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Rights Of Parents Who Are Not Legally In The Country

Rights Of Parents Who Are Not Legally In The Country

Author: Fawzia Khan
Date: 2022-06-27

The rights of a parent who is illegally in the country came under the spotlight in the Gauteng courts recently. In this case the woman, a Dutch national, and her husband married in 2011. However, due to the fact that at the time of marriage her visa had expired, the Department of Home Affairs refused to register the marriage. The couple have 2 minor children and are in the process of getting a divorce. The court heard that the woman was unemployed, had no bank account and lived in a one-bedroom flat with her two boys. She home-schooled the children and received R800,00 per week from her husband, following an order made against him in the Children's Court.

The father on the other hand, lived on his own in a 5 bedroomed house and had a greater income stream than he was admitting to. The woman told the court that her husband threatened to have her deported and that she would lose the two children. The Court was emphatic that under no circumstances would it allow the two children to be separated from their mother, as this would not be in the children's best interest. Whilst the father accepted that he had a duty to maintain his two children, he denied that he was required to maintain the mother, saying that the marriage was illegal. Again the court did not accept this reasoning and said that the validity of the marriage had nothing to do with the man's obligation to pay maintenance.

On the issue of the marriage being invalid, the court said that as it was tasked to pronounce on what was in the children's best interest and not to decide on the validity or otherwise of the marriage, it ignored all issues about the validity of the marriage. The court also held that even if the marriage was in fact invalid, that this did not deprive the woman from launching the proceedings in court as she had the right to be heard. The court ordered the man to pay the woman espousal maintenance of R15000 per month and R7500 per month per child maintenance for the sons.

The court also ordered that the husband to pay a contribution towards the wife's divorce legal costs in the amount of R88 025,00. The court also set aside the Children's Court order and allowed her access to the former matrimonial home to collect all the belongings. Know your rights! The Law Desk of

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