In the last few years, we have seen an increase in families relocating to other provinces or countries. When it comes to circumstances involving divorced or separated parents, the need for relocation can often result in disputes that might even land up in court. Whether the parents of the minor children agree or not, there are several aspects to consider in relocation applications, family law in South Africa.

First, you must get consent from the other parent. If permission is denied, the case goes before the High Court, which must consider several factors – the child(ren)’s best interests, relocation purpose, child(ren) and parent’s relationship, and, if applicable, the child(ren)’s views, among other aspects.

Relocation applications, which fall under family law in South Africa, are some of the most challenging cases the courts have to work through. In South Africa, there is no specific legislation regarding relocation. Luckily we have a comprehensive piece of legislation, the Children’s Act 38 of 2005, which pertains to children’s rights in South Africa and can help resolve relocation disputes.


International Vs. Interprovincial Relocation Applications, Family Law

In the event of a divorce or separation, there is legislation in the Children’s Act regarding a parent’s rights and responsibilities, including rights associated with consent or refusal in the relocation application process of a child(ren).

The Children’s Act makes provision in section 18(2) that parents have the right and responsibility to care for their child(ren), to maintain contact with their child(ren), to act as guardians of their child(ren), and to contribute to the maintenance of their child(ren). In some cases, relocating a child(ren) can interfere with these rights.


International Relocation Applications, Family law

Regarding relocation applications for international relocation, the Children’s Act makes a provision in Section 18(3)(iii). It states that a parent or other person who acts as a guardian of a child(ren) has the right to consent or refuse their child(ren) applying for a passport and for their child(ren) to depart or be removed from South Africa.

Therefore, any parent with rights and responsibilities towards a child(ren) has the right to refuse the other parent’s wishes and not consent for their child(ren) to relocate to another country.


Interprovincial Relocation Applications, Family Law

Regarding relocation applications for interprovincial relocation, there is no specific mention of this type of relocation in the Children’s Act which can make this landscape a bit more tricky to traverse. Luckily, various legal implications would need to be considered before a parent moves their child(ren) to a different province in South Africa.

Section 18 states that whenever one or more people have guardianship of a child, they have the right to exercise their parental rights and responsibilities without the consent of the other guardian.

Theoretically, this means that a parent could move to another province with their child(ren) without getting consent from the other caregiver. Unless otherwise stated in the divorce settlement or if a court order specifies they would need consent.

Although if you look, Section 6 of the Act states that any child (depending on age and maturity) and any person with parental rights and responsibilities for that child would need to be informed of any decision that involves the child or might have a significant effect on them.

Such a relocation would undoubtedly affect any provisions in the parenting plan regarding the other parent’s contact arrangements and care of their child(ren). Therefore, even though there is no legislation regarding interprovincial relocation, the primary caretaker should obtain the consent of the non-primary caretaker, and the parents should update their parenting plan accordingly.


Refusal To Give Consent In Relocation Applications, Family Law

If the parent wishing to relocate cannot get consent from the other parent or guardian, the case must go to court. In most cases, you would require the services of a private social worker and /or the Family Advocate to assess and issue a report on whether the relocation would be in the child(ren)’s best interests.

Before the court says yes or no to the relocation application, they must consider several aspects, including the following:

  • Whether the move is in the best interests of the child(ren),
  • The views of the child(ren), if applicable,
  • The reasons for the relocation,
  • The relationship between the child(ren) and the parents,
  • The needs of the primary caregiver to move on with their lives after their divorce.


The most important aspect the courts will consider is what is in the best interests of the child(ren). In some cases, what is in the parent’s best interests, such as family support or work opportunities, might not be enough to convince the court that the child(ren) will benefit from the move.

The parent who wishes to relocate would also need to prove that this decision is reasonable and bone fide and not due to them hoping to cause difficulties with their ex-partner or prevent them from seeing their children. Although, the courts will take into account the primary caregiver’s rights to be free and able to create a future for themselves post-divorce without having their needs trammeled by their former spouses.

The courts will consider the non-primary caregiver’s right of access and if they can maintain proper communication and visitation with their child(ren), enabling them to preserve their parent-child relationship.

When applicable, the courts will consider the wishes and viewpoint of the child(ren) in question to see how they feel about the future relocation. They will also consider how much time the child(ren) spends with each of their parents. If the child(ren) spends an equal amount of time with each of their parents, a move could be detrimental to them and their relationship with the parent that isn’t leaving.

The legislation involved with relocation applications in South Africa can sometimes get confusing and might even seem contradictory in places. Each case that lands before the court needs to be handled and decided upon according to its unique situation.

If you have to navigate the challenges of post-divorce or separation relocation, it would be a good idea for you to employ the services of an attorney experienced in family law. Our Burnett Attorneys & Notaries team has helped many families traverse this landscape, whether it be putting your case forward in court or helping you renegotiate your parenting plan to accommodate your relocation. If you have any questions or want further information on the topic, please don’t hesitate to contact us.