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Article by listed attorney: Fawzia Khan

Wanting to relocate after divorce?  Not so easy when there are minor children involved.

All divorces orders involving minor children contain provisions in them explaining what care and contact rights are allowed to each of the parents. This court order stipulates which parent would be awarded care and primary residency of the minor children and how the non-custodial parent would be allowed to exercise rights of contact. The decision then of a divorced parent who wants to relocate to another town or perhaps even abroad after the divorce is understandably not an easy one to make.

The competing factors at play are the rights of the child and the non- custodian parent to continue to enjoy reasonable contact with each other. Regarding the rights of a child, the courts are always guided by the principle of what is in the child’s best interests. This however must also be balanced against the rights of the parent who wishes to start a new life.

How does the court aim to strike the balance between the two? Clearly there can never a perfect solution to this dilemma and so some sacrificing may become necessary. In arriving at their decision whether or not to allow a parent who wanted to relocate permanently to Zimbabwe taking the minor child with her, the Full Bench of the High Court in Kwa Zulu Natal, dismissed a mother’s appeal against an earlier court judgment which refused her the right to permanently relocate to Zimbabwe and taking their son with her.  

The mother said that the move to Zimbabwe was unavoidable and her reasons to do so, compelling. Her reasons were that she could not find suitable employment in South Africa. By contrast she was afforded a great work opportunity in Zimbabwe. All her close family were living in Zimbabwe and her fiancée would only marry her if she moved to Zimbabwe. The father opposed the relocation saying he and his son enjoyed a close bond with each other. The child’s paternal grandparents rights would also be severely compromised if the child relocated.

After hearing all the evidence and reports of experts, the court concluded that there was sufficient evidence to show that it was in the child’s best interests not to relocate and dismissed the mother’s appeal to the Full Bench. Thus in finding out what is in a child’s best interest, the court will need to take into account all factors unique that that particular case.


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