As the December school holidays approach, Martin Vermaak Attorneys is urging separated and divorced parents in South Africa to deal with passport and travel consent now, not in the final days before a flight. The Sandton-based divorce and family law firm, which also has offices in Pretoria, Umhlanga and Cape Town, says that October, when many families are locking in their year-end plans, is the right moment to settle who needs to sign what before a child gets a passport or travels abroad.
When parents share a home and see eye to eye, applying for a child’s passport tends to be a formality. The picture changes for parents who have separated, divorced or never lived together. One parent might plan to take the children overseas to see family, while the other refuses to sign, cannot be contacted or simply does not show up for the application. According to Martin Vermaak Attorneys, disputes like these tend to come to a head at the most hectic point of the year.
Whose signature is needed
Section 18 of the Children’s Act 38 of 2005 places consent to a child’s passport application within the responsibilities and rights of guardianship. The starting point appears in section 18(5): if more than one person is a guardian, every guardian must consent, unless a competent court orders otherwise.
The firm points out that the deciding factor is not just whether both parents are on board, but who is legally a guardian of the child. That can turn on the circumstances surrounding the child’s birth, section 21 of the Children’s Act, adoption, a parental responsibilities and rights agreement, a parenting plan, a court order, a guardian’s death, or an order awarding sole guardianship. If only one person is a guardian, there may be nobody else whose consent is needed.
Passport and travel are separate questions
A frequent misconception the firm encounters is that once a child has a passport, nothing else is needed. That is not the case. South African law deals with three distinct issues: whether the child may be issued a passport, whether the child may leave the country for a specific trip, and whether the child may move to another country permanently.
Passport consent is governed by section 18(3)(c)(iv). Consent for a child to depart from or be removed from South Africa is a separate matter under section 18(3)(c)(iii), read with the travel document requirements in force at the time. Emigration triggers a wider relocation enquiry centred on the child’s best interests. Even a parent who has secured an order permitting a passport application may still require separate consent, or further court relief, before the child can leave the country.
This matters for anyone planning a December getaway. Getting the passport issued in October covers only one step. Consent for the specific trip must also be arranged.
If a guardian will not agree
The Children’s Act anticipates that guardians will sometimes disagree, and section 18(5) empowers a competent court to rule that the consent of all guardians is not needed in a given case. Depending on the facts and what is being asked for, a court may order a guardian to cooperate or sign documents, declare that a guardian’s consent is not required, excuse a guardian from attending the passport application, authorise someone else to carry out a procedural step, or attach safeguards and conditions.
A refusal does not automatically mean going straight to court. The firm’s experienced divorce lawyers usually start by checking whether the objecting person is in fact a guardian, what any existing orders or parenting plan provide, and what the real practical hurdle is. How a court order is worded is important, since it must tackle the particular issue stopping Home Affairs from processing the application.
A trip is not a move
Parents also receive guidance on telling a holiday apart from a relocation. Moving within South Africa, for example from Johannesburg to Cape Town, does not on its own require the other parent’s consent under the Children’s Act. Even so, section 31, any court orders, parenting plans and the child’s best interests remain relevant, especially where the move affects schooling, daily routines or contact.
Moving abroad permanently is another matter. The required guardian consent will normally be needed before the child is taken out of the country, and if it is withheld, suitable court relief may be necessary. A court may weigh up the destination country, schooling, housing, contact with the parent staying in South Africa, travel expenses and the relocation plan as a whole.
One part of a broader family law service
Questions about passports and travel rarely arise in isolation. With over twenty years of experience in divorce and family law, Martin Vermaak Attorneys has divorce attorneys who act in contested, uncontested and high-net-worth divorces, international divorces, child custody and parental responsibilities and rights, spousal and child maintenance, and domestic violence and protection orders.
In addition, the firm’s family law lawyers advise on antenuptial agreements, changing a matrimonial property regime, notarial services, and estate planning and administration. The firm aims to provide clear, well-organised advice so clients know their rights, their obligations and the legal routes available to them under South African law.
Where a dispute over December travel seems likely, the firm recommends starting early. Pulling together existing court orders or the parenting plan, confirming who the guardians are and discussing the trip with the other parent well ahead of the holidays leaves enough time to reach an agreement, or to go to court if it comes to that.
Offices in three provinces
Martin Vermaak Attorneys has its head office at The Station, 63 Peter Place, Bryanston, Sandton, with further offices at Brooklyn Bridge Office Park in Pretoria, Ridgeside in Umhlanga and Wale Street in central Cape Town. It serves clients throughout Gauteng, KwaZulu-Natal, the Western Cape and further afield, and private consultation rooms at selected venues in Gauteng, Cape Town and KwaZulu-Natal can be booked by appointment.
Parents wishing to consult family lawyers on passport consent, holiday travel or relocation can ask for a free, no-obligation callback via the firm’s website. This release contains general information only and does not constitute legal advice on any individual matter. Further details are available at https://www.martinvermaak.co.za/.
About Martin Vermaak Attorneys
Martin Vermaak Attorneys is a divorce and family law firm in South Africa with more than two decades of experience. Its work covers contested, uncontested and high-net-worth divorces, child custody and parental rights, spousal and child maintenance, domestic violence and protection orders, antenuptial agreements and changes to a marital regime, and estate planning and administration. The firm has offices in Sandton (head office in Bryanston), Pretoria, Umhlanga (Durban) and Cape Town.
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Phone: +27 87 822 1639
Website: https://www.martinvermaak.co.za/
