Category: Family Law

CLAIMING MAINTENANCE FROM PARENTS LIVING IN FOREIGN COUNTRIES

My Lawyer_Images_Template-05A 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)

References:

http://www.justice.gov.za/docs/articles/2009_foreign-maintenance.html

http://mclarens.co.za/maintenance-children-foreign-countries/

WHEN MUST YOU CONSULT THE FAMILY ADVOCATE?

my-lawyer_images_oct-05You 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)

References:

http://www.ourlawyer.co.za/family_advocate_cape_town.htm

http://www.justice.gov.za/services/consult-fam-adv.html

REGISTERING DEATHS AND DEATH CERTIFICATE REQUIREMENTS IN SOUTH AFRICA

A2Many South African citizens do not know the correct procedures to follow in order to register a death, or how to obtain a death certificate and by whom, until it is too late. Coming to terms with a death is difficult enough without having to enquire about the legal processes that are necessary in the circumstances in order to proceed with funeral arrangements and other family affairs. The Births and Deaths Registration Act 51 of 1992 outlines the simple requirements and procedures to be followed upon the death of a South African citizen.

The Births and Deaths Registration Act no. 51 of 1992 requires that a person’s death must be reported to any one of the following people authorised by The Department of Home Affairs. Specific officers at the Department of Home Affairs, South African Police Service members, South African Missions, Embassy’s or Consulates where the death occurred abroad or funeral undertakers that have been appointed and are recognised by law.

A Notification of Death or Still Birth Form (Form BI-1663) must be completed when reporting a death. This form, along with all other forms that may be necessary are available from all Home Affairs offices. The following people have to complete different sections of this form in order for it to be submitted: the person reporting the death, the medical practitioner or traditional healer involved in the declaration of the death, and a Home Affairs official or a member of the Police service if a Home Affairs official is not available.

A Death Report (Form BI-1680) will be issued after a death has been registered with one of the relevant department officials. Only someone whom the Department of Home Affairs has authorised to do so can issue this report and this includes traditional leaders, members of the SA Police Services and authorised undertakers.

These designated people may also issue burial orders. No burial may take place unless authorised by way of a burial order (Form BI-14).

Deaths of South African citizens and South African permanent residence permit holders that occur outside South Africa must be reported to the nearest South African embassy or mission abroad. The country in which the death occurs must issue a death certificate and a certified copy of the death certificate must be submitted to the South African embassy or mission when reporting a death. If the deceased is to be buried in South Africa, the embassy or mission will assist with the paperwork and arrangements with regards to transportation of the body to South Africa.

The Department of Home Affairs will issue a Death Certificate on receipt of the notification of death form BI-1663 and the Death Report form BI-1680. Applications for a Death Certificate must be lodged at any office of the Department of Home Affairs or at any South African embassy, mission or consulate if the death occurs abroad. An abridged death certificate will be issued free of charge on the same day of registration of death. An unabridged death certificate can be obtained by completing Form

 BI-132 and paying the required fee.

If a person has been recorded, mistakenly or fraudulently, as dead in the National Population Register, (i.e. they are still alive); this must be reported as soon as possible to the nearest Department of Home Affairs office for urgent investigation and corrective action.

Chapter 3 (Section 14 to 22) of the Births and Death’s Registration Act regulates all matters pertaining to the Registrations of Deaths in South Africa and regulations on how to obtain a Death Certificate. The Act provides for the different procedures to be followed when a death is due to natural causes, stillbirth or other methods. This process is simple to follow and the appointed officials at Home Affairs Departments are fully equipped to process registrations and to answer any questions you may have.

Reference List:

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)

A promise to marry

A1_BIn this article the legal consequences of breaking off an engagement will be discussed. Is it a contract, and if it is, can you institute a claim for damages due to a breach of this contract?

In order to enter into a valid engagement to be married the following requirements must be met:

 

  • Both parties must have the capacity to act, which generally means that parties must be older than 18 years or if they are minors, that they have the necessary consent from their guardians.
  • Both parties must voluntarily consent to the engagement. A material mistake, such as the identity of either of the parties, will render the engagement void. There must also be no misrepresentations made by either of the parties; in other words, where it would have resulted in the contract not being concluded, had the other party known the truth.
  • Both parties must be permitted by law to marry each other. For example, you may only be engaged to one party, unless a polygamous engagement applies under African Customary Law.
  • One may not marry a sibling.

It is important to note that there is no law in South Africa that requires an engagement before    marriage.

Once a date for the marriage has been determined, there is a reciprocal duty to marry on that date, unless the date is changed by mutual agreement. Further, if no date has been determined, it is presumed that the marriage will take place within a reasonable time. Nevertheless, either of the parties may terminate the engagement, which may or may not attract a claim for damages or return of gifts.

An engagement can be terminated in the following ways:

  • Marriage
  • Death of either parties
  • Mutual agreement
  • Withdrawal of parental consent
  • Breach of promise
  • Termination by one party that is justified and based on sound reasons

It is important to establish whether there is a just cause for cancellation. If there is, the engagement may be validly terminated. A reason such as sterility or criminal activity, if it was only brought to the attention of the other party after agreeing to marry, may provide enough grounds to break off the engagement. If both parties agree to terminate the engagement, all gifts given in anticipation of the marriage, including the engagement ring, must be returned.

If one party breaches the promise to marry without justifiable reasons, the innocent party can, according to our law, institute a claim for damages, provided that the losses were within the contemplation of the parties. The innocent party can claim expenses incurred in anticipation of the wedding, thus placing the innocent party in the financial position he or she would have been had the engagement never been entered into. Further, the innocent party may keep or claim back the engagement ring as part of costs incurred.

In the case of Van Jaarsveld v Bridges, the court decided that a party cannot successfully institute a claim for prospective losses on the basis of a breach of promise to marry, because an engagement is not an ordinary contract in the context of contractual damages and should therefore not be placed on a rigid contractual footing. This means that a party may not institute a claim for damages placing him or her in the position he would have been had they gone through with the marriage. Previous court judgements indicate that compensation will be awarded at the discretion of the court and that each case must be evaluated on the basis of its individual circumstances.

In conclusion, it is important to note that a promise to marry is an agreement which attracts legal consequences; therefore one should not be hasty when deciding to ask the big question.

Bibliography:

Van Jaarsveld v Bridges 2010 (4) SA 558 (SCA).

Cloete v Maritz 2013 (5) SA448 (WCC).

Bull v Taylor 1965 (4) SA 29 (A).

Georgina Guedes, 23 October 2013, Mail and Guardian, “Five fallacies about engagement rings”.

A Guide to Divorce and Separation in South Africa, “Engagement and the Law”.

Ronald & Bobroff, “The engagement”.

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?

A2_BThe 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 and omissions excepted (E&OE)

Difference between the Domestic Violence Act and the Harassment Act

A3_BThere are people who suffer emotional and physical abuse on a daily basis but are not quite sure what they can do to prevent it. There are two options available to them. They can either apply for a Protection Order or apply for a Harassment Order. However, many people do not know the difference between the two and which Order would suit their situation.

A Protection Order is described as being a form of court order that requires a party to do or to refrain from doing certain acts. These orders flow from the court’s injunction power to grant equitable remedies in these situations. The following is required to be present when applying for a Protection Order:

– Needs to show a pattern of abuse.

– It has to be a form of domestic violence which includes:

  • Physical violence
  • Sexual violence
  • Financial violence
  • Emotional/verbal violence

– The violence needs to be directed at the person who wants to make the application.

A Protection Order forms part of the Domestic Violence Act. This means that the abuse needs to be between persons that live in the same house, like brother and sister, or mother and father, etc. An application is made for a Protection Order and thereafter a return date is set. At the return date the Applicant can change their mind and ask that the order be removed. If not, the Order is granted, and it is binding for life. If the Respondent breaches the Protection Order, he/she may receive up to 5 years imprisonment. If the Applicant applies for a Protection Order under false pretences the Applicant may receive up to 2 years imprisonment.

The application for a Protection Order is an ex-parte application, which means that the application can be made without having the Respondent at Court. This can cause problems in the instance where the Respondent is innocent, but does not have a chance to defend himself/herself.

If you’ve been the victim of abusive or threatening behaviour by someone other than a person living with you, or with whom you have a domestic relationship, it may be harassment. There are different things you can do if you’re being harassed, such as applying for a Harassment Order. The following is important to know about Harassment Orders:

  • No pattern is needed, and a first offence can be sufficient for a Harassment Order.
  • No relationship is required, and it can be against someone you don’t even know
  • Harassment includes: following, messaging, unwanted packages, letters, psychological harm, physical harm, financial harm, etc.

If you decide to apply for a Harassment Order without knowing who it is against, the Court has the power to order a police official to investigate the matter. The application for a Harassment Order takes place in open court, which means that it is not private, which can sometimes prevent victims from making the application. Once a Harassment Order is granted, it is binding for 5 years. If the Applicant wants to withdraw the Order, the Court must be satisfied that the conditions have changed. Breach of a Harassment Order can result in 5 years imprisonment, which is the same punishment for Applicants who make the application under false pretences.

It is important to know that there are remedies available to victims who are in abusive relationships. Whether it is emotional, physical or financial abuse by someone you know or stalking and harassment by someone you don’t know, it is time to take a stand against abuse.

This newsletter 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

A2BThe 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

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