the applicant’s application to relocate to England be dismissed. It was argued on behalf of the respondent that the Family Advocate was invariably a qualified lawyer with sufficient experience and expertise to enable him or her to give the court extremely valuable assistance in coming to a decision. The primary purpose in appointing the Family Advocate was to identify and establish what is in the best interests of the child or children concerned. Both the Family Advocate and Family Counsellor allegedly weighted and evaluated all the relevant facts and circumstances pertaining to the welfare and interest of the minor children.
According to the Respondent an expert witness is there to assist the court. If he or she is to be helpful he or she must be neutral. The evidence of such witness is of little value where he or she, is partisan and consistently asserts the cause of the party who calls her.
The court pointed out that the reason for the Family Advocate’s recommendations were that the applicant had not secured employment in England. The evidence however showed that the applicant had earlier on been employed in England for a substantial period of time (eight years). The agency also assured her employment opportunities in the area she intended relocating to and for which she would be suitable qualified. As support thereto, the applicant attached a copy of an email from an Employment Agency. Further, her brother and her parents were prepared to provide a backup support system to her and children. The respondent conceded that there was nothing to suspect that the applicant may not find suitable employment in England and be in a much worse position than she currently was to the detriment of the children.
The court pointed that there was evidence by the applicant that her parents had their own pensions and there was absolutely nothing to suggest that her brother who also intended to relocate to England would depend on the other brother, who was already in England, for accommodation and support. With regard to the adaptability of the minor children to the new environment, no evidence had been tendered to show that the Family Advocate was qualified to make such an opinion without the assistance of an expert report in this regard. Lastly, according to the court the Family Advocate based his conclusion on that there were other alternatives for the applicant other than relocating to England. However, he did not state what those alternatives were. The applicant had categorically stated that she had reached a ceiling in her career wise and there were no chances for her to increase her earning capacity due to her lack of relevant educational qualifications. All this, in the court’s view, demonstrated quite clearly that both the Family Advocate and Family Counsellor did not approach this matter with an open mind, weigh and evaluate all the relevant facts and circumstances pertaining to the welfare and best interests of the children, let alone applying their minds to the issues raised in this matter.
The court carefully weighed and balanced the reasonableness of the primary caregiver`s decision to relocate, the practical and other considerations on which such decision was based, the competing advantages and disadvantages of relocation, and finally how relocation affected the child’s relationship with the non-primary giver. In essence, the court weighed and evaluated the circumstances impacting directly and immediately to the basic care, well-being and the education of the minor children. To do this balancing exercise, fairly and correctly the court had to be apprised of all the relevant information. Equipped with this information, the court balance the interest of the minor children remaining in South Africa, where their father had easy access to them, against the risks to the minor children of not getting appropriate care and adequate education in the country where they relocate to. In the exercise of her parental responsibilities and rights, the court stated that the applicant, as a custodian parent, had a broad discretion to choose where to reside with the minor children. However, the court stressed that such a discretion should be exercised subject to the limitation that the responsibilities and rights in respect of the minor children must, at all times, be exercised and performed in the best interest of the children.
The court referred to the matter of F v F, supra, where the court held:
“From a constitutional perspective, the rights of a custodian parent to pursue his or her own life or career involve fundamental rights to dignity, privacy and freedom of movement. Thwarting a custodian parent in the exercise of these rights might well have a severe impact on the welfare of the child or children involved. A refusal of permission to emigrate with a child effectively forces the custodian parent to relinquish what he or she views as an impotent life-enhancing opportunity. The negative feelings that such an order might inevitably evoke are directly linked to the custodian parent`s emotional and psychological well –being. The welfare of a child is, undoubtedly, best served by being raised in a happy and secure atmosphere. A frustrated and bitter parent cannot, as a matter of logic and human experience, provide a child with that environment.… Courts must properly consider the impact on the custodian parent of a refusal to remove a child insofar as such refusal may have an adverse effect on the custodian parent and in turn the child.”
The court said that in determining what is in the best interest of the child a court must decide which of the parents is better able to promote and ensure their physical, moral, emotional and spiritual welfare. This can be assessed by reference to certain factors or criteria set out in section 7 of the Children’s Act.
The court stressed the point that the applicant had to demonstrate that the minor children’s care, well-being and education would be better provided (better off) in UK as compared to South Africa: As a single woman with two minor children in South Africa the judge remarked that the applicant had numerous safety concerns and that her safety and of her minor children were, obviously, her source of concern and anxiety in her life. The applicant stated that in England she and her minor children would have safe environment.
On the applicant’s submission should she be forced to remain in South Africa, she would not be in a position to continue maintaining the minor children. She would have no support base since her parents would have relocated to England. She had to downgrade her accommodation and the minor children’s schooling down to make ends meet. The respondent was not contributing towards school uniforms and stationery. In South Africa she was battling to afford a small two-bedroomed cottage for herself and her minor children, whereas in England she would easily be able to afford a three bedroom house. In England there was family support systems and the minor children there could attend school at no costs at all. In England the minor children could receive a good quality education which provided them with better opportunities for the future. Also they would have a stable home environment. Conversely, the respondent did not even had a home. He continued to reside with a friend he moved in with soon after the divorce with his wife. Thirdly, the respondent had not paid extra medical bills over the past years and the applicant’s parents were continuously meeting the financial short falls. Until the applicant was certain that she would be relocating it was impossible for her to receive concrete proof that children would be enrolled and that she would find employment.
The applicant was experiencing a monthly shortfall of R4669, the contribution received from the respondent having been added on; she stated that due to her lack of relevant qualifications she was not in a position to increase her earning capacity or to be pointed to a higher level. It could, therefore according to the court, reasonably be inferred therefrom that the applicant would in the near future find herself not being able to honour her primary duty of meeting the minor children’s socio-economic needs. See Centre for Child Law and Another v Minister of Home Affairs 2005(6) SA 50 (T) at 57C. It was therefore evident, according to the court, from the above that a refusal to allow the applicant as a custodian parent to emigrate with minor children to UK would impact negatively on her and in turn on the minor children. Although the respondent gave some good reasons for refusing the applicant’s relocation with minor children to England the court was still of the view that the best interests of the minor children out weigh all those.
In conclusion the court found that the Applicant demonstrated capacity to provide for the needs of the children including securing a permanent residence for herself and children and thereby created a sense of stability. On the other hand, the respondent had no fixed abode he was moving from one place to the other and therefore he was not in a position to provide a stable family environment for the minor children, he had various commitments like hunting and others. Such commitments rendered him unable to spend quality time with the minor children. Further, the nature of his employment made it impossible for him to get time off or leave during the festive reason.
The children had a very close bond with their maternal grandparents and the court agreed with Adv. Thobela-Mkhulisi for the applicant that the applicant had given careful thought to all practical considerations of a move to the UK and has weighed and balanced the real advantages and disadvantages to the children on the proposed move. The applicant wanted the respondent to keep regular contact with the children and she was prepared to do anything possible within her powers and means to ensure that such relationship was maintained. She even proposed the suspension of the monthly contribution by the respondent towards the maintenance of the children so to be able to purchase international air tickets for himself and children when visiting one another. However, the respondent refused to stop payment of maintenance towards the minor children for that purpose. He insisted that the applicant had stable employment and accommodation notwithstanding what the applicant had said in this regard respectively.
The applicant averred that the employment opportunities available in England would give her greater financial security and such income would enable her to provide adequately for her children. The respondent conceded that the standard of living of the applicant and children would not decrease in England if the applicant was able to find employment and accommodation. More so, according to the court, the applicant’s brother had offered to provide her and children with accommodation and to support her until she secured employment. According to the applicant her brother (who resides and worked in England) had provided her with valuable information and resources about living in Chorley England. It was ideal for the applicant and the minor children to reside there. It had all the amenities required for family suburban and it would provide safe and secure environment for her and children.
In South Africa the applicant indicated that there were no opportunities for promotion or development in her employment. Nor was she suitably qualified so to be able to find a lucrative job.
The court mentioned that there were a number of social assistance benefits available in England which were not available in South Africa. The minor children would qualify for free schooling, as their mother could emigrate on an ancestral visa. The minor children could also qualify for free health care on the English National Health Service. The expense of schooling and health care were extremely high in South Africa, and the educational career opportunities were minimal in South Africa as compared to UK. In the latter the tertiary education of the children would be subsidised.
The court had no hesitation to conclude that the interests of the minor children would be best served by allowing the applicant to relocate with her minor children to England where they would be able to have a safe home environment and to live a fulfilled life.
In the result the court ordered that the applicant was authorised to remove the two minor children born of the love relationship between the parties, namely [J……] [M……] [C……] a boy born on 11 October [2……] and [J……] [J…….] [C…….] a girl born on 21 June [2……], permanently from the jurisdiction of the court for permanent residence in the United Kingdom, England and that the respondent be entitled to maintain contact with the minor children, as follows:
(i) In South Africa, or England, for a period not less than three weeks during the minor children’s England school summer holiday;
(ii) In England, wherever the respondent is visiting that country at all reasonable times;
(iii) Telephonic and Skype contact at all reasonable times.
To relocate with children from one province to another is not always that easy and the main consideration will always be what is in their best interests. In the recent case of CG v NG  JOL 33246 (GJ) the parties were engaged in divorce proceedings. The applicant sought an order allowing her to relocate from Johannesburg to Cape Town with their minor children. The application came before Court by way of urgency.
The Applicant requested the following order:
At a previous court appearance the matter was referred to the office of the family advocate for a report on the primary residence of the minor children since the Court at that time considered the matter and thought that it was imprudent to make a decision about the applicant's relocation to Cape Town with the minor children without having had the benefit of an expert's report, the family advocate.
When the matter came before Court, the primary purpose was to finalise the relocation question. To the Court's total surprise, the applicant instead proposed that the matter be postponed with costs reserved to enable her to challenge the report of the family advocate with which she was in disagreement with.
The applicant contended that the postponement would not be prejudicial to the respondent as she was undertaking not to move to Cape Town until receipt of her own private independent expert report. Her further motivation for the postponement was that the matter should be postponed as it touches on the lives of the minor children.
The respondent, quite correctly in the court’s opinion, opposed the application for postponement. The court viewed the applicant's attempt to have the matter postponed as tantamount to saying that now that the report of the family advocate was not in favour of the relocation of the minor children, the case must be postponed to afford her an opportunity to supplement her papers so that the court can ultimately agree with her.
The court stated that parties come to court to have finality on their matters. It is only in those deserving instances where the court will consider a postponement favourably and this case did not seem to be one of those. Firstly, the court argued that this matter was brought as a matter of urgency and secondly the Court had to put pressure on the office of the family advocate to produce a report within three weeks so that the parties could have certainty.
The court was further of the view that it was indubitably financially prejudicial to the respondent to come to court expecting the matter to be resolved only to be confronted with a postponement.
The court did not grant the postponement and the Court had to deal with the only remaining issue between the parties and that was whether or not the applicant should relocate to Cape Town with the minor children. The law on matters of relocation is clear. The relocation must be in the best interest of the minor children as is prescribed in the Children's Act 38 of 2005. In addition, an applicant in the position of the applicant is at liberty to relocate with minor children provided his or her intention is bona fide and reasonable. The test applies to both relocation within the borders of South Africa and abroad. This was the position in the cases of Jackson v Jackson 2002 (2) SA 303 (SCA) and B v M 2006 (9) BCLR 1034 (W).
The two questions that arose in this matter were:
Whether or not an applicant's proposed move is bona fide and reasonable is a factual enquiry and each case must be assessed on its own merits.
The applicant was living in Johannesburg, Linkxfield, while married to the respondent and to date of the matter before the court she continued to do so. Her relationship with the respondent became estranged a result of which she held the view that it will benefit her to be next to her family, mother, father, brother and sister-in-law all of whom were in Cape Town. Her family will gave her the emotional support that she could not get in Johannesburg. Furthermore, once the minor children were settled, her mother would give her support by fetching them from school such that she could look for employment. As the primary custodian parent of the minor children she argued that her move to Cape Town would be in their best interest and she did not see herself being separated from them as that would prejudice her relationship with them and her proposed move to Cape Town were also supported by her psychologists.
The applicant asserted further that the respondent whom she described as "exceedingly wealthy" could still exercise his rights of access to the children notwithstanding the fact that he would be in Johannesburg and the children in Cape Town.
In response to the applicant's averments, the respondent alleged that it will not be possible for him to travel to Cape Town on a weekly or monthly basis as this would necessarily involve increased costs for him. Moreover, it would take him away from his only source of income, his work.
The relocation of the minor children meant that he would have to seek accommodation in Cape Town, transport and time off work in order to exercise his rights. His ability to generate income would be immensely impaired with devastating repercussions for both the minor children and the applicant especially as she was unemployed and fully dependent on the monthly maintenance that he paid.
The family advocate unequivocally recommended that the status quo be maintained because to move the minor children to Cape Town would reverse the stability that prevailed since the introduction of increased access by their father. The applicant herself agreed that all three minor children liked their father and that they could not wait to visit him. The family advocate also alluded to the fact that the eldest of the minor children appeared settled with her friends at school.
The court held that moving them to Cape Town under those circumstances could upset their routine and bring unnecessary shock to their lives at the time when they were beginning to settle. The court stated that the family advocate is an expert in these kind of matters and he undoubtedly compiled the report with the best interest of the minor children in mind. The Court had no reason to doubt the outcome and dismissed the application and ordered the applicant to pay the costs as between attorney and client.
Recently, in a case in the High Court in Pretoria, the question of whether a spouse guilty of “substantial misconduct” such as adultery should be punished has come under the spotlight.
One of the most significant policy questions involving the division of marital property is whether the division should be influenced by marital misconduct. At present, a majority of jurisdictions hold that marital misconduct is a factor to be considered
The recent case of an Mpumalanga couple, who divorced after 26 years of marriage because the woman had affairs, sparked a closer look at whether the Divorce Act is outdated.
A magistrate ruled that the woman forfeited some of the financial benefits she and her husband acquired during their marriage, as she had cheated on him on several occasions.
The parties in this case were married out of community of property with an antenuptial contract that included the accrual system. The magistrate found in favour of the husband and granted an order of partial forfeiture of marital benefits against the wife. He also ordered her to pay the costs. The woman then lodged an appeal to the High Court to appeal the magistrate’s order.
Section 9(1) of the Divorce Act 70 of 1979 states:
“(1) When a decree of divorce is granted on the ground of the irretrievable break-down of marriage the court may make an order that the patrimonial benefits of the marriage be forfeited by one party in favour of the other, either wholly or in part, if the court, having regard to the duration of the marriage, the circumstances which gave rise to the break-down thereof and any substantial misconduct on the part of either of the parties, is satisfied that, if the order for forfeiture is not made, the one party will in relation to the other be unduly benefited.”
According to the Judge in the High Court, the magistrate, correctly found that the woman was guilty of misconduct. However, the Judge said, this was not the sole cause of the break-up of the marriage and he found that the husband had “reluctantly” agreed that he rejected his wife’s efforts to reconcile. The Judge was also of the view that it was seldom that a marriage would break down solely due to the conduct of one party.
The Judge referred to the evidence by the husband, in which he admitted his wife was a diligent, wife and a good mother who resigned from her work to devote all her time to their children and the family. This, according to the man, allowed the family to prosper. The judge said that, although her contribution towards the growth of her husband’s estate was not quantified, it could be inferred that she used most, if not all, of her earnings while she was employed, towards the maintenance of the household.
The magistrate’s erred in his finding that the woman would unfairly benefit from their marital estate if he did not order a portion of it forfeited due to her misconduct. It is trite law that a party can only benefit from an asset brought into the estate by the other party, and not from his or her own asset. The wife in this case could thus not forfeit the assets which came about as a result of her contributions. The Judge was further stated that the magistrate, in awarding a cost order against the wife, wanted to punish her for her misconduct. He said the logic behind section 9(1) was that a spouse should not benefit financially from a marriage he or she had wrecked.
Although the Divorce Act 70 of 1979 did away with the “fault” principle a few years ago as a ground for divorce, the Act still allowed for the forfeiture of financial benefits if a spouse committed adultery. It appeared fault still played a role in our divorce system. The judge questioned whether “misconduct” was still relevant.
In light of the recent decision of the Constitutional Court in the case of DE v RH 182/14 it follows that Section 9 of the Divorce Act is archaic and outdated as it was aimed at punishing a party. The court ruled the Justice Minister and Speaker of Parliament be added as parties and that interested parties may enter the fray as friends of the court.
In the past our courts relied on the guilt principle in order to reach their decisions. South Africa’s courts have been called upon to pronounce on section 9(1), however, they have been unpredictable regarding the weight to be attached to each of the factors listed in section 9(1) when granting an order of forfeiture of patrimonial benefits. In 1992 that the Appellate Division in the case of Wijker clarified the position and stated that all three factors do not have to be present and they need not be considered cumulatively. South African courts generally, have failed to properly interpret section 9(1) and neglected to provide proper guidance on what the phrase “unduly benefited” means within the context of the Act.
As stated above courts have to consider three factors before granting a forfeiture order:
· The duration of the marriage;
· the circumstances which gave rise to the breakdown thereof;
· and any substantial misconduct on the part of either of the parties.
It is clear from previous decisions by our courts that when the marriage is regarded by a court as of short duration, the court will order forfeiture if it is established that if the order is not made one party will be unduly benefited. In the case of Swanepoel v Swanepoel, the court held that a marriage which was concluded on 15 December 1990, where one of the parties left the common home on 4 June 1995, was of a short duration and in Malatji v Malatji, the parties married on 14 February 2002 and the defendant left the common home during June 2003, the marriage was held to be of short duration.
The Act does not say what circumstances may be considered by our courts in judging what led to the breakdown of the marriage. Cases are also not clear on this point and such an analysis have to be made on a case-to-case basis. Misconduct such as itself is not a factor which can bring about a forfeiture order, such misconduct must be substantial and the concept of substantial misconduct is not defined in the Act. Our courts have also not been helpful in this regard.
In the case of Beaumont v Beaumont it was stated “...ln many, probably the most cases, both parties will be to blame, in the sense of having contributed to the break-down of the marriage... In such cases, where there is no conspicuous disparity between the conduct of the one party, and that of the other, our Courts will not indulge in an exercise to apportion the fault of the parties, and thus nullify the advantage of the “no-fault” system of divorce.”
The legislature has not gone far enough to address the deficiencies and injustices inherent in the guilt principle and therefore the court’s decision was correct that the Justice Minister and Speaker of Parliament be added as parties and that interested parties may enter the fray as friends of the court to.
The fault principle is generally stated as a guideline in the Act. It must be removed from the statute book in clear and unambiguous terms. In my submission, its retention only serves to plague divorce law with confusion and uncertainty.
Cases and Articles on Divorce Law and Family Law in the SA courts.
Legal news and case law in the South African courts, compiled by Family Law attorney, Bertus Preller.
Bertus Preller is a Family Law and Divorce Law Attorney in Cape Town.