Archive for the ‘Family Law’ Category

PROBLEME MET TOEGANG – WORD JY TOEGANG TOT JOU KINDERS OF KLEINKINDERS GEWEIER?

Dis gewoonlik tydens die feesseisone wat almal planne maak vir om tyd saam met hul families te spandeer, en dit is gewoonlik ook gedurende hierdie tyd wanneer gemengde en geskeide families die risiko loop om deel van ernstige regsprosesse te wees wanneer toegang tot die kinders deur een van die ouers geweier word.

Die oplossing vir die probleem verskil ietwat, afhangende of daar is ‘n staande hofbevel is wat toegang vir die party reguleer of nie. As daar geen bevel bestaan nie, sal dit nodig wees vir die ander persoon om ‘n hof te nader- die Kinderhof of die Hooggeregshof, om die nodige hofbevel te kry, wat dan sal toelaat dat die persoon sy reg tot toegang, af kan dwing.

Artikel 35 van die Kinderwet bepaal dat: as iemand wat sorg of toesig oor ‘n kind het in terme van `n hofbevel, of ouerlike verantwoordelikhede en regte het in terme van `n ooreenkoms, hy dan weier om ‘n ander persoon wat toegang tot daardie kind of ouerlike verantwoordelikhede en regte ten opsigte van die kind het, kontak met daardie kind verhoed of dat daardie persoon die uitoefening van die regte geweier word, is so `n persoon skuldig aan ‘n misdryf.
As daardie persoon aan die misdryf skuldig bevind word, kan hy beboet word of gevangenisstraf van nie meer as een jaar nie uitdien.

So wat kan gedoen word in die geval waar toegang geweier word?

1) Maak seker dat jy kry ‘n bevel wat jou toegangsreg uiteensit en reguleer;
2) Dwing jou toegangsreg af deur `n kriminele klag te l?;
3) Maak seker dat die Suid-Afrikaanse Polisiediens hulle werk doen.

Access Problems – Can’t see your children or Grandchildren?

As we approach the festive season when everyone is making plans for their annual year end break and it is that time when blended and separated families run the risk of serious legal action when access is being denied by one of the parents.

The solution to the problem differs somewhat depending on whether or not there is an existing order regulating and specifying access to the party seeking relief. If no order exists it will be necessary for the other person to approach a Court, Children’s or High Court, to get the necessary order which will then allow the person to enforce that access that is specified.

In terms of section 35 of the Children’s Act:Any person who has care or custody of a child in terms of a court order, or parental responsibilities and rights agreement, and refuses another person who has access to that child or parental responsibilities and rights in respect of that child, contact with that child or prevents that person from exercising those rights, is guilty of an offence. If that person is convicted for such an offence they will be liable for a fine or imprisonment for no more than one year.

So what do we do when access is withheld or denied?

• Ensure that you have an order specifying access
• Enforce your access by laying criminal charges
• Make the South African Police services do their job.

Why marry and not just live together

The marriage is currently the only social / legal institution that protects the rights of social partners or spouses, as they are called inside marriage, without having to enter into additional agreements, as there is an automatic and reciprocal duty of support between spouses, duty of maintenance during and in some cases after termination of the marriage, spouses can inherit from one another through testate (will) and intestate succession, etc.

The legal and proprietary consequences of life partnerships or cohabitation relationships should be regulated by a partnership agreement. However, in the absence of agreement, partners can still approach a court, after the relationship has been terminated (by death or separation), for an order for maintenance, an intestate succession order and / or an order dividing the property.

In these instances the courts must have regard to all the circumstances of the relationship before giving an order. This, however, is an expensive and time consuming process with no guarantee a satisfactory outcome for the parties.

Couples who are in unrecorded life partnerships are urged to employ the services of an attorney to draft and assist in the execution of a suitable partnership agreement and to make the necessary legal provisions in their wills.

Protecting the Elderly – Using the Power of Attorney vs Curatorship

Protecting the vulnerable in the community is essential in any society. It is  not only women and children who are the subject of society’s to abuse but the elderly too.. It is those who have loved and cared for us who become the target of anger and frustration who need special care and looking after. How do we protect these folk

The Power of Attorney (PoA) was originally developed for business purposes, where the principal appoints an agent to act on his behalf. However the PoA is invalid once the principal is no longer fully capable of understanding it.  For this reason, the PoA is only of use, in the case of dementia, in the early stage.  Once it becomes invalid, it may be necessary to opt for administration or curatorship.  In these cases, it does not allow for occasional capability (lucid intervals).

Curatorship

The Curator route is via a high court application for the such appointment, in terms of common law.  There are two forms of curatorship and one or both may be appointed:

• the curator bonis administers the person’s property, including the finances, he
• the curator personae takes personal decisions for the person. This involves serious curtailment of the person’s rights and freedoms and the court is therefore not easily persuaded to grant such an appointment.

The court requires two medical reports, one of which must be from a psychiatrist.  It is important to mention that curatorship does not give as many powers as people imagine.  For example, a curator has no locus standi to institute an action for divorce on behalf of a person declared to be mentally ill.  Nor can a curator make a will or exercise parental authority on behalf of such person.

An important point is that appointing a curator can strip the person of feelings of self-worth, to the extent that it can trigger a rapid decline.

Administration

The Mental Health Care Act (17 of 2002), which came into effect on 15 December 2004, allows for the appointment of an administrator to manage the person’s property.  This Act applies only to the mentally ill and to those with severe or profound intellectual disability.

It is not necessary to go to the high court for this as you can apply direct to the Master of the High Court.  A mental health care practitioner who could be a general practitioner and not necessarily a psychiatrist – certifies that the person suffers from an illness or disability relating to mental health.  .

The Master requires proof that the person has seen the application and had the opportunity to object to it.

The cost and duration of the application depend on the person’s assets:

• with capital assets less than R200,000 or income of up to R24,000 pa, it‘s quick and there are no costs, other than those incurred to obtain the medical evidence required for the application.
• above that, the Master is obliged to appoint an interim administrator and cause an investigation to be conducted.  The investigator looks at every aspect:  finances, medical, family and the applicant him/herself, then makes a recommendation to the Master.  In this case the costs payable to the investigator are negotiated by the Master, and are payable out of the estate

Appointment of an administrator is generally much cheaper than obtaining curatorship, but be aware that less extensive cover is granted than in curatorship.

Termination, extension, suspension or restriction of parental responsibilities and rights – Section 28

Circumstances may arise such as the abandonment or disappearance of a parent which causes problems in and with the exercise of the parental responsibilities and rights and it becomes necessary for proper parenting to terminate or suspend the other parent’s  responsibilities and rights

A co-holder of parental responsibilities and rights in respect of the child and any other person having a sufficient interest in the care, protection, well-being or development of the child may apply to:

• the High Court,
• a divorce court in a divorce matter
• or a children’s court

within whose area of jurisdiction the child concerned is ordinarily resident.

for an order suspending for a period, or terminating, any or all of the parental responsibilities and rights which a specific person has in respect of a child or extending or circumscribing the exercise by that person of any or all of the parental responsibilities and rights that person has in respect of a child.

This application may be combined with an application for the assignment of contact and care in respect of the child and may be brought by:

• a co-holder of parental responsibilities and rights in respect of the child,
• by any other person having a sufficient interest in the care, protection, well-being or development of the child,
• by the child, acting with leave of the court, in the child’s interest
• by any other person, acting with leave of the court or
• by a family advocate or the representative of any interested organ of state.

When considering such application the court must take into account:

• the best interests of the child,
• the relationship between the child and the person whose parental responsibilities and rights are being challenged,
• the degree of commitment that the person has shown towards the child and
• any other fact that should, in the opinion of the court, be taken into account.

The court hearing an application may grant the application unconditionally or on such conditions as it may determine, or may refuse the application, but an application may be granted only if it is in the best interests of the child.

What to do when access is denied -  the role of the police

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It often happens in cases where the two parents are so actively enmeshed in a war over the children that they do not hear the cry of the children and it is the nature of this high conflict litigation between parents that there is a difference of opinion on what is in the best interest of the child.

The child’s opinion will invariably incur the disapproval of one of the parents and it is precisely for this reason that a child should have separate legal representation, independent from either parent. It is essential to ensure that the child’s views are respected as being their own and not influenced by either parent. The fact that one parent disagrees with that of the child does not necessarily mean that the decision is wrong. The actions of the child’s legal representative will be based on the instructions and views of the child as client and will invariably meet with disapproval from one or both of the parents.

Whether Parent’s agree or not this is the law as expounded and developed by our courts through the decisions of Soller v G where a separate legal representative was appointed by the court and the court distinguished between the role of the Family Advocate and a separate legal representative for a child. The Family Advocate had, prior to this case, been seen to be, as the independent role-player, the voice of the child.

This was followed by the case of Legal Aid Board v R in 2009 where for the first time the court ruled that in giving effect to section 28(1) (h) of the Constitution the Legal Aid Board is not constrained to obtain permission from a parent or guardian when making such appointments. The net effect is that the child, without the parent’s assistance and usually because of the parent’s actions can approach a legal practitioner, usually via the LAB to represent him or her in court and make their voice heard.

GUARDIANSHIP

The word guardianship like the word custody conjures up many emotive issues especially in the Divorce arena and in the struggle for power between spouses. Custody is no longer the issue we now talk about care and contact but guardianship remains.

In terms of the Children’s Act a person who acts as a guardian must:

- administer and safeguard the child’s property and property interests;
- assist or represent the child in administrative, contractual and other legal matters; or
- give or refuse any consent required by law in respect of the child, including—

- consent to the child’s marriage;
- consent to the child’s adoption;
- consent to the child’s departure or removal from the Republic;
- consent to the child’s application for a passport; and
- consent to a sale of any immovable property of the child.

The parents are usually joint guardians and are called the ‘natural guardians’. A natural guardian has a duty to support her or his children. If for some reason the natural guardian cannot carry out his or her duties, the court appoints a ‘legal guardian’ for the children.

The Guardianship Act (No 192 of 1993) has been repealed by the Children’s Act.

The Children’s Act also regulates the balance of power between joint guardians.  The first principle is that each guardian may independently and without the consent of any other guardian exercise any right or perform any duty arising from guardianship.

However, in the absence of a court order to the contrary, the consent of every guardian is required in respect of:

• the marriage of the minor child,
• the adoption of the child,
• the removal of the child from the republic by a parent or by any other person,
• the application for a passport by or on behalf of any child under eighteen and
• the alienation or encumbrance of immovable property of the child.

GRANDPARENTS and ACCESS –The right to see your grandchildren.

Grandparents often receive the fallout from their chidren’s divorces – limited, restricted or no access to their often beloved grandchildren, In the past the law and the justice system were often inaccessible. This has all changed with the New Children’s Act whose main objectives are, amongst others  to:

• make provision for structures, services and means for promoting and monitoring the sound physical, psychological, intellectual, emotional and social development of children;
• strengthen and develop community structures which can assist in providing care and protection for children;
• promote the preservation and strengthening of families;

And calls for

• the prioritisation of the best interest of the child,
• the right to the child being able to participate in any matter concerning that child,
• a child’s right of access to court.

One of the issues covered by the new Children’s Act, is giving the right of contact and care to an interested person, in this instance the grandparent, by order of court, Children’s or HighCourt,

It also makes provision for any person having an interest in the care, well-being and development of a child to apply to the High Court for an order granting guardianship .

The Court In making its order, will consider and take into account:

• the best interests of the child;
• the relationship between the applicant and the child
• the degree of commitment that the applicant has shown towards the child
• the extent to which the applicant has contributed towards expenses in connection with the birth and maintenance of the child; and
• any other fact that should, in the opinion of the court, be taken into account.

Divorce should be the solution to a domestic problem but in reality divorce orders, especially where all issues haven’t been properly addressed, canvassed and resolved, can cause more aggravation than what they solve.

It is common practice to regulate the consequences of a divorce by means of an agreement between the parties by way of a settlement agreement, also called a consent paper in which they agree on matters such as the division of the assets, payment of maintenance, care of and contact to the children and also payment of costs of the proceedings. In terms of the Divorce Act the court may incorporate the spouses’ settlement into a court order if it is in writing. Once the settlement agreement is made an order of court a party may only vary or amend it on application to the court. The parties may do so by mutual consent, it is important to note that any amendment to the settlement agreement should be made an order of court. If one of the parties disagrees to amend or vary the settlement, the aggrieved party may approach the court on application in terms of Section 8 (1) of the Divorce Act for variation or rescission if a particular provision relates to guardianship, custody, access (now care and contact) or maintenance. If the dispute relates to maintenance the maintenance court may be approached in terms of the Maintenance Act.

Other issues that often need to be attended to post-divorce are:

• Fixed property – ownership, registration and transfer issues

• Pension funds –division and other issues

These are issues which the Court will, on Application also assist with.

Remember – If the settlement agreement is not incorporated into the divorce order it is merely a contract and it can therefore not be enforced in the same way as an order of court but is regulated and governed by the law of contract.

Remember too, that it is the Court which made the original order which normally has the required jurisdiction to hear these applications.