Most relocation disputes arise post-divorce when the parent with primary residence of the child decides to relocate to a foreign country. Disputes may also arise when one parent wishes to relocate to another Province within South Africa, however these are less often the cause of lengthy litigation. The Children’s Act does not expressly deal with relocation disputes and, accordingly, we have to rely on case law in this regard.
Early case law reveals that our courts previously favoured the pro-relocation approach. Where primary caregivers gave mature, rational thought and bona fide reasons for relocating; then the presumption was that relocation was in the best interest of the child. However, more recent case law in the context of the Children’s Act seems to be leaning towards a more neutral position, where neither parent should have a presumptive right to relocate or block relocation and each case is determined on its merits.
Relocation disputes are rapidly becoming common place with the globalisation being experienced around the world and with many people marrying people of other nationalities. Our professional staff have vast experience in dealing with such disputes. We will always endeavour to negotiate such disputes to reach a settlement that is in the best interests of the children involved and which best protects both parents’ rights to contact with the children. Where this becomes impossible, we are well versed in the legal proceedings involved, including Hague Convention proceedings, which come into play when one of the parents removes the children from their country of habitual residence to take up residence in another country, without the consent of the other parent.
For direct answers to your specific personal questions, please contact us directly.