Are you going through a divorce?
Maybe you want to relocate to another country with your minor child?
Does your spouse want to take your minor child away from you and relocate to another country?
Do you have a job opportunity overseas?
South Africans are worried about the economic, political, and crime situations in the country. This concern causes many parents to consider emigrating with their minor children.
The Great Resignation
The “Great Resignation” is a concept that many know far too well after the Global Pandemic hit us in 2020.
Antony Klotz, a professor at Mays Business School, coined the term “Great Resignation” to describe a swell of voluntary resignations during the Covid-19 pandemic of May 2021.
There is growing evidence of a global ‘great resignation’ trend in South Africa, as overworked employees are resigning from their jobs. Factors include long working hours, fewer leave opportunities, and a toxic corporate culture.
A high probability of the Great Resignation will lead to many employees quitting their jobs and moving to another province or country due to opportunities there.
Relocation has adverse effects on families, especially if an ex-spouse or former partner has children and shares contact with them.
After a divorce, parents may decide to relocate, thereby causing a disruption in their right of contact with their children, or if both parents share custody, they may decide to deny each other’s parental rights. These decisions can cause a rise in relocation disputes seen by courts.
What are the factors that a court will consider in relocation applications?
The court determined that the question was whether the move would be in the best interests of the child; it had to consider the custodial parent’s interests, their reasonableness in relocating, the practical and other factors on which that decision is based, and how carefully they had considered the advantages and disadvantages of the move for the children.
In the case of Jackson v Jackson 2002 (2) SA 303 (SCA), the learned Judge said the following:
“…It is no doubt true that where, following a divorce, the custodian parent wishes to emigrate, a Court will not lightly refuse leave for the children to be taken out of the country if the decision of the custodian parent is shown to be bona fide and reasonable. But this is not because of so-called rights of the custodian parent; it is because, in most cases, even if the access by the non-custodian parent would be materially affected, it would not be in the best interests of the children that the custodian parent would be materially affected, it would not be in the best interests of the children that the custodian parent be thwarted in his or her endeavour to immigrate in pursuance of a decision reasonably and genuinely taken…”
In general, courts will allow the primary residence holder to emigrate if the emigration is done in good faith. The application is unlikely to succeed if the applicant wants to emigrate so the other party cannot see the children.
In summary
First and foremost, the best interests of the children must be considered, and each case must be judged based on its own particular facts.
It is both the parent’s responsibility and the child’s right to make sure that contact between the parents is maintained in the case of a divorce or separation.
In cases where a custodial parent wants to emigrate, the court will not without due consideration oppose permission for the children to leave the country if the parent’s decision is bona fide and reasonable.
As far as the courts are concerned, the situation of the parent who stays behind has always been a sensitive matter. The level of this sensitivity and its effect on determining the best interests of children is a continuing issue in South African Law.
