It's natural to want to make a fresh start after divorce. Inevitably, at least one party must move out of the marital home. Where there are children involved, it is often the father who moves, to minimise disruption to the daily life of the children.
However, what happens when the primary caregiver parent wants to move across or even out of the country? What is the legal position and what consent does she/he need to obtain?
The primary piece of legislation for all matters concerning children is the Children’s Act 38 of 2008. The guiding principle underpinning all the provisions of the Children’s Act is: “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).
However, the Children’s Act does not make specific reference to the relocation of one parent or the other, nor does it legislate consent procedures.
Section 18 makes it clear that if one parent wants to emigrate outside of South Africa the consent of both parents is needed.
For relocation within South Africa, the situation is less well-defined.
In the absence of legislative controls, decisions coming before the courts have been decided on a case-by-case basis, and case law is now brought to bear in new court hearings on the matter.
Parents have rights too
An interesting feature of the Children’s Act is the provision (in Section 18(4)) for parents with shared guardian responsibility to act independently without the other’s consent, including relocation within the country. However, the Act, with its overarching concern for the rights and interests of the child, also allows for the child, depending on age and maturity, to be informed and consulted on any decision (such as relocation) that significantly affects the child. It also allows for the other parent to be informed (Section 6(5)).
Furthermore, the Act provides for the views of the other (non-custodial) parent to be taken into consideration in any decision that may impact on his rights, such as right of access. But the primary caregiver need not accommodate the other’s views, and even a failure to inform the non-custodial parent does not automatically invalidate the decision. It would, however, cause the decision to be reviewed.
Other cases have taken a more neutral approach and given more equal weighting to the views of both parents. It is worth noting, however, that in one neutral approach case law example the children of the marriage were 11 and 14, and so their views (on a move to Dubai to marry a Dubai resident, out of a complex where both parents lived separately and the children could spend time with both on a regular basis) were much more seriously considered.
Factors to consider
Hopefully, divorced parents can resolve issues of location and access amicably and without having to resort to the courts.
However, if legal intervention is required, the courts will consider:
- The reason for the relocation.
- The interests of the relocating parent.
- The interests of the non-relocating parent.
- The relationship between the child or children and the parents.
- The gendered nature of the roles in the family post-divorce (Is the mother the primary caregiver? Would a decision to restrict the primary caregiver’s movements have a more detrimental effect on women than men and thus be discriminatory?)
- The wishes/views of the child or children.
* Visit www.divorceattorneycapetown.co.za for more information