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Tag Archive: divorce attorneys

Children’s Amendment Bill

South Africa has some of the most progressive children’s legislation in the world. The Amendment Bill before Parliament strengthens protective measures for children even further and aims to close gaps in the child protection system. This article provides a summary of the additional controls being introduced. Some of the amendments concern terminology, to align the original Act with current family and child law practice, including the UN Convention on the Rights of the Child. Some of the changes are more significant.

Unmarried fathers

The Bill makes further provision for the rights of unmarried fathers. Originally, an unmarried father enjoyed full parental responsibilities and rights if he was living with the mother at the time of the birth in a permanent life partnership…or… consented to be identified as the child’s father, contributed to the child’s upbringing for a reasonable period, and contributed to child maintenance expenses for a reasonable period.

Section 21, which covers unmarried fathers, has been amended to clarify that a father who is not married to the mother and who was living with her at any time between the child’s conception and birth automatically acquires full parental responsibilities and rights with regard to that child. A family advocate may issue a certificate confirming these parental responsibilities and rights.

Children in need of care and protection

Sections dealing with children in care or in need of protection have been tightened, and the interests of the child prioritised. A child who has been abandoned or orphaned and has no parent or other caregiver to care for them is considered a child “in need of care and protection”. This definition extends to “an unaccompanied migrant child from another country”, “a victim of trafficking”, or a child who “has been sold by a parent caregiver or guardian”. Furthermore, the Bill clarifies the application of the Children’s Act to all children in South Africa, including non-citizens. It extends the jurisdiction of the children’s court to include “guardianship of an orphaned or abandoned child” and an “unaccompanied or separated migrant child, or the child of an asylum seeker or refugee, as contemplated in the Refugees Act, 1998”.

The permitted duration for placing a child in temporary safe care has been amended. A child may not be placed in temporary safe care for more than 72 hours without a court order, or for more than six months at a time. If a child runs away from alternative care and is found and brought back within 48 hours, they will no longer appear before the children’s court. Instead, their social worker will assess the child and try to establish the reason for the escape. This acknowledges that some children find care homes very stressful and are not necessarily delinquent or unruly because they attempt to flee.

Child abduction

A new section has been added to the Children’s Act to expedite proceedings when a child has been abducted. This is to ensure that the interests of the child are represented and protected by eliminating delays in the judicial process. Children adapt and adjust quickly and, once adaptation to the new environment has occurred, it may not be in the child’s best interests to return home, even if the abduction was unlawful. On the day of the application for the return of a child, the Central Authority must bring the application to the attention of the judge president of the relevant division of the High Court for the appointment of a legal representative for the child.


Changes to Chapter 19 of the Children’s Act, Surrogate Motherhood, are minor, but ensure that the health and age of both the commissioning parents and surrogate mother are considered by the court before the surrogacy can be confirmed.

Early childhood development 

Chapter Six of the Children’s Act deals with early childhood development, long recognised as critical in the development of a child’s cognitive, emotional, social and physical potential. The Bill amends the definition to include provision for children with disabilities. It also obliges the government to develop a comprehensive national strategy aimed at securing a properly resourced, coordinated, managed and inclusive early childhood development system. At provincial level MECs are responsible for ensuring their provincial strategies are inclusive and provide for children with disabilities and special needs. There must be a record maintained of registered early childhood development programmes in the province with specific mention of inclusive programmes. Furthermore, an MEC may prioritise funding for early childhood development programmes in rural, underserved, or poverty-declared wards, to ensure appropriate targeting of this vital service.


Adoption is covered at length, with particular attention paid to inter-country adoption and the adoption of a child of a child.

In summary

The Bill runs to 102 clauses, many of which are “minor consequential amendments” for clarification. However, some of the amendments significantly enhance the protective environment for all children in South Africa, whether citizens or not. We welcome these changes, which are summarised below:

  • To provide for children’s right to privacy and protection of information
  • To further provide for the rights of unmarried fathers; to extend the children’s court jurisdiction
  • To further provide for funding of early childhood development programmes
  • To provide for the designation and functions for a Registrar of the National Child Protection Register
  • To further provide for the care of abandoned or orphaned children and additional matters that may be regulated
  • To further provide for rules relating to care and protection proceedings
  • To further provide for medical testing of children in need of care and protection or adoption
  • To provide for additional matters relating to children in alternative care
  • To further provide for matters relating to adoption and inter-country adoption
  • To further provide for the hearing of child abduction matters
  • To further provide for matters relating to surrogate motherhood
  • To provide for matters connected therewith

Get professional help with parenting issues

Cape Town law firm SD Law is an expert in family law. If you need help with child care and contact (custody and access) or a parenting plan, or if you have any questions about the Children’s Act and Amendment Bill, call Simon on 086 099 5146 or email We’ve helped many families reach agreement on complex parenting issues.

Further reading:

This article first appeared on on 2020-11-12.

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Rape prosecutors in England and Wales given new advice over dating apps

Nude selfies and use of such apps should not be taken as ‘blanket consent’, says CPS

Reprinted from the Guardian, by Caelainn Barr – 2020-10-19

Dating apps like Tinder have come out on top of conventional dating websites like, at least among those under 35. As users exchange intimate photos and messages before even meeting, what does this mean for the concept of consent? In England and Wales, the Crown Prosecution Service has made it clear that exchanging nude selfies does NOT equate to sexual consent, as this article from the Guardian explains.

nude selfies are not consent
The updated legal guidance for rape and sexual assault cases comes into effect on 1 November. Photograph: Eva Hambach/AFP/Getty Images

Prosecutors are to receive new guidance on common myths and stereotypes in rape and sexual assault cases, in an attempt to turn the tide on plummeting rape prosecutions in England and Wales.

Revamped advice from the Crown Prosecution Service will cover the use of dating apps and sending explicit photos, as well as the impact of trauma and striking the balance between privacy and a thorough investigation.

Prosecutors are to be told meeting people on hook-up sites and sending explicit photos should not be taken as “blanket consent” for sex, while details about how trauma can impact victims’ memories are to be addressed in greater detail

The guidance for prosecutors, which comes into effect on 1 November and is subject to a three-month consultation, contains updates on 39 rape myths and stereotypes including false statements such as “If you send sexual images or messages prior to meeting someone, then having sex is inevitable”, and “If you meet men online or through hook-up apps you want sex and should be ready to offer sex”.

Rape convictions in England and Wales have fallen to a record low. Prosecutions and convictions more than halved in the three years to 2019-20 despite an increase in reported rapes. Last year there were 1,439 convictions, although more than 55,000 rapes were recorded by police in England and Wales.

The guidance is an attempt to address conviction rates among 18- to 24-year-olds, which are among the lowest of any age group. In 2018 the Guardian revealed men aged 18-24 were consistently less likely to be found guilty than older men on trial.

Updated guidance to prosecutors
Updated guidance to prosecutors (left) is identical to that from the merits-based approach (right). Photograph: The Guardian

The guidance issued also reinstates elements of guidance outlining the “merits-based approach”, which were previously removed. The merits-based approach (MBA) means a prosecutor should treat evidence as if it will be heard by an unprejudiced jury, rather than the “bookmaker’s approach” where a prosecutor tries to second-guess a jury.

Women’s organisations have accused the CPS of quietly moving from a merits-based approach to a bookmaker’s approach, meaning they were less likely to bring a prosecution if they thought a jury could be prejudiced against a victim.

Updated guidance to prosecutors
The guidance contains updates on 39 rape myths and stereotypes. Photograph: The Guardian

A CPS spokesperson said: “Our approach to prosecuting rape has not changed. Our legal test for prosecution – the full code test – has never included a specific reference to a merits-based assessment because it is already an integral part of the evidential stage.”

Harriet Wistrich, director of the Centre for Women’s Justice said: “We welcome the introduction of new guidance which we hope will improve decision-making by police and prosecutors and begin to reverse the recent dramatic decline in the volume of prosecutions. We believe the decline was largely caused as a result of a retreat by the CPS from a robust approach informed by the ‘merits-based approach’ to decision-making.

“However, the guidance must be properly implemented, we have seen far too many decisions recently infected by the CPS risk-averse approach and a failure to follow existing guidance on rape myths and stereotypes, with the consequence that many victims have been denied justice and perpetrators have been left free to attack again.”

Earlier this year two charities, End Violence Against Women and the Centre for Women’s Justice, were granted a judicial review of how rape cases were being prosecuted by the CPS.

At issue is whether there has been a change in how the CPS prosecutes rape. The Guardian revealed the details of a training roadshow which took place in 2017, where prosecutors were advised that prosecution rates could be improved by taking the “weak cases out of the system”.

Siobhan Blake, rape lead at the CPS, said: “We share the public’s concern about the disparity between the number of rape and serious sexual offences reported and those cases getting to court, and are determined to make significant changes to improve that for survivors of these appalling crimes.

“Clear, up to date guidance is crucial to help our specialist prosecutors make fair and effective decisions and make sure that justice is delivered in every case for victims and alleged perpetrators.”

If you have been affected…

If you have been affected by any of the issues in this article, family attorneys SD Law have deep experience of helping women who experience abuse. If you have suffered sexual assault, and have been too scared to bring charges, we will support you through the process and help keep you safe. If you experience intimate partner violence, we can serve a protection order on your partner and  help you initiate divorce proceedings, if appropriate. We will connect you to relevant support services. Contact Simon on 086 099 5146 or email for a confidential discussion. We can call you back on a safe number.

Further reading:

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“I co-parent with my ex, but he threatens me and expects sex”

It’s time to free yourself from your manipulative former husband, says Mariella Frostrup

Reprinted from the Guardian – 2020-09-06

This reader’s dilemma from the UK’s Guardian newspaper caught our eye. It is not uncommon for divorced co-parents to continue in an emotionally dependent and unhealthy relationship. The constant contact of raising children can make it hard to sever the ties completely. This counsellor gives sound advice.

co-parenting with a manipulative ex
‘Our son is tired of the situation and so am I, but I can’t see a way out.’ Photograph: Azat_ajphotos/Getty Images/iStockphoto


The dilemma I split with my husband when my son was three – he was selfish and did not enjoy being a father. But we parted amicably and agreed to co-parent our son. I hoped for another relationship and another child.

Twelve years later and I have had one relationship, which caused my ex-husband to threaten suicide. He has constantly been in and out of my life – at first I thought he wanted to reconcile, but I realised he wants to cherry-pick the parts of marriage that suit him (mostly sex) and then go to his own house when he “needs space”. Whenever I put my foot down he threatens to take our son away. Even going to a solicitor didn’t help.


I feel like his mother. He turns up whenever he wants advice, and I help him (to my own detriment, as he is very depressive and pessimistic). He is on the autism spectrum and his family really don’t care about him. Other times he turns up for the evening with alcohol, wanting to stay the night and I let him, to save another argument. Our son is now 15 and my ex is still trying to get him to live with him, despite the fact that he works shifts and is out of the house for hours. Our son is tired of the situation and so am I, but I can’t see a way out. How will I ever have my own life?

Mariella replies It sounds simplistic, but where many of us go wrong is in refusing to take agency of our own lives – instead allowing others to make subservient our personal desires. It’s very hard, stuck in one form of reality, to conceive and create another, but it’s important that you dream up a vision for the future that’s realistic and achievable.

Your husband has maintained control over both you and his son for more than a decade, cynically placing his emotional needs and desires above both of yours. As you observe, it’s high time that you freed yourself from that bind, but this sense that you are doing it for your son is really a cover for your fear of taking your life in your own hands. Desperately holding on to your boy is neither necessary nor the answer. And I can reassure you that no court is going to significantly alter custody arrangements just because you put your foot down about your ex-husband’s overnight stays. Any fears over the custody of your son can be addressed through family mediation (try the Family Mediation Council or National Family Mediation).

I’m sad to hear that you haven’t found another partner or had the second child you desired, but you have to see how the perpetual helicoptering presence of your ex will have put people off.

While this situation continues you’re not free or available. Instead, you’re enabling your husband to stay in the driving seat of your life. I’m glad that you’ve managed to co-parent with him amicably, but at what cost? It really does sound as if your husband is a manipulative presence who has ensured that you’ve never enjoyed the freedom that should have been yours when you made the hard choice to move out.

Up until now he seems very much to have had his cake and eaten it with little opposition from you. He can’t take your boy away – that is an empty threat – and, very shortly, your son will be able to make his own choice. If he decides to hang out with his dad through his A-levels, good luck to him! You need to stop loading the responsibility for your entrapment on the fragile shoulders of your teenage son. What will make him want to stick around is the sight of you grasping your life with both hands and freeing him from his confusing position as a prize in a competition between his parents. You can get help in escaping from your husband’s manipulative behaviour – organisations such as Women’s Aid ( or Refuge (; 0808 2000 247) can advise you over what is, essentially, a kind of coercive control. And it goes without saying that if you are concerned about his threats of suicide, start a dialogue with him and suggest he seeks help (

Your ex has used you as an emotional crutch, handy booty-call and as a way to access his son without any responsibilities. Why would you give so much away for so little return? These are questions you need to ask yourself because, without understanding your impulses, you are unlikely to be able to change them.

The bargaining chip in all this seems to be your son, and your ex will have been aware of that. In three years he will be free to strike out on his own and if you and his father are still locked in this dance, he’ll want to put as much distance between himself and both of you as possible.

Now is your last chance to enhance his still formative life experience by making some adult choices – ideally together with his father. A clear position and a voice at the table are the least he should be equipped with as he steps towards his own destiny.


We can help

SD Law & Associates are experts in divorce and family law and have dealt with many types of parenting issues. If your ex makes contact visits difficult, we can help you manage the situation, with a protection order, parenting plan, or other relevant intervention. Contact us on 086 099 5146 or 076 116 0623 or email Your enquiry will be dealt with in the utmost confidence.

Further reading:

Contact numbers:

  • GBV Command Centre: 0800 428 428 / *120*7867# from any cell phone
  • Persons with disabilities, SMS ‘help’ to 31531
  • Women Abuse Helpline: 0800 150 150
  • Childline: 0800 055 555
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Online petition on evicting domestic abusers got court ruling wrong

Judges emphasise that procedural fairness must be upheld

Reprinted from, by Tania Broughton – 2020-09-04

eviction orders and domestic abusers

Three appeal judges in the Western Cape provincial division have laid down guidelines on how eviction orders, in domestic violence matters, should be dealt with. Photo: Brian Turner via Flickr (CC BY 2.0)
  • A magistrate ruled that a husband accused of abuse by his wife must leave the family home.
  • The Western Cape High Court overturned the magistrate’s ruling.
  • When evicting an alleged abuser in a case of domestic violence an informed assessment must be made and basic fairness applied, the judges ruled in the appeal.
  • The judges laid down guidelines that magistrates need to consider.

Three appeal judges in the Western Cape High Court have laid down guidelines on how eviction orders, in domestic violence matters, should be dealt with.

An online petition, created after the ruling by Judges Owen Rogers, Robert Henney and Acting Judge Bernard Martin, assumed that they laid down in law that domestic violence abusers cannot be evicted from their homes if they cannot afford to live elsewhere.

But the judges did not take it that far. What they said was that a magistrate’s court dealing with eviction orders in terms of the Domestic Violence Act, must first make an “informed assessment”. And in the appeal matter before them, this had not happened.

“The court should elicit information about the potential prejudice, the person’s ability, including financial resources, to obtain alternative accommodation and access to children.

“An eviction impacts on a person’s right to adequate housing and right to property in terms of the Constitution.

“The procedure in this case fell short of the requirements of basic fairness. Such an (eviction) order may be justified, but the magistrate did not make an informed assessment.

“There was also no inquiry into the effect, if any, the interim interdict had had on the husband’s behaviour up to that point,” Judge Rogers said, writing for the court.

The appeal has had a rocky path. It was first set down in December last year before Judge Rogers and another acting judge who disagreed on the outcome. It was postponed several times for different reasons and the court then asked the Cape Bar Council to appoint an advocate to represent the wife.

Judges Henney and Acting Judge Martin were then added to the panel to ensure that there would be a majority judgment in the event of judicial disagreement.

The wife, in her application for a protection order last year, said the family home was hers and had been bought by her father. However, because they were married in community of property, they both owned it in equal shares.

She alleged her husband was emotionally and verbally abusing her. She obtained an interim interdict ex parte (without notice to the other side) with a return date. While at that time, she also asked for an eviction order, this was not granted.

The husband then also brought a domestic violence application against her and one of their sons. The magistrate hearing the matter decided to consolidate both applications and ordered the husband to leave the house within a week. She said, “Even though you are married in community of property, it is clear to me from the evidence that this is not your house. You met her. She had a house. You stayed with her.”

The magistrate said the issue of the home ownership could be finally resolved during their divorce.

Judge Rogers said it appeared that the couple had not initiated divorce proceedings although they did not love each other and slept in separate rooms.

Turning to procedural fairness, Judge Rogers said on the day the matter was heard the husband had been unrepresented and would have been taken by surprise when the magistrate, midway through hearing his application, caused his wife’s application to be placed on the court roll.

It was possible that he may also not have known at that stage that she was seeking his eviction, because he would only have been served with the interim order, which would not have warned him of that.

“An order interdicting someone from committing acts of domestic violence effectively prevents them from doing that which is unlawful. By contrast, an eviction order prevents them from doing what would otherwise be lawful,” the judge said.

The judges referred the issue of the eviction order back to the magistrate directing that the parties be given a fair opportunity to present evidence and make submissions.

“Given the lapse of time, it would be appropriate for the court to also find out what has been happening in the home since June 2019 (when the interim protection order was granted).”

Links added by SD Law.

Let Divorce Attorney Cape Town help

We can support you through divorce proceedings and help you move on to the next stage of your life as quickly as possible. If you would like to talk to someone in confidence, give Simon a call on +27 (0) 86 099 5146 or email  Simon Dippenaar & Associates Inc. are experts in divorce and family law. We now offer online consultations. We’ll call you back and schedule a meeting at a time that suits you, on the platform of your choosing.

Further reading:

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Average retainer fee for a divorce lawyer?

Generally, the average retainer fee for a divorce lawyer should cover a number of hours so that the law firm can schedule and prioritise a new case.

We recommend that you budget 10 to 20 hours as a start.

The actual hourly rate will depend on a number of factors.

Remember that divorce law services are a life-changing service.

A successful divorce is one which saves you from financial and emotional turmoil, putting the future of the family first.

Your divorce lawyer is your guide, and can either champion your position, saving you time, money, and emotional fallout; or achieve the opposite.

After attending to 100s of divorce cases, we recommend you consider this list of factors, before appointing a divorce lawyer:-

  1. the reputation of the firm, as well as the individual professional;
  2. the values of both;
  3. the strategic approach, especially to conflict resolution;
  4. the experience and specialisation;
  5. the appreciation of psychology and pathology;
  6. being a skilled negotiator; diplomatic, yet appropriately assertive (never aggressive);
  7. the level of emotional intelligence;
  8. familiarity of the local court system, and role players;
  9. the complexity of the matter;
  10. the urgency;
  11. the value of the assets and debts;
  12. whether there are any minor children;
  13. whether it is a high conflict divorce;
  14. your spouse’s attorney and advocate;
  15. any personality disorders; and
  16. criminal and abusive elements.

When one appreciates that a divorce case can involve a multifaceted list of fundamental, delicate issues, one appreciates that the divorce lawyer may be an investment in a potentially life changing service.

If you want to stand the best chance of not only surviving the divorce process, but thrive through it, interview a divorce lawyer first.

Go through the above factors with them, and satisfy yourself that the relevant attorney ticks all the relevant boxes. Some may be more relevant than others.

Ultimately, we recommend that you find a divorce attorney who strives to achieve a fair, family first, and future focussed outcome.

Know that a divorce attorney is in a special and privileged position – he or she is your guide through a major emotional and financial life transition.

They need to deserve this responsibility by being qualified to deal with the issues in the best possible way.

When one understand the purpose of divorce law, in that it is a set of rules, to help protect the best interests of the family unit moving from moving one home in to two, you begin to appreciate that the divorce lawyer, and his or her approach, can be a major positive or negative influence on any successful conclusion.

The world needs to move away from turning away from one another, and turn towards one another, and continue to engage, so that resolutions can be reached. A divorce lawyer needs to facilitate this through strategic, and emotionally intelligent management of your case.

At the end of the day, all divorce clients need a champion, like a knight: a ‘gentleman’ who believes in justice, but who can also fight for what is fair.

If you would like to interview us, Call Simon on 086 099 5146 today, or email:, and we will arrange a time to talk within the next day or two.

We’d be happy to share more about our approach, and what makes our way of managing divorce matters unique and valuable.

Related reading:

Source: by Divorce Attorney Cape Town

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International South African divorce – What you need to know


International South African divorce is more common than many people realise. Perhaps you went on holiday abroad. You met the love of your life. You married and settled down in a foreign country. Only things didn’t quite go according to plan and now you are seeking divorce. Or maybe you are a non-South African married to a South African. You live overseas and want to start divorce proceedings against your South African spouse. Or you are in South Africa but your spouse is not. In all these situations, you can divorce from abroad in South Africa or divorce a foreign spouse from here. Cape Town divorce attorneys Simon Dippenaar & Associates, Inc. in Cape Town can help you.

International divorce made simple




  1. You can divorce in South Africa if you are abroad.
  2. You can divorce in South Africa if your spouse is abroad.
  3. You can make child care and contact arrangements (previously called custody and access) in South Africa from abroad, if the child is in South Africa. This is called the forum non conveniens doctrine or “court of most convenience”, which allows the interests of justice to be served in a court (with proper jurisdiction) in another location, if that is more convenient for the parties involved.
  4. You can divorce in South Africa if you are domiciled or ordinarily resident here, even if you are not a South African citizen and both spouses agree to the jurisdiction by consent (see Section 45)



  1. If you don’t know where your spouse is, you can still start divorce proceedings. If you believe your spouse is in South Africa but their whereabouts are unknown, you can apply for substituted service. This allows the court to issue a summons by an appropriate method, such as advertising in a newspaper published where the defendant is believed to be living.



  1. If your spouse is abroad and you want to start divorce proceedings here in South Africa, you can use a legal process called edictal citation. An edictal citation is a summons served by a sheriff (who may be called a “service processor”) or a solicitor in a different country.



  1. In this case the substituted service and edictal citation processes can be combined. You will have to use the means available in the country where you believe your spouse resides to locate them. This can now include social media and email. The processes are not interchangeable. The edictal citation allows the summons to be served in another country. Substituted service makes provision for the divorce to go ahead if the defendant (the spouse) cannot be found, but every effort has been made to find them.



An uncontested divorce is relatively straightforward. The person who brings the divorce proceedings is known as the plaintiff. Conversely, the person on whom the summons is served is the defendant. If the plaintiff lives abroad and the defendant is in South Africa, and agrees to receive the summons from the South African sheriff and appear in court, the divorce can be finalised in approximately four weeks.

Similarly, if the plaintiff is in South Africa and the defendant lives abroad, and both agree to co-operate, the divorce is also considered uncontested and can proceed quickly in the South African courts.

However, divorcing in South Africa is more complex if either spouse is abroad and the divorce is contested – that is the two parties can’t agree on the terms of the divorce. If the party living abroad refuses to act as plaintiff, or the spouse in South Africa refuses to accept service and appear as the defendant in court, the divorce proceedings can take up to three months and the costs will be considerably higher than for an uncontested divorce.



With Simon Dippenaar & Associates, Inc., an uncontested international divorce, where all parties give consent and co-operate fully, costs R15 000 excluding VAT.

If an edictal citation is required, the cost is c. R30 000, excluding VAT, plus the cost of the international correspondent. Contact Divorce Attorney Cape Town to discuss your specific circumstances.



There are many divorce lawyers in Cape Town. Why should you use Simon Dippenaar & Associates Inc.? Simon and his team are experts in divorce, both domestic and foreign. With international correspondents in all major jurisdictions and access to online systems the world over, the professionals at Simon Dippenaar & Associates Inc. will ensure your international divorce is handled efficiently and sensitively.

Cape Town Family Lawyers, Simon Dippenaar & Associates, Inc. has a reputation for empathy and professionalism, with a personal touch. Every client is an individual, and every divorce is handled with dignity and respect, no matter the circumstances.

Call Simon on 086 099 5146 or email

Read what satisfied clients have to say about Simon Dippenaar & Associates, Inc.

Further reading:

“On behalf of all abused woman and children The Reeva Rebecca Steenkamp Foundation would like to thank Simon Dippenaar from SD Law South Africa for going beyond and assisting our client with a very difficult case.
Family Law requires a very special person, just being a good lawyer is not enough.”

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International child custody


Moving overseas with a child is subject to certain conditions. Don't fall foul of them.

It is becoming increasingly common for couples to marry across borders. International travel is more accessible and over the past decade there has been an influx of immigration into South Africa, resulting in more marriages between partners of different nationalities. Inevitably, some of these marriages will end in divorce. Equally predictably, some parents will want to return to their country of birth with the children of the marriage…in other words they will seek international child custody.

In this post we will look at 1) how you can do that legally and 2) what to do if the other parent has removed your child to another country without your consent.


South African law does not explicitly govern international child custody, and relocation with children post-divorce. All matters concerning children are legislated by the Children’s Act 2005. This progressive piece of legislation takes the focus away from the rights of the parents and places the child at the heart of all decisions. “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 does not directly mention the relocation of one parent or the other, nor does it legislate consent procedures. However, Section 18 stipulates that consent of both parents is needed if one or other wants to emigrate with the child(ren).

The wellbeing of the child extends beyond simple contact with each parent. In some cases the move might be in the child’s best interests. For example, if one parent has an employment opportunity overseas that will significantly enhance the quality of life or environment the child experiences, that situation may be considered as good for the child as remaining near the non-custodial parent. South African law has tended to decide international child custody matters on a case-by-case basis. Furthermore, the views of the children will be considered, though not necessarily accommodated.

While relocating with a child is not as difficult as you might think, it is still a situation that needs to be handled carefully and with due consideration for the law. Failure to follow the correct procedures could have unwelcome consequences down the line. Furthermore, once a child is settled in an environment, even a foreign one, courts are usually reluctant to disrupt the child’s wellbeing by reversing an earlier decision. So if you are considering moving abroad with your child, or if your child’s other parent is relocating with your consent, it is a good idea to take legal advice regarding international child custody. Cape Town family law firm SD Law will ensure your conduct complies with the Children’s Act, in letter and in spirit. We will look after the interests of the child while at the same time respecting your wishes and those of the other parent.


International child abduction is a much more serious matter and is increasingly common globally, as air travel becomes more affordable. The abducting parent may not think of themselves as such or even realise that their behaviour is classed as abduction.

International child abduction is monitored (note – not governed; it is not a piece of legislation) by the Hague Convention on Civil Aspects of International Child Abduction (“the Hague Convention”). The Hague Convention is an international treaty designed to prevent the removal of a child from their home jurisdiction by a parent (or other caregiver) without the consent of the other parent. It also aims to return a child thus illegally removed to their home country. South Africa has been a signatory to the Hague Convention since 1 October 1997 (ratified in 1996).

The Hague Convention defines the removal of a child as improper if it breaches the custody right of anyone based on the laws of the nation where the child was resident prior to their removal. Where two parents have shared (equal) care of a child (i.e. custody), both parents must give consent for a child to be removed, as also required by Section 18 of the Children’s Act. When there is a dispute about a child’s care between countries that are both signatories of the Hague Convention, the courts of the destination country are responsible for returning the child, if appropriate, i.e. unless there is a risk of a human rights violation such as female genital mutilation, and as quickly as possible. Under the Hague Convention, the return should be effected within six weeks.


Unfortunately, only South Africa, Mauritius and Zambia are signatories to the Hague Convention on the African continent. This can make the return of the child more complex, and naturally many  marriages in South Africa are between nationals of African countries. Therefore the Hague Convention does not apply. The Convention only applies to wrongful removals that occur after the treaty comes into effect between two countries.

The return of a child, whether from a Hague Convention signatory country or other, is a matter for the Central Authority in South Africa (the Family Advocate’s Office). You can approach the Central Authority on your own behalf, but it is strongly advised to use the services of capable family law attorneys to lodge an application to court. The Central Authority can be overwhelmed with child abduction applications and a good divorce lawyer, with deep knowledge of child law, can navigate the pathway more expediently than a private individual. The Central Authority will oversee the process. Your legal representative will seek to:

  • Discover the location of the child
  • Secure the voluntary return of the child if possible, or initiate legal proceedings


With luck, and in most cases, the Central Authority and/or your divorce attorney will be able to locate your child and negotiate their return without involving foreign courts. However, if the matter does go to court, there are factors beyond legislation to bear in mind. Has your child been taken to a jurisdiction where cultural or religious beliefs are different to ours? Some countries have a tendency to grant sole custody to mothers. Others may lean toward awarding care to fathers. If a girl child is promised in marriage at a young age, traditional cultures may defend this practice and resist returning the child to the home country. While you can’t change entrenched beliefs in another jurisdiction, the more you are aware of the issues that may impact your case and the better prepared your legal advisers, the greater your chances of success.


In order to begin the proceedings,  for international child custody, that will hopefully result in the return of your child, you need:

  • Completed questionnaire in English
  • Recent photographs of the child and the parent who abducted them
  • Certified copies of birth certificates
  • Proof of parental rights, such as court orders concerning care and contact (custody and access) and/or guardianship
  • Certified copy of marriage certificate, if relevant
  • Last known details of the child and the abducting parent’s possible location
  • Sworn translations in English of all relevant documentation in other languages (e.g. marriage certificates)


At Cape Town family lawyers, we know that being separated from your child is traumatic for you and them. We will work tirelessly to effect a speedy reunion with as little distress for all parties as possible.

If you are relocating with the full consent of the other parent, we will help you revise your parenting plan to reflect the changed circumstances and protect the rights and interests of the child and both parents. Excellent legal advice regarding international child custody will ensure the best outcome in either scenario.

Contact Simon on 086 099 5146 or email to discuss your case in confidence.

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