I want to live with Dad, Mom

A client asked: At what age can the child legally decide for themselves whether they want to maintain contact with the other parent?

Answer: There is no set age in South African Law where a child under 18 can make a decision. The Children's Act 38 of 2005 states that if the court is convinced that the child is of sufficient maturity to make his own choice and not, for instance, be influenced by his parents in his choice, the court will take his choice into consideration.

In deciding whether to take the child’s wishes into account, the court looks at age, maturity and stage of development, gender, background and any other relevant characteristics of the child.

Section 10 of the Children's Act ([a38y2005s10] dealing with child participation) provides that: “Every child that is of such an age, maturity and stage of development as to be able to participate in any matter concerning that child has the right to participate in an appropriate way and views expressed by the child must be given due consideration”.

The factors taken into account include (but are not limited to):

·         The child’s age

·         The child’s sex

·         The amount of contact the child has had with each parent throughout their life.

·         The historical record of how each parent has fulfilled a parental role (the amount of love shown, as well as any history of cruelty or neglect on behalf of one of the parents).

·         The child’s own testimony.

·         The child’s sense of being wanted and being kept secure.

·         The emotional, physical, moral, and religious well-being of the child.

·         The accommodation and environment each parent is able to offer for the child, including the educational facilities available.

In special circumstances, a court may consider a child as young as 10 years old sufficiently mature enough to meaningfully contribute to decisions about her welfare. 

The over-riding factor is the best interests of the Child. NOT the child's decision.

The test is set out in section 9 of the Act (best interests of child paramount): “In all matters concerning the care, protection and well-being of a child the standard that the child's best interest is of paramount importance, must be applied”.

Here’s a very useful article on participation:

http://children.pan.org.za/sites/default/files/publicationdocuments/Children%27s%20participation%20Topical%20guide.pdf

Overseas assets and your will

If you have offshore assets, it’s a good idea to have separate wills, one for your assets in South Africa, and the other/s for assets in each country where you have assets overseas.

Your local will should provide something like ‘What follows applies to my South African assets only’ or ‘This will deals only with my South African assets.  Should I have any non-South African assets, these will be dealt with in a separate will’.

It’s unlikely that a local attorney will have the necessary expertise to advise you about the requirements of the every country where your foreign assets may be located, so always seek expert local advice regarding appropriate offshore tax and estate planning requirements and advantages.

For example, in some countries there are inheritance laws that override the intentions of the deceased – requiring that a certain part of the deceased’s estate be left to certain specified relatives.

The separate wills will be administered, simultaneously, in accordance with South African law and the appropriate law pertaining to your offshore will. The two wills work in parallel – one for the bulk of your estate in SA one for your foreign assets.