Category Archives: Family law

Claiming maintenance from parents living in foreign countries

A major concern many parents have revolves around the existence of maintenance orders from a South African court which requires enforcement against a non-compliant person who resides in a foreign country.

South African law allows its citizens to claim maintenance from a parent living in a foreign country. The Reciprocal Enforcement of Maintenance Orders Act 80 of 1963 is a piece of legislation which regulates foreign maintenance processes. To obtain maintenance for minor children in any foreign country it is advisable that an order for the maintenance of the minor children has first been made by a South African court.

It is important to note that not all foreign countries are recognised under the Reciprocal Enforcement of Orders Act. Chief Directorate: International Legal Relations in the Department of Justice and Constitutional Development (DoJ&CD) has a list of proclaimed countries. This means such countries have a special arrangement with South Africa whereby maintenance orders granted in one country can be enforced in another.

The following documents where applicable must be transmitted to Head Office from our courts:

  • four certified copies of the provisional court order;
  • an affidavit by the complainant or an officer of the court as to the amount of arrears due under the order;
  • the deposition or evidence of the complainant;
  • physical, and or working address of the defendant;
  • a photograph and description of the defendant;
  • the original exhibits (marriage certificate, birth certificate, photographs etc.) referred to in the complaint’s deposition or evidence duly endorsed as prescribed/affidavit;
  • three certified copies of the documents referred to in (b) and (c) above and in the event of the High Court, four copies as well as an additional copy of the court are required.

Countries recognised under the Reciprocal Enforcement of Orders Act:
Australia, Canada, Cocoa (Keeling) Islands, Cyprus, Fiji, Germany, Guernsey (Bailiwick of Hong Kong), Isle of Jersey, Isle of Man, Kenya, Lesotho, Malawi, Mauritius, Namibia, New Zealand, Nigeria, Norfolk Island, Sarawak, Singapore, St Helena, Swaziland, United Kingdom, United States of America, Zambia and Zimbabwe.

If the foreign country in question does not have a reciprocal enforcement agreement with the Republic, the second option is to launch formal proceedings in the courts of the foreign country based on an already existing maintenance order. This option in most cases, tends to be an expensive process, takes an indeterminable amount of time and doesn’t always render favourable results.


This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Compensation for a fatal holiday resort accident

a4bEmily and Nathan were a happily married couple in their early thirties with two minor children. Emily was a stay at home mom and Nathan was the breadwinner of the family. The family decided to take a vacation in Sun City, which ended tragically when Nathan was fatally injured on a Valley of the Waves ride. Who was to take care of the family now that Nathan was no longer there and who was to pay the price for the family holiday that ended in a tragic loss?


If the question of negligence is hanging in the air, then the obvious word to pop into one’s mind would be that of delict. In Kruger v Coetzee 1966 (2) SA 428 A 430E-G the formulation for negligence was established by Holmes in two steps:

(a) a diligens paterfamilias in the position of the defendant –

  • would foresee the reasonable possibility of his conduct injuring another in his person or property and causing him patrimonial loss; and
  • would take reasonable steps to guard against such occurrence; and

(b) the defendant failed to take such steps.

In the case of Za v Smith (20134/2014) [2015] ZASCA 75 (27 May 2015) the father and breadwinner of the family died in a tragic accident while on vacation at a mountain resort close to Ceres, Western Cape, after falling off a sheer precipice (a steep rock or cliff). The wife of the deceased took the matter to the Supreme Court of Appeal, who considered three elements, namely wrongfulness, negligence and causation.

The background facts were taken into account, namely the fact that the park was used for recreational purposes for the public upon paying an entry fee. Furthermore, the 150 metres gorge drop where the deceased fell to his death was not visible, especially in snowy weather, nor were there any warning signs.


The court a quo did not find the Respondents to be wrongful as they did not have the duty to warn guests of the danger that was blatantly apparent to them. However, in the above-mentioned case it was reiterated that the test for wrongfulness is whether it would be reasonable to have expected the defendant to take positive measures, while the test for negligence is whether the reasonable person would have taken such positive measures. Confusion between the two elements is almost inevitable. It would obviously be reasonable to expect the defendant to do what the reasonable person would have done. The result is that conduct which is found to be negligent would inevitably also be wrongful and visa versa.”[1]


If the above-mentioned case is taken into consideration then Emily would most likely be successful in her application for compensation for herself, as well as in her capacity as mother of the two minor children, if it is found that Sun City Holiday Resort was negligent and wrongful and had causation.


  • [1] Za v Smith (20134/2014) [2015] ZASCA 75 (27 May 2015)

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

When must you consult the Family Advocate?

You may consult the Family Advocate if you have a dispute relating to either the best interests of a child and/or parental responsibilities and rights. Other circumstances under which the family advocate may be consulted include:

    1. When parties require assistance in drafting parental responsibilities and rights agreements and to register such with the Family Advocate or to amend, and/or terminate the said agreements registered with him or her.
    2. When parties require assistance in drafting parenting plans and to amend or terminate such parenting plans registered with him or her.
    3. An application to define contact.
    4. A custody, access or guardianship dispute arising from the dissolution of a customary or religious marriage.
    5. Domestic Violence and Maintenance cases referred to the Family Advocate in terms of the Judicial Matters Second Amendment Act (Act 55 of 2003).
    6. Fathers of children born out of wedlock may request mediation of their parental rights and responsibilities (in terms of the Children’s Act).
    7. Parental child abduction to and from South Africa.

If there is a dispute regarding the contact, guardianship or care (parental responsibilities and rights) of a minor child, the Office of the Family Advocate would be requested to investigate the welfare and best interest of the minor child involved. Often, they provide a report which is handed to the relevant Court for consideration. The Office of the Family Advocate is not employed by the parties involved. They work for the State ensuring that they are objective in their investigation and only have the child’s best interests at heart.

Steps involved

    1. Contact your nearest Family Advocate to request an enquiry or, mediation of your legal dispute.
    2. Upon receipt of the request, the Family Advocate institutes an inquiry during which he or she interviews you and the parties involved to determine your personal circumstances and the background of the matter. Where mediation is requested the Family Advocate will be the mediator.
    3. The Family Counsellor then interviews the children separately, so as to enable such children to exercise their statutory right to be heard and to enable the Family Advocate to convey their views to the Court.
    4. The Family Advocate will communicate whatever decision taken, which significantly affects the welfare of the child, to such child.
    5. Upon completion of the enquiry or mediation process the Family Advocate will file a report for the Court and furnish copies to the parties or their lawyers.

In a typical custody dispute, a Family Advocate and social worker would be appointed to a case and investigate it. The social worker and the Family Advocate would consult with the parents (or parties involved in the dispute), visit their homes if necessary and obtain information from relevant parties etc. The Family Advocate and social worker would also speak to the child and may want to observe the child’s interaction with the parents. If there are other professionals, for example, a social worker or a psychologist who assessed the situation and provided a report, the Office of the Family Advocate would consider those documents as well and even consult with those experts before handing in their report.


This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Safeguarding children’s rights during divorce

A3_bDivorce and the resulting challenges regarding CCCcc and the responsibilities of parents can be an ugly and difficult process. This is especially true of the children whose emotional and physical wellbeing would have to be taken into account during the entire process. However, the office of the Family Advocate offers an efficient and free service with the wellbeing of the child in mind.

The Family Advocate (FA) manages disputes regarding the responsibilities and custody of children during and after a divorce. The point of the FA is to protect the rights of children and ensure that their best interests are taken into account when it comes to their custody and the parent’s responsibilities. The office of the FA is not just one person but consists of lawyers and social workers who all assist in getting the best outcome for the child/children.

What can the Family Advocate do?

Section 28(2) of the Constitution says, “A child’s best interests are of paramount importance in every matter concerning the child”. This forms the basis of the FA’s role in disputes.

The Family Advocate has the ability to:

  • Institute an enquiry so as to be able to furnish the court with a report and recommendation on any matter concerning the welfare of the minor child;
  • Appear at the trial or hearing of any relevant application;
  • Adduce any available evidence; and
  • Cross-examine witnesses giving evidence at such trial or hearing of an application.

According to Mediation in Certain Divorce Matters Act (Act 24 of 1987)

The Children’s Act 2005 (Act 38 of 2005) has also made mediation by the FA compulsory for all parties involved in parental rights and responsibility disputes over children born out of wedlock.

What’s the point of the Family Advocate?

The FA has many advantages when there is a dispute over children. The FA can change the parental rights and responsibilities agreements of the parents without the need to go to court. A court will also take into consideration a report by the FA before making any decision on the child, they are even required by law to do this. Furthermore, a registered parental rights and responsibilities agreement would be considered the same as a court order. The office of the FA also allows for the children involved to express their point of view and desires. In order to ensure the best for the child/children, the FA will work together with social workers, psychologists and other professionals when dealing with disputes.

Reasons to see the Family Advocate

  • The parties disagree about how to contact or care for a child.
  • They want to draft, register or change their parental rights and responsibilities agreement.
  • Disputes about whether an unmarried father of a child born out of wedlock fulfils the requirements making him eligible for the full parental rights and responsibilities of the child.

A court may also order the FA to provide a report on what is best for the children involved in a dispute. Altogether, the FA’s goal is to ensure the child gets the best out of a divorce process and that their rights are protected. They can not only help in disputes, but also provide a comfortable environment and process for what can be a stressful time for the children involved.


“The Office of the Family Advocate”. The Department of Justice and Constitutional Development. Accessed from: on 13/05/2016.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

True Love, or Easy Paycheck?


The issues that are dealt with in this article is whether a partner is entitled to maintenance from the other partner in terms of a Divorce Order if the partner that is asking for maintenance, is living with / or has a new relationship, where that partner is already maintaining him / her. We will deal with case law and the Maintenance Act 99 of 1998.

You’re soon to be ex-wife has moved on and is now happily living with a new partner. They are in a stable, supportive relationship and her new partner doesn’t seem short of cash. Everyone is living happily ever after, so why should you pay maintenance to your ex-wife?

The judgment of Harlech-Jones v Harlech-Jones [2012] ZASCA 19 has a reference. The issue, in this case, is whether a husband is obliged to pay maintenance to his former wife, who is involved in a relationship with another man, after divorce.

The duty of support

Neither spouse has a statutory right to maintenance. The language in the Divorce Act is clearly discretionary and the ex-spouse seeking an award for maintenance has no right as such. The court will consider the following factors before deciding whether to award spousal maintenance:

  1. The existing or prospective means of each party
  2. Their respective earning capacities
  3. Their financial needs and obligations
  4. Their age
  5. The duration of the marriage
  6. Their standard of living prior to the divorce
  7. Their conduct, if relevant, to the breakdown of the marriage
  8. An order for the division of assets
  9. Any other factor which in the court`s opinion, should be taken into account.

The discretionary power of the court to make a maintenance award includes the power to make no award at all. Our law favours the ‘clean break’ principle, which basically means that after a divorce the parties should become economically independent of each other as soon as possible.

Harlech-Jones v Harlech-Jones [2012] ZASCA 19

Through a long line of cases dealing exclusively with maintenance pendent elite (awaiting litigation), it has become customary not to award maintenance to a spouse who is living in a permanent relationship with another partner.

As mentioned above, the Supreme Court of Appeal  gave an interesting judgment in the matter of Harlech-Jones v Harlech-Jones [2012] ZASCA 19. The question raised in this matter was inter alia whether it would be against public policy for a man to pay maintenance to his wife while she is living with another man.

The parties, who were married to each other in December 1972, were divorced in January 2011, after many years living apart and many legal battles. In terms of the Divorce Order, the Appellant (the former husband) was ordered to pay the Respondent the sum of R2 000-00 per month as maintenance with effect from 1 February 2011. With the leave of the High Court, the Appellant then appealed to the Supreme Court of Appeal solely against the maintenance order.

By the time the Divorce Order was granted, both parties had formed relationships with other partners, and the Respondent had been living for some three years with another man who fully and unconditionally maintained her.

Relying upon judgments such as Dodo v Dodo 1990 (2) SA 77 (W) at 89G; Carstens v Carstens 1985 (2) SA 351 (SE) at 353F; SP v HP 2009 (5) SA 223 (O) , it was argued that it would be against public policy for a woman to be supported by two men at the same time.

The court was of the opinion that while there are no doubt members of society who would endorse that view, it rather speaks of values from times past and the court was of the opinion that in the modern, more liberal age in which we live, public policy demands that a person who cohabits with another should not for that reason alone, be barred from claiming maintenance from his or her spouse.

However, in light of facts of the present case, where the Respondent was being fully maintained by the man with whom she had been living with for years, the Respondent failed to show that she was entitled to receive maintenance from her former husband.  The Appeal therefore succeeded, and the maintenance order was set aside.

Therefore, if you feel that you are currently paying your ex-partner maintenance which he / she do not deserve, contact your legal representative and take back the money that you worked so hard to obtain!

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Rights and responsibilities of unmarried fathers

A3_bThe rights and responsibilities of biological fathers who were not married to the child’s mother at the time of conception or birth can be uncertain. In this article we will discuss when a biological father obtains rights and responsibilities towards their child(ren).

Alissa has a 7-year-old son called Jessie. Alissa had been living with her boyfriend, Mike, for 2 years when Jessie was born. Alissa and Mike were never married and Mike left their common home when Jessie was only 1 year old. Mike makes contact with Jessie and contributes some small amounts towards his maintenance every few months. Alissa would like to know what rights and responsibilities Mike has towards Jessie.

Section 20 of the Children’s Act (“the Act”) confers parental responsibilities and rights on married fathers if they are married to the child’s mother or if they were married at either the time of the child’s conception, birth or any time between conception and birth.

The biological father of a child who does not have parental responsibilities and rights in respect of the child in terms of Section 20 of the Act can acquire these responsibilities and rights if one of the following conditions are fulfilled:

  • at the time of the child’s birth he is living with the mother in a permanent life partnership; or
  • if he consents to be identified; or
  • he successfully applies in terms of Section 26 of the Act to be identified as the father; or
  • he pays damages in terms of customary law; or
  • if he contributes or has attempted in good faith to contribute to the child’s upbringing for a reasonable period; or
  • if he has contributed or attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period.[1]

It may be difficult to determine whether two persons are in a permanent life partnership or not. This term lacks a precise definition and has been described as “a stable monogamous relationship where a couple who do not wish to (or are not permitted to) marry, live together and share an intimate relationship” that is akin to marriage. The Constitutional Court has given limited recognition to the relationships labelled as “life partnerships” or “permanent life partnerships”, but no specific meaning has been attached to these terms.[2]

It is important to note that this section applies regardless of whether the child was born before or after the commencement of this Act, and that it does not affect the duty of a father to contribute towards the maintenance of the child.[3]

If there is a dispute between the biological father and the biological mother of a child with regard to the fulfillment by that father of the conditions set out above, the matter must be referred for mediation to a family advocate, social worker, social service professional or other suitably qualified person. Any party to the mediation may have the outcome of the mediation reviewed by a court.[4]

From this article we can see that the only clear responsibility of Mike is that of paying maintenance to support Jessie. Due to the fact that the definition of a permanent life partnership is so vague, Mike and Alissa should refer this matter to one of the abovementioned mediators to obtain certainty about Mike’s rights and responsibilities towards Jessie.


  • The Children’s Act 38 of 2005
  • Du Bois F, Willie’s Principle of South African Law (2007), 9th

[1] Section 21 of the Children’s Act 38 of 2005.

[2] Du Bois F, Willie’s Principle of South African Law (2007), 9th ed., p363.

[3] Section 21(2) of the Children’s Act 38 of 2005.

[4] Section 21(3) of the Children’s Act 38 of 2005.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

What is the role of the family advocate?

Blog_4The Family Advocate has many duties but in the context of Divorce Law, they are mostly consulted for making sure that all Parenting Plans and divorce Consent Papers are in the best interest of any minor children involved. The public can, however, also have access to the Family Advocate and it is important to note that they offer a free service.

The roles of the Family Advocate include the following: to provide education to family members and to others involved in the systems serving the family and youth; to help identify the strengths and needs of families; to be a mediator between the system and the family by helping to educate professionals on the strengths and needs of the family; to help family members understand the different roles of the agencies involved in the system and how they may affect the family and assist families in identifying and utilizing necessary services.

A Family Advocate helps state and local agencies and systems adopt more strengths-based and family-driven programs, policies, and services. The focus is to better meet the needs of families and their youth who have mental illness, co-occurring disorders or substance use disorders and improve outcomes for all, including families, youth, and the agencies they utilize.

A Family Advocate also has the authority to draft Parenting Plans at no cost which will help provide the minor child with a stable and suitable schedule between the two parents. A Family Advocate cannot however provide for a maintenance amount as this falls under the jurisdiction of the maintenance court. Should a parent feel like they are not sure of their rights or responsibilities towards their minor child, the Family Advocate can be approached in order to arrange a meeting between the two parties to mediate the rights and responsibilities between the two parties. This process is also at no cost, however should one of the parties deny the meeting, the Family Advocate has no authority to subpoena them to attend the meeting.

The Family Advocate is a perfect remedy for parents who have their child’s best interest at heart and who aim to provide a stable environment for the child when both parents are no longer together.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors & omissions excepted. (E&OE)

Onderhoud – Nie net vir minderjariges nie

A1_bWanneer die woord “onderhoud” genoem word, dink baie mense aan vroue wat onderhoud vir minderjarige kinders eis of alternatiewelik, vroue wat vir onderhoud van hul gewese mans eis. In hierdie artikel sal ons egter ‘n ouer se onderhoudseis teen hul volwasse kinders bespreek.

Mike Larry het ‘n dagvaarding van die Onderhoudshof ontvang om drie weke later vir ‘n onderhoudsaak te verskyn, maar Mike het geen vrou of kinders nie en het verward gewonder of die Hof dalk ‘n fout gemaak het. Mike het die Onderhoudshof bygewoon om uit te vind of daar dalk ‘n fout in die dokumentasie was. Wat hy uitgevind het, het sy moed laat sak en kort daarna sy bankrekening ook.Mike se vader, Jermaine, het ‘n aansoek voor die Onderhoudshof gebring vir onderhoud vanaf Mike, aangesien hy geen werk gehad het nie en dus geen inkomste nie. Mike het sy prokureur gevra of dit moontlik is, en die antwoord was bevestigend.

Volgens die Wet op Onderhoud 99 van 1998 het ouers en kinders ‘n wedersydse onderhoudsplig. ’n Kind het ‘n plig om sy ouers en grootouers te onderhou, maar dit is altyd onderworpe aan die reël dat ondersteuning eerste van die naaste familielid geëis moet word. Die basis van ‘n kind se plig om sy ouers te onderhou is gegrond in die gevoel van pligtigheid of filiale jammerte (met betrekking tot of vanaf ‘n seun of dogter). In sekere omstandighede kan selfs ‘n minderjarige kind ‘n plig hê om sy ouers te onderhou. ‘n Ouer wat onderhoud van ‘n kind eis, moet sy of haar behoefte bewys, asook die kind se vermoëns om hom/haar te ondersteun. ‘n Strenger maatstaf van nood is op ouers as kinders toegepas; hulpbehoewendheid van ‘n ouer is hiervoor ‘n vereiste.

Die owerhede het nie heeltemal duidelikheid oor bogenoemde nie. In Oosthuizen v Stanley het die Hof van die “kwaliteit en toestand van die persone wat ondersteun moet word” gepraat. In dieselfde saak is daarop gedui dat waar ‘n ouer ondersteun moet word, dit nie net die ouer se eie behoeftes is nie, maar ook dié van die ouer se afhanklikes wat in ag geneem moet word. In van Vuuren v Sam Rabie het die regter na dieselfde maatstaf verwys, maar het beklemtoon dat die ondersteuning van ouers tot die basiese behoeftes beperk moet word, naamlik kos, klere, skuiling, medisyne en sorg in tye van siekte. Ter ondersteuning hiervan het die Regter verwys na Surdus v Surdus en gesê dat, in die beoordeling van die kwaliteit en toestand van die persoon wat ondersteun moet word se lewe, dit hoofsaaklik sy huidige en nie sy vorige situasie is nie wat oorweeg moet word, maar dat die Regter sy eie diskresie moet uitoefen in die bepaling hiervan. Byvoorbeeld, ‘n ouer wat voorheen ryk was en nou deur moeilike tye gegaan het, moenie verplig wees om arm-manskos te eet nie. Daar is aangevoer dat die maatstaf van behoefte nie so streng vertolk moet word dat dit die hele konsep van ‘n wedersydse verpligting vernietig nie.

Die volgende kan ook oorweeg word wanneer ‘n ouer aansoek doen om onderhoud vanaf sy/haar kind:

  1. Broers en susters;
  2. Ekstra inkomste; en
  3. Lewenskwaliteit.

In terme van die gemenereg het ‘n buite-egtelike kind ‘n plig om sy/haar ma te onderhou, maar of die pa ondersteun moet word, moet nog beslis word. Daar kan egter aangevoer word dat ‘n buite-egtelike kind aanspreeklik kan wees om sy/haar pa te onderhou in terme van Artikel 16 van die Kinderwet 38 van 2005.

Ten slotte, as jy voel dat jy onregverdig vir ‘n onderhoudseis geteiken word, raadpleeg beslis jou prokureurs sodat hulle jou kan inlig oor jou regte en verantwoordelikhede.

Hierdie artikel is ‘n algemene inligtingstuk en moet nie gebruik of staatgemaak word op as professionele advies nie. Geen aanspreeklikheid kan aanvaar word vir enige foute of weglatings of vir enige verlies of skade wat voortspruit uit vertroue op enige inligting hierin nie. Kontak atyd jou regsadviseur vir spesifieke en gedetailleerde advies.