INTRODUCTION

I am poet and I know it! Although South Africa is still under a soft lockdown, the economy is slowly progressing towards a market in motion. We have seen some trends which indicate that the lockdown will soften further i.e. that you are allowed to relocate provided that the relocation takes place before 7 June 2020. You may have also heard that the Court system is starting to become more relaxed. So what does all of this mean to you if you are having troubles at home?

WHAT IS AVAILABLE

Currently, Government Gazette No. 43268 issued on 4 May 2020 caters for Divorce proceedings are a permitted services that the Courts will allow. These include interim maintenance or custody applications for a contested divorce action that has already been launched (High Court or Regional Court) and it includes uncontested divorces.

Each Court is handling this process differently. For example, some Courts are not allowing Parties to start a new divorce action (contested or uncontested) whereas some Courts are allowing Parties to start divorce actions which are uncontested.

What is also available is the use of alternative dispute resolution mechanisms. This means that you are allowed to have your family dispute mediated through mediation services.

Urgent Applications are available on all Levels of Lockdown (from 1 through to 5). Urgent applications for family-related matters include domestic violence applications, urgent interim maintenance, child abduction applications, child abuse applications, and urgent requests to travel beyond your habitual Province (duly justified).

Parents are also allowed to move children between residents. If the Parents are party to a parenting plan (registered with the Family Advocate), court order (where parental rights and responsibilities are dealt with substantially), or have a magisterial permit, then you are allowed to move children between the residences of these two parents. However, please be cautious on this movement. If someone in either household has been positively identified as having been in contact with a COVID19 patient (or a reasonable suspicion exists for it) then movement will not be endorsed or allowed. It is essential for you to have your Court Order, Parenting Plan and/or Permit on you.

MOVEMENT OF CHILDREN

Previously, the Rules surrounding movement of children fluctuated very often. In Level 4, it is easily ascertainable. Section 17 of Gazette No. 432548 states specifically that:

The movement of children between co-holders of parental responsibilities and rights or a caregiver … in the same metropolitan area or district municipality is allowed subject to the following:

if the co-holders of parental responsibilities and rights or a caregiver is in possession of a court order, a parenting plan (registered with the family advocate), or a permit issued by a magistrate where (Form 3 of Annexure A)

NOTE: To apply for a permit in this sub-section, the Magistrate must have a birth certificate establishing the legitimacy of the relationship, along with written reasons why the movement is necessary.

The movement of children between different metropolitan areas, district municipalities or provinces is allowed if the Parent hold a magisterial permit issued by a Magistrate (Form 3 of Annexure A)

NOTE: NOTE: To apply for a permit in this sub-section, the Magistrate must have a copy of the Court Order / Parenting Plan / Birth Certificate establishing the legitimacy of the relationship, along with written reasons why the movement is necessary.

A child who was not residing with their primary caregiver before the lockdown period and who could not travel between provinces, metropolitan and district areas during the lockdown will be permittedon a once -off basis to return to the primary caregiver if the parents are in possession of a magisterial permit issued by a magistrate (Form 3 of annexure A)

NOTE: NOTE: To apply for a permit in this sub-section, the Magistrate must have a copy of the Court Order / Parenting Plan / Birth Certificate establishing the legitimacy of the relationship, along with written reasons why the movement is necessary.

The household to which the child has to move, must be free of COVID -19.

CONCLUSION

If you and your spouse are able to secure an uncontested divorce, it is likely that the Court will allow it to proceed. If you and your spouse are able to mediate the issues forming part of a divorce action, it is encouraged that you do so. If you need clarity on the legitimacy of moving children between Parents, it is more easily defined and readily accessible. The urgent types of family relief are still obtainable and you need not wait on it, and you are in fact encouraged not to wait for urgent relief.