Relocation of a Child After Divorce: What Does South African Law Say?
Life circumstances can change after a divorce. A parent may receive a new job opportunity, wish to remarry, move closer to family, or simply seek a better quality of life in another city or country.
But what happens when children are involved?
Can one parent simply relocate with a child after divorce?
The answer is no.
In South Africa, relocating with a child after divorce involves important legal considerations, and the best interests of the child remain the court’s primary concern.
What Is Child Relocation?
Relocation refers to a parent moving with a child to another area, province, or country where the move may significantly affect the child’s relationship with the other parent.
Examples include:
- Moving to another city
- Relocating to another province
- Emigrating overseas
- Changing schools due to relocation
What Does the Law Say?
Child relocation is primarily governed by:
- Children’s Act 38 of 2005
- Constitution of the Republic of South Africa, 1996
The guiding principle is found in the Children’s Act:
“The best interests of the child are of paramount importance in every matter concerning the child.”
(Section 9, Children’s Act 38 of 2005)
This principle guides every decision involving children, including relocation.
Can a Parent Move Without Consent?
It depends.
If both parents share parental responsibilities and rights, one parent should not unilaterally relocate if the move will materially affect the other parent’s contact with the child.
Ideally:
✔ Both parents should agree to the relocation.
If agreement cannot be reached, the matter may need to be decided by a court.
What Does the Court Consider?
The court does not automatically approve or refuse relocation.
Instead, it considers factors such as:
The Child's Best Interests
This is always the most important consideration.
Reasons for the Move
Examples include: Employment opportunities Better education Family support Financial stability Safety
Impact on the Child
The court considers: Emotional wellbeing Education Stability Social relationships Routine
Relationship With Both Parents
The court aims to preserve a meaningful relationship between the child and both parents wherever possible.
Practical Contact Arrangements
The court will consider whether reasonable contact can continue through: School holidays Video calls Weekend visits (where practical) Shared travel arrangements
What About International Relocation?
Moving to another country generally requires even greater scrutiny.
Issues may include:
- Immigration requirements
- Travel consent
- International parenting arrangements
- Enforcement of court orders
A court will carefully consider whether international relocation is in the child’s best interests.
Can Parents Reach an Agreement?
Yes.
Parents are encouraged to resolve relocation disputes through:
- Negotiation
- Mediation
- Parenting plan amendments
If agreement is reached, it can often be made an order of court.
What If Parents Cannot Agree?
Where agreement cannot be reached, either parent may approach the court.
The court may request assistance from:
- The Office of the Family Advocate
- Social workers
- Child psychologists
- Other expert witnesses
Their recommendations help the court determine what arrangement best serves the child.
Common Misconceptions
The primary caregiver can move whenever they want.
False. Relocation that significantly affects the other parent's relationship with the child may require consent or a court order.
The parent left behind automatically wins.
False. Every case is decided on its own facts.
Better employment automatically means relocation will be approved.
False. Employment is only one of many factors considered.
The child's wishes always decide the outcome.
False. Depending on the child's age and maturity, their views may be considered, but the court makes the final decision based on the child's best interests.
Why Legal Advice Is Important
Relocation matters are often complex and emotionally charged.
An experienced attorney can assist with:
- Relocation applications
- Parenting plans
- Consent agreements
- Court applications
- Family Advocate proceedings
- International relocation matters
Obtaining legal advice early can help avoid unnecessary conflict and ensure that the child’s interests remain protected.
Relocating with a child after divorce is not simply a personal decision, it is a legal matter that can significantly affect the rights of both parents and, most importantly, the wellbeing of the child.
Whether relocation is within South Africa or abroad, every case is assessed individually, with the child’s best interests remaining the court’s highest priority.
If you are considering relocating with your child or opposing a proposed move, obtaining professional legal advice is essential.
🔗 Reference List
- Children’s Act 38 of 2005
https://www.justice.gov.za/legislation/acts/2005-038%20childrensact.pdf - Constitution of the Republic of South Africa, 1996
https://www.justice.gov.za/legislation/constitution/SAConstitution-web-eng.pdf - Department of Justice and Constitutional Development
https://www.justice.gov.za - Office of the Family Advocate
https://www.justice.gov.za/family/family_advocate.htm - South African Government – Family and Children Services
https://www.gov.za/services/services-residents/family-and-children
