Divorce Made Easy

DIY DIVORCE

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Divorce Papers

Welcome to Self Help Divorce drafting divorce papers may cloud your judgement not ours, this includes the Summons, Deed of Settlement, Notice of Set down and all other legal documents. Therefore, when assisting you in drafting your divorce papers with DIY divorce  or Attorney Assisted Divorce. We can assist you with the divorce process, in the most affordable and professional way.

Our passion is to establish a long-term relationship with our clients through good communication and highest professional standards.

Divorce Papers

We have different options available for you as getting divorced can be a demanding phase in your life. Therefore, you can decide which option will suite your requirements and needs. The Divorce Act will be applicable on all available options.

When you start with a divorce it can have a profound impact on the emotional stress that family members will endure. Therefore it is important that all divorce papers be drafted in correct way from the start not to delay the process later on.

JC Pretorius & Associates Inc can also assists you with an International divorce if your spouse resides in a foreign country, hence we will draft all the divorce papers in accordance with all the applicable legislation and your prerequisites.

You can count on us to be available for advice and you are welcome to contact us. Hence, we are here to assist you with your divorce taking all your circumstances in consideration at all times. Therefore for a quick divorce in South Africa you can approach us, and your divorce papers will be drafted in a professional manner. We also provide legal advice on various legal matters.

Divorce Papers for a Quick Divorce in South Africa

You can draft your own Divorce papers for a quick divorce in South Africa. The drafting and the process can be difficult above all a divorce can be an emotional and life changing event. Therefore, make sure you get the best advice before proceeding filing for divorce. Hence, we can assist you drafting your divorce papers in South Africa, and you can follow the process in your own name, or we can do all for you with Attorney assisted divorce.

25.323.00 South Africans filed for divorce every year according to the latest statistics from Stats South Africa, Therefore, divorces are notorious for bringing out some of the worst squabbling between spouses.

Almost half of these divorces came from marriages that did not make it to their tenth wedding anniversary – most divorces took place after five to nine years of marriage, thus making it the average duration for SA marriages. Learn more about Family Law.

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We have 3 divorce options for you

Self-Help-Divorce – DIY Divorce – We will draft your divorce papers

Welcome to Self-Help-Divorce, for your DIY divorce papers in South Africa. However, JC Pretorius Attorneys can also assist you with an Attorney assisted divorce.

We use a state of the art online platform. Above all, we will provide you with a step-by-step online divorce solution to finalise your divorce in South Africa. Therefore, you can  complete forms online.

Your divorce pack. That is to say your divorce papers are drafted by an attorney from JC Pretorius & Associates Inc. As a result, your documents are unique to your situation.

We will make changes to your divorce papers if needed. As a result, without any further cost. Furthermore, we will also provide you with telephonic advice. In other words, if you need any assistance during your DIY divorce regarding the process and filing for divorce we are here to assist you.

You don’t need to pay expensive fees to attorneys. As a result, you can get the same outcome for an uncontested divorce for R950-00

What do you get?

  • Drafted Combined Summons
  • Particulars of Claim
  • Drafted Deed of Settlement
  • Family Advocate Affidavit (Minor Children)
  • Statistic Form
  • Step – by – step guide ( After you received drafted divorce papers from us)
  • Guide will include all the next steps from Issuing summons until you divorce is heard in court

Divorce Papers & Divorce Process

We will draft all your divorce papers and provide you with a step by step guide to follow in the Regional Court.

We are available for any advice you require, but you have to do all the admin yourself. Therefore called a DIY divorce, you will conduct the divorce in your own name.

Both spouses must agree on not only parting ways, but how to commence with it, and how everything will be split.

As convenient as a DIY divorce is and drafting of the divorce papers, many attorneys warn against it when there are complex issues such as the transfer of property and capital gains tax to be dealt with. It is easy to forget about financial implications of a divorce when assets are involved, through nobody’s fault reason we can assist you as divorce lawyers to conduct your own divorce and draft all your divorce papers.

We are here to assist you and provide you with the best options available and considering all aspects of the divorce act and other legislation.

Process in Short and divorce papers if Uncontested

Summons

Once your summons has been drafted, you must attach all the necessary documents (copies of ID documents etc.) and forms (annexure A if applicable). Then you must complete the statistics form.

After all this is done, the registrar will ‘issue’ the summons. Basically, he / she will open a court file, stamp your summons and assign a case number to your divorce. This process turns your summons into a formal Court document.

Now that your summons have been issued, you need to make at least two sets of photocopies of the entire bundle and have the summons served by the sheriff of the Court.

Divorce Papers served by the Sheriff

A sheriff is an officer of the Court. He /she is required to issue and serve the first pleading (divorce summons) in divorce proceedings on your spouse. In divorce actions, he / she has to serve the summons on your spouse in person.

Determine which sheriff needs to serve the summons on your spouse by referring to the area in which your spouse resides. A sheriff has certain service areas and will only serve pleadings in such areas.

A sheriff charges a fee for every time he tries to serve a summons on your spouse. If the summons could not be served, either because the residential address provided is incorrect or because the spouse was not present at the address, the sheriff ‘s return of service will indicate that he was unsuccessful and the reason. If this is the case, you will have to instruct the sheriff again. In the case that the summons was served successfully on your spouse, the sheriff will write a return of service indicating that he served the summons on your spouse in person.

After your spouse received your summons, he / she has 10 Court days to serve a Notice of Intention to Defend upon you before you may proceed with an unopposed divorce.

If your spouse does not serve a notice on you indicating that he wishes to defend the action and file the same notice at the Court within the 10 Court days from date that he / she received the divorce summons from the sheriff, then the Court may assume that your spouse does not wish to defend the action. Your spouse’s failure to serve and file the notice will further imply that he / she agrees to the terms set out in your divorce summons and you may ask the Court to grant an order in terms of your prayers included at the end of your divorce summons.

And if your spouse does serve a Notice of Intention to Defend upon you, the matter has just become opposed and you need to seek legal counsel as soon as possible.

Uncontested Divorce

Note that if you have reached a settlement through negotiation or mediation, the next step is to reduce the settlement agreement to writing and have all the parties sign it. If everything has been settled, your spouse has to serve and file a document stating that he or she withdraws his or her defence, as the matter has been settled. The divorce then becomes unopposed and can be placed on the unopposed roll.

If there are minor children involved, the family advocate will have to approve of and stamp the settlement agreement before the court will accept it.

In Court, you will ask the court to incorporate the settlement agreement into the court order. Unless the Court has some serious concerns with some aspects of the settlement agreement, the Court will incorporate the agreement into the court order, and everything you agreed to will therefore also become an order of court.

A settlement agreement should address everything that was addressed in the particulars of claim and further court documents, as well as any other matters the parties want to include. The wording can be very important later on, so it is advisable to get legal assistance with drafting the settlement agreement.

It is very important that you go to Court on the date and time given to you by the Registrar. Go early so that you have time to find out in which room your matter will be heard.

Court

At Court the Magistrate will have a list of cases for the day so you will not necessarily be first in line. You will have to wait your turn. When your case is called, stand up and tell the Magistrate that the divorce is unopposed and tell him whether there is a settlement agreement or not. Thereafter you will take an oath or affirmation. You should provide the Court with the documents showing that and when the summons was served on your spouse personally (the sheriff’s ‘Return of Service’). Now the Magistrate will ask you questions

Start Now, we will draft your divorce papers for you to start the process and provide you with the process to follow and telephonic advice.

DIY DIVORCE

Start with your Diy Divorce now

We will do all the work for you.

Attorney Assisted (Local Divorce) Uncontested 

We will draft your divorce papers and conduct your divorce, stay at home and we will do all the work for you

Divorce Papers

This option will be advised if you have minor children and immovable property.

We will do all the work for you. Therefore, you just need to appear in court, we will conduct your divorce in the High Court. As a result, the divorce process can be completed in 8 weeks.

You can complete the online application form and we can start immediately with the drafting of the divorce papers for you.

We will request more information if required to start draft the Deed of Settlement. The legal documents or divorce papers will be forwarded to you to be reviewed and we will effect changes as per your instructions.

The online part means that you complete a questionnaire online, allowing us to ascertain whether you qualify for our services or not or to advise you on the best option available in your circumstances. We will use this information to draft your divorce documents and make sure that the information correct to proceed with your matter.

We as your attorneys have an obligation to assist you to the best of our ability and provide you with the best advice possible.

Divorce Papers – Settlement Agreement

When both parties agree on the terms of the divorce, we will proceed to issue summons incorporating the deed of settlement. The Sheriff of the court will then serve the summons on the Defendant in person. We will then wait 10 days and apply for a court date.

We will then inform you of the court date and an Advocate will represent you in court.

When the order is granted we wait 14 days to get the original order from court for you.

Easy online form to complete, we will do all the work for you. Divorce can be completed in 6 – 8 weeks.

Attorney Assisted Divorce

We will do all the work for you

Divorce Papers International Divorce

Edictal Citation

 

Edictal Citation is used. Where the Defendant lives in another country. Therefore the Plaintiff must use a process called Edictal Citation. Therefore, the Plaintiff must first approach the High Court or the Regional court by the way of an Edictal Citation Application.

This affords permission to a Plaintiff to serve the Divorce documents on a spouse in a foreign country. Hence personal service is required.

Firstly, it is important that the Court will require that the Plaintiff is domiciled in the Court’s jurisdictional area on the date that your Divorce Proceedings commence.

Secondly that you are usually resident in that area.

Further that you have been living there for not less than a period on one year immediately prior to that date.

A Summons in a Divorce must be served on the Defendant in person. Therefore, the Court needs to be satisfied that service will be done properly. Above all, by an official of the Court in a foreign country.

The process of Edictal Citation is therefore a procedure according to which a legal document. For example a Divorce Summons is served by a Sheriff (in some countries known as a “service processor” or a solicitor) in a different country.

Above all, if you have a residential or work address for the overseas spouse in the foreign country The Court will grant an order that the Summons may be served on him/her.

The proprietary consequences of a marriage are governed by the lex domicilii matrimonii, that is the laws of the place where the husband was domiciled when the marriage was concluded. The law of the husband’s domicile at the time of the marriage governs the matrimonial property regime of the spouses even if the husband subsequently acquires a new domicile.

What this means is that, wherever a wandering husband might be right now, if the matrimonial domicile…that is, his domicile at the time of the marriage…is South Africa, the courts will apply South African law in dissolving the marriage. However, it also implies that if the husband is the foreigner, the laws of the country of his domicile will apply, even if the divorce is initiated in South Africa.

In conclusion, to proceed with International Divorce you are going to need attorney assisted divorce to draft all the divorce papers and assist you with the process. Most importantly, to assist you with the best way to proceed with your divorce when your spouse residing in a foreign country and get your divorce finalise as soon as possible.

Proceed now with International divorce, made easy for you.

International Divorce

Are your spouse risiding in a foreign country

Divorce Process & Divorce Papers

Divorce Process

The divorce procedure in South Africa is relatively straightforward. However, the financial and emotional consequences can be profound for all parties.

Especially since the plaintiff will normally lodge the divorce in the High Court to start the divorce process. The backlog in cases was somewhat lessened. On the other hand, when the Regional Courts Amendment Act came into effect in 2010 to amend the Magistrates’ Courts Act, 1944.

So as to allow regional divisions of the magistrates’ courts to also deal with divorce cases.

Two types of divorces:

Deed of Settlement

An unopposed divorce the spouses are able to reach an agreement. Therefore, the agreement reached between the parties is reflected in a document known as a “Deed of Settlement”.

This document will set out the specific terms of the agreement reached between them. For instance, how access will work where minor children are involved and what amount of maintenance needs to be paid. Spousal maintenance will also be negotiated between the parties.

Very often the where an agreement is reached between the parties. In short, Summons will be issued with a copy of the signed Deed of settlement attached to the divorce papers. Most importantly once service of summons with the attached Deed of Settlement has taken place, which is a formality required in terms of the Rules of Court.

The matter can be set down for hearing.  Most importantly the Deed of Settlement will then be incorporated. So consequently, the deed of settlement will be an Order of Court. Therefore you will get a quick divorce

Process to follow and divorce papers

To start the divorce process the plaintiff need to issue a Summons in the High court or in the Regional Court and get a case number. Therefore, a summons must be served personally on the defendant by the sheriff of the court as it has to do with a person’s status, the summons also referred to as the divorce papers.

The action starts on the date the summons is issued, after the summons has been served in person on the defendant he/she needs to gives notice of intention to defend the matter within 10 days. If the parties live in the same jurisdiction of the court or within 20 days if the defendant live in different province.

Notice of Intention to defend

After serving the notice of intention to defend the matter. Hence, the defendant must deliver a plea and must either admit, deny or avoid all the material facts alleged in the claim. However failure to plea can result in an order given against the defendant in their absence. Similarly, in default.

A court has jurisdiction in a divorce action if one or both parties are:
  • domiciled in the area of jurisdiction of the court on the date on which the action is instituted;
  • ordinarily resident in the area of jurisdiction of the court on the said date and has/have been ordinarily resident in South Africa for a period of not less than one year immediately prior to that date.
Contested Divorces and divorce papers

If a divorce is contested by the defendant it may take between 2 – 3 years. But most contested divorces do settle long before they go on trial. This process consists of various stages:

  1. pleadings;
  2. application for and set down of trial date;
  3. discovery of documents;
  4. pre-trial conference;
  5. trial;
  6. judgement.
Divorce papers and Pleadings also known as divorce documents

The formal documents or divorce papers in a divorce are referred to as pleadings. For example, include the summons, particulars of claim, notice of defence, plea, and counterclaims.

  • Summons: The divorce action starts on the date that the summons is issued.  If the defendant (the person receiving the summons) wants to dispute the plaintiff’s claim, he/she must serve a notice of appearance within 10 days (if parties live in the same jurisdiction) or 21 days (where parties live in different provinces).
  • Plea: After serving this notice of defence, the defendant must deliver a plea within 20 court days.  In the plea, the defendant must either admit/deny/confess/avoid all the material facts alleged in the particulars of claim. As a result, failure to submit this plea can result in judgement given against the defendant in their absence.
  • Counterclaim: The defendant may deliver a counterclaim against the plea.  This can be followed by a further plea to the counterclaim by the plaintiff.
Application for and set down of trial date and divorce papers needed

The plaintiff then makes an application for a trial date, allocated by the registrar. If this is not done within the prescribed number of days after the pleadings have been closed, the defendant may do so.

Discovery of divorce documents or divorce papers in the period between close of pleadings and waiting for a trial date, there is a process called discovery.  This is the where each party demands to see material the other party intends to use at trial.  This may include bank statements, shareholdings in companies, credit card statements, bond accounts and tax returns.

Pre-trial conference the court may direct that an informal conference be conducted in the presence of the judicial officer in chambers, in order to consider a settlement of disputes.

Trial proceedings commence with either parties or their legal representatives being given an opportunity to deliver an opening address, in which the court is informed of the issues that are in agreement and those that are in dispute between the parties.

Judgement A divorce trial must culminate in the granting of judgement.

Doing your own divorce. Therefore, we draft your divorce papers might be an option when:
  • your divorce is uncontested;
  • your divorce is not complicated;
  • you have been married for a short period of time;
  • you don’t have substantial assets to divide;
  • there are no disputes regarding any children; and/or;
  • you are prepared to do all the admin yourself.

Usually where children are involved or where there are substantial assets, retirement annuities or pension funds, and fix property. It is advisable to seek the assistance of an attorney with family law experience. Noteworthy to go back to court after a divorce was granted to rectify mistakes made by you or an inexperienced legal practitioner in a settlement agreement can be rather costly.

Interim relief in matrimonial matters

Rule 43 will apply whenever a spouse seeks relief from the court in respect of one or more of the following matters:

(a) Maintenance pendente lite;
(b) A contribution towards the costs of a matrimonial action, pending or about to be instituted;
(c) Interim care of any child;
(d) Interim contact with any child.

(2)(a) An applicant applying for any relief referred to in sub rule (1) shall deliver a sworn statement in the nature of a declaration, setting out the relief claimed and the grounds therefor, together with a notice to the respondent corresponding with Form 17 of the First Schedule.
(b) The statement and notice shall be signed by the applicant or the applicant’s attorney and shall give an address for service within 15 kilometres of the office of the registrar, as referred to in rule 6(5)(b).
(c) The application shall be served by the sheriff: Provided that where the respondent is represented by an attorney, the application may be served on the respondent’s attorney of record, other than by the sheriff.

(3)(a) The respondent shall within 10 days after receiving the application deliver a sworn reply in the nature of a plea.
(b) The reply shall be signed by the respondent or the respondent’s attorney and shall give an address for service within 15 kilometres of the office of the registrar, as referred to in rule 6(5)
(c) In default of delivery of a reply referred to in paragraph (a), the respondent shall be automatically barred.

(4) As soon as possible after the expiry of the period referred to in paragraph (a) of sub rule (3), the registrar shall bring the matter before the court for summary hearing, on 10 days’ notice to the parties: Provided that no notice need be given to the respondent if the respondent is in default.

(5) The court may hear such evidence as it considers necessary and may dismiss the application or make such order as it deems fit to ensure a just and expeditious decision.

(6) The court may, on the same procedure, vary its decision in the event of a material change occurring in the circumstances of either party or a child, or the contribution towards costs proving inadequate.

MATRIMONIAL PROPERTY

Every marriage out of community of property in terms of an antenuptial contract by which community of property and community of profit and loss are excluded, which is entered into after the commencement of Matrimonial Property Act 88 of 1984 , is subject to the accrual system specified in this Chapter, except in so far as that system is expressly excluded by the antenuptial contract.

At the dissolution of a marriage subject to the accrual system, by divorce or by the death of one or both of the spouses, the spouse whose estate shows no accrual or a smaller accrual than the estate of the other spouse, or his estate if he is deceased, acquires a claim against the other spouse or his estate for an amount equal to half of the difference between the accrual of the respective estates of the spouses.

Your pension benefits are protected in terms of section 37A and section 37 B of the Pension Funds Act 24 of 1956 for example against creditors, this does not form part of your estate and not part when accrual must be calculated at time of divorce or death.

Division of Assets on Divorce

If your marriage is in community of property, all assets belonging to you and your spouse prior to your marriage, plus all assets that you accumulate during the subsistence of your marriage form part of the joint estate, and this includes all debts incurred both before and during the marriage. Upon divorce, the joint estate will effectively be divided equally between the two parties. However, it is important to bear in mind that both parties have full contractual freedom when it comes to negotiating and agreeing upon a divorce settlement.

A couple may choose to strictly enforce their matrimonial property regime when dividing their assets, or opt for a negotiated settlement that is more suited to their specific circumstances. The reality, however, is that getting two spouses to communicate after their marriage has broken down is challenging at best. Employing the services of an experienced divorce mediator can be effective in bringing both parties to the negotiation table and fleshing out a settlement agreement that is acceptable to each party. Bear in mind that if the spouses cannot reach a settlement agreement, the court can appoint a liquidator to divide the assets on behalf of the joint estate, which is never ideal.

In terms of Section 9(1) of the Divorce Act, the court has discretion when granting a divorce on the grounds of irretrievable breakdown of a marriage in community of property to order that the patrimonial benefits of one party be forfeited in favour of the other. This means that, taking the couple’s circumstances into account, the court may order that one party forfeits their patrimonial benefits to the other where it finds that the party will be unduly benefitted in relation to the other as a consequence of the marriage. When deciding whether or not to grant a forfeiture order, the court will consider the duration of the marriage, the circumstances which gave rise to the break-down of the marriage, and any substantial misconduct on the part of either spouse if applicable to the circumstances.

When it comes to retirement fund benefits, the non-member spouse will be entitled to claim 50% of the pension interests of the member spouse at the date of divorce. In terms of the ‘clean break’ principle introduced in the Pension Funds Amendment Act (2007), non-member spouses can access a court-ordered share of the member spouse’s retirement savings on divorce, whereas previously this was only permitted when the member spouse exited the fund.

Where a couple is married out of community of property with the accrual system, each spouse keeps a separate estate over which they have absolute control and independence. When the marriage comes to an end as a result of divorce, a claim comes into existence to a share of the accrual. The accrual is effectively the net increase in the value of each spouse’s estate since the commencement of the marriage, meaning that the spouses share equally in the increase in value of both of their estates while the marriage existed.

When it comes to calculating the accrual, bear in mind that only the debt that each spouse incurred from the commencement of their marriage is included in the accrual calculation. On divorce, the net value of each spouse’s commencement value at the date of marriage is deducted from the net value of each estate at the end of marriage. So, if the husband’s estate has grown more than the wife’s estate, the wife is entitled to claim up to 50% of the value by which the husband’s estate exceeds the growth in hers. Bear in mind that certain assets are to be excluded when determining the accrual. This includes any assets expressly excluded in terms of the couple’s ante-nuptial contract, and any inheritance, legacy, trust or donation received by a spouse from a third party during the marriage. Also excluded are any donations between spouses, and any damages (as a result of defamation or for pain and suffering) that accrued to a spouse.

If a couple is married with the accrual system, the spouse’s pension fund interest will be taken into account when determining the value of his estate for the purposes of the accrual calculation, and a claim can be laid to a portion of the retirement fund.

In respect of spouses married out of community of property before 1 November 1984, each spouse retains their own separate estate and there is no sharing of assets. However, because those entering into marriage contracts prior to 1 November 1984 did not have the option of the accrual system, the courts may consider a ‘redistribution of assets’ in the event of divorce. In terms of Section 7(3) of the Divorce Act, a court may order a redistribution of assets where it feels that it is equitable and justifiable to do so. The spouse seeking a redistribution order must demonstrate that they contributed directly or indirectly to the maintenance or increase in their spouse’s estate during the marriage, although it is not necessary for them to show exactly which assets they contributed to. The court will also take into account the existing financial means and obligations of each spouse and is required to use its discretion when contemplating a fair redistribution of assets. Bear in mind that a spouse’s pension interest may form part of the redistribution order.

Where a couple is married out of community of property after 1 November 1984, they are deemed to have expressly excluded the accrual system and, as such, each spouse is deemed to keep a separate estate over which they have absolute control and independence, and there is no redistribution of assets on divorce. In the event of a divorce, each spouse keeps their own estate, plus all growth in their respective estates that occurred during the marriage, less any losses. Further, each spouse remains responsible for their own debt, and the other spouse cannot be held responsible. Any share in the pension interest must take place by mutual consent, or in terms of a settlement agreement as a personal obligation. The claim a spouse may institute would be for spousal maintenance.

When it comes to dividing assets in the event of a divorce, there is always the question of whether a trust constitutes part of a spouse’s personal assets and therefore part of his personal estate. Generally speaking, our law is of the view that trust property should not be considered part of a spouse’s estate for the purposes of dividing assets on divorce because the trustee is not the owner of the property, but is merely someone who holds property for the benefit of others (i.e. beneficiaries).

However, this area of law is not clear cut, and there are circumstances in which trust property can be considered upon divorce, especially in circumstances where there is misuse or abuse of a trust. The court will seek to determine whether the spouse is using the trust as an ‘alter ego’ trust or a ‘sham trust’ by looking at whether the entity is a trust in the real sense, who controls the trust property, when the trust was created, and what the intention of the founding donor was when creating the trust.

Common Law Marriage

Couples living together who want to clarify their relationship and enter into a lawful agreement can enter into a cohabitation agreement.

This is a relatively simple contract that includes details of their assets, property and the financial contributions each partner makes to their joint home, and is ratified by an appointed lawyer.

South African law will soon encompass this evolution in cohabitation.

The proposed Domestic Partnership Bill will assist couples that choose to cohabit rather than marry. It will provide the option to register their relationship as a domestic partnership, creating similar rights and responsibilities as a marriage union.

Common law marriage – Contrary to widely held belief, South African couples who live together do not become legally married under common law after a set period of time.

Technically, partners living together have no legal duties towards each other, even if they have been together for a very long time.  This form of domestic partnership is not currently recognised under South African law.

Unmarried father – know your rights

Traditionally, two people fell in love, got married, and then (usually but not always) had children. In that order. Pregnancy outside of wedlock carried stigma and young women were often sent away to have the baby, who might then be raised as the “child” of the grandparents. An unmarried father rarely claimed a right to be involved in the child’s life.

But that was then and this is now. In the post-millennial era, many couples choose to start a family before or without getting married. Some of these relationships stand the test of time without legal sanction. Others, just like some marriages, break down. Where the parents and child/ren live as a family unit, the rights of each parent individually rarely come under scrutiny.

However, what are the rights of the father if the unmarried couple splits up, either before the child is born or while the child is a minor, or indeed if conception occurs as part of a casual encounter? While we always strive to be gender-neutral in our approach, the rights of the mother in law are incontrovertible, even if the child’s primary residence is the father’s home, and so this article deals with the rights of the father.

Prior to 2007, when the Children’s Act of 2005 came into force, an unmarried father did not have parental rights and responsibilities in respect of his child/ren. In order to secure those rights, he would have to approach a court. We know one couple who, although still together after 30 years, never wanted to marry. They had two children and fully intended to raise their daughters together. However, they had the wisdom to recognise that sometimes relationships don’t last. Mom suggested that Dad adopt his own children. This ensured, should there ever be acrimony between them in the future, Dad’s rights to his girls would not be compromised. Fortunately that card never had to be played. And thankfully fathers don’t have to go to these absurd lengths today.

The Children’s Act is a progressive piece of legislation that seeks to align the rights of children with the Constitution. One critical component of the Act is the definition of parental responsibilities and rights. The Children’s Act is built on the principle of the best interests of the child. These come before the interests of the parents, guardian, or anyone else. In determining the rights of the parents, the interests of the child are paramount.

The Children’s Act defines parental rights and responsibilities as four discrete activities. They are:

To care for the child

To maintain contact with the child

To act as guardian of the child

To contribute to the maintenance of the child

In this article we are focusing on rights, but will expand on the implications for responsibilities in a future article.

This is easy. The biological mother of a child has full parental rights and responsibilities in respect of the child, whether or not she is or ever was married to the child’s father. Case closed. These rights may be withdrawn or compromised by court order if some aspect of her behaviour is not in the child’s best interests, but these are her inherent rights as biological mother.

The Children’s Act recognises that children need both parents, whether married or not, and it seeks to grant parental rights to unmarried dads without too much complexity. The biological father of a child has full parental rights and responsibilities if he’s married to the child’s mother or was married to the child’s mother at conception, birth, or any time between the two events. However, we’re discussing unmarried fathers.

An unmarried biological father automatically acquires full parental responsibilities if:

When the child is born, he and the mother are living together as life partners, OR

If he is not living with the mother, he satisfies these conditions:

He consents to being or applies to be identified as the child’s father, or he pays damages in terms of customary law

He contributes or has attempted to contribute to the child’s upbringing and towards expenses in connection with the maintenance of the child for a reasonable period

As long as he meets these requirements, the unmarried father automatically acquires parental rights and responsibilities.

Same-sex relationships

Same-sex marriages are legal in South Africa, and the laws that apply to children of same-sex marriages are the same as those that apply to children in heterosexual marriages. In a future post we will look at the circumstances surrounding the rights of unmarried parents in same-sex relationships, and at surrogacy.

If you have been denied your rights…

Despite legal rights, some fathers have difficulty maintaining contact with a child when estranged from the mother. This can be due to lack of awareness of rights or obstructive behaviour by the other parent. If you need help to enjoy your full parental rights and responsibilities, call Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za. We believe it is in the best interests of the child to have a healthy relationship with both parents and we will help you achieve that.

DIY Divorce

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Local Uncontested Divorce

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International Divorce

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Edictal Citation

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