1 What is a family law?
Most family law practices focus on representing clients in a divorce and the issues related to divorce such as the division of marital property, child custody and support, and alimony. Family lawyers also draft prenuptial and postnuptial agreements and litigate related matters.
2 What is the Family Court?
A family court is a court convened to decide matters and make orders in relation to family law, such as custody of children. In common-law jurisdictions “family courts” are statutory creations primarily dealing with equitable matters devolved from a court of inherent jurisdiction, such as a superior court.
3 What does the family advocate do?
The Family Advocate assists the parties to reach an agreement on disputed issues, namely custody, access and guardianship. If the parties are unable to reach an agreement, the Family Advocate evaluates the parties’ circumstances in light of the best interests of the child and makes a recommendation to the Court with regard to custody, access or guardianship.
4 How does the family advocate do this?
Upon application by the parties, the Family Advocate institutes an inquiry during which the Family Advocate, assisted by a Family Counsellor (normally a trained social worker), interviews the parties to ascertain their personal circumstances and the background details to their matter. The Family Advocate then interviews the children to allow them the opportunity to be heard. This prevents the child from having to appear in Court.
5 Points to note about the family advocate
The Family Advocate cannot become involved in any matter that has already been finalized by the Court.
The Family Advocate cannot be subpoenaed to Court as a witness to give evidence on behalf of any party even if his/ her recommendation is in favour of that party.
The recommendation of the Family Advocate is intended to assist the Court in adjudicating a matter and arriving at a particular order. The recommendation itself is not enforceable unless incorporated in a Court Order.
The Family Advocate is a neutral institution and cannot act as the legal representative for either litigant, in a matter.
6 When do you go to see the family advocate?
You may visit the Family Advocate when you have a divorce pending in Court, and have minor or dependent children whose subsequent custody, guardianship or access arrangements are in dispute. There are other circumstances under which the Family Advocate may be consulted. These include any application for the variation of a custody, guardianship or access order, an application for the definition of access, a custody, access or guardianship dispute arising from the dissolution of a customary marriage, an application by an unwed father for custody, access or guardianship to his minor child or any other matter involving minor or dependent children, where the Court has specifically ordered the Family Advocate to intervene.
7 Who pays the family advocate?
The services of the Family Advocate are rendered to the public free of charge. The Family Advocate is a legal officer employed by the Department of Justice and acts as legal representative of the children.
8 What are parental responsibilities and rights?
It includes; care of the child, contact with the child, guardianship of the child and maintenance of the child.
The parents can enter into an agreement on the responsibilities and rights on their own terms and then register it with the Family Advocate or make it an order of court at the Family Court.
9 What is a parenting plan?
A parenting plan is where parents are co-holders of parental responsibilities and rights including where and with whom the child is to live, the maintenance of the child, contact between the child and any of the parents or any other person and the schooling and religious upbringing of the child.
10 What are the consultation fees?
The family Advocate renders his/her services to the public free of charge.
The parties to a legal dispute may be required to pay for additional expert reports, e.g. psychological evaluation, and other forensic tests where those are critical to the determination of the child’s best interests.
For more information, please visit www.justice.gov.za