Interprovincial relocation post-divorce

Moving to another province with your child? We explain the law

The past two years have been disruptive, to say the least, and one of the consequences has been “the great resignation”. First identified in the US, but now spanning the globe, the great resignation refers to a large number of people leaving their jobs as a result of the COVID-19 pandemic. Microsoft’s Work Trend Index survey of more than 31,000 workers globally indicated that 41% of people considered quitting their jobs in 2021. South Africa has not escaped. A salary and wage movement survey conducted by Old Mutual showed that staff turnover increased by 16% across all sectors in 2021. What does this have to do with child custody, you may ask? A change of job often means moving to another province. We call this interprovincial relocation. Many people migrate to Gauteng, due to the opportunities that abound in Johannesburg and Pretoria. 

Putting the law into family law

Relocation applications are some of the most difficult cases our courts have to deal with in the family law sphere. South Africa does not have specific legislation covering child relocation, such as a “Relocation Act”. But we do have the Children’s Act 38 of 2005, which is a comprehensive piece of legislation pertaining to the rights of the child.

International relocation

When parents get divorced, one parent may choose to relocate with their minor child to a different country. In this case, the non-primary parent must consent. Section 18 of the Children’s Act states that the parent or guardian of the child must either grant or refuse consent to the child’s departure or removal from the Republic. 

Interprovincial relocation

Although international relocation is more drastic and more complex, interprovincial relocation also has legal implications that need to be considered. The Children’s Act does not specifically mention interprovincial relocation, i.e., it does not specify any consent procedure or requirements for relocation within the Republic. This means that when a parent wants to relocate interprovincially, unless the divorce settlement or a court order specifies otherwise, the other parent’s consent is not a legal requirement. The relocation will undoubtedly affect the provisions of the parenting plan regarding the non-primary resident parent’s care and contact arrangements. Therefore, despite the absence of legal compulsion in the Children’s Act, consent should be obtained and the parenting plan amended accordingly to allow for appropriate contact. 

In the absence of consent…

If the other parent’s consent cannot be obtained, the matter will go to court. At this point a private social worker and/or the Family Advocate will be required to conduct an assessment and report on whether the interprovincial relocation is in the child’s best interest. The relocation must be in the best interest of the child as prescribed by the Children’s Act to proceed. The Family Advocate is an expert in these matters and its reports centre around the best interest principle. In addition, the applicant’s intention behind the move must be reasonable and in good faith. 

The reasons for the relocation play a significant role in cases where consent is refused and the matter has to be resolved through the court system. Justifiable reasons for relocating include, among others, better employment opportunities, a better family support structure or better education for the child(ren). 

Two questions guide the court

The Supreme Court of Appeal has confirmed that this two-legged test applies to both relocation within the borders of South Africa and abroad. Therefore the two main questions a court considers, when deciding on relocation matters, are:  1) Is the proposed relocation in the best interest of the child or children? 2) Is the applicant’s intended move bona fide and reasonable? The test for the latter is a factual enquiry into the merits of the case. 

Provisions of the Act

Section 18 of the Act stipulates that co-holders of guardianship over a child can exercise their respective parental rights and responsibilities independently and without the consent of the other guardians. This means that the parent with primary residence can – theoretically – independently and without the other parent’s consent decide to relocate with the child within the Republic. However, Section 6 states, in unequivocal terms, that a child (contingent on age and maturity) and any person with parental rights and responsibilities in respect of that child has to be informed of any decision that concerns the child and could have a significant effect on them. This would appear contradictory but, when in doubt, it is always wise to follow the more conservative and cautious path. 

Furthermore, the provisions of Section 31, dealing with major decisions involving the child, stipulate that a co-holder of parental rights and responsibilities “must give due consideration to any views and wishes expressed by any co-holder of parental responsibilities and rights in respect of the child” when making a decision that is likely to significantly change or adversely affect the co-holder’s exercise of parental responsibilities and rights in respect of the child. Section 31 mentions that a decision affecting contact between the child and a co-holder of parental rights and responsibilities, such as a decision to relocate, is one of the decisions that fall within the ambit of this section.

Confused?

At Cape Town Divorce Attorneys, we’ve helped many parents navigate the difficult scenario of post-divorce relocation. We can help you negotiate changes to your parenting plan, if you need to relocate to another province or country. Contact Cape Town attorney Simon Dippenaar on 086 099 5146 or email sdippenaar@sdlaw.co.za to discuss your case in confidence.

Further reading:

• International child custody
• Child abduction – what if your child has been taken away without your permission?
• Moving with children post-divorce? What you need to know

Divorce Attorney Cape Town

http://divorceattorneycapetown.co.za/

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