Introduction
Divorce is often a difficult and emotional process that can be even more complicated when children are involved. One of the most contentious issues that can arise is when one parent wants to relocate with a minor child after a divorce. This issue is particularly complex when it involves international relocation. In this blog post, we will discuss the South African laws that govern international relocation with a minor after a divorce.
Family Focused Law is a law firm that is committed to helping families through difficult times. Our experienced team have expertise in all areas of family law, including international relocation issues. We understand the emotional toll that these issues can take on families, and we are here to help guide you through the legal process.
What is international relocation with a minor?
International relocation with a minor is when one parent wants to move with a child to a different country after a divorce. This can be a complicated issue, as it can have a significant impact on the child’s relationship with the non-moving parent, their education, and their overall well-being. The non-moving parent may also have concerns about their ability to maintain a relationship with the child if they live in a different country.
South African Law and International Relocation
In South Africa, the Children’s Act 38 of 2005 governs issues related to children, including international relocation. Section 18(3) of the Children’s Act states that the consent of both parents is required before a child can be removed from the country. This means that if one parent wants to relocate with a child after a divorce, they must obtain the consent of the other parent before doing so.
If the non-moving parent does not consent to the relocation, the moving parent can apply to the High Court for permission to relocate with the child. The court will consider various factors before making a decision, including the best interests of the child, the reasons for the relocation, and the relationship between the child and the non-moving parent.
Factors Considered by the Court
The Children’s Act sets out a list of factors that the court must consider when deciding whether to grant permission for international relocation. These factors include:
The nature of the relationship between the child and the parents, and between the child and any siblings or other relatives.
The child’s age, maturity, and stage of development.
The child’s emotional, educational, and cultural needs.
The likely impact of the relocation on the child’s relationship with the non-moving parent, and their ability to maintain a relationship with them.
The reason for the relocation, including any employment or educational opportunities for the moving parent.
The proposed arrangements for the child’s care, accommodation, and education in the destination country.
Any special needs of the child or the parents.
It is essential to note that the court’s primary concern is the best interests of the child. Therefore, the court will consider all relevant factors before making a decision.
Burden of Proof
In cases where the non-moving parent opposes the relocation, the moving parent has the burden of proof to show that the relocation is in the best interests of the child. This means that they must provide evidence to the court showing why the relocation is necessary and how it will benefit the child.
In cases where both parents consent to the relocation, the court’s role is limited to ensuring that the consent is voluntary and informed.
Conclusion
International relocation with a minor after a divorce can be a complex and emotional issue. South African law requires the consent of both parents before a child can be removed from the country. If the non-moving parent does not consent, the moving parent can apply to the High Court for permission to relocate. The court will consider various factors before making a decision, with the primary concern being the best interests of the child.