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Family and Divorce law in South Africa - A Comprehensive Guide
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    • Children's Act 38 of 2005
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    • The New Domestic Violence Act 14 of 2021
    • Gender Based Violence in South Africa
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    • Evicting a Spouse
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    • What is Coercive Control?
    • What is Emotional Abuse
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    • What is Financial Abuse >
      • Economic Abuse
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Making decisions with the other parent regarding the children after divorce or separation


Because more than one person may hold parental responsibilities and rights in respect of the same child, each of the co-holders may act without the consent of the other. This will be in circumstances where the child’s primary residence is with a specific parent, who is then entitled to make decisions about the day-to-day care of the child.

Before a person holding parental responsibilities and rights in respect of a child takes or even contemplates any decision that is likely to significantly change or have an adverse effect on the child’s well-being, living conditions, education, health, or personal relations with a parent or family member, that person must consider any views and wishes expressed by the child, bearing in mind their age, maturity and stage of development. Two major decisions where holders of parental responsibilities and rights must consider the views of others would be to do with schooling and religion.
 
Decisions about schooling

The issue of parents not consulting each other before deciding to change the child’s school has come before our courts in the past. In one matter, the court had to examine the extent to which the co-holders of parental responsibilities and rights could exercise their responsibilities and rights independently from one another. In this case, the court dealt with the question of whether the mother of a child, with whom the child was living, should have consulted the father prior to enrolling the child in another school. The court found that the choice of school was not something that would have a significant adverse effect on the father’s exercise of his parental responsibilities and rights. The court noted that even if there had been a duty to consult, the mother would not have been bound to give effect to the father’s views and wishes.

In another matter, the mother decided to put the children in a new school without consulting the father. The parents were embroiled in divorce proceedings. At the time, the children were primarily resident with the mother and the father had reasonable contact. The eldest child was happy at the current school, and the youngest child attended a day care in the same area. When the new school year commenced, it came to the attention of the father that the mother had, without informing or consulting him, removed the eldest child from the school and had not enrolled the youngest child either. The question before the court was whether, notwithstanding the father’s parental rights, the fact that the children were removed from one school to another was in their best interests. There was clear evidence that the children were happy and content in their original environment, and there was no objective evidence to suggest that their removal was in their best interests. The mother’s actions were therefore in contravention of the law, as they were clearly not justified. By moving them, the mother had disturbed the status quo. She was ordered to immediately re-enroll the children at their former schools.
 
Decisions about religion

Today, parental authority is concerned more with parental responsibilities and duties than with parental rights and powers. The question of religion in the family has been dealt with in a few court cases over the years. In one case, the custodian parent applied for an interdict to restrict the children’s involvement in certain religious practices while in the non-custodian parent’s care. The custodian parent was from the Anglican denomination and the non-custodian parent from the Roman Catholic denomination. The custodian parent sought an interdict preventing the children from attending Catholic masses. The court held that the custodian was entitled and required to direct the daily lives of the children, and that educational, religious and secular activities fell within that duty. However, the court ruled that no parent can dictate what religion, if any, their children eventually adopt, but each parent is entitled to provide religious instruction. The application was accordingly dismissed.

In another case, the court refused to incorporate into a settlement agreement a provision that stated that both parents undertook to educate the child in the Apostolic Faith Church. The court, being the upper guardian in matters involving the best interests of children, has extremely wide powers in establishing what such interests are. It was held that the clause was not in the best interests of the child as it did not afford him the freedom of religion that he was entitled to.

Refusal to allow the other parent to exercise parental responsibilities and rights

A parent should never alienate a child from the other parent. The Act contains certain provisions that aim to prevent one parent from frustrating the exercise of responsibilities and rights by the other parent. Any parent who has care of a child and refuses to allow the other parent to exercise his/her responsibilities and rights contrary to a court order or properly concluded parental responsibilities and rights agreement is guilty of an offence, and will be liable on conviction to a fine or to imprisonment for a period not exceeding one year. In addition, the parent with whom the child lives must notify the other parent in writing of any change to his/her residential address. Failure to do so is considered a criminal offence and is punishable by a period of imprisonment not exceeding one year.

Threatening to lay criminal charges will definitely make a parent cautious about putting barriers in the way of the other parent. However, this is in fact a sledgehammer approach, because the arrest and possible detention of the primary caregiver will not be in the best interests of the child. Another concern is that the parent blocking contact may be doing so with good reason, for example if he/she fears that the other parent may be abusive or has evidence that the other parent abuses alcohol or drugs while the child is in his/her care.

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Contact Details

​MAURICE PHILLIPS WISENBERG
20th Floor, 2 Long  Street, Cape Town, 8001, South Africa
Telephone: +27 21 419 7115
Email: familylaw(@)mpw.co.za​


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  • Home
  • Divorce
    • The Reasons for Divorce
    • The Divorce Process in South Africa
    • Rule 41A Mediation
    • The Marital Property Regimes >
      • Marriage out of Community of Property, new case
      • Marriage in Community of Property
      • Marriage out of community without accrual >
        • Understanding Post-1984 Marriages
      • Marriage out of community with the inclusion of the accrual
      • Anti-Dissipation Interdicts Divorce
      • Universal Partnerships
      • Antenuptial Contracts
      • Register Antenuptial Contract Online
      • Changing your matrimonial regime.
      • Postnuptial Contracts
    • Division of Assets at Divorce >
      • Forfeiture of Assets in a Divorce
    • Evicting your spouse divorce
    • Retirement Funds and Divorce
    • Living Annuities
    • Hiding Assets in a Divorce
    • Trusts and Divorce >
      • Can I hide assets in Trust?
    • Divorce a Missing Spouse
    • Adultery and Suing a Third Party
    • Domicile in Divorce Cases
    • International Divorces in South Africa
    • Expat South African Divorce
    • International Jurisdiction
    • Spousal Visas
    • International Divorce Law >
      • UK Divorce Laws
    • Choosing a Divorce Attorney
    • On-line Divorce
    • Lawyer Fees and Costs
    • Important Aspects of a Divorce
    • Divorcing a Narcistic Spouse
    • Dealing with Emotions During Divorce and Separation
    • Divorce Statistics
    • Divorce Therapy and Counselling >
      • Marriage and Relationship Therapists
    • Rebuilding Your Financial Life
    • Divorce Attorney Cape Town
    • Ingredients of a successful relationship
    • What are the elements of a successful marriage?
    • Uncontested Divorce
    • Uncontested Divorce - What Happens on the Court Day?
  • Maintenance
    • Spousal maintenance
    • How to calculate Child Maintenance?
    • Maintenance Defaulters
    • What Happens if you don't pay child maintenance
    • Child Maintenance Frequently Asked Questions
    • Rule 43 Interim Maintenance Pending Divorce >
      • Can I appeal a Rule 43 Order
      • Apply for Costs in Rule 43
      • Financial Disclosure Rule 43
      • Rule 43 Maintenance
    • The Maintenance Manual
    • Grand Parents and Maintenance
    • Variation of Maintenance due to loss of employment
    • Contempt of Court Maintenance
  • Children
    • Section 28 of the Children's Act
    • Relocation and Child Abduction >
      • Frequently Asked Questions about Child Relocation
      • Child Relocation to New Zealand
    • The Hague Convention >
      • Child Participation in South African Family Law and the Hague Convention
      • International Child Custody Law South Africa
      • Hague Applications and Domestic Violence
      • Mirror Orders and the Hague Convention
      • Tips on international child custody
    • Unmarried Parents and the Law
    • Unmarried Fathers Rights
    • Parenting Plans >
      • Parenting Plan
      • Conflict and dispute-resolution mechanisms
    • The non-custodian parent and contact
    • Appointing a Guardian in a Will
    • Introducing a new partner to your child
    • Refusal of Contact
    • Suspending Parental Rights
    • The Law on Grandparents Rights over Children
    • Parental Alienation >
      • Alienating Children
      • Parental Alienation Imprisonment
      • What is the effect of Parental Alienation on children?
    • Living Arrangements
    • What effect does divorce have on children?
    • The Voice of the Child in Divorce
    • Facilitation
    • Joint decisions about your child
    • Paternity Disputes
    • The Family Advocate
    • Parenting during separartion
    • Children's Act 38 of 2005
  • Abuse
    • Domestic Violence Legislation and Case Law
    • The New Domestic Violence Act 14 of 2021
    • Gender Based Violence in South Africa
    • Domestic Abuse Forms
    • Evicting a Spouse
    • Being married to a Narcissist.
    • Divorcing an Abusive Spouse
    • What is Coercive Control?
    • What is Emotional Abuse
    • What is Sexual Abuse
    • What is Financial Abuse >
      • Economic Abuse
    • What is Stalking
    • What is Verbal Abuse
    • What is Spiritual Abuse
    • What is Social Abuse
    • Revenge Porn
    • Interdict Intimate photos
    • Steps to obtain a Protection Order
    • Domestic Violence eBook
    • The Protection Order
    • Who Qualifies for a Protection Order
    • Breaching a Protection Order
    • Questions on Domestic Abuse
    • Signs of an Abusive Relationship
    • Domestic Violence Information
    • Harassment >
      • Harassment Forms
  • Cohabitation
    • Universal Partnerships in South African Cohabitation
    • Maintenance and Cohabitation
    • Interim Maintenance and Cohabitation
    • Sample Cohabitation Agreement
    • Engagement and the law
  • Formalities for marriage in south africa
    • South Africa's New Marriage Bill: A Step Towards Equality and Inclusion
    • Same Sex
  • Family Law eBooks
  • Family Law Links
    • The South African Court System
    • Court Rolls
    • Family Law Legislation
    • Family Law Blog
    • New Family Law Cases
    • Register for the Online Family Law Course
  • About the Author
  • Contact
  • Charities