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Primary residency and care, or as it was formerly known, child custody, is a crucial issue in family law, particularly when parents separate or divorce. Parents must understand the intricacies of South African child primary residency and care laws to navigate these challenging situations. This article provides an overview of child custody laws in South Africa, emphasising key aspects and considerations to assist parents in making informed decisions. Family Law in South Africa Family law encompasses a broad spectrum of matters including marriage, divorce, child custody, and maintenance. Its primary aim is to protect the rights and well-being of all family members, with a particular focus on children. With regard to child primary residency and care, family law sets forth the legal framework for making custody decisions, ensuring that the best interests of the child are always given the utmost consideration. Types of Child Custody/Primary Residency and Care  Child custody in South Africa can be classified into different types, each with its own implications: Sole Primary Residency and Care: In sole custody arrangements, one parent is granted full custody of the child. This parent is responsible for the child’s daily care and decision-making. Sole custody is typically granted in cases where one parent is deemed unfit or unable to care for the child. Joint Primary Residency and Care: Joint custody involves both parents sharing the responsibility for the child’s upbringing. This arrangement allows the child to maintain a strong relationship with both parents, which is generally seen as beneficial for the child’s development. Physical vs. Legal Primary Residency and Care: Physical custody refers to where the child lives, while legal custody involves the right to make important decisions about the child’s life, such as education, healthcare, and religious upbringing. Parents can share either or both types of custody. Factors Considered in Child Custody Decisions South African courts consider several factors when determining child custody arrangements: Legal Process for Determining Primary Residency and Care  The legal process for determining child custody in South Africa involves several steps: Step 1: Mediation: Mediation is often the first step in resolving custody disputes. A neutral third party helps parents reach an agreement that is in the best interests of the child. Step 2: Court Proceedings: If mediation fails, the case proceeds to court. The court examines evidence, hears testimonies, and makes a custody determination based on the child’s best interests. Step 3: Legal Representation: Having a lawyer is crucial during custody proceedings. Legal representation ensures that parents’ rights are protected and that they receive proper guidance throughout the process. Modifying Primary Residency and Care  Orders Primary Residency and Care orders can be modified under certain circumstances: To modify a custody order, a parent must file a request with the court, providing evidence of the changed circumstances. The court will then reassess the custody arrangement based on the new information. Parental Rights and Responsibilities Both custodial and non-custodial parents have specific rights and responsibilities: Custodial Parent Rights and Responsibilities: The custodial parent has the right to make daily decisions about the child’s care and upbringing and is responsible for providing a safe and nurturing environment. Non-Custodial Parent Rights and Responsibilities: The non-custodial parent typically has visitation rights, allowing them to maintain a relationship with the child. They are also responsible for supporting the child’s needs, often through financial contributions. Co-Parenting Rights and Responsibilities: Successful co-parenting requires cooperation and communication between parents. Harmonious parent-child relationships are essential for the child’s well-being. Factors That Can Impact Child Custody Arrangements Domestic Violence Domestic violence has a significant impact on child primary residency and care  decisions under South African law: If domestic violence is involved, protection orders need to be issued to safeguard the child and the abused parent. These orders can affect custody arrangements by limiting the abuser’s contact with the child. The child’s safety is a top priority. Courts take allegations of domestic violence very seriously and will make custody decisions that ensure the child’s protection. Cross-Border For child custody disputes involving parents in different countries, careful consideration of international laws and treaties must be taken. As such, legal assistance is crucial in these complex cross-border family law cases. A Closer Look At The Children’s Act of South Africa The Children’s Act covers various aspects, including the court’s assignment of contact, care, and guardianship to interested persons. The best interests of the child standard serve as a guiding principle in all matters related to a child’s care, protection, and well-being.  Our lawyers have a deep understanding of the Children’s Act, and the provisions outlined in these sections are essential to ensuring that the rights and responsibilities of all parties involved are upheld in a fair and just manner. A summary of the Children’s Act 35 of 2005 -Chapter 3: Section 18 outlines the parental responsibilities and rights that an individual may have regarding a child, including caring for the child, maintaining contact, acting as the child’s guardian, and contributing to the child’s maintenance. Section 23 explains that any person with an interest in a child’s well-being can apply to the court for an order granting them the right to have contact with the child or to take care of the child. Section 24 states that any person with an interest in a child’s well-being can apply to the High Court for an order granting them guardianship of the child. The court must consider the best interests of the child and the applicant’s capacity to meet the child’s needs. Section 28 emphasises that the best interests of the child are of paramount importance in all matters concerning the child’s care, protection, and well-being. It outlines factors to be considered, such as the child’s relationship with parents and caregivers, the parents’ attitudes, and the ability of parents and caregivers to meet the child’s emotional and intellectual needs. >> See the Children’s Act 38 of 2005 SB Lawyers, Your Family Law Experts Navigating child custody issues requires a thorough understanding of South African family law. By considering the best

Maintenance duties include accommodation, food, clothes, medical expenses, and daily living expenses. Maintenance disputes are generally about affordability – the maintenance amount may be too little or too much. Disputes regarding maintenance demand immediate steps to be taken and require urgent intervention. The reality is that resolving a maintenance dispute can be time-consuming, and securing the services of an attorney who has knowledge of dealing with these disputes to navigate them in a successful manner is sometimes difficult.  At SB Attorneys, we understand that people turn to the Maintenance Court for a reason, and we strive to provide cost-effective, result-driven solutions.   Understanding Maintenance Law in South Africa The duty to maintain is based on a blood, adoption or marriage relationship. The requirements considered by a Maintenance Court in deciding whether to grant an order to maintain, generally, are the following: In terms of the maintenance law in South Africa, minor children have a constitutional right to be maintained by both their/his/her parents. This right is extended to children who are majors but remain dependent. Children who reach the age of majority before completing their education or who pursue tertiary education are considered dependent and have the right to be supported by their parents. Each parent’s share of the duty is apportioned according to his/her means. The duty to maintain is not limited to a child. Any family member, irrespective of the family member’s age, can approach the Maintenance Court for an order to be maintained, taking into account the requirements above.  When no maintenance order exists, the Maintenance Court may make an order against the person(s) to be legally liable, that the maintenance be paid to the person(s) claiming maintenance. Common Causes of Maintenance Disputes When there is a maintenance order, the Maintenance Court, depending on the relief sought and the circumstances, may make an order replacing the existing order (either an increase or decrease in the amount of maintenance), discharge the maintenance order (for instance, when a major child is no more dependent) or make no order (when the requirements referred to above, are not met). When an order exists, and the person against whom the order is made pays late or fails to pay, the maintenance order is enforceable regarding any outstanding amount, together with interest by execution against property, the attachment of emoluments or the attachment of debts.  A person against whom a maintenance order is made is guilty of an offence and liable on conviction of a fine or imprisonment. In circumstances where the defence raised against the non-payment relates to a lack of means, the matter will be converted into a formal enquiry to determine, factually, whether a lack of means exists on the side of the defaulting party and in which instance, the Maintenance Court will vary the existing maintenance order. It often occurs that where no maintenance order exists, the person from whom maintenance is claimed (the father) disputes the paternity of the child(ren). In these circumstances, the Court will order the parties to attend a paternity test to confirm the relationship (biological) between the father and the child. Once paternity is confirmed, the matter will proceed.  How To Institute Maintenance Proceedings The Maintenance Court is a Magistrate’s Court, and each Magistrate’s Court has a Maintenance Court. The Maintenance Court in the district where the person(s) reside in whose favour/benefit the order is made must be approached. A complaint relating to maintenance, whether it is that maintenance is not paid or a substitution or discharge of a maintenance order is sought, must be lodged with the maintenance officer, who will investigate the complaint. Only after the maintenance officer has investigated the complaint will the matter be referred to the maintenance court for an enquiry.  During the investigation phase conducted by the maintenance officer, attempts will be made to settle the dispute; however, in the absence of a settlement, the matter will ultimately be referred to the Maintenance Court for an enquiry. Here, the parties will present their case to the Magistrate and await the ruling. In High Court litigation, Rule 41A of the Uniform Rules of the High Court provides for mediation of disputes. Unfortunately, a similar provision does not exist in the Maintenance Act.  The Role of SB Attorneys in Maintenance Disputes SB Attorneys, who specialise in family law, prioritise the possibility of reaching a settlement as the first approach. This is especially important when minor children are involved, as it serves their best interests, both financially and emotionally. Pursuing a settlement can also save both parties time and costs associated with prolonged litigation. If you are facing maintenance disputes and require legal assistance, consider contacting our team at SB Attorneys. We understand the importance of all parties involved and strive to find a resolution that is both fair to the parents and that remains in the best interest of any children involved.

Going through a divorce is one of the most vulnerable situations for any person to be in, especially if one of the parties is resistant. The idea of losing a partner can bring about feelings of insecurity and uncertainty about various aspects, such as child custody, financial support, and the general aftermath of the divorce. The emotional impact of the situation can be overwhelming. Since divorce can be a life-changing and emotionally challenging experience, couples facing the possibility of divorce often seek ways to simplify the process. While DIY divorce papers may seem like an attractive option on the surface, this article will explore both its advantages and drawbacks, as well as the importance of involving sound legal counsel. We will shed light on the potential benefits of handling divorce paperwork independently, as well as the significant risks and pitfalls that can arise along the way. The Appeal of DIY Divorce Papers We understand that you may want to handle your own divorce proceedings without hiring a legal practitioner to avoid incurring legal costs. However, we would like to suggest that while cost is an important factor to consider, it shouldn’t be the only factor. When it comes to divorce, it’s vital to have an experienced and reliable attorney who can guide you through the process and ensure that your interests are protected. Choosing the right attorney can be a daunting task, but it’s worth taking the time to find the right one for you. After all, a DIY divorce may seem like a cost-effective solution, but it can end up costing you more in the long run if you don’t have the right support. The Pros of DIY Divorce Papers Divorce is a tough time, and it’s easy to feel like you can handle everything on your own. While it’s great to be resourceful, it’s important to remember that attorneys have years of experience and expertise that is invaluable in a divorce case. Trying to handle it on your own will end up costing you more in the long run. So, it’s always best to consider hiring an attorney at the start of the proceedings. They’re here to support you through this difficult time and make the process as smooth as possible. The Risks of Handling Your Own Divorce in South Africa The risks involved in attending to your own divorce are numerous. Claiming for Maintenance Correctly It is important to formulate a claim for maintenance when issuing a summons for divorce, especially if one spouse is dependent on the other spouse for financial support. This claim should include reasons for the breakdown of the marriage relationship, the financial means of both spouses and the contributions made by one spouse towards the estate or growth in the estate of the other spouse. Failing to do so effectively will result in the abandonment of the right to claim for maintenance. Clauses for Dependent Children When minor children are involved in a divorce settlement, it’s important to include specific clauses in the agreement or parenting plan to ensure compliance with the Children’s Act. Additionally, it’s crucial to provide for the maintenance of dependent children when issuing a summons. Type of Marriage Matters in a Divorce In Community of Property or Out of Community of Property with the Accrual: When spouses are married, either in community of property or out of community of property, and one spouse is unhappy about the other spouse’s failure to contribute towards the communal estate or if they feel that the other spouse will benefit unfairly, they can ask for half of the communal estate or an amount that represents half of the difference in accrual between the spouses’ respective estates. In such a case, forfeiture in terms of the Divorce Act must be pleaded. If forfeiture is not pleaded, it will be considered that the aggrieved spouse does not object to the division of the communal estate on a 50/50 basis or to the application of the accrual system. Out of Community of Property: It can become problematic in situations where parties are married out of community of property as well. For example, if one spouse contributed to the growth of the other spouse’s estate by participating in management, and labour, taking over household chores, including raising children, and enabling the other spouse to grow their estate, a (limited) partnership must be claimed. If such a claim is not made, it can be detrimental and difficult to amend the summons or pleadings later during the divorce when an attorney is appointed to make provision for it. Recently, the Constitutional Court passed a ruling on the discretion of a Court to make a redistribution order where parties are married out of community of property, excluding accrual, after 1 November 1984. Accurate pleas must be formulated in drafting a summons or a counterclaim for it. Rule 43 Applications A Rule 43 application can be used as a remedy for the availability of a spouse during a divorce action. This type of application is brought for relief while the divorce is being finalised. The application seeks: It is crucial to seek legal assistance in cases where the residency and care of minor children are in dispute, to ensure that the summons or counterclaim includes the necessary prerequisite pleas. Why Legal Counsel Matters Based on the information provided above, it is clear that choosing not to hire a legal practitioner or attorney may result in you having to pay more to correct and modify legal documents. Furthermore, it could lead to you unknowingly giving up your legal rights and losing your case. It’s important to seek legal counsel to ensure that you are fully aware of your rights and receive the best possible outcome.  Finding the Balance SB Lawyers provides in-depth legal counsel tailored to our ever-growing technological world so that you don’t have to do your own DIY divorce papers. We strive to empower our clients by keeping them informed and guiding them professionally towards optimal outcomes. How