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Question
Posted by: FIO | 2010/09/16

PRR agreements vs Parenting Plans

Would I be correct in assuming that where an unmarried father complies with the provisions in Section 21, he automatically has full rights and responsibilities, which includes guardianship, as the Guardianship Act has been repealed, therefore all that is required between the parents is the drafting of a Parenting Plan, assuming of course there is no dispute between the parents regarding s21. Registration with OFA or making it an order of the court is purely optional. A PRRA is not a requirement in this case as s20 and s21 automatically give full rights ans responsibilities,which include care, contact and guardianship.

However, where the father does not comply with s20 or s21, a Parental Rights and Responsibilities Agreement is required which should clearly define each of the respective rights and responsibilities, and it must be registered with OFA or court, which is not an option but a requirement. The agreement may or may not include guardianship, and detail the parameters of care and contact.

Is this all correct?

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Our expert says:
Expert ImageFamily law expert

You are right in assuming the above. There seems to be uncertainty whether gaurdianship is automatic and whether the High Court should be approached. My view however is that the rights in terms of Section 21 also includes gaurdianship. In Botha v Dreyer (unreported case No 4421/08 [2008] ZAGPHC 395, 19 November 2008) the court held that the acquisition of rights and responsibilities in terms of section 21 was automatic and it does not depend on proof that such acquisition was in the best interest of the child. The court recognised that the best interest of the child would become important when a determination is made on how the parental rights and responsibilities are to be exercised. In terms of Section 33 (1) a parenting plan can be drawn up.

Bertus Preller
Family Law Attorney
Abrahams and Gross Inc.
info@divorceattorney.co.za

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Our users say:
Posted by: family law expert | 2010/09/19

You are right in assuming the above. There seems to be uncertainty whether gaurdianship is automatic and whether the High Court should be approached. My view however is that the rights in terms of Section 21 also includes gaurdianship. In Botha v Dreyer (unreported case No 4421/08 [2008] ZAGPHC 395, 19 November 2008) the court held that the acquisition of rights and responsibilities in terms of section 21 was automatic and it does not depend on proof that such acquisition was in the best interest of the child. The court recognised that the best interest of the child would become important when a determination is made on how the parental rights and responsibilities are to be exercised. In terms of Section 33 (1) a parenting plan can be drawn up.

Bertus Preller
Family Law Attorney
Abrahams and Gross Inc.
info@divorceattorney.co.za

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