Post-Divorce Inter-Provincial Relocation of Children

Thousands of jobs have been lost since the COVID-19 pandemic reached our shores in March 2020.  Besides jobs being lost, employees have also resigned from their employment due to the salary cuts they were forced to take from companies that no longer have the resources to pay their staff appropriately.

What does this mean for divorced parents?  One parent may need to relocate in order to secure alternative employment.  Post-divorce inter-provincial relocation has become a reality for many divorced families. 

What does the law say regarding relocation post-divorce?

International Relocation After a Divorce

In the case where the primary parent wants to relocate with their minor child to another country, the non-primary parent needs to consent to the relocation. The non-primary parent can either consent or refuse consent for the child’s relocation with the primary parent to another country.  International relocation is complex and it carries various legal implications.  

Inter-Provincial Relocation After a Divorce

Interprovincial relocation of children within the Republic of South Africa after a divorce, although less complex than international relocation, has various legal implications that must be considered.  The Children’s Act does not expressly deal with interprovincial relocation as it does in the case of international relocation. The Children’s Act does not set out requirements for interprovincial relocation and does not specifically require the consent of the non-primary parent.  However, it goes without saying that the provisions of a parenting plan or deed of settlement in the case of the divorce will be affected in so far as it relates to care and contact between the non-primary parent and the child. 

In addition to the above, the lack of consent by the non-primary parent will no doubt infringe upon the rights conferred upon the primary parent in terms of the Children’s Act.     

Section 18 of the Children’s Act stipulates that co-guardians of a child can exercise their parental rights and responsibilities independently and without the consent of the other guardian. In theory, this means that the parent with primary care can, without the other parent’s consent, relocate with the child inter-provincially.

Section 6 of the Children’s Act, on the other hand, states that a child and a person having parental rights and responsibilities in respect of that child, must be informed of any action or decision concerning the child and which could significantly affect the child.

In addition to the above, Section 31 of the Children’s Act, stipulates that, “before a person holding parental responsibilities and rights in respect of a child takes any decision affecting contact between the child and a co-holder of parental responsibilities and rights, or which is likely to significantly change or have an adverse effect to the child’s living conditions, education, health, personal relations with a parent or family member or generally the child’s wellbeing, that person must give due consideration to any views and wishes expressed by any co-holder of parental responsibilities and rights in respect of the child.  A decision referred to above is ‘any decision which is likely to change significantly or to have a significant adverse effect on the co-holder’s exercise of parental responsibilities and rights in respect of the child.”

Therefore, even though the Children’s Act does not expressly require consent for interprovincial relocation, it is always recommended that consent be obtained by the relocating spouse and, where applicable, the parenting plan be amended accordingly.

When the Non-Primary Parent Refuses Consent

In the case where the non-primary parent refuses to consent the parent wanting to relocate with the child may approach the court for relief.  A social worker and/or a Family Advocate will assess the situation and compile a written report on whether or not the interprovincial relocation is in the child’s best interest.

The specific reason for the relocation, as well as the ‘good faith’ of the parent relocating, is considered by the Family Advocate during the assessment.  Examples of reasons considered worthy of interprovincial relocation with minor children include, inter alia: a better job opportunity, an improvement in family structure and support, or a better education for the child. 

How the Court Makes a Finding

The Court asks two main questions when deciding on whether or not the relocation will be approved:

1) Is the proposed relocation in the best interest of the child?

2) Is the applicant’s intended move bona fide (in good faith) and reasonable? 

Conclusion

An experienced Family Law Attorney is able to assist with matters involving the relocation of children, either inter-provisionally or internationally. 

Van Heerdens Attorneys has the expertise and experience to assist with child relocation matters.     

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