Divorce Article 11: The rights of the non-custodial parent in divorce proceedings.

In our previous article, we briefly discussed maintenance for minor children in divorce proceedings. In this article, we shall consider the rights of the non-custodial parent.

Divorce does not terminate the responsibility of any parent regarding their children. If a parent maintains their responsibilities this means they maintain their rights. Whether the parties agreed to which parent will have custody, or it was ordered by the Court, the non-custodial parent will always maintain their rights unless it was removed by the Court, however only takes place in exceptional circumstances. These rights are contained in the Children’s Act 38 of 2005 (“the Act”) as follows:

 (a)   to maintain contact with the child; and

 (b)   to act as guardian of the child.

In the event that the non-custodial parent is also the co-guardian they have the right to the following decisions in relation to any minor child:

 (a)   administer and safeguard the child's property and property interests;

 (b)   assist or represent the child in administrative, contractual and other legal matters;

or

 (c)   give or refuse any consent required by law in respect of the child, including-

     (i)   consent to the child's marriage;

    (ii)   consent to the child's adoption;

   (iii)   consent to the child's departure or removal from the Republic;

   (iv)   consent to the child's application for a passport; and

    (v)   consent to the alienation or encumbrance of any immovable property of the child.

Unless a competent court orders otherwise, the consent of all the persons that have guardianship of a child is necessary in respect of matters set out in (c) above.

What however does it mean when the non-custodial parent has the right to maintain contact with the child? As previously discussed this is the right of access and visitation and the parties can agree to this or have it ordered by the Court.

***Kindly note that the contents of this article are intended for information purposes only and does not constitute legal advice. Please consult an attorney.

In our next article, we shall discuss the maintenance for spouses.