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FAMILY LAW - FAQ's             Back to home page

 

Family Law is divided into two sections: Law of husband and wife and the law of parent and child.The law regarding curatorship and guardianship is usually also discussed as part of family law.

The law of Divorce, Marriage and Maintenance have their own list of FAQ’s on this website. The law of persons is that part of private law which determines which beings or entities are legal subjects or persons, the way in which legal personality begins and is terminated, which different classes of legal subjects are distinguished, and what the legal status of these classes of persons is.

Related to the issue of the end of legal subjectivity are issues like abortion and death.

Related to the issue of the acquisition of parental power are issues like adoption

A good family lawyer can guide you through all of the above issues.

  1. Is abortion legal in South Africa?
  2. When does legal subjectivity end?
  3. What does adoption mean and who is competent to adopt a child?
  4. What are the different types of adoption?
  5. What are the effects of adoption?
  6. What are the main objectives of the Children’s Act and when is a child adoptable?
  7. What are some of the miscellaneous provisions concerning adoption?
  8. Why is the adoption process so complex and time consuming?
  9. How does foster care differ from adoption?

 

1. Is abortion legal in South Africa?

 

Under South African law women are entitled to a termination of pregnancy free of charge at a registered health institution and that their local clinics or hospitals should either perform the termination or refer them to one who has the facilities.

The Choice on Termination of Pregnancy Act of 1996 states that it ‘promotes reproductive rights and extends freedom of choice by affording every woman the right to choose whether to have an early, safe and legal termination of pregnancy according to her individual belief.’

  • A pregnancy can be terminated on request during the first 12 weeks of pregnancy, according to the law.
  • After the first trimester, but up to and including the 20th week, the pregnancy can still be terminated ‘if a medical practitioner after consultation with the pregnant woman’-believes that continuing it risks injuring the woman’s physical or mental health if there is a ‘substantial risk’ that the foetus is suffering a severe physical or mental abnormality, if the pregnancy resulted from rape or incest, or if continuing the pregnancy would significantly affect the woman’s social or economic circumstances.
  • After the 20th week, it takes two medical practitioners or a doctor and a registered midwife who has completed a prescribed training course to agree that continuing thepregnancy would endanger the women’s life or result in a severely malformed or injured foetus. You can consult with an attorney should you require assistance.

According to NGO Ibis, as many as one-third of the female population believes that abortion is still illegal, some of whom sadly resort to back-street abortionists, who plaster their notices on lampposts and rubbish bins in city centres and near tertiary institutions. You will have difficulty having legal recourse for botched abortions or other injuries, even death, against these criminals, as they will simply move their backroom operations elsewhere.

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2. When does legal subjectivity end?

 

  • The legal personality of a person is terminated by death and a dead person can have neither rights nor obligations. Nevertheless, the law protects the body and regulates the disposal of it. This is not done in the interest of the deceased but partly in the interests of public health and partly because of respect for the dead. The deceased’s former assets are also protected but once again not frmo the deceased’s interest but in the interest of creditors and heirs.
  • Until recently the test for determining death was the absence of heart activity but this traditional criterion is however no longer universally accepted in the medical world. Increased medical knowledge, modern methods of resuscitation and the demands of successful organ transplantation have led to a new approach. Medical science today does not accept that there is any one moment at which a human being dies. Death is rather seen as a process which might sometimes be extended over a period of time.
  • In private law proof of death is important for two reasons: once death is proved the deceased’s estate can be administered, and the surviving spouse can remarry. A death certificate is prima facie proof of death, although an unsatisfactory situation can arise when a person disappears and there is no certainty as to whether the person is dead or still alive.
  • A persons’ death is not presumed lightly. Initially our law followed the English ruling according to which an order presuming the death of a person was granted after an absence of 7 years, although this was later superseded by the rule that no fixed period of time was required.
  • The length of a person absence is a factor to be taken into account by the court and can even be decisive, but it is certainly not the only factor, so that mere absence for a long period, without other facts that point to the probability of death, is not enough on which to base a presumption of death.
  • If the court pronounces a presumption of death this does not mean that the person concerned is dead. There is only a rebuttable presumption that the person is dead. As the presumption is rebuttable, the court which expressed the presumption can set aside the original order if, on the basis of further evidence, it becomes clear that the missing person is not dead. This can be done on the application of any interested person or the missing person themselves.

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3. What does adoption mean and who is competent to adopt a child?

 

Adoption is formal process by means of which parental power over a child is terminated and vested in another person, namely the adoptive parent or parents.

According to the Children’s Act (Act 38 of 2005) a child can be adopted:

  • Jointly: by a husband and wife, Partners in a permanent life-partnership, or other persons sharing a common household and forming a permanent family unit
  • By a widower, widow divorced or unmarried person
  • By a married person whose spouse is the parent of the child
  • By the biological father of a child born out of wedlock, or
  • By the foster parent of the child

In South Africa the only legal way you can adopt a child is by working through an accredited adoption agency, or with the assistance of an adoption social worker functioning within the statutory accredited adoption system.

  • All adoption service providers must be accredited in terms of section 251 of the Children’s Act and comply with the norms, standards and accreditation criteria. If you are considering adopting always ensure that you work through a reputable social worker or adoption agency.
  • All prospective adoptive parents are required to undergo a screening and preparation process-this allows social workers to get to know prospective as a family, their motivation to adopt and their ability to offer a warm, loving and stable home.

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4. What are the different legal types of adoption ?

 

Legal adoption can take many forms. Here are a few phrases you may hear:

  • Related Adoption: adoption of a child by a person who is related to the child. This includes stepparents where there varying types of openness between the parties in the adoption.
  • Disclosed adoption: The identity of the biological parent/sand the identity of the adoptive parents are known by both parties. This form of adoption may include a post-adoption agreement that provides for future contact or the exchange of information.
  • Closed adoption: in such a case, no identifying details are available and/or exchanged between the adoptive parents and the biological parent/s
  • Same race adoption: the race of the adoptive parent and child is the same.
  • Inter-race adoption: the race of the child and adoptive parent/s differ.
  • National adoption: a legal adoption facilitated by an accredited adoption social worker/ and/or organization where both the adoptive child and parent/s are South African citizens or have permanent residence in South Africa.
  • Intercountry adoption: A legal adoption accredited facilitated by an accredited adoption agency where either the child or parents are not South African citizens. South Africa is party to the Hague Convention on Intercountry Adoptions and this practise is also regulated by Chapter 18 of the Children’s Act 38 of 2005.

According to statistics on adoptions, as released by the National Department of Social Development, there were 14 803 legal adoptions registered in South Africa for the period 1 April 2004 to 31 March 2010 – about 2400 per year, with the average number of intercountry adoptions about 238 per year, and with no statistics available that can give an accurate breakdown of same-race and inter-race adoptions on South Africa.

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5. What are the effects of adoption?

 

  • The official placement of the child with the adoptive parents is quite a lengthy legal process, and is carried through by the Children’s Court. Once the child has been with the new parents for a period of time and the social worker has assessed the adoption to be in the best interests of the child, the adoption is finalized through the Children’s Court.
  • The adoption order, once made final by the Children’s Court terminates all rights and obligations that existed between the child and someone who was his parent immediately prior to the adoption, except in the case where the child is adopted by a step-parent who is married to one of the biological parents.
  • An adopted child must for all purposes be deemed in law to be the legitimate child of the adoptive parents as if he was born of that parent during the existence of a lawful marriage. The child automatically acquires the surname of the adoptive parent, unless the court orders otherwise.
  • Obviously adoption cannot do away with the legal consequences of blood relationship. An order of adoption shall not have the effect of permitting or prohibiting any marriage which, but for the adoption would have been prohibited or permitted. This means that impediments to marriage based on blood relationships which existed before the adoption of the child, persist in spite of the adoption and also that no further impediments to marriage are created by the adoption of the child other than that the adoptive parent and the child may not marry each other.

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6. What are the main objectives of the Children’s Act and when is a child adoptable?

 

The main objectives of the Children’s Act are:

  • To make provision for structures, services, and means for promoting and monitoring the sound physical, intellectual, emotional and social development of children.
  • To strengthen and develop community structures which can assist in providing care and protection for children.
  • To protect children from maltreatment, abuse, neglect, degradation, discrimination, exploitation and any other physical or moral harm or hazards.
  • To provide care and protection for children who are in need thereof.

The latest version of the Children’s Act also introduces new provisions to adoption practises. Provincial Departments of Social Development now have an active role I facilitating adoptions and monitoring the services rendered by child protection organizations and adoption social workers in private practise.

According to Section 230, Subsection 3 of the Act, a child is adoptable if:

  • The child is an orphan and has no guardian or caregiver who is willing to adopt the child.
  • The whereabouts of the child’s parent or guardian cannot be established.
  • The child has been abandoned
  • The child’s parent or guardian has abused or deliberately neglected the child, or has allowed the child to be abused or deliberately neglected: or
  • If the child is in need of permanent alternative placement

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7. What are some of the miscellaneous provisions concerning adoption?

 

  • You may not be discriminated against because you are a lesbian or gay couple. If you are successfully screened a child will be matched according to the wishes of the birth parent/s, the needs of the child and your specific ability to cope with a child as a same-sex couple.
  • South African law also does not discriminate against single parents. The screening process will specifically deal with your ability to cope raising a child on your own. As a single person your support structures become vitally important in raising a child and this will also be examined with you.
  • If you are HIV positive you are not compelled to disclose your status. However, just as adoptive parents feel the need to know the HIV status of the child, so those responsible for placing the child believe they should have this information. The child’s HIV status will be revealed to you as the children undergo comprehensive medical tests and full reports regarding the child’s state of health are disclosed to adoptive parents.
  • When a birth mother plans an adoption it is a legal requirement that she informs the court and social worker who the father is. If the father is known, he must be contacted and informed about the adoption process. He then has the right to accept his won child. He will have to be assessed and found suitable to adopt. A decision will be made of what is in the best interests of the child. If the father is unknown, or cannot be found his rights will be terminated.
  • Legislation forbids any discrimination on financial grounds and no minimum income or salary is required- adoptive parents do however need to have the means to be able to care adequately for the child.
  • The cost of an adoption will depend on the adoption agency or social worker that you are working with. Make sure that you ask about fees upfront so that there are no surprises and disappointments later. Adoption fees are regulated and fees should only cover legitimate costs that have been discussed with your social worker and that forms part of your adoption contract. It is a good idea to have an attorney look over the adoption contract for you. You should never be requested to pay money over directly to the birth parent/s.

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8. Why is the adoption process so complex and time consuming?

 

An adoption is complex for a variety of reasons. However in the main, it can be summarized as follows:

  • Adoption is a legal process, involving time consuming court procedures that must be followed to ensure that each adoption is legitimate.
  • An adoption is a process that changes the legal status of the child and therefore requires in-depth investigation and preparation.
  • It’s a life changing event that impacts the lives of many people – the needs and rights of each person affected by an adoption must be considered and taken care of in the best possible way.

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9. How does foster care differ from adoption?

 

Foster care is the temporary placement of a child who is in need of care and protection. The child is placed in the care of a suitable person who is not the parent or guardian of the child.

To qualify as a foster child, the child must:

  • be under 18 years of age and/or
  • have been abandoned or orphaned and is without any visible means of support.
  • display behaviour which cannot be controlled by the parent or care-giver.
  • be living on the streets or begging for a living
  • be addicted to a dependence-producing substance and without any support to obtain treatment for such dependency.
  • have been exploited or exposed to exploitation.
  • be at risk if returned to the custody of the parent, guardian or care-giver.
  • be in a state of physical or mental neglect, maltreated abused or degraded by a parent, a care-giver, a person who has parental responsibilities and rights of a family member of the child or by a person under whose control the child is.

To qualify as a foster parent you must:

  • be 18 years or older
  • be fit and proper
  • be willing and able to maintain the child
  • be able to provide a condusive environment for the child’s growth and development.

You can only foster a child for the period indicated on the court order (usually for 2 years) and once this period has lapsed, the presiding officer may after reviewing the recommendation from the social worker extend the period of the court order. Foster grants are usually paid out until the child turns 18 years old. It stops when the child leaves school or is earning an income above the stipulated means test.

If you want to foster a child you must apply at your nearest Department of Social Development or an accredited child protection agency. The social worker will assess you and the child who will then compile a report and present it to the Children’s Court with recommendations. Based on the social worker’s report, the presiding officer at court may find the child in need of care and protection. The presiding officer will issue a court order approving the placement of the child with the foster parent. The court order will show the names of the foster parent, the foster child and the duration of the foster placement.

Once the court order has been issued, you can apply for a foster child grant at your nearest6 SASSA office. The child may also be exempted from paying fees at a public school and public health care institutions. For the child to be exempted from paying school fees, you have to fill in the exemption form which is available at school, and submit a letter of recommendation from the social worker to the school.

If the child is disabled you can get a care dependency grant as well as a foster child grant if you qualify. In 2012 the foster child grant was adjusted to R770 per month.

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