Relocation after divorce is a sensitive and often emotional issue, especially when it involves a minor child. Whether you are a parent seeking to move or a parent concerned about your child being moved away, it is crucial to understand your rights and responsibilities under South African law.
What does the Children’s Act say?
According to Section 18(3)(c)(iii) of the Children’s Act 38 of 2005, a parent may not remove a minor child from the care of another person, or from South Africa, without the written consent of all individuals who hold parental responsibilities and rights for that child.
Even if the relocation is within South Africa, courts require that such a move be in the best interests of the child, particularly when it would significantly impact the contact rights of the non-relocating parent.
If consent is withheld
Where consent is not granted by the other parent, the relocating parent may apply to either the Children’s Court or the High Court under Section 18(5) of the Act for permission to relocate. The court will only grant the order if it is satisfied that the move is just and in the child’s best interests.
Consultation is essential
Under Section 31(2) of the Children’s Act, any person with parental responsibilities must consult other guardians before making a major decision that significantly affects the child’s life. Relocation clearly falls within this category and requires thorough communication and transparency.
The court’s approach to relocation
When ruling on a relocation application, courts apply the “best interests of the child” principle outlined in Section 7 of the Act. Relevant factors include:
- The child’s relationship with each parent
- The reasons for the proposed move
- The child’s age, maturity, and preferences
- Practical arrangements for maintaining contact with the non-relocating parent
The court also considers whether appropriate arrangements have been made for schooling, housing, emotional support, and access to extended family in the new location.
Parenting plans and mediation
A well-drafted Parenting Plan, as described in Section 33 of the Children’s Act, can help avoid future conflict, especially if relocation is foreseeable. Such plans can be made an order of court or registered with the Family Advocate.
Should disputes arise, mediation is a recommended approach before litigation. Section 33(5) encourages parties to resolve disputes through mediation to minimise emotional and financial strain.
What about international relocation?
International relocations introduce additional complexities, including possible involvement of the Hague Convention on International Child Abduction. A withdrawn consent or allegation of abduction can escalate into a legal battle across jurisdictions. Legal guidance is essential in these situations.
We’re here to help
Relocation issues after divorce are emotionally charged and legally complex. At A de Bruyn Attorneys, we offer sound legal advice and support to parents navigating these difficult decisions. Whether you’re considering a move or concerned about the impact of relocation on your child, our team is ready to assist you every step of the way.
