Family

Family law is the area where people are least able to think clearly, because the facts are their own life. It is also the area with the most free help. The Maintenance Court costs nothing. A protection order costs nothing. You do not need an attorney for either. This page sorts the common situations into a starting point, and tells you which parts of the process you can do yourself.

What this area of law covers

Family law deals with the legal side of relationships beginning, changing and ending. The Divorce Act 70 of 1979 governs how a marriage is dissolved and how the estate is divided. The Children's Act 38 of 2005 governs parental responsibilities and rights, which is the modern language for what people still call custody and access. The Maintenance Act 99 of 1998 governs child and spousal maintenance, including how orders are made, changed and enforced. The Domestic Violence Act 116 of 1998 governs protection orders. The Matrimonial Property Act 88 of 1984 governs marital regimes, including the accrual system.

The situations people arrive with are recognisable. The marriage is over and you want to know what happens to the house, the pension and the debt. You are not married and the other parent has cut off contact with your child. Maintenance was ordered and it has stopped arriving. Maintenance was ordered years ago and the amount no longer covers anything. Your ex wants to move to another city or another country with your child. You are afraid of someone in your home. You are getting married and someone mentioned an antenuptial contract and you have three weeks.

One idea sits under all of it. Where a child is involved, the law asks one question above every other, which is what is in the best interests of that child. Not what is fair between the parents. That reframing explains most outcomes that otherwise look surprising.

Where to start, by problem

If maintenance is not being paid, start with what to do if maintenance is not being paid. The Maintenance Court has real enforcement powers, including attaching a salary, and using them costs you nothing.

If you need a maintenance order in the first place, or want to know what a fair figure looks like, read how is child maintenance calculated.

If circumstances have changed since the order was made, read how to change a maintenance order. Both a payer whose income dropped and a recipient whose costs rose use the same route.

If you are unmarried and the other parent is blocking contact, read what are my rights as an unmarried father. Unmarried fathers have more rights than most people assume, and they are not automatic in every case.

If you want primary care of your child, read can a father get full custody in South Africa. It answers the question without the folklore.

If the two of you can agree but nothing is written down, read what is a parenting plan. A registered or court ordered plan turns a fragile agreement into something enforceable.

If your ex wants to relocate with your child, read can my ex relocate with our child without my consent. Act before the move, not after.

If you are getting divorced and you both agree, read how long does an uncontested divorce take and how to get a divorce without a lawyer.

If you were married in community of property, read how does divorce work if you are married in community of property. This regime shares debts as well as assets, which catches people out.

If the house is the main issue, read who gets the house in a divorce.

If your spouse is abroad or you cannot find them, read how to get divorced when your spouse is overseas.

If you want to know what the whole thing costs, read how much does a divorce cost in South Africa.

If you are afraid of a partner, ex or family member, read how to apply for a protection order. You can apply at your nearest Magistrates' Court, it is free, and you do not need an attorney.

If you are marrying soon, read what is an antenuptial contract and do I need one.

The deadlines that catch people out

The antenuptial contract must be signed before the wedding. This is the hardest deadline in family law because it cannot be fixed afterwards without a court application. The contract must be signed before a notary before you marry, and registered in the Deeds Office within the period the law allows. Marry without one and you are married in community of property by default.

Maintenance arrears build interest from each due date. Every unpaid instalment starts running interest on the day it fell due, not when you eventually go to court. Waiting a year to act does not erase the debt, but it does make it harder to prove and harder to collect.

An interim protection order has a return date. The court gives you an interim order and a date to come back so the other side can be heard. If you do not attend on the return date, the order can fall away. Diary it the moment it is issued.

Relocation is decided before the move. Once a child has settled in a new city or country, a court weighing the child's best interests is looking at a different situation. Bring the application before the flight.

A divorce order does not divide a pension by itself. The order must contain the right wording for the fund to pay out, and the fund must be told. Fix this at the order stage, not years later.

Claims against a deceased estate have time limits. If maintenance is owed and the payer dies, the estate process runs on its own schedule and waiting is fatal.

What it costs, and what is free

The full picture is on what does family cost. The free routes here are unusually good.

The Maintenance Court is free. A maintenance officer helps you complete the forms, the court can subpoena payslips and bank statements, and it can attach a salary. The Domestic Violence Act process is free and a clerk of the court assists with the application. The Office of the Family Advocate investigates and reports on arrangements for children at no charge to the parents. Legal Aid South Africa applies a means test and takes many family matters, particularly where children are involved. University law clinics take others. An uncontested divorce where both of you agree on everything is the cheapest kind of divorce by a wide margin, because the cost is driven almost entirely by how much you fight.

What you pay for is a contested divorce, a High Court application about a child, an accrual dispute needing valuations, and an attorney's time spent on correspondence between two people who are not speaking.

The mistakes that cost the most

Withholding contact because maintenance is unpaid. These are separate obligations. Withholding contact does not get you paid and it damages your position.

Withholding maintenance because contact is blocked. The same in reverse. The arrears keep accruing and interest runs.

Signing a settlement agreement to end the argument. A settlement agreement made an order of court is enforceable and hard to undo. Read every clause about the pension, the bond and the children before you sign.

Leaving the marital regime to chance. Getting married without an antenuptial contract when you own a business, or when one of you has debt, is a decision even if it does not feel like one.

Keeping no record of payments. Cash handed over without proof is nearly impossible to defend later. Pay into an account with a reference.

Letting an interim protection order lapse. Not attending the return date can undo the protection you obtained.

Moving out of the house without advice. It rarely decides the outcome on its own, but it can affect arrangements for the children in the interim, and interim arrangements have a way of becoming permanent.

The tools on this site that help here

• Maintenance estimator splits a child's reasonable monthly needs between both parents in proportion to their net incomes, which is where a Maintenance Court starts.
• Maintenance arrears builds an instalment by instalment schedule of what is owed, with interest, that you can take to the maintenance officer.
• Accrual calculator works out the accrual claim on divorce where you married out of community of property with accrual.
• Maintenance application checklist is everything to take to court when you apply for an order.
• Demand for unpaid maintenance is a firm letter setting out the arrears before you go back to court.
• Parenting plan template covers where the child lives, contact, handovers, school, medical care, travel and money.

When you need an attorney

Get one when the divorce is contested, meaning you disagree about children, money or property and negotiation has stalled. Get one when there is a business, a trust, a farm or a pension of real value, because valuation and division get technical fast. Get one when relocation with a child is on the table, in either direction. Get one when you believe a child is at risk, which may mean an urgent High Court application. Get one when your spouse is hiding assets or income. Get one when you are being asked to sign a settlement agreement and cannot tell whether it is fair. Get one when there is an international element, such as a child taken out of the country or an order made abroad. And get one where domestic violence and the divorce are running together, because the two processes need to be coordinated.

For maintenance, protection orders and an uncontested divorce where you agree, start with the free courts. LawMatch is not a law firm. This page is general information about South African law, not legal advice about your situation.