In one foul (as some believe) swoop, the legislature has brought in changes to the South African law of family that is finally consistent with modern family arrangements. First of all, the terminology has changed; ‘custody’ has been replaced with ‘care’ and ‘access’ has been replaced with ‘contact’ (see section 1 for full definitions). In the past, an unmarried mother who was of age automatically had sole custody of the kid and if a married mother insisted on sole custody, it was the practice of courts to grant her such. Currently both parents have equal ‘care’ which broadly means that they have equal say in the big decisions like schooling etc. ‘Contact’ means that the primary residence of the kids tends to be with one parent and the other gets ‘contact’ rights that should be defined specifically. Before I go on; please allow me the airing of one gripe: many an old school lawyer will tell their married male client that courts do not award the children to the husband. If the husband does much or most of the care taking, running around etc. then it makes sense not to disrupt the status quo so that the children experience as little change as is possible. The fact is though that most women will oppose this for whatever reason which translates into High Court costs but don’t let anyone tell you that it’s not possible – my dad got custody of us as far back as the late eighties.
The most substantial change the CA has introduced concerns unmarried fathers; it’s not that long ago that there wasn’t even a process through which a father of a child born out of wedlock could approach the courts for visitation rights, never mind any substantial say in the rearing of the child but was obliged to pay maintenance for the kid. When unmarried mothers asked social workers about moving, it was not uncommon for social workers to say “Take your child and go.” As law now stands, such a father has equal rights in relation to the mother with regards to ‘care’ (see section 21 for unmarried fathers).
To crystallize the agreement, the notion of a parenting plan has been introduced which functions as a contract between the parents. The parenting plan then becomes an order of court which gives you recourse if the other spouse isn’t playing by the rules. Three lasts points that I would like to reiterate;
Paying maintenance is not quid pro quo for contact right. Just because you pay maintenance does not entitle you to see your kids and if there is a dispute about the maintenance then the other spouse may not withhold contact – that amounts to a contravention of court order and may be punished severely.
The longer it takes to sort out, the more acrimonious and hurtful the whole process will become – consider yourself and your children. Your costs will also be astronomical in that they could amount to half a million before you’ve even set foot in court which is paid out of the joint estate most of the time – in the end, everyone gets less. If you think you’re holding out for a better settlement the odds are greatly in favour of you getting much less.
Every step of the negotiations should be about the best interests of the children; you’ve made your choices and those who had no say in it should not be dragged down by your bitterness. No matter how much you hate your soon to be ex-spouse, for the love of God, don’t show it to the kids because that will cause unrepairable damage. JUST DON’T DO IT.
So there are the broad strokes. The only other thing that I can say is good luck and for those of you without kids, it would do you well to marry/date someone more honourable than you yourself – it will be one of the best choices you’ve ever made.