Family Law

Q My ex-husband fails to return the minor children in terms of a court order.

Ex-Spouses often fail to return childen on time after exercising access.

Your attorney should advise your ex-husband that he is in contempt of the order of court incorporating the settlement agreement and that if the conduct persists application will be made for an order of committal.

In terms of S28 of The Children Act 2005, a court (High Court, Divorce Court, Childrens Court) may suspend or vary the rights of access.


Q How do I get the court to award more maintenance for my children


  • An Application for the substitution of an existing maintenance order is made at the Maintenance Court. A “Form B” in terms of the Maintenance Regulations.
  • The Applicant must state the reason or cause that she relies on for requesting the substitution.
  • Full details of the Applicant’s assets, income and monthly expenditure in respect of herself and the children will have to be provided.
  • An investigation is launched, followed by a formal enquiry.
  • The parties involved will be subpoenaed to appear in Court where evidence will be presented under oath.
  • The Magistrate will then consider the evidence presented to him/her  and may make an order substituting the existing maintenance order.


Q What is the purpose of a Rule 43 application?

  • A Rule 43 Application is an interim application which is brought mainly in cases of contested divorces in order to obtain interim relief pending finalisation of the divorce.
  • The relief which can be requested include the following:
    • Maintenance for the wife;
    • Maintenance for the children
    • Interim custody and control or access to the children and;
    • Interim contributions towards legal costs.


Q Does a father have any rights in respect of his children born out of wedlock??


Section 21 of the Children’s Act provides that a father acquires full parental responsibilities and rights in respect of a child born out of wedlock if:

  • He is in a permanent relationship and living with the mother when the child is born; or
  • He consents to be identified as the biological father of the child; or
  • He contributes to the child’s upbringing for a reasonable time; and
  • He contributes or has attempted to contribute to the expenses of the child.

Section 18 of the Children’s Act states that parental rights and responsibilities include:

  • To care for the child;
  • To maintain contact with the child;
  • To act as guardian of the child; and
  • To contribute to the maintenance of the child.

A father must always pay maintenance for his child, regardless of whether or not he has parental responsibilities and rights.


Q I want to get divorced, where can I get divorced?

  • The High Court normally entertains Divorce cases.
  • Section 29(1B) allows Regional Magistrates Court to handle divorce cases. However, the courts jurisdiction is limited  to cases where the estates of the parties in question do not amount to more than R 300 000.00 (three hundred thousand rand).


Q Do I have to pay my ex Spouse maintenance forever?

  • Marriage creates a reciprocal duty of support, that is to say either spouse could be ordered to pay maintenance depending on the circumstances.
  • In marriages of long duration where one spouse has not worked for some time the court may order maintenance to be paid until death or remarriage.
  • In marriages of short duration where a spouse has not worked the court may award maintenance for a time to allow that spouse to reestablish work or income.
  • Where both spouses are able to work and support themselves there is usually no need to pay maintenance
  • If a spouse cannot work due to mental or physical disability  this would give rise to a maintenance claim.


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