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I want full custody

Despite the Children’s Act no 38 of 2005 (the Act) being in place for over a decade it seems that the old family law terminology is still being used. In this article I try to explain the “new” terminology. When the Act was enacted, it envisaged that both parents should be equal custodians of their children and so the concept of parental responsibilities and rights was legislated. Further it was envisaged that parents would retain full parental responsibilities and rights in respect of their children. The parental responsibilities and rights that a parent or person may have in respect of a child...

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When do children require legal representation?

Throughout the Children’s Act (38 of 2005) there are provisions for children to participate and to express their views in matters which concern them, as well as having legal representation. Listed below are some examples. Section 10 states that “Every child that is of such an age, maturity and stage of development as to be able to participate in any matter concerning that child has the right to participate in an appropriate way and views expressed by the child must be given due consideration.” Section 29(6) states ‘The court may, appoint a legal practitioner to represent the child at the court proceedings;...

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The New Age Of A Child’s Criminal Capacity

With all of the daily changes to the Disaster Management Act, and with everyone trying to understand the updated directives and regulations, it seems that a very important piece of legislation was amended and has not been given the attention I think it deserves. On 4 June 2020 the Child Justice Act 75 of 2008 was amended and it increased the minimum age of criminal capacity of a child, who has committed an offence, from 10 to 12 years old. This means that a child up to 12 years old is presumed to lack criminal capacity and cannot be arrested for committing...

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Love Is Blind…Marriage Is Not

We love asking newly engaged couples how much attention they have given to their future marriage contract. “It always seems to shock them because they are so in love and much more focused on the dress, flowers and music. That’s usually when we tell them that while love might be blind, marriage is an eye opener.” Deciding what marriage regime will govern your marriage is one of the most important decisions a couple will make. The three forms of matrimonial property systems available since the commencement of the Matrimonial Property Act 88 of 1984 are described simply below: In Community of...

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Maintenance Payments And COVID-19

Has COVID- 19 resulted in you being retrenched, or your salary being reduced? Most maintenance payments are made in terms of a court order and there are legal consequences if you do not pay in terms of your order. COVID 19 is not a 'get out of jail free card'. If you do not pay your maintenance in terms of your court order, it is still contempt of a court order. If you are unable to pay in terms of your maintenance order the correct court procedures still need to be followed, and you cannot simply just not pay. Section 6 of the Maintenance...

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Parenting Coordination

A new solution for high-conflict divorce parents After divorce, parents often enter into parenting plans which regulate their respective responsibilities and rights in respect of their children. These plans state where and with whom the children are to live; the maintenance payable; the contact and access between the children and either of the parties or third persons; and the children’s schooling and religious upbringing. Parents in high conflict divorces will continue to have disputes about the implementation of the parenting plan. Parents can now appoint a Parenting Coordinator (PC) who can facilitate these disputes. The most dominant factor in a child’s psychological and...

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The Criminal Capacity Of Children

Do you have a naughty child? Can your child be held responsible for their actions? In this article I discuss the law relating to the criminal capacity of a child. One of the requirements of a crime or a delict (a civil wrong) is fault, and a prerequisite for fault is accountability. Children can lack the ability to display good judgement and therefore can lack accountability. In South African criminal and delictual law there are different ages at which a child is believed to have capacity to be accountable. Section 7(1) and (2) of the Child Justice Act 75 of 2008 refers to the...

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Common Law Husband And Wife

There is no such thing! It is rather simple. There is no such thing as common law Husband and Wife in South Africa.There still seems to be a misconception that parties who live together (cohabitants) have legal rights and duties towards one another. This is not the case. Cohabitation is not recognised by law as a marriage, and thus the rights and duties that apply to a marriage do not apply.The draft Domestic Partnerships Bill that was published in January 2008 will assist couples that choose to cohabit rather than marry but until the bill is passed, I would advise cohabitants...

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The Accrual System

I can't emphasise enough how important an Antenuptial Contract (ANC) is. I see it repeatedly that when couples get married, it is the last item on the “to-do” list and is often given the least amount of thought when, in fact, it is probably one of the most important documents you will ever sign. The accrual system allows spouses to have their own assets and liabilities. However at the end of the marriage, either through death or divorce, the spouse whose estate shows no growth or a smaller growth in comparison to the other spouse, is entitled to claim half the...

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The Claim Based On Adultery

I have written about this before but recently came to realise that many people still didn’t know an innocent spouse cannot sue a third party for damages resulting from adultery. In this article I set out the courts reasoning for the change. In the landmark case, an ex-husband, Mr DE, sued Mr RH for damages on the basis that Mr RH had an extra-marital affair with Mr DE’s former wife. His claim was based on the general remedy for the infringement of personality rights, claiming insult to his personality, and the loss of comfort and society from his spouse. Mr DE...

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