26 Apr 2021

Holiday Contact- Be Prepared in Advance

by Candice Eve-Friis, Partner, Durban,
Practice Area(s): Child & Family |

One of the unfortunate repercussions of divorce is the splitting of school holidays with one's ex-spouse and deciding whether to alternate or share the school holidays in respect of the children. Whilst this may seem quite a simple exercise to someone outside of the situation it often becomes the subject of urgent and expensive High Court litigation when parties do not act in accordance with court orders or parental plans that are designed to define this contact. So, how does one avoid this? Here are some helpful tips:

  1. Make sure that if you have a court order for holiday contact in place or not, that you discuss and consult with your ex-spouse well ahead of time in respect of how the children’s school holidays are going to be split.
  2. If you don’t already have a Parental Plan, it is advisable to draw one up and if possible, agree each new calendar year on the school holidays in advance.
  3. If possible, try and alternate the halves between the ex-spouses if the holiday is to be shared so as to ensure fairness.
  4. If any holidays are going to be spent outside of the province, then make sure that all details are ready to provide to the other spouse in case of an emergency well in advance.
  5. If the child/children are of an age or mature enough to be involved in the decision regarding holiday contact, then discuss it ahead of time with them to obtain their views.

Bear in mind that whether there is a court order in place or not, the best interests of the child will always be the overriding factor that a court will take into consideration when deciding any High Court application with regards to holiday contact. In the event that the holiday contact issues cannot be resolved directly between the parties or their legal representatives, and the matter ends up going to court, it is likely that the Office of the Family Advocate will be asked to conduct an enquiry into the matter. The social worker and family advocate assigned to the matter will interview the parties and the children and make a recommendation to the court on what is in the best interests of the court. Although this report is not binding on the court, it is of value to the court in providing an objective assessment of the situation and is only given significant weight in matters such as these. When it is not possible to hold a Family Advocate's enquiry on short notice the court can exercise its discretion as the upper guardian of all children and make a decision without any report from the Family Advocate. For international holidays the formal consent of the ex-spouse will be required to take the minor children outside of the Republic, as this falls under the ambit of guardianship rights. In terms of Section 18(3)(c) of the Children’s Act 38 of 2005, a parent who acts as guardian of a child must give or refuse consent to the child’s departure or removal from the Republic and consent to the child’s application for a passport. Section 18(5) of the Act also expressly requires the consent of all of the guardians for the child to matters listed in Section 18(3)(c) unless a court makes an order dispensing with joint consent. The Department of Home Affairs will also require that both parents fill in and sign forms necessary to renew passports and grant visas for the children. So the moral of this story is to make sure you have your ducks in row well in advance of any domestic holidays or international travel, to avoid any last minute drama and the costly exercise of having to rush off to court for an urgent application.