"For the Sake of the Children": South African Family Relocation Disputes

  • Wesahl Domingo University of Witwatersrand
Keywords: Family relocation, care, contact, best interests of the child, Children’s Act

Abstract

Decisions by primary caregiving parents to relocate after divorce, thereby disrupting the non-primary caregivers’ right of contact with children or, where both parents have joint care, the denial of the other’s parental rights and responsibilities to care, give rise to cases which deal with relocation disputes. My paper deals with the development of South African family jurisprudence in this area. Since the Children’s Act does not provide any criteria for cases dealing with relocation I examine the different jurisprudential approaches/trends taken by our courts in dealing with relocation. I pave the way forward by making the argument that we need a general consistency in approach by our courts when dealing with relocation disputes. As our society becomes increasingly mobile, our courts will be faced with more frequent applications for local and international family relocations. I conclude by making the recommendation that despite the Children’s Act, we still need “guidelines” or perhaps a “Relocation Act” which works in tandem with the Children’s Act.

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References

Bibliography

Albertus 2009 Speculum Juris
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Register of court cases

AC v KC A389/08 2008 ZAGPHC 369 16 June 2008 (unreported to date)
B v M 2006 3 All SA 109 (W)
Cunningham v Pretorius 31197/08 2008 ZAGPHC 258 21 August 2008 (unreported to date)
F v F 2006 3 SA 42 (SCA)
Godbeer v Godbeer 2000 3 SA 976 (W)
HG v CG 2010 3 SA 352 (ECP)
Jackson v Jackson 2002 2 SA 303 (SCA)
Joubert v Joubert 2008 JOL 219229 (C) (unreported to date)
MK v RK 17189/08 South Gauteng High Court (Johannesburg) 6 May 2009 (unreported to date)
Tropea v Tropea 665 NE 2d 145 (NY 1996)
Van Rooyen v Van Rooyen 1999 4 SA 435 (C)

Register of legislation

Children’s Act 38 of 2005
Constitution of the Republic of South Africa, 1996

Register of internet sources

AAML 1998 http://www.aaml.org
AAML 1998 American Academy of Matrimonial Lawyers Proposed Model Relocation Act: An Act relating to the relocation of the principal residence of a child http://www.aaml.org/i4a/pages/index.cfm/pageid=3325 [date of use 8 Oct 2010]

Foley 2006 http://www.family-justice-council.org.uk
Foley T 2006 International Child Relocation: Varying approaches among Member States to the 1980 Hague Convention on Child Abduction http://www.family-justice-council.org.uk/docs/International_Child_Relocation_research_paper.pdf [date of use 12 Oct 2010]

Howard 2008 http://www.austlii.edu.au
Howard P 2008 International relocation: A modern Australian perspective on the tyranny of distance http://www.austlii.edu.au/au/journals/FedJschol /2008/27.html [date of use 12 Oct 2010]
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Published
2017-06-06
Section
Articles