Divorce without borders: How to share the kids after separation

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It is expected of divorced parties to close the old book and start a new life .
It is expected of divorced parties to close the old book and start a new life .

Shani van Niekerk, Senior Associate at Adams & Adams, unpacks the laws around inter-provincial relocation after a separation - with kids.   

It is expected of divorced parties to close the old book and start a new life after what is usually a traumatic and most definitely a life-changing experience. Very often a new life does not only include a new haircut and wardrobe but also a new province or even a new country.

It is an unfortunate reality of marital breakdown that when the former spouses go their separate ways that they are required to reconstruct their lives. Relocation disputes between parents frequently serve before our courts.

Relocation disputes have also increased due to the outflux of South Africans wishing to emigrate for a range of reasons. A relocation dispute will arise when one parent, normally the parent with a primary residence and with whom the child(ren) usually resides, decides to move town/province/country.

In the absence of an agreement between the parties, a court is approached by the party wishing to relocate. The request to the court is to grant consent for the relocation.

Alternatively, the parent "left behind" requests the court to prevent the relocation.

What does the Law say?

The Children's Act 38 of 2008 governs all matters regarding children in South Africa. The guiding principle underpinning all the provisions of the Children’s Act is: "in all matters concerning the care, protection and well-being of a child the standard that the child's best interest is of paramount importance must be applied" (Section 9).

The Children's Act, however, neither makes specific reference to the relocation of one parent or the other nor does it legislate consent procedures. Section 18, however, makes it clear that if one parent wishes to emigrate from South Africa to another country the consent of both parents is definitively needed.

For relocation within South Africa, the situation is less well defined. In the absence of legislative controls, our courts have dealt with the issue of relocation on a case-by-case basis. Various factors are taken into account, including the best interest of the child(ren), the welfare of the child(ren) and the effect that the relocation will have on the parent who remains behind.

Read: New UK student visa option now available to South Africans

An important factor that the court will always take into consideration is whether the decision by the parent to relocate is reasonable and bona fide. The grass may seem greener on the other side but relocation with a child can become an extremely stressful, litigious and costly outdrawn process.

What is the Hague Convention?

The Hague Convention is an international treaty aimed at initially discouraging the following conduct: the abduction/removal of a child from the country in which he/she normally resides, by a parent or caregiver to another country, without the consent of the other parent or caregiver;

or the retention of a child in another country and refusal by a parent to return the child to the other parent in the country in which the child normally resides.

The Convention furthermore creates a mechanism and procedure to assist the parent not relocating and the involved countries’ authorities to facilitate the return of the child so removed or retained.

The Convention also makes provision for assistance where contact between a parent and a child in a different country is being obstructed. Member countries are bound to assist the parent seeking assistance by providing a simplified procedure and additional remedies that may be available depending upon the circumstances and assistance required.

Most European and Commonwealth countries as well as the United States are members. On the African continent, only South Africa, Mauritius and Zimbabwe subscribe to the Convention.

The reality is unfortunately that more often than not these disputes can be drawn out and require a desperate parent wishing the child to be returned, or his/her contact to be restored, to traverse a minefield of procedures and obstacles.

It is, for instance, not a given that the child will or should be returned to the deprived parent. The child's best interests remain paramount, and this can often lead to real or fictitious claims being made in an attempt to sway the pendulum one way or the other.

More often than not embarking upon this process requires expert assistance from a knowledgeable team that can assist, both locally and abroad, to ensure the best possible outcome.


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