From January 2019, working South African men are entitled to 10 days of paternity leave after the birth of their child.

The Labour Amendment Act also includes provisions for 10 weeks of parental adoption leave if the baby is under the age of two years (this applies to only one of the parents) and surrogacy leave, as well as increased UIF and maternity benefits.

Who is responsible for the payment of the paternity leave?

Paternity leave will be paid by the South African Unemployment Insurance Fund at a rate of 66% of the total earnings of the employee at the date of application, subject to certain rules and conditions including a threshold constraint.

An employee must notify the employer one month prior to the child’s expected birth date, in writing, of the date which the employee intends to commence parental leave and the date they will return to work.

Family responsibility leave will no longer be applicable with regards to the birth of employees’ children.

It must be noted that before a person is entitled to any parental leave payments, such a person must at least have worked for 13 weeks.

Basic Conditions of Employment Act changes

Paternity leave is additional leave and is not to be deducted from the employee’s annual leave, leave bonus or sick leave.

Companies will have to revise their policies to accommodate the changes to the Basic Conditions of Employment Act as mentioned above.

Advantages of paternity leave

Parental leave creates a great opportunity for parents to bond with their children and give each other the necessary support.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

The post PATERNITY LEAVE FOR MEN appeared first on Schnetler's Inc.

You may consult the Family Advocate if you have a dispute relating to either the best interests of a child and/or parental responsibilities and rights. Other circumstances under which the family advocate may be consulted include:

1. When parties require assistance in drafting parental responsibilities and rights agreements and to register such with the Family Advocate or to amend, and/or terminate the said agreements registered with him or her.
2. When parties require assistance in drafting parenting plans and to amend or terminate such parenting plans registered with him or her.
3. An application to define contact.
4. A custody, access or guardianship dispute arising from the dissolution of a customary or religious marriage.
5. Domestic Violence and Maintenance cases referred to the Family Advocate in terms of the Judicial Matters Second Amendment Act (Act 55 of 2003).
6. Fathers of children born out of wedlock may request mediation of their parental rights and responsibilities (in terms of the Children’s Act).
7. Parental child abduction to and from South Africa.

If there is a dispute regarding the contact, guardianship or care (parental responsibilities and rights) of a minor child, the Office of the Family Advocate would be requested to investigate the welfare and best interest of the minor child involved. Often, they provide a report which is handed to the relevant Court for consideration. The Office of the Family Advocate is not employed by the parties involved. They work for the State ensuring that they are objective in their investigation and only have the child’s best interests at heart.

Steps involved

• Contact your nearest Family Advocate to request an enquiry or, mediation of your legal dispute.
• Upon receipt of the request, the Family Advocate institutes an inquiry during which he or she interviews you and the parties involved to determine your personal circumstances and the background of the matter. Where mediation is requested the Family Advocate will be the mediator
• The Family Counsellor then interviews the children separately, so as to enable such children to exercise their statutory right to be heard and to enable the Family Advocate to convey their views to the Court.
• The Family Advocate will communicate whatever decision taken, which significantly affects the welfare of the child, to such child.
• Upon completion of the enquiry or mediation process the Family Advocate will file a report for the Court and furnish copies to the parties or their lawyers.

In a typical custody dispute, a Family Advocate and social worker would be appointed to a case and investigate it. The social worker and the Family Advocate would consult with the parents (or parties involved in the dispute), visit their homes if necessary and obtain information from relevant parties etc. The Family Advocate and social worker would also speak to the child and may want to observe the child’s interaction with the parents. If there are other professionals, for example, a social worker or a psychologist who assessed the situation and provided a report, the Office of the Family Advocate would consider those documents as well and even consult with those experts before handing in their report.

References:

• http://www.ourlawyer.co.za/family_advocate_cape_town.htm
• http://www.justice.gov.za/services/consult-fam-adv.html

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

The post WHEN MUST YOU CONSULT THE FAMILY ADVOCATE? appeared first on Schnetler's Inc.

You may consult the Family Advocate if you have a dispute relating to either the best interests of a child and/or parental responsibilities and rights. Other circumstances under which the family advocate may be consulted include:

1. When parties require assistance in drafting parental responsibilities and rights agreements and to register such with the Family Advocate or to amend, and/or terminate the said agreements registered with him or her.
2. When parties require assistance in drafting parenting plans and to amend or terminate such parenting plans registered with him or her.
3. An application to define contact.
4. A custody, access or guardianship dispute arising from the dissolution of a customary or religious marriage.
5. Domestic Violence and Maintenance cases referred to the Family Advocate in terms of the Judicial Matters Second Amendment Act (Act 55 of 2003).
6. Fathers of children born out of wedlock may request mediation of their parental rights and responsibilities (in terms of the Children’s Act).
7. Parental child abduction to and from South Africa.

If there is a dispute regarding the contact, guardianship or care (parental responsibilities and rights) of a minor child, the Office of the Family Advocate would be requested to investigate the welfare and best interest of the minor child involved. Often, they provide a report which is handed to the relevant Court for consideration. The Office of the Family Advocate is not employed by the parties involved. They work for the State ensuring that they are objective in their investigation and only have the child’s best interests at heart.

Steps involved

• Contact your nearest Family Advocate to request an enquiry or, mediation of your legal dispute.
• Upon receipt of the request, the Family Advocate institutes an inquiry during which he or she interviews you and the parties involved to determine your personal circumstances and the background of the matter. Where mediation is requested the Family Advocate will be the mediator
• The Family Counsellor then interviews the children separately, so as to enable such children to exercise their statutory right to be heard and to enable the Family Advocate to convey their views to the Court.
• The Family Advocate will communicate whatever decision taken, which significantly affects the welfare of the child, to such child.
• Upon completion of the enquiry or mediation process the Family Advocate will file a report for the Court and furnish copies to the parties or their lawyers.

In a typical custody dispute, a Family Advocate and social worker would be appointed to a case and investigate it. The social worker and the Family Advocate would consult with the parents (or parties involved in the dispute), visit their homes if necessary and obtain information from relevant parties etc. The Family Advocate and social worker would also speak to the child and may want to observe the child’s interaction with the parents. If there are other professionals, for example, a social worker or a psychologist who assessed the situation and provided a report, the Office of the Family Advocate would consider those documents as well and even consult with those experts before handing in their report.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Reference List:

• http://www.ourlawyer.co.za/family_advocate_cape_town.htm
• http://www.justice.gov.za/services/consult-fam-adv.html

The post WHEN MUST YOU CONSULT THE FAMILY ADVOCATE? appeared first on Schnetler's Inc.

Under the old dispensation, where parties were divorced, one parent (usually the mother) would usually be awarded custody of a minor child and the other parent (usually the father) would be entitled to visitation rights.

The custodian parent would be vested with making all of the day-to-day decisions of the minor child including which school the child would attend, what religion the child would practice, where the child would reside and so on.

The parents now have joint parental responsibilities and rights, and all major decisions relating to the minor child need to be taken by the parties jointly, which is a far healthier situation for the child.

• If the unmarried father only wants to apply for care and/or contact, he can do so in the Children’s Court.
• If the unmarried father wants to apply for guardianship, an application must be made in the High Court.
• If the unmarried father wants to apply for care, contact and guardianship, he must bring the application in the High Court.

An unmarried biological father may ask a court of law to grant him full parental responsibilities if he:

• at the time of the child’s birth, is living with the mother in a permanent life partnership, or
• consents to be identified as the child’s father, or
• successfully applies to be identified as the child’s father, or
• pays damages in terms of Customary Law, or
• contributes or has tried to contribute to the child’s maintenance and upbringing for a reasonable period.

What factors will the court take into account when considering an application for parental rights and responsibilities?

• The best interests of the child.
• The relationship between the unmarried father and the child.
• The relationship between any other person and the child, such as the mother.
• The degree of commitment the unmarried father has shown towards the child.
• Whether the unmarried father has contributed or attempted to contribute to the maintenance of the child.
• Any other factor the court considers to be relevant, such as:
  • whether the unmarried father has a history of violence towards children;
  • the effect of separating the child from his/her mother; or
  • the child’s attitude towards the relief sought in the application.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).

References:

• https://www.legalwise.co.za/help-yourself/quicklaw-guides/unwed-father/
• http://www.parent24.com/Family/Finance_Legal/Unmarried-Know-your-rights-20150826

The post HOW CAN AN UNMARRIED FATHER OBTAIN PARENTAL RIGHTS AND RESPONSIBILITIES? appeared first on Schnetler's Inc.

When couples divorce it’s often the children that feel the brunt of it. Sometimes it’s the other person in the relationship that suffers economically. Hence the reason there’s a legal duty towards maintenance after divorce, which is an obligation to provide for another person.

A child of a divorced couple, for example, may need help with housing, food, education and medical care. Maintenance could also be understood as providing the means for the person to have the necessary essentials. Maintenance duties is based on factors such as blood relationship, adoption, or that two people are/were married to each other.

This duty is also referred to as ‘the duty to maintain’ or ‘the duty to support’. 

Which parent supports the child?

If a couple has decided on getting divorced, then the child has to be supported by both the parents, regardless if they’re living together or whether or not the child was adopted. In some cases, the grandparents are also responsible for the child’s maintenance, even if the parents weren’t married. This usually happens if the parents are unable to support the child.

What if the child is living with one parent?

In scenarios where the child is living with one of the parents, it is still the duty of the other parent to also contribute to the maintenance of the child. Many people in South Africa, especially women, face the reality of an ex-spouse who doesn’t live with the child and doesn’t want to pay maintenance. However, there is no legal way out of a parent contributing to a child’s maintenance, even if one of the parents re-marries.

What if you can’t find your non-paying ex-spouse?

If one of the child’s parents refuses to pay and doesn’t make their whereabouts known, then it is the responsibility of the state to claim maintenance from the unpaying parent. Maintenance investigators will try solve the issue and trace the person who is responsible for maintenance.

When does the maintenance end?

Until a child reaches the age of 18, his/her parents or another person (guardian) will have the parental rights and responsibilities for the child. This includes the maintenance of the child. So both the divorced parents of a child will have to contribute to the caring and maintenance of the child at least until he/she becomes an adult.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).

References:

Anderson, AM. Dodd, A. Roos, MC. 2012. “Everyone’s Guide to South African Law. Third Edition”. Zebra Press.

Justice.gov.za. The Department of Justice and Constitutional Development, Family Law, Maintenance. [online] Available at: http://www.justice.gov.za/vg/children/ [Accessed 13/05/2016].

The post WHO PAYS FOR THE CHILD AFTER DIVORCE? appeared first on Schnetler's Inc.

Maintenance is the obligation to provide another person, for example a minor, with housing, food, clothing, education and medical care, or with the means that are necessary for providing the person with these essentials. This legal duty to maintain is called ‘the duty to maintain’ or ‘the duty to support’.

The duty to maintain is based on blood relationship, adoption, or the fact that the parties are married to each other.

An application for maintenance can be made against a defendant (person who must pay maintenance) at any Maintenance Court (“court”) in the district where the complainant (person who applies for maintenance) or the child, on whose behalf maintenance is claimed, resides or works.

The parents, guardians and/or caregivers of a child can apply for maintenance on behalf of such a child.

What should a person take to court when applying for maintenance?

• Identity document of the complainant.
• Complainant’s contact details, such as telephone numbers and home and work addresses.
• If maintenance for a child is claimed, the birth certificate of that child.
• If maintenance for the spouse is claimed, the marriage certificate or divorce order where maintenance order was granted.
• A full list of expenses and any proof of same, such as receipts.
• The complainant’s payslip and proof of any other income.
• As much detail as possible regarding the defendant, such as telephone numbers, home and work addresses, list of known income and expenses, and so on.

What happens after the application has been made?

• The maintenance officer will inform the defendant of the application and will hold an informal enquiry with the complainant and defendant being present.
• The defendant must take any proof of his/her income and expenses to the informal enquiry.
• The purpose of the informal enquiry is to assist the complainant and the defendant in reaching a settlement.
• If a settlement is reached, an agreement will be entered into between the complainant and the defendant, which will be made an order of court.
• If a settlement cannot be reached, the maintenance officer will place the matter before court for a formal enquiry to be held.
• The court will consider the facts and evidence of the claim and decide, by way of a maintenance order, whether maintenance should be payable and the amount of such maintenance.
• The complainant and the defendant must both be present at the informal and formal enquiry, and will be allowed to have legal representation.
• If the defendant fails to appear at the formal enquiry in court, an order may be given in his/her absence.
• It will not be necessary for the complainant and/or defendant to appear in court if they consent in writing to the maintenance order being granted.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).

References:

Justice.co.za

Legalwise.co.za

The post HOW TO APPLY FOR SPOUSAL MAINTENANCE? appeared first on Schnetler's Inc.

There are only two grounds for divorce, namely the irretrievable breakdown of the marriage; or mental illness or continued unconsciousness of one of the spouses.

Examples of the irretrievable breakdown of a marriage as a ground for divorce include:

1. the spouses not living together for a continuous period of one year;
2. abuse towards the spouse or the children;
3. adultery;
4. habitual criminality;
5. drunkenness or drug addiction; or
6. loss of love and affection between the spouses.

The court’s discretion to grant a Divorce order

The court still has discretion not to grant a divorce order, and may postpone the proceedings or dismiss the claim if it appears to the court that there is a reasonable possibility that the parties may reconcile through counselling. If reconciliation is unsuccessful after a few months, the parties may proceed with the same summons. The summons will usually contain the averment that further counselling and/or treatment will not lead to any reconciliation. A court must, therefore, be satisfied that the marriage is really broken down and that there is no possibility of the continuation of a normal marriage.

What if the couple reconciles?

Where the parties reconcile and live together again after the summons was issued and served, it does not necessarily end the divorce proceedings. If, however, the reconciliation is unsuccessful after a few months, the parties may proceed with the same summons. It is extremely important to make sure that the summons is withdrawn formally if you do decide to reconcile. Withdrawal of the summons is formally affected when the plaintiff serves a document referred to as a notice of withdrawal of the summons on the defendant or his/her attorney. If this is not done, a divorce order may be obtained by default without the defendant being aware of it. If a divorce is obtained in this manner, the aggrieved party may approach the court to set aside the order.

Conclusion

Since the present law on divorce is no longer based on the principle of fault, defences like insanity or the plaintiff’s own adultery are no longer valid defences. Therefore, if a divorce is instituted on account of an irretrievable breakdown, there is in fact no defence to prevent the divorce from proceeding. But if the court finds that there is a reasonable possibility of reconciliation, it may postpone the proceedings in order that the parties attempt reconciliation; this, however, is not a defence, but merely amounts to a postponement.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

References:

Justive.gov.za
Legalwise.co.za

The post WHEN CAN SPOUSES GET A DIVORCE? appeared first on Schnetler's Inc.

Contact refers to maintaining a personal relationship with a child. It entitles a person to see, spend time with (visit or be visited) or communicate (through post, by telephone or any form of electronic communication) with a child who does not live with that person. The child’s parent/s or a person other than the child’s parent/s (such as grandparent) can obtain the right to contact a child, provided that the contact would serve in the child’s best interests.

What will the court consider when granting an order in respect of contact?

• The best interests of the child.
• The nature of the personal relationship between the child and his/her parent/s.
• The degree of commitment the parent/s has shown towards the child.
• The extent to which the parent/s has contributed towards the expenses in connection with the birth and maintenance of the child.
• The likely effect on the child of any change in the child’s circumstances, including the effect of being separated from the parent/s or brothers/sisters with whom the child has been living.
• Any family violence involving the child or a family member of the child.
• The need to protect the child from any physical or psychological harm that may be caused by subjecting or exposing the child to maltreatment, abuse, neglect, degradation, violence or harmful behaviour.
• The child’s age, maturity, stage of development, gender, background and relevant characteristics of the child.
• Any disability that a child may have and any chronic illness from which a child may suffer from.

A parenting plan will contain a clause setting out the reasonable contact that the parent of alternate residence shall have with the child during term time and school holidays, taking into account the child’s social, school and extra-mural activities.

​There are an infinite number of possibilities available when drawing up a parenting plan. Jobs, schools and a variety of other factors must still be taken into account. The bottom line is to find a plan that works for the whole family.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

References:

https://www.legalwise.co.za/help-yourself/quicklaw-guides/child-contact/

http://www.divorcelaws.co.za/the-non-custodian-parent-and-contact.html

The post CHILD CONTACT FOR DIVORCED PARENTS appeared first on Schnetler's Inc.

What does the Family advocate do?

The roles of the Family Advocate include the following:

1. To provide education to family members and to others involved in the systems serving the family and youth;
2. To help identify the strengths and needs of families;
3. To be a mediator between the system and the family by helping to educate professionals on the strengths and needs of the family;
4. To help family members understand the different roles of the agencies involved in the system and how they may affect the family and assist families in identifying and utilizing necessary services.

A Family Advocate helps state and local agencies and systems adopt more strengths-based and family-driven programs, policies, and services. The focus is to better meet the needs of families and their youth who have mental illness, co-occurring disorders or substance use disorders and improve outcomes for all, including families, youth, and the agencies they utilize.

Parenting plans after divorce

A Family Advocate also has the authority to draft parenting plans at no cost, which will help provide a minor child with a stable and suitable schedule between two parents after a divorce. A Family Advocate cannot however provide for a maintenance amount as this falls under the jurisdiction of the maintenance court. Should a parent feel like they are not sure of their rights or responsibilities towards their minor child, the Family Advocate can be approached in order to arrange a meeting between the two parties to mediate the rights and responsibilities between the two parties. This process is also at no cost, however, should one of the parties deny the meeting, the Family Advocate has no authority to subpoena them to attend the meeting.

Conclusion

The Family Advocate is a perfect remedy for parents who have their child’s best interest at heart and who aim to provide a stable environment for the child when both parents are no longer together.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

The post WHAT IS THE ROLE OF THE FAMILY ADVOCATE? appeared first on Schnetler's Inc.

When someone fails to pay maintenance in terms of a maintenance order you have the option of lodging a complaint against them with the Maintenance officer, stating that the person is legally liable to maintain, for example, yourself or your minor child(ren) and is not doing so. The Maintenance officer must investigate the complaint and may then institute an enquiry in a maintenance court. The Maintenance officer, not the complainant, decides whether to institute an enquiry.[1] In investigating a complaint about maintenance, the Maintenance officer may obtain statements or any relevant information pertaining to the payment of maintenance. An enquiry under the Maintenance Act is a procedure which empowers people to enforce their rights and those of their child(ren) at the State’s expense. During the course of a maintenance enquiry the parties usually come to an agreement and seek to withdraw the proceedings, or have the terms of the agreement made an order of court, which cannot be disregarded by the magistrate.[2] If the parties cannot come to an agreement the matter will be referred to the maintenance court.

Whenever a person against whom a maintenance order has been issued under the Act fails to make any payment in accordance with that order, the order is enforceable in respect of any amount that person has failed to pay, together with any interest:

1. by execution against property;
2. by the attachment of emoluments; or
3. by the attachment of debt.

If a maintenance order made under the Act remains unsatisfied for a period of ten days from the day on which the amount became payable or the order was made, the person in whose favour the order was made may apply to the maintenance court in which the order was made: 1) for authorisation of the issue of a warrant of execution, 2) for an order for the attachment of emoluments or 3) for an order for the attachment of debt. The application must be accompanied by a copy of the maintenance order or other order in question and a statement under oath stating the amount that the person against whom the order was made has failed to pay.[3]

Subject to the defence that failure to make a payment in terms of a maintenance order is due to a lack of means, a person who fails to make a particular payment in accordance with a maintenance order is guilty of an offence and liable to conviction with a fine or imprisonment for a period not exceeding one year, or to imprisonment without the option of a fine.[4]

On the application of the public prosecutor and in addition to or instead of imposing a penalty, a court convicting any person of the offence of failing to make a payment in accordance with a maintenance order may grant an order for recovery from that person of the amount he or she has failed to pay, together with any interest.[5]

Your best option would be to approach the Maintenance officer in order to reconcile the outstanding amounts. Thereafter, if the person still fails to effect payment, you can approach an attorney to either proceed with execution of the order, if the person has sufficient movable or immovable property, or obtain an emolument order which will be served upon the employer of the person (ordering the employer to pay the maintenance), or you may approach the maintenance court for an order for the attachment of any debt accruing, then or in the future, to the person responsible for paying maintenance.

[1] The Maintenance Act 99 of 1998.

[2] Young v Young 1985(1) SA 782 (C).

[3] The Maintenance Act 99 of 1998.

[4] Ibid.

[5] Ibid.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

The post MAINTENANCE appeared first on Schnetler's Inc.