Guardianship of minor children

Question 1

Which sections regulate the guardianships of minor children?

Answer 1

Section 18(3) , (4) and 5 of the children’s act

Question 2

What does Section 18( 3 ) entails about the guardianship?

Answer 2

A person who acts as the guardianship of the child in terms of section 18 of the children’s Act -

(3) must administer and safeguard the child’s property and their property interest.
- Assist or represent the child in administrative, contractual and legal matters.
- . Give or refuse any content required by law in respect of the child in matters including:
- consent to the child’s marriage;
- consent to the child’s adoption;
- consent to the child’s application of passport
- consent to the child’s departure or removal from the Republic;
-consent to the alienation of any immovable property of the child.

4. If more than one person is the guardian of the child, each guardian can act independently without the consent of other guardians unless the law says the same or court says that they must jointly.
5. When it comes to matters included in section 3, the guardians show all all agree on such legal matters.

Question 3

What does S18 (4) say?

Answer 3

4. If more than one person is the guardian of the child, each guardian can act independently without the consent of other guardians unless the law says the same or court says that they must jointly.

Question 4

What does S18(5) say?

Answer 4

When it comes to matters included in section 18(3), the guardians show all all agree on such legal matters.

Question 5

1. What’s the general rule of guardianship?

Answer 5

Both parents continue to exercise guardianship after divorce

Question 6

3. How can sole guardianship be awarded during divorce proceedings?

Answer 6

1. Be awarded expressly to one parent.

Question 7

What can be said about the partner given the sole guardianship?

Answer 7

1. The one who is awarded the guardianship has exclusive powers.
2. She may appoint a successor in a will.
3. Only he/she may consent to marriage and other facts mentioned in S18(3)c

Question 8

4. When can an order relating to sole guardianship be amended or terminated?

Answer 8

Section 8 of the divorce act with sound reasons if it is to the best interest of the child.

Question 9

1. Who is responsible for the maintenance of the child?

Answer 9

Both parents are under duty to support their children pro rata to their means.

Question 10

2. Can the maintenance be terminated by divorce?

Answer 10

No. Both parents must still remain pro rata according to their means.

Question 11

3. What should courts that grants the divorce ensure?

Answer 11

That proper arrangements are made in terms of S6(1) and 3 of the divorce act.

Question 12

4. With regard to the agreement between the parties about the maintenance, how can this be made?

Answer 12

1. The agreement can be made a court order
   This is at the discretion of the court
2. It is invalid if its too unfair and contrary to the public policy.

Question 13

5. Who is the care of the child awarded to and what about the other spouse?

Answer 13

One parent and the one will be ordered to pay specify maintenance usually on a weekly or monthly basis.

Question 14

6. Which factors are used to determine the amount of factors?

Answer 14

The needs of the child taking into account:
- his/her age;
- health;
- educational needs;
- financial circumstances (of parents); and
- social status of the parents.

Question 15

7. Can the court specify the amount of money that should be paid as maintenace?

Answer 15

Yes but it is not necessary to stipulate HOW TO ALLOCATE this money (e.g. X amount of money for school fees, etc) unless there are special circumstances which require this

Question 16

8. Are the step parents obliged to maintain their step children at common law?

Answer 16

No. However in the case of Heystek v Heystek .The step-father was held liable for maintenance because he had acted as a parent (in loco parentis) and created a reasonable expectation of continued support.

Question 17

9. Can the maintenance be claimed from someone who is unable to provide it?

Answer 17

No.
it is not an absolute requirement that there must be a maintenance award; and
ii) the award depends on the FACTS of the case and the ABILITY of the parents to provide maintenance. (Zimelka v Zimelka)

Question 18

10. Can a maintenance obligation that is unconscionable and contrary to the public notice be enforced against a parent?

Answer 18

No. (Baart v Malan)

Question 19

What can be used to determine what public policy requires?

Answer 19

The determination must be assessed with reference to the constitution because public policy is rooted in the constitution and its fundamental values of equality, dignity and human rights and freedom.

Question 20

11. Until which age of the child can the maintenance be paid?

Answer 20

 The order automatically lapses when the child reaches that stipulated age;
 However, it may continue PAST that specified age if the child is still in need of support.

Question 21

12. What happens if the child whom the order is sought in respect of is over 18 but still dependent?

Answer 21

the parent with whom the child lives may not claim maintenance on behalf of the child. Instead, the child must claim for maintenance in his or her own name. The court can also participate in the divorce proceedings.

Question 22

13. How can order for variation and termination of maintenance be made

Answer 22

In terms of S8 by application with sound reasons.