Category Archives: Family Law

12 Jul

Moving Overseas And The Custody Of Your Child

If you have  child with a partner that you are now separated from, then your ability to move overseas is severely strained by the legal requirements associated with the Hague Convention, International Law, as well as the new laws regarding child travel to and from South Africa. Here are a few tips for separated parents that plan to move overseas with their children:

Limits To International Relocation 

It is important to keep in mind that if you travel overseas with a partner, then there will be restrictions regarding your movement out of the country with your child (whether brought to the country with your partner or born on foreign soil). In countries that are party to the Hague Convention, permission from both parents is required to move with your child elsewhere. This may even be the case if there was a written agreement before the move took place regarding the movement of children in the event of a breakup.

Father’s Domicile 

The domicile of the child’s father at the time of marriage is an important factor regarding relocation of a child after a divorce. The Hague Convention upholds the right that the laws inferred at the time of divorce are those in which the father/husband was domiciled at the time when the marriage contract was signed, even if the contract was signed in a different country. This may have far-reaching consequences for children and their relocation. For instance, the power of the prenuptial agreement is limited in the UK, and the courts in the country do not necessarily have to enforce the decisions made in the agreement.

Homebase 

When moving overseas, even with a foreign partner that you love dearly, make sure that you keep a permanent residence in South Africa in the event that you feel you need to move back to the country with your children. When appealing to a foreign court to be able to move back to the country, proving that you have a permanent domicile will greatly improve your chances of relocating. This may be tricky regarding expenses, but co-owning a home with close family members (like your parents) can help you in this case.

Consult a Professional

This is the most important tip! Do not, under any circumstance, attempt to leave a foreign country with your children in tow. You are likely to be found guilty in a foreign court of child abduction according to the Hague Convention international laws. Consult with a legal professional and child custody attorney whether in the country of residence or your domicile country. Don’t be found guilty of a crime when you actually have the best interests of your children at heart.

For more information regarding child custody in South Africa, why not contact Ivan Zartz Attorneys. Make us your first choice regarding all cases of child custody in South Africa. Simply fill out the enquiry form on the contact us page, and we will get back to you.

Take a look at our child custody as well as our Hague Convention page for more information regarding these issues in the country.

27 Jun

Overstepping Family Law Rules

Family Law cases are largely dependent on outcomes determined in Family Court’s proceedings. However, parents sometimes overstep predetermined grounds and rules regarding cases in order to achieve their own desired outcome. Doing this can be incriminating, and will result in the parent losing their case or worse.

Bugging Case

A recent court case in Family Court found a father guilty of bugging his daughter’s school uniform in order to find out important information discussed between the daughter, the mother as well as social workers. The cheap recording device was sewn into the girl’s clothing and recordings were saved throughout numerous days in which meetings would take place.

Additionally, the father and his new partner would place recording devices in rooms where the daughter and social workers would have meetings. This was all done in order for the father to find out crucial information regarding the daughter’s expected change of residence and guardianship from the father to the mother.

Overstepping The Law

This is a classic case of the father breaching the daughter’s privacy, and is not only illegal but the finding of which certainly contributed to the father losing his battle in court. The judge believed that by bugging his daughter’s clothing, the father has significantly damaged his relationship with his child, and such a situation warranted a change of guardianship.

In any event, such a breach of law and an invasion of privacy may mean an outcome worse than a change in the outcome of the court case. It may also mean that the person responsible for any legal breach will have to pay fines, damages and can even face imprisonment.

It is important that with all cases regarding Family Law that parties take into consideration the advice given to them by legal professionals. A Family Law attorney will be able to provide you with all the necessary information concerning one’s actions and responsibilities from the onset of all legal cases.

If you require Family Law attorney in South Africa, make sure that you contact Ivan Zartz Attorneys as soon  as possible.

19 Jun

What Happens When A Parent Avoids Child Maintenance?

When parents separate, or were separated before the birth of the child/children, then both parents have to perform the function of providing child care. Sole ‘custody’ (now an informal term) of children often means that a single parent is responsible for raising the child. Most of the time the other parent, more often than not the father, has the right to visitation or contact, and assists the other parent in the upbringing of the child by providing financial assistance through compulsory maintenance, mandated by the state. But what happens when a parent decides not to pay maintenance?

The Responsibility of the Carer

When a parent has not paid his/her required child maintenance it is the responsibility of the carer to approach the Maintenance Court as a complainant. Without doing so, the state will have no proof that the parent has not paid child maintenance. If the parent responsible for the child maintenance payments (respondent) does not pay maintenance for more than a period of 10 days, then the complainant can approach the Maintenance Court. There are three orders that the complainant may apply for at the maintenance court in order to receive monies due. Without repayment after this period, the respondent is liable to pay fines and can even be jailed for a period up to 1 year.

The three orders that may be applied for are:

  1. A Warrant of Execution whereby the Sheriff of the Court may approach the respondent’s physical address and can claim any moveable and immovable property until such a time that the unpaid child maintenance is repaid.
  2. A Garnishee Order may also be made whereby any monetary compensation received by the respondent is immediately transferred to the account of the child carer until the child maintenance order is satisfied.
  3. A Debt Attachment means that debt owed to the respondent will be interrupted before being received and transferred to the complainant until child maintenance is satisfied.

In every instance, only a certain amount is payable for a certain period of time, and each order can be challenged by the respondent with sufficient evidence supporting his/her case.

For more information regarding maintenance repayments, make sure you contact one of South Africa’s most experienced child custody lawyers, Ivan Zartz Attorneys.

13 Jun

Marriage and Property Law

Did you know that a property contract agreement pertaining to property law can be overruled by agreements made in the marriage contract?This can have far-reaching consequences if couples are unaware of the outcome regarding the sale of a property when married or after a divorce. It is important that couples realise, before making their vows, that doing so can change the outcome of a property agreement.

In Community of Property

In Community of Property is an easy law to understand. It basically means that any assets that either one of the spouses owns during or before the marriage vows are made belongs to both spouses equally. This means that in the event of divorce the sum of both assets will be divided as equally as possible, while during the event of death, the living spouse will have ownership of all the marriage assets. This agreement is the most repudiating with regards to property law and the individual ownership before marriage.

Anti-nuptial Contracts and Property

An anti-nuptial contract is very different from the Community of Property rule. In the case of anti-nuptial agreements, spouses can agree to accrual or not. Accrual means that any assets made during the marriage period will be shared equally in the event of divorce. However, any property or assets owned by any one of the spouses before marriage strictly stays in that individual’s name unless agreed on the anti-nuptial contract otherwise.

Without accrual means that all property and assets, whether accumulated during the time of marriage or not, is owned by the individual in whose name the assets are in. Without accrual can be problematic in the event that the other spouse helps to pay for a particular asset, and how a particular asset is shared needs to be expressed within the contract.

With regards to property, couples must think long and hard as to their choice in marital contract. As with any agreement, we cannot predict the future, and agreements need to be made now to safeguard individuals in the case of divorce and/or death. A hasty decision may supercede the common property law in any event.

For more information regarding property law, please contact Ivan Zartz Attorneys as soon as possible. Furthermore, take a look at our blog page to peruse our latest articles.

 

 

07 Jun

Child Care And Custody For The Disabled

It’s unfortunate, but it happens; children are sometimes born with debilitating disabilities or chronic ailments. At other times, they may suffer terrible accidents or illness and also suffer disability. In either event children with disabilities require care, sometimes more so than healthy children. During cases of child custody, measures have to be taken to ensure the welfare of disabled children.

Disabled Child Care 

According to the Children’s Act 35 of 2005, “a child with a disability or chronic illness has the right not to be subjected to medical, social, cultural and religious practices that are detrimental to his or her health, well-being, and dignity”.

This means that as a parent or carer of a disabled child, every measure must be taken to accommodate the child to ensure their continued well-being. Furthermore, efforts to include the disabled and chronically ill child in social, religious, cultural and educational activities is also expected. Additionally, any other support needed to promote their own self-reliance is a prerequisite.

Child Care and Custody Disputes

As you may expect, custody and care disputes with regards to disabled and chronically ill children can be a little more difficult than cases involving children in finer fettle. This is because the needs of the disabled child usually mean that more is expected of the carer, and maintenance paid by one parent will usually be costlier than usual.

Courts, as well as legal professionals, will ensure that all decisions are made in the best interests of the child and that the parent in whose care the child is placed is best suited to taking charge of the child’s needs. Disabled children will often require homes with more space, as well as fixtures and features that accommodate their disabilities. Often the parent with the most time available to care for the disabled child will be the preferred carer. In these instances, cooperation between separated parents is usually emphasised to ensure a stable upbringing for the child.

If you require more information regarding child care and child custody for disabled or chronically ill children, then make sure you contact Ivan Zartz Attorneys today. Ivan Zartz Attorneys specialises in all cases of child custody and is well-known throughout South Africa as a specialised practice in the legal field of child custody.