This new law is seen as a progressive move towards recognising biological fathers, same sex parents, transgender parents, adoptive parents and even surrogates. It further acknowledges the fact that the gap between one or two parents being employed in a household is getting narrower and narrower. The entitlement to parental leave also fosters family bonding between the parents and a child, which is of utmost importance.

This amendment to the Basic Employment Condition Act, 1997 is the insertion of clauses 25A, 25B and 25C, set out below:

Parental Leave

25A.

(1) An employee, who is a parent of a child, is entitled to at least ten consecutive days parental leave.

(2) An employee may commence parental leave on-

(a) the day that the employee’s child is born; or
(b) the date—

(i) that the adoption order is granted; or
(ii) that a child is placed in the care of a prospective adoptive parent by a competent court, pending the finalisation of a 30-day-adoption order in respect of that child, whichever date occurs first.

(3) An employee must notify an employer in writing, unless the employee is unable to do so, of the date on which the employee intends to—

(a) commence parental leave; and
(b) return to work after parental leave.

(4) Notification in terms of subsection (3) must be given—

(a) at least one month before the—

(i) employee’s child is expected to be born; or
(ii) date referred to in subsection 2(b); or

(b) if it is not reasonably practicable to do so, as soon as is reasonably practicable.

(5) The payment of commissioning parental benefits will be determined by the Minister, subject to the provisions of the Unemployment Insurance Act, 2001 (Act No. 63 of 2001).

Adoption Leave

25B.

(1) An employee, who is an adoptive parent of a child who is below the age of two, is subject to subsection (6), entitled to—

(a) adoption leave of at least ten weeks consecutively; or
(b) the parental leave referred to in section 25A.

(2) An employee may commence adoption leave on the date—

(a) that the adoption order is granted; or
(b) that a child is placed in the care of a prospective adoptive parent by a competent court, pending the finalisation of an adoption order in respect of that child, whichever date occurs first.

(3) An employee must notify an employer in writing, unless the employee is unable to do so, of the date on which the employee intends to—

(a) commence adoption leave; and
(b) return to work after adoption leave.

(4) Notification in terms of subsection (3) must be given—

(a) at least one month before the date referred to in subsection (2); or
(b) if it is not reasonably practicable to do so, as soon as is reasonably practicable.

(5) The payment of parental benefits will be determined by the Minister, subject to the provisions of the Unemployment Insurance Act, 2001 (Act No. 63 of 2001).

(6) If an adoption order is made in respect of two adoptive parents, one of the adoptive parents may apply for adoption leave and the other adoptive parent may apply for the parental leave referred to in section 25A: Provided that the selection of choice must be exercised at the option of the two adoptive parents.

(7) If a competent court orders that a child is placed in the care of two prospective adoptive parents, pending the finalisation of an adoption order in respect of that child, one of the prospective adoptive parents may apply for adoption leave and the other prospective adoptive parent may apply for the parental leave referred to in section 25A: Provided that the selection of choice must be exercised at the option of the two prospective adoptive parents.

Commissioning parental leave

25C.

(1) An employee, who is a commissioning parent in a surrogate motherhood agreement is, subject to subsection (6), entitled to—

(a) commissioning parental leave of at least ten weeks consecutively; or

(b) the parental leave referred to in section 25A.

(2) An employee may commence commissioning parental leave on the date a child is born as a result of a surrogate motherhood agreement.

(3) An employee must notify an employer in writing, unless the employee is unable to do so, of the date on which the employee intends to—

(a) commence commissioning parental leave; and
(b) return to work after commissioning parental leave.

(4) Notification in terms of subsection (3) must be given—

(a) at least one month before a child is expected to be born as a result of a surrogate motherhood agreement; or
(b) if it is not reasonably practicable to do so, as soon as is reasonably practicable.

(5)  The payment of commissioning parental benefits will be determined by the Minister, subject to the provisions of the Unemployment Insurance Act, 2001 (Act No. 63 of 2001).

(6)  If a surrogate motherhood agreement has two commissioning parents, one of the commissioning parents may apply for commissioning parental leave and the other commissioning parent may apply for the parental leave referred to in section 25A: Provided that the selection of choice must be exercised at the option of the two commissioning parents.

This landmark legislation does not apply to mothers who give birth as they are entitled to maternity leave, which is four months maternity leave, in terms of the Basic Conditions of Employment Act.

Maternity leave is paid out of the Unemployment Insurance Fund (UIF). Parental leave, adoption leave, and commissioning leave will also be paid out of UIF. Employees will be given a partial pay out of up to 66% of their salary from the UIF.

We recommend that employers amend the employment contracts to include this new law and further make their employees aware of their new rights.

Reference List:

• Basic Conditions of Employment Act 75 of 1997
• Unemployment Insurance Fund Act 63 of 2001
• Labour Law Amendment Act of 2018

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 New Laws for Parental Leave 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.

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].

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