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Guardians appointed by deceased parent
"My brother passed away and appointed me as guardian of his children, and I am now left with his children and a custody battle with his ex. What do I do?"
A few months prior
A few months ago I consulted a lady and her brother. They explained to me that he had divorced and was living with his mother and the three children born of the marriage. They discussed with me the ongoing problems they were having with the ex relating to care and contact of the minor children.
Brother dies
A few days ago I was consulted by the lady and another brother. They told me that the first brother I had seen had passed away from an illness which they never knew about. He was only 45. The three children born of the marriage were 8, 10 and 12 years of age, and were living with the deceased's mother (the grandmother of the children).
Mother's rights to contact with children
Just before his passing away, the deceased had been involved in a protection order matter with the mother of the children. In terms of the court order, the mother of the children was granted:- contact with the children every second school holiday,
- reasonable telephonic contact, and
- contact for a reasonable period of time on her birthday, the children's birthdays and on Mother's day.
Harassment by the ex (mother)
My clients advised me that subsequent to their brother passing away, the ex had been harassing their mother and was being a nuisance. She had apparently been unwelcome at the funeral, but had nevertheless attended. They believed that their brother had passed away as a result of all the stress which his ex had placed him under.
Affidavit of deceased brother
My clients furthermore showed me an affidavit signed by their deceased brother wherein he indicated his wish that if he died, his children should continue residing with his sister or mother. When he died he had no will signed by him though. It is common to indicate the desire as to where your children should live in the event of death in your last will and testament.
Not bound by protection order
My advice to my clients was that they were not bound to the protection order between their brother and his ex and were therefore under no legal duty to grant the ex the contact to the children mentioned in the protection order.
Affidavit is important
I further explained that the affidavit signed by the deceased carried significant weight as evidence. An affidavit has the same effect as stating something in an open court, as it is signed before a commissioner of oaths.
Ex did not pay maintenance
The ex was threatening my clients to remove the children permanently from their grandmother's place of residence, where they had been residing for a year, and had been residing prior to the deceased's passing away. She further did not pay maintenance for the minor children, even though she had stable employment.
Keep affidavit ready for police
I advised my clients that if the ex tried to use the protection order to secure care of the children, and phoned the police, they should point out to the police the affidavit signed by the deceased. The protection order court is furthermore not the appropriate forum to grant a care and contact order. Such matters can only be dealt with in the High Court.
High Court Application to enforce custodial rights
My advice was that my clients were in a strong position to retain primary care of the children. I advised them to wait for the ex to launch a High Court Application to enforce her rights to the children, before doing anything. On having these court papers served on them, they would have an opportunity to contest the claims of the ex, who they believed to be an unfit parent.
This article was written by Cape Town divorce expert, Peter M Baker
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Family, Estate & notarial legal services
Other divorce-related issues
At the beginning
Should I advise my spouse of the impending divorce action?
Should you move out of the matrimonial house prior to divorce?
Remove your spouse as a beneficiary on your Life assurance.
Divorce rule 43 for maintenance prior to divorce & divorce costs
Psychological issues
Marriage counselling to avoid divorce
Psychological impact of divorce on children
Child-related divorce matters
Can a "band-aid baby" save a marriage?
Annexure A
If there are minor children involved, the divorce summons must have an Annexure A attached to it.
Custody of children upon divorce
Jurisdiction in child custody matter (e.g. if child moved to another province)
Joint decisions with respect to minor children
Using Rule 43 to apply for interim custody entitlement
Custody when there's been drug use.Child custody for the father
Custody granted to unmarried father
When a child won't see his/her father or mother
An unborn child when divorcing
Grandparents & divorce
When Grandparents want custody ahead of parents
Challenging the family advocate report
Child custody post divorce
Application to terminate your ex's parental rights
Splitting up siblings post divorce
Which parent decides the school to attend?
Child custody on death of a parent
Child custody following the death of a parent.
Guardians appointed by deceased parent.
Adoption of a stepchild
Maintenance for children
Child maintenance to what age?
Maintenance & proof of paternity
Maintenance & custody of adopted children
Maintenance for the unborn child
Divorce & maintenance considerations for a handicapped child
Token or minimal maintenance when parent doesn't work
Impact of inheritance on child maintenance obligations
Maintenance for children over 18
Grandparents' maintenance & care obligations
Children suing for maintenance
Application for maintenance reduction
Arrest after failing to pay maintenance
Maintenance for spouse
Maintenance in a polygamous marriage
Maintenance when your spouse remarries
Abduction & kidnapping of children
Abduction of a minor - Latest case law
The kidnapping of minor children by a parent
The international abduction of children from South Africa.
International divorces, children & overseas issues
Divorce when the children & spouse are overseas
Child contact rights for an overseas parent
When your child and ex move overseas - keeping contact
Other child-divorce matters
Handicapped children & the divorce rate
National register of those unsuited to working with children
Affairs
Affairs and their impact on divorce settlements.
Assets/debt and divorce
The duty to disclose your financials when divorcing.
Insufficent disclosure from a spouse on their assets/liabilities; the section 7 notice remedy (in terms of the Matrimonial Property Act)
Division of the joint estate in the event of a divorce.
- Antenuptial contracts
- When parties cannot agree on the accrual calculation; the court may appointment a referee to assist with the accrual calculation
- When parties cannot decide how to divvy the assets : The court may nominate someone to collect, realise and divide the estate (called a liquidator, receiver or curator).
- How affairs impact the division of assets on divorce
Movable assets - what to take if you move out.
Protection of assets using a trust
Divorce & pension fund assets
Divorce and pension fund payouts
Get your info directly from spouse's pension fund, not indirectly from your spouse.
Undisclosed Pension Interest at divorce results in amendment to divorce order
Pension interest in the accrual calculation, and the related tax liability
State pension fund is unconstitutional
Navy pension payout post-divorce
Property and divorce
Be careful with how you word the clauses about selling the property upon divorce
Should you move out of the matrimonial house prior to divorce?
Property in your spouse's name
When parents have rights to stay at the property you want to sell on divorce.
Life insurance, death & divorce
Life assurance actions you need to take when divorcing
Death in the middle of divorce
Divorce & future expenses
Divorce & Future medical expenses
Marriage (COP vs ANC), cohabition and Universal partnerships
Marriage in community of property
Short definition of a marriage in community of property
Forfeiture of benefits of marriage in community of property - Wijker v Wijker 1993
Kooverjee v Kooverjee
Rights for those in Universal partnerships
- Universal partnership: Asset sharing
- The distribution of assets from the dissolution of universal partnerships
Treatise on the Contract of Partnership: By Pothier ; with the Civil Code and Code of Commerce ... (1854)
Null declaration of customary union
Perjury & forgery
Divorce: Forging spouse's signature
Divorce courts
Divorce cases in the Cape High Court
Annulment instead of divorce
What is annulment of a marriage?
What are the grounds for annulment of a marriage?
Divorce documents
Sheriff letter for divorce summons (combined summons)
Sheriff letter for divorce summons
The final order of divorce
Divorce & the particulars of claim
Divorce orders
Vary or rescind a divorce order
Change divorce order without court application
Non-compliance with a divorce order
Spangenberg & Another vs De Waal; Rule 43 order is set aside