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.

Divorce proceedings can take years to come to conclusion and this leaves certain issues unresolved until such a time.

A Rule 43 Application can be used to find a comparatively speedy interim solution to important issues such as maintenance and access to minor children.

If you are involved in an opposed divorce action you may wait years before getting your final divorce order. This means that your legal costs may end up sky high and your spouse may not be contributing to living costs of yourself or your children. There may also be issues with regard to custody of minor children or access to minor children that will eventually be resolved at the completion of the divorce proceedings for which you need to make interim arrangements. This is particularly helpful where one parent is preventing the other from having access to the minor children born out of the relationship. Luckily there is a way of dealing with these issues while you are still engaged in divorce proceedings.

A Rule 43 Application allows you to claim for a contribution towards the costs of a pending matrimonial action, for maintenance pendente lite (awaiting litigation), for interim custody of any child and for interim access to any child. ^[1] In order to do this you need to deliver a sworn statement which sets out what you are claiming for as well as the grounds upon which you are relying. A notice must also be attached to this sworn statement which you’ll find in the Uniform Rules of Court. These documents will usually be drafted by your attorneys after having consulted with you. Remember that a sworn statement must be signed before a commissioner of oaths. Make sure to read through this document thoroughly to make sure that it is complete and accurate before you sign it.^[2]

A Rule 43 Application must be served by the sheriff and the Respondent must deliver a sworn reply to the sworn statement within 10 court days of receiving it. If the Respondent does not reply then he shall be barred from doing so. If the Respondent does reply then the Registrar must as soon as possible thereafter bring the matter before the High Court for summary hearing on 10 days notice to the parties.^[3]

The High Court may then make an order that it deems as just or it may dismiss the Application if they can see from the sworn statements that the claims have no proper grounds or for any other reason that they deem to be just and fair. The court also has the power to change its decision through the same procedure where there has been a material change in the circumstances of either party or the circumstances of a child takes place or where the contribution towards costs proves to be inadequate.^[4]

If you are involved in opposed Divorce proceedings and are struggling with any of the abovementioned issues then consider mentioning your interest in making an Application to the High Court in terms of Rule 43 to your legal representation if this remedy hasn’t been brought to your attention yet. It is an effective remedy to getting relief in what can be a long and drawn out process and decreases the chances of one party being prejudiced where they do not have the finances to fund the legal costs of the divorce proceedings.

References

• Rule 43 of the Uniform Rules of Court: Rules Regulating the Conduct of the Proceedings of the Several Provincial and Local Divisions of the High Court of South Africa

^[1] Rule 43(1)(a) – (c) of the Uniform Rules of Court: Rules Regulating the Conduct of the Proceedings of the Several Provincial and Local Divisions of the High Court of South Africa

^[2] Rule 43(2) of the Uniform Rules of Court

^[3] Rule 43(3) & (4) of the Uniform Rules of Court

^[4] Rule 43(5) & (6) of the Uniform Rules of Court

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.

The post RULE 43 APPLICATIONS appeared first on Schnetler's Inc.