Are you divorced or newly separated from your partner and wish to get a fresh start elsewhere? It might be complicated with a minor child in the equation, but here’s all you need to know regarding relocating with a minor child.

What does the Children’s Act say?

With respect to the Children’s Act, there is no provision that prescribes the procedure to be followed when one parent wishes to relocate to another country with a minor child. However, section 18 of the Act clearly provides that a parent who wishes to relocate to another country is required to obtain the consent of the second parent to do so.

The principle stemming from this is that, upon the dissolution of the marriage or union between the parents, both parents maintain guardianship over the child except in situations where the court orders otherwise.

In the absence of a parenting plan, and where both parents hold full parental rights and responsibilities in respect to the minor child, a parent is only permitted to travel and/or relocate outside of the country with the child if they have been provided with express written consent from the other parent. Where consent has been withheld unreasonably, the parent wishing to relocate to another country has to approach the High Court to apply for relief. This application is made under section 18(5) of the Children’s Act.

Consent for interprovincial relocation

There isn’t any existing legislature governing relocations to other provinces within South Africa. Consideration is given to both parents’ views and consultation between the parents regarding the relocation is required; however, in the event that one parent withholds consent unreasonably, an application to the High Court will have to be made for the requisite consent.

Is the law any different if you wish to travel on vacation?

The relocation laws are a bit different when one parent wishes to travel internationally with the child for a vacation. In this instance, should consent be unreasonably withheld, the parent wishing to travel on holiday must still make an application to the High Court under section 18(5) for relief, but – in this case – the parent withholding the consent is required to satisfy the court with one of the following:

  1. That there is an existence of reasons why the child must not accompany the other parent on the holiday, which trumps the reasons why the consent should be given for the child to go, or
  2. That they have a reasonable reason to believe that the parent going on holiday will not return with the child, notwithstanding any assurances of the contrary being made.

The court will also consider if the applicant has previously conducted themselves in ways that are detrimental to the relationship of the child and the other parent, if the country the applicant wishes to visit is a signatory to the Hague Convention, the probability of none-return, as well as the links the applicant has to the visited country.

In conclusion

There is recourse for situations wherein parental negotiations are not going as planned. Each province has a High Court that is equipped with the specialised skills to help resolve custodial disputes in cases where a middle ground cannot be found. Don’t get stuck in tight situations, know your rights – speak to our experienced Family Law team.

For legal advice about Family Law, Divorce and Matrimonial Law

Juan Smuts            

Heynes Kotze        

Corinne Petersen 



The articles on these web pages are provided for general information purposes only. Whilst care has been taken to ensure accuracy, the content provided is not intended to stand alone as legal advice. Always consult a suitably qualified attorney on any specific legal problem or matter.