Moving with Your Child After Divorce? What South African law says about relocation.

Life changes. A new job, better opportunities, or the support of family might lead one parent to consider relocating to another province or even another country with their child. But for separated or divorced parents, especially where parenting responsibilities are shared, this decision isn’t one that can be made alone.

In South Africa, relocation involving minor children is treated seriously. There is a legal process in place, and it begins with mediation, not court. Here’s what parents need to know about how relocation decisions are handled under South African law.

When Relocation Becomes a Dispute

After divorce or separation, many parents share guardianship and parental responsibilities. This includes the right to care for the child, maintain contact, act as a guardian, and contribute to the child’s support.

When one parent wants to relocate and the other doesn’t agree, especially if the move would interfere with the current contact arrangement, a relocation dispute arises. These cases are emotionally challenging, but there are legal protections in place to ensure that the child’s best interests come first.

 Mediation Comes First

Before turning to the courts, South African law encourages parents to first attempt to resolve relocation disputes through mediation. Most parenting plans and divorce settlement agreements already include a clause requiring mediation in the event of disagreements. Even where it is not contractually required, courts generally expect that mediation will be attempted before litigation.

Mediation offers a confidential, neutral space for parents to:

• Explore the reasons for the move

• Discuss possible contact arrangements going forward

• Reach an agreement that protects the child’s well-being while considering both parents’ roles

Perhaps most importantly, mediation helps avoid the kind of drawn-out, emotionally charged court battles that can deeply affect children. When children are exposed to high-conflict situations between their parents, it can have lasting emotional consequences. Mediation reduces stress, lowers tension, and encourages solutions that create stability. This benefits the entire family, especially the children.

It is also typically faster, more affordable, and far less emotionally taxing than going to court. Mediation can help preserve co-parenting relationships that children rely on.

What the Children’s Act Says

The Children’s Act 38 of 2005 is the cornerstone of child law in South Africa. Under Section 18, both parents who have guardianship must consent to a child being removed from South Africa.

Section 18(3)(c)(iii) specifically states that a guardian must give consent for a child’s departure or removal from the Republic. This means that if you and your co-parent both have guardianship (which is usually the case post-divorce unless the court rules otherwise), you cannot relocate a child overseas without the other parent’s consent.

Even for moves within South Africa, if the relocation would significantly disrupt the existing contact schedule or affect the other parent’s ability to fulfil their responsibilities, consent is advised and may be legally required.

 If There’s No Agreement: What the Court Considers

If mediation does not result in an agreement, the parent who wants to relocate must apply to the High Court for permission.

The court will assess the application based on the best interests of the child, as outlined in Section 7 of the Children’s Act. Factors the court will consider include:

• The reasons for the proposed move

• The practicality of continued contact with the non-relocating parent

• The potential benefits or harm to the child

• The child’s age, needs, and (where appropriate) their own views

• Whether reasonable alternatives have been explored

The parent opposing the move will also have an opportunity to explain their position.

Local vs International Relocation

Whether the relocation is within South Africa or across national borders, the process is broadly similar. However, international relocations typically involve more scrutiny and documentation. This may include visa approvals, school arrangements, healthcare access, and accommodation plans.

Courts tend to consider international moves more carefully, particularly because maintaining contact with the other parent becomes more challenging due to distance and travel costs.

Final Thoughts

Relocation cases are not just about logistics. They are deeply personal and involve strong emotions, competing interests, and a significant impact on a child’s life and relationships.

While it is natural for parents to want what is best for their children, what is “best” can look different from each parent’s perspective. The law provides a structured and fair process for resolving these differences. It begins with open discussion through mediation and only progresses to court if necessary.

If you are considering a move or your co-parent has mentioned relocating, it is important to seek legal guidance early. Understanding your rights and obligations helps ensure that the child’s best interests remain at the heart of every decision.

Need help starting the mediation process or understanding your legal options? I am here to support you every step of the way.