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Teachings on Domestic Violence 

Definition of Domestic Violence Domestic violence may be committed in a wide range of domestic relationships, also knowns as domestic abuse, spousal abuse, family violence, and dating abuse. Domestic violence is controlling or abusive behavior which involves the abuse by one partner against another in a social or intimate relationship such as marriage, cohabitation, dating, or within the family which harms, or may cause imminent harm to, the safety, health, or well-being of the complainant. The conclusion domestic violence is a serious social evil. Definition from the domestic violence acts 116 of 1998: 'domestic relationship' means a relationship between a complainant and a respondent in any of the following ways: (a) they are or were married to each other, including marriage according to any law, custom or religion; (b) they (whether they are of the same or the opposite sex) life or lived together in a relationship like marriage, although they are not, or were not, married to each other, or are not able to be married to each other; (c) they are the parents of a child or are persons who have or had parental responsibility for that child (whether or not at the same time), application on behalf of a child or older person i.t.o Sec4(3); (d) they are family members related by consanguinity, affinity, or adoption; (e) they are or were in an engagement, dating, or customary relationship, including an actual or perceived romantic, intimate, or sexual relationship of any duration; or (f) they share or recently shared the same residence; Domestic violence can also be committed against men by a woman involved in an intimate relationship such as marriage, cohabitation, dating, or within a family. There are (4) four main categories of domestic abuse 1.Physical Abuse Physical abuse covers many different types of physical violence, assault, and harm, both actual and threatened. It will include abduction, kidnapping, or any other restriction of movement. Actual harm: assault, hitting, kicking, biting, pushing, restraining, slapping, or throwing objects that cause physical suffering or bodily harm. Potential Harm: threats of sexual abuse, controlling or domineering, intimidation, stalking. This abuse can exist either during or after the termination of a relationship. 2.Sexual abuse Sexual abuse is any situation in which force or threat is used to obtain participation in unwanted sexual activity or inappropriate sexual behaviors that cause distress or harm to an individual. Coercing a person to engage in sexual activity against their will, even if that person is a spouse or intimate partner with whom consensual sex has occurred, is an act of domestic violence. This abuse can exist either during or after the termination of a relationship. 3.Emotional / Psychological Abuse Emotional, Psychological, and verbal abuse includes a range of non-physical controlling behaviors that cause emotional damage and undermine a person’s sense of well-being. Continuous, frequent repeated intense criticism and name-calling are examples among persons who are still living with their perpetrators high amounts of stress, fear, and anxiety are commonly reported. This abuse can exist either during or after the termination of a relationship. 4.Financial /monetary Abuse Financial abuse includes unreasonably denying money to someone who is financially dependent, making them beg for money, threatening to kick them out of the house and make them homeless or withholding money, or taking a person’s salary and not giving it back. This abuse can exist either during or after the termination of a relationship. Definition from the domestic violence acts 116 of 1998: 'domestic violence' means- (a) physical abuse; (b) sexual abuse; (c) emotional, verbal, and psychological abuse; (d) economic abuse; (e) intimidation; (f) harassment; (g) stalking; (h) damage to property; (i) entry into the complainant's residence without consent, where the parties do not share the same residence; or (j) any other controlling or abusive behavior towards a complainant, where such conduct harms, or may cause imminent harm to, the safety, health, or wellbeing of the complainant; WHAT ARE MY RIGHTS WHEN I AM BEING ABUSED? Any victim of domestic violence (the applicant) has the right to apply for a protection order at the nearest police station, the South African Police Service member will render such assistance to you as you may require in the circumstances including assisting or making arrangements to find a suitable shelter; and/or get medical treatment. Request a Medical assessment form (J88) when undergoing medical treatment the doctor must complete the form. The (J88) can be used twofold in the Domestic Violence application and a criminal case of assault. and the victim of domestic violence (applicant) has the right lay a criminal charge against the person who committed the act of domestic violence (the respondent) if the conduct of the respondent constitutes a criminal offense that will be investigated by the police. The application for a protection order Form 6 must be completed in front of a SAPolice member signed by the victim and commissioned by the SAP member and then the victim can take it to the magistrate’s court. or you may directly apply at the magistrate's court domestic violence section, on any day and at any time, for a protection order in whose area – ▪ you reside, carry on business, or are employed, permanently or temporarily; ▪ the respondent resides, carries on business, or is employed; or ▪ The act of domestic violence occurred. The application for a protection order Form 6 must be completed and signed by the victim and commissioned by a commissioner of oaths. Make use of the (J88) and attach it to the application as supporting evidence. For Form downloads for the court and more information visit our website at : STEP-BY-STEP EXPLANATION TO OBTAIN THE ORDER? STEP 1 The clerk of the court hand in the application for a protection order (Form 6) with a case number and supporting affidavit(s) to the Magistrate/Court. In your application, you may request the magistrate/court to prohibit the respondent from ▪ committing any act of domestic violence; ▪ getting the help of another to commit any act of domestic violence; ▪ entering your workplace, home, or the shared residence or any part thereof; ▪ preventing you or any child who normally lives in the shared residence from entering or remaining in the residence or any part thereof; ▪ Committing any other activities determined by the court. You may request the magistrate/court not to disclose your physical address to the respondent. The court may also, protect you and provide for your safety, health, and well-being – ▪ order that the respondent pay rent, mortgage, or other monetary relief (such as medical expenses and loss of income); ▪ refuse the respondent’s contact with your children; ▪ order the seizure of any arm or dangerous weapon in the possession or under the control of the respondent; ▪ order that a peace officer accompany you to assist you with the collection of your personal property; ▪ impose any other condition it deems reasonably necessary The Magistrate will consider your application. The Magistrate has three options; Granting the interim ex parte protection order (Form 12) and the clerk of the court is ordered to serve the respondent with the (Form 12) the application/supporting affidavit(s) calling on the respondent to appear; Not Granted the interim order; An interim order referred to in section 5(2) is not issued and the clerk of the court is ordered to serve the respondent with a (Form 13) application/supporting affidavit(s) calling on the respondent to appear Notice to show cause why a protection order should not be issued; Not granting the order means that there is no eminent harm in the application or that there is no case made out. In not granting the order but instructing the clerk of the court to issue a (Form 13) a Notice to Show cause is ordered to serve the respondent with (Form 13) by South African Police Service member calling on the respondent to appear and explain why a protection order should not be issued. This means a case was made out but an explanation is needed from the (Respondent). Granting the interim ex parte protection order (Form 12) the magistrate will seal it with his/her official magistrate stamp, with a return date, which is immediately valid. The magistrate simultaneously will issue a warrant of arrest (Form 33) for the respondent. STEP 2: The clerk of the court will provide the applicant/victim with the original copy of the order and a blank return of service which have to be taken by the applicant to the South African Police Service. The temporary/interim order will ONLY come into effect after it has been delivered to the respondent by the South African Police Service member or the Sheriff. The South African Police Service member will complete the return of service as proof of service on the respondent and hand it back to the applicant. This means that the respondent may be arrested if he or she fails to comply with any provision of the temporary/interim protection order and after you have given the police the warrant (Form 33) and an affidavit explaining that the respondent has breached the order AFTER the (Form 12) was served on the respondent. Go back to the clerk of the court and hand in the completed return of service so that they can file this on the case file. STEP 3: On the return date where the applicant MUST appear in court. Failure to appear means this order will be extended, and a Notification of the next date of hearing (Form 32) will be sent to the applicant and the Respondent. Or When the respondent is present to oppose means the magistrate MUST hear the case and make a decision. The purpose of the return date on the temporary/interim order is to give the respondent a chance to oppose the application if the victim of domestic violence (applicant) might have made a false protection order. Or On the return date when the respondent fails to appear this interim order can be made a final order (default order) means either the respondent admits committing an act of domestic violence Both the applicant and respondent have a right to a legal representative. Both the applicant and respondent can ; (a) conducts his defense; (b) Appoint his own legal representative; (c) Apply for legal aid The magistrate/court will give the following explanations to the parties who are not legally represented. 1. In terms of section 16 of the Domestic Violence Act,116 of 1998, the provisions of appeal and review contemplated in the Magistrate’s Court Act, 1994 (Act 32 of 1994) apply to any proceedings in terms of this Act. 2. The protection order is enforceable in the entire Republic of South Africa. 3. The protection order remains effective until it is set aside and the execution thereof is not automatically suspended with the filing of an appeal. 4. Any contravention of a prohibition, condition, obligation, or order contained in the protection order will result in the warrant of arrest for the respondent being executed and the prosecution of the respondent. Upon conviction of a contravention of any prohibition, condition, obligation, or order contained in the protection order, the respondent will be liable to a fine or imprisonment for a maximum period of five years or both such fine and such imprisonment. The interim protection order is made final and (Form 29) is signed by the magistrate or granted a (Form 30) where a Notice to Show Cause was issued. WARNING: It is a criminal offense if you knowingly give false information when applying for a protection order or when laying a criminal charge, you will be prosecuted and may be convicted. CAN THE RESPONDENT OPPOSE THE APPLICATION FOR DOMESTIC ORDER? Yes, if the respondent wishes to approach the court for an earlier date, because of the effect and consequences of the protection order. The condition is that the respondent must give written notice to the applicant and the court.

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FORM DOWNLOAD FOR APPLICANTS AND RESPONDENTS:                                                                                  Click on the Hyperlink to download the form:

Teachings on Marriage Divorce or Separation 

Domestic Relationships, Civil or Life Partnerships, and Separation A domestic partnership is a legal or interpersonal relationship between two individuals who live together and share a common domestic life but are neither joined by marriage nor a civil union. A domestic partnership is almost equivalent to marriage. Domestic partnerships may involve either different-sex or same-sex couples. One of the purposes of domestic partnership relations is to recognize the contribution of one partner to the property of the other. Co-habitation, also referred to as a common law marriage, living together, or a domestic partnership is not recognized as a legal relationship by South African law. There is, therefore, no law that regulates the rights of parties in a cohabitation relationship. This relationship is where a man and woman or (man or women and woman) living together do not have the rights and duties married couples have. This is the case irrespective of the duration of the relationship. A cohabitant can also not rely on the provisions of the Maintenance of Surviving Spouses Act to secure maintenance on the death of a partner. Furthermore, there is no obligation on cohabitants to support each other and they have no enforceable right to claim maintenance. The current legal position about life or domestic partnerships in South Africa is fraught with inconsistencies. To begin with, there is no "law of domestic partnerships" so none of the invariable consequences that attach to marriage attaches to non-formalized domestic partnerships and such couples only have the "ordinary rules and remedies of the law" (such as the law of contract, estoppel, and unjustified enrichment) at their disposal. This general position has been developed on an ad hoc basis by the legislature and the courts so that domestic partnerships receive recognition under certain circumstances. As far as the judicial developments are concerned, this recognition has been limited to same-sex life partners, as, at the time of the applications for an extension being brought, same-sex marriage was not yet legally permissible, with the result that a domestic partnership was "the only form of conjugal relationship open to gays and lesbians in harmony with their sexual orientation”. The Constitutional Court was in Volks NO v Robinson and others 2005 5 BCLR 446 CC of the view that the law may distinguish between married people and unmarried people and may, in appropriate circumstances, accord benefits to married people which it does not accord to unmarried people. The learned Justice reasoned as follows in the paragraph: "There is a wide range of legal privileges and obligations that are triggered by the contract of marriage. In a marriage, the spouses' rights are largely fixed by law and not by agreement, unlike in the case of parties who cohabit without being married." Four elements seem to be essential for the creation of a cohabitating relationship namely: a)A sexual relationship between the couple. b)A factual cohabitating relationship and c)Measure of durability and stability of the relationship and d)“Consortium” the loyalty, care, affection, and concern for the material needs physical care the rendering of services in the running of the common household. Salient features of the Draft Domestic Partnerships Bill. In January 2008, the South African legislature unveiled its first concrete attempt to regulate the position of life partnerships in South Africa in the form of a Draft Domestic Partnerships Bill. This Draft Bill provides for two forms of domestic partnership: registered and unregistered. Entering a registered domestic partnership involves a public commitment in the form of a formal registration process that is undertaken by two persons (irrespective of their gender), neither of whom is married or in a civil union or another registered domestic partnership with an outsider. Because of registration, many of the legal consequences that attach to a valid marriage are extended to the partners. For instance, registered domestic partners will be placed under an ex lege duty to support one another according to their respective means and needs, will be prohibited from disposing of joint property without written consent, and will be entitled to occupy the family home irrespective of which partner owns or rents it. A registered domestic partner will also automatically qualify as a "spouse" for the Intestate Succession Act14 and the Maintenance of Surviving Spouses Act,15 7 2006 1 SA 524 (CC); hereafter Minister of Home Affairs v Fourie as the preamble to the Draft Bill, which refers only to "opposite-sex couples" and therefore should be amended. The Civil Union Act defines a "civil union" as: the voluntary union of two persons who are both 18 years of age or older, which is solemnized and registered by way of either a marriage or a civil partnership, following the procedures prescribed in this Act, to the exclusion, while it lasts, of all others. In the youngest case law in McDonald v Young (292/10) [2011] SCA 31 the court found that whilst there was a reciprocal duty of support between married persons, "no duty of support arises by operation of law in the case of unmarried cohabitants”. This was an unequivocal statement of the law by the Constitutional Court. Skweyiya (Judge) went on to state that to the extent that any obligations arise between cohabitants during the subsistence of their relationship, these arise by agreement and only to the extent of that agreement. There is some legislation that places cohabitation and marriage on equal grounds: The cohabitation of same-sex or life partners is recognized under the Domestic Violence Act. The law does not distinguish between married and unmarried parents about the obligation to support children. Decisions about care and contact are based on what is in the best interests of the child. A domestic partner may also receive pension benefits as a factual dependant if they qualify as such under the definition of ‘dependant’ in the regulations or conditions of that fund. A domestic partner will, however, not be entitled to their partner’s pension interest on termination of their relationship. MARRIAGE IN TERMS OF AFRICAN CUSTOMARY LAW AND DIVORCE South African customary law refers to that usually uncodified legal system developed and practiced by the indigenous communities of South Africa. Customary law has been defined as an established system of immemorial rules evolved from the way of life and natural wants of the people, the general context of which was a matter of common knowledge, coupled with precedents applying to special cases, which were retained in the memories of the chief and his councilors, their sons and their sons' sons until forgotten, or until they became part of the immemorial rules. The Recognition of Customary Marriages Act, Act No. 120 of 1998 is a South African statute in terms of which marriages performed under African customary law, which are now recognized as legal marriages. It also reformed the law relating to the legal status of women in customary marriages, the financial consequences of customary marriage, and the dissolution of customary marriages, replacing customary law with statutory provisions. All customary marriages which were valid under customary law when the act came into force, whether monogamous or polygamous, are recognized as marriages for all legal purposes. The spouses are obliged to register the marriage with the Department of Home Affairs within three months existed marriage before the act came into force, there was a one-year period for registration. However, a customary marriage is valid even if it is not registered, and there is no penalty for failure to register. The act declares that a wife in a customary marriage has equal legal status and ability as her husband, including the ability to buy, own and sell the property and the ability to enter into contracts. All customary marriages contracted after the act came into force are the same as a marriage in a community of property, meaning that all assets and liabilities belong to both spouses equally unless an (ANC) antenuptial contract is drawn up. The act applies the civil divorce law (the Divorce Act, 1979) to customary marriages, meaning that a customary marriage can only be dissolved by the High Court or a regional civil magistrate's court and only on the grounds of irretrievable breakdown of the marriage. The power of traditional leaders and other customary institutions to grant divorces is ended, but they may still mediate in spousal disputes before the legal divorce. The parties can decide the terms of the divorce and then the judge will issue the relevant orders regarding care and maintenance. If the court has to decide on these matters, it will take into account any arrangements that may have been made in terms of customary law. The wife's family may have to return all or part of the “lobola” (wedding gifts) to the husband's family unless the husband publicly rejected his wife for no reason at all. MARRIAGE AND DIVORCE Marriage Marriage (also called matrimony or wedlock) is a socially or ritually recognized union or legal contract between spouses that establishes rights and obligations between them. The definition of marriage is an institution in which interpersonal relationships, usually intimate and sexual, are acknowledged. Individuals may marry for several reasons, with legal, social, emotional, financial, spiritual, and religious consequences. Marriages are normally performed in a civil or religious ceremony known as a wedding ceremony. The act of marriage usually creates legal rights and obligations between the parties involved, and any offspring they may produce include interracial marriage, interfaith marriage, and same-sex marriage. A marriage in a community of property is achieved where there is no antenuptial contract (ANC). To achieve a marriage out of the community of property an antenuptial contract (ANC) must be drawn by a Notary Attorney and requires registration at the Deeds Office in the province where parties stay before the marriage ceremony. After the marriage couple’s marital status change into either three categories and it`s important that both parties consult with the attorney notary public beforehand and request an explanation of the various marital regimes and understands the implications of each on divorce or death. 1.In the community of property 2.Out of community with the exclusion of the accrual system in terms of the Matrimonial Property Act, 1984 3.Out of community with the accrual system in terms of the Matrimonial Property Act, 1984 In the community of property No antenuptial contract is needed. There is one joint estate whereby the spouse is entitled to ½ undivided shares. Both parties are responsible for the debt incurred, binding the other spouse automatically. Section 14 of the Matrimonial Property Act 88 of 1984 both spouses must sign with the purchasing of goods. The income of both spouses is seen as one pool of estate income. Debt must be paid out of the joint estate. In the case of administration or sequestration, it’s one estate. The marriages of black persons according to traditional marriages are recognized as in the community of property, with the implementation of Act 120 of 1998. Out of community with the exclusion of the accrual system An antenuptial contract is needed. A public notary attorney draws up the contract and the contract is registered in the Deeds office. There shall be no community of property between parties, there shall be no community of profit or loss between parties and the Accrual System provided for in terms of Chapter l of the Matrimonial Property Act, 1984 (Act No 88 of l984) is expressly excluded. Even though the spouse’s matrimonial bond is bonded by a marriage certificate, each spouse keeps their estate. Thus, the one spouse’s debt is not the other spouse's responsibility except if the spouse signed surety for the other spouse. Out of community with the accrual system An antenuptial contract is needed. A public notary attorney draws up the contract and the contract is registered in the Deeds office. There shall be no community of property between parties, there shall be no community of profit or loss between parties and the marriage will be subject to the Accrual system provided for in terms of Chapter 1 of the Matrimonial Property Act, 1984 (Act No. 88 of 1984) will be inclusive. The netto value of the respective estates must be stated in the contract. The principle is the same as in the community. In the case of a divorce or death then the spouse is entitled to ½ of the other party whose estate is the largest or strongest. Each party handles his or her debt, except where the spouse has signed security for the spouse. If the ANC is not signed or registered timeously, the couple can approach the High Court using a joint condonation application for the late signing and/or registration of the antenuptial contract but the application must be made within a reasonable time. Instructions must be given to an attorney to bring such an application. DIVORCE Marital status can be dissolved through a divorce that legally ends the marriage. The Divorce Act 70 of 1979 lays down the basis on which a court may dissolve the marriage: The divorce process will depend on the type of marriage regime the spouse was married to: Crucial issues that need attention during a divorce, namely: Primary care of the children, Contact, and access to the children, Maintenance for spouse and children, and division of the property. Remember a divorce also have emotional implications on the family that needs attention, especially for children. PRIMARY CARE AND MAINTENANCE OF THE CHILDREN The Family Advocate always gets involved at the court and recommends to the presiding Judge or Magistrate which parent is in the best position to look after the children and will stand for the children in the court if necessary. The recommendation includes who is the primary caregiver or guardian or both parents may be joint caregivers. The court which is the upper guardian of all children will issue a divorce order but must decide in the best interest of the child and can be decided who will look after the children, this will depend on matter to matter. The parents can agree to access to the children, or the court can decide. If it is not in the best interests of the children, then the court can restrict contact or allow contact under supervision. Both parents stay the children's natural guardians. The duty to maintain and support the children rests on the shoulders of both parents. The party who is in a better financial position will pay alimony to the other parent who has care of the child. Maintenance will be payable to the other parent until the child becomes of age normally at the age of 18 or if the child attends tertiary education this alimony can continue until completion of the child’s studies. The court might also issue an order requiring the other party-spousal maintenance. Because Hindu or Muslim marriages are not fully recognized as legal marriages, the wife has no legal status to claim support for herself after divorce but the duty of support for the children by both parents remains. If there are problems with maintenance after the divorce has gone through, these can be taken to the Maintenance officer at the Magistrates Court. Whether one party will have to pay maintenance or support to the other party depends on the circumstances. If the parties cannot agree on how much should be paid, then the court will decide. DIVISION OF PROPERTY In the community of property The income of both spouses is seen as one estate. Property is the property of the joint estate. The default legal position is that civil marriages are in a community of property with accrual. This means that everything that you own is shared, including property and debts. Accrual means that everything that you earn or buy after you have married also becomes part of the joint estate. If you get divorced, the shared property is divided equally between the two. Out of community with the exclusion of the accrual system Even though the spouse’s matrimonial bond is bonded by a marriage certificate, each spouse retains their estate meaning each person keeps their property from before the marriage and keeps whatever they earn or acquires during the marriage Thus the one spouse’s debt is not the other spouse responsibility except if the spouse signed surety for the other spouse. Out of community with the accrual system There shall be no community of property between parties, and there shall be no community of profit or loss between parties meaning each person keeps their property from before the marriage but anything that is accumulated during the marriage is shared. Some things, like inheritances or gifts, stay separate. Each party handles his or her debt, except where the spouse has signed security for the spouse. Grounds for Divorce in South Africa A marriage may be dissolved by a court on mainly two grounds namely: The irretrievable breakdown of the marriage; the mental illness, or the continuous unconsciousness, of a party to the marriage. The Divorce Process in South Africa The divorce process in South Africa is relatively straightforward, and most divorces are normally lodged in the High Court until recently the Regional Courts Amendment Act came into effect in 2010 to amend the Magistrates’ Courts Act, of 1944, to allow regional divisions of the magistrates’ courts to also deal with divorce cases. A divorce action is instituted by the issuing of a summons and needs to be served personally on the defendant by the sheriff of the court. To determine jurisdiction in a divorce action one or both parties must. a)domiciled in the jurisdiction of the court on the date on which the action is instituted; or b)ordinarily resident in the jurisdiction of the court on the said date and has been ordinarily resident in South Africa for not less than one year at once before that date. Usually, there are two types of divorces, contested or uncontested divorces. An uncontested divorce can be completed in as little as 8 weeks. If a divorce is contested it may take between 2 - 3 years, but it depends on the attorneys and parties. Divorces can be done on your own, in essence, a (DIY) Do-it-yourself divorce but there are advantages and disadvantages. The Forms to start the proses are available at the clerk of the Regional Court in the district where you reside. See the process for Do-it-yourself divorces visit our website for more information. DIY -AdvantageDIY-Disadvantage Undefended and cost-effectively the cheaper possibility. If become defended or contested, need the help of an Attorney. Time ± 8 weeks until divorce order.Time ± 2-3 years until divorce order, but it will depend on the parties Not a complicated divorce.Acrimonious divorce. Short time duration of marriage. Legal fees and expenses are not cheap. No substantial assets to divide.Substantial assets to divide No children or there are no disputes regarding the children. Disputes regarding the children. Do all admin yourself, (see below the organogram for the process of DIY) Stages of pleadings (Summons, Notice of Defence, Plea, Counter Claim, Plea to Counter Claim) application for and set down of trial date. Discovery of documents further discovery and particulars pre-trial conference trial date Hearing Date appear in court yourself unrepresented or can ask aid from an attorney for a court appearance Hearing Trail date appear in court yourself and be represented by an attorney DIY Divorce Step 1 Your local magistrate’s court can provide you with the necessary forms and guide you. The plaintiff prepares a summons setting out his or her claim. The summons specifies the number of days in which the defendant has to file a notice of intention to defend, i.e., contest the divorce (10 days when the parties live within the jurisdiction of the court or 20 days if they live in different provinces). When children are involved try to draft a settlement agreement and parenting plan and attached summons. The court registrar will open a file, stamp the documents, and give a case number. Step 2. The documents will then be handed back to the plaintiff and the plaintiff will deliver two sets of these documents to the sheriff in the area where the defendant lives or work. The sheriff will then serve the documents personally on the defendant. The Sheriff will issue a return of service proving that the documents were served on the defendant. Step 3. If the defendant does not answer by way of a notice of defense within the given time, the plaintiff may approach the court to enroll the divorce on the court roll and conclude the divorce on the defendant’s default. Some courts do ask that a notice of set down (a document stating where and when the divorce will be heard) be served on the defendant personally or by registered post. When there are children involved, the parenting plan must be endorsed by the Office of the Family Advocate before the divorce is heard in court, make sure to phone the Family Advocate and set up a meeting for the discussion about the children. Step 4. The court clerk/registrar will then allocate a date and the divorce will be set down on the court roll. The plaintiff must then file a notice of set down for the date and time set by the court clerk/registrar. Step 5. On the Court date, only the plaintiff appears in court and a divorce court order will be made by the presiding Judge or Magistrate. The divorce order can be obtained on the same date or the following day, but it depends on how much matters are on the court roll for divorce. The Forms to start the proses are available at the clerk of the Regional Court in the district where you reside.

Teachings on Maintenance

Maintenance Act 99 of 1998 Alimony, maintenance, or spousal maintenance is a legal obligation on a person to provide financial support to his or her spouse before or after marital separation or divorce. The obligation arises from the divorce law. Traditionally, alimony was paid by a husband to his former wife, but since the 1970s there have been moves in many Western countries towards gender equality with a corresponding recognition that a former husband may also be entitled to alimony from his former wife. The legal process of divorce may also involve issues of spousal support or maintenance, and child maintenance. Divorce can be a stressful experience affecting finances, living arrangements, household jobs, schedules, parenting, and the outcomes of children of the marriage as they face each stage of development from childhood to adulthood. If the family includes children, they may be deeply affected. Child and Spousal Maintenance A. Child Maintenance One of the basic principles of child maintenance is that the extent of the obligation is based on the standard of living, income and means of the person/s obliged to pay. The obligation does not rest solely on the father; it rests on both parents, according to their respective means. Once a child has reached the age of 18, a parent cannot claim maintenance on their behalf. The child must institute an action in his/her personal capacity. The fact that a child is visiting a parent temporarily does not entitle that parent to suspend or reduce his/her maintenance during that period. A parent’s duty of support towards his/her child is not affected in any way by a remarriage and a stepparent is also under no obligation to support a stepchild. The refusal to allow parent contact does not entitle that parent to stop paying maintenance. In order to fulfil their obligations to support their child, parents must use both their incomes and, if necessary, their capital. A court may order that the assets be sold to satisfy the obligation to pay maintenance. This also prevents a parent from evading his/her duty to pay maintenance by giving up work and becoming, for example, a full-time student. The ordinary rules relating to parents’ duty to support also apply in respect of children born out of wedlock. B. Spousal maintenance Although women and men are equally entitled to seek maintenance awards against each other, most cases maintenance cases are brought by women. Neither spouse is automatically entitled to spousal maintenance on divorce. Our law favours the ‘clean break’ principle, which basically means that after a divorce the parties should become economically independent of each other as soon as possible. The duty of support During a marriage, each spouse owes the other a reciprocal duty of support each other and the children if any, provided that the person claiming such support is actually in need of it and that the other spouse can actually provide it. This support includes accommodation, clothing, food, medical services and other necessities, and is balanced by the couple’s social status, their means of income and the cost of living. The duty to support each other is the responsibility of both spouses and means that if, for example, a woman does not have the financial means to support herself, her husband has a legal obligation to support her, and vice versa. This reciprocal duty of support comes to an end on termination of the marriage, whether by death or divorce. However, in divorce situations, the Divorce Act 70 of 1979 makes provision for court orders relating to maintenance. When a spouse dies, the surviving spouse can claim maintenance against the spouse’s deceased estate in terms of the Maintenance of Surviving Spouses Act 27 of 1990. Neither spouse has a statutory right to maintenance. The ex-spouse seeking an award for maintenance has no right as such. Maintenance Courts The Maintenance Court is situated in the Magistrate's Court. Mothers or fathers who do not get support for their children from the other parent can go there to claim maintenance from that parent. There is a Maintenance Officer in charge of the Maintenance matter. It is not necessary to have an attorney to claim maintenance. The Maintenance Officer will help you to fill in the necessary forms. If one of the parents of the child refuses to pay maintenance, then the case must go to the Maintenance Court. If so, the Maintenance Officer will give details on when to appear in court and which court to go to. PATERNITY If a man and woman are going out together – like a girlfriend and boyfriend – and the woman falls pregnant, it is assumed that her boyfriend is the biological father. The boyfriend will then have to give proof that he is the father if he wants to claim paternity. If paternity is disputed, the court may order a paternity test. If paternity is disputed and both parties agree to a test, but cannot afford it, the court has discretion to order the state to pay part or all of the cost of the test. HOW TO APPLY FOR MAINTENANCE ORDER: Apply for maintenance at the local magistrate's court in the district where you live. 1.Go to court and complete and submit Form A: "Application for a maintenance order." Submit proof of your monthly income and expenses, such as receipts for food purchases, electricity and/or rent bill payments. 2.The maintenance prosecutor will serve a summons on the respondent (the person against whom the claim is brought) to appear in court on a specific date to discuss the matter. 3.If the respondent agrees to pay the maintenance as claimed, a magistrate will review the relevant documentation and then make an order and may decide to do so without requiring the parties to appear in court. 4.If the respondent allegedly liable to pay maintenance does not consent to the issuance of an order, he or she must appear in court, where evidence from both parties and their witnesses will be heard. 5.If the court finds the person liable for paying maintenance, payments must be made. 6.The court can order maintenance money to be paid in one of the following ways: 1.At the local magistrate's office or into the bank account of the magistrate's office. 2.Into the bank or building society account of the applicant or designated by the person concerned. 3.Grant an emoluments attachment order that directs the employer of the person who is liable for paying maintenance to deduct the maintenance payment directly from the employee's salary, and pay it into the bank account of the magistrate's office or into the bank account of the applicant. MAINTENANCE They may be approached when maintenance is sought from a person who is legally liable towards a minor child (Form A) must be completed. The Application for the discharge or substitution of existing maintenance orders. (Form B) must be completed. COURT PROCESS - PROCESS BEFORE MAGISTRATE A MAGISTRATE BECOMES INVOLVED IN THE FOLLOWING MAINTENANCE PROCESSES (after the informal enquiry process of Section 6 has failed): 1.Where parties consent to an order being made. 2.Where no settlement is possible, and magistrate should conduct a formal enquiry. 3.Arrear maintenance enquiry in terms of Section 31. PARTIES CONSENT TO MAINTENANCE ORDER Form G 1.Maintenance officer or Prosecutor brings matter to court and advises the court the parties have settled the matter. 2. If parties are unrepresented the Presiding Magistrate should advise the parties of their right to legal representation before the court considers granting the consent order. If the parties are represented or do not want legal representation the Presiding Magistrate should proceed to look at the consent order and look out for the following: 2.1 full names of both parties on order (person paying maintenance is always the Respondent) 2.2 check that the file number is the same on file and on the court order. 2.3 Amount to be paid for the child and the date of birth of the child is recorded on the consent form. 2.4 date of the first payment and the latest date upon which the order should be made must be reflected (the respondent is usually given 7 days to make payment). 2.5 correct account number of the applicant’s banking account and banking institution. 2.6 ensure that the “and/or” portion on the form is deleted if there are no additional items to be paid by the respondent. If there are entries, ensure that the “or” is deleted. 2.7 ensure that the respondent (person who must pay maintenance) has signed on the line provided on the form. The applicant must sign acceptance of the offer on a drawn-in line next to the Respondent’s signature. 2.8 on the back of the Form G /J214E you should make sure that the second paragraph is deleted if this is a first order being made. If it is a second order, then you must make sure that you indicate what paragraphs are being replaced. what paragraphs are being replaced? 2.9 If the payment must be deducted from the Respondent’s salary, then the next paragraph must be completed with the employer’s details and details of an order must be recorded under this. If the respondent will be paying over to the applicant, make sure this section is deleted. 3. Once you have looked at the order you are ready to speak to the parties before you. You should ask the following: - 3.1 Respondent do you confirm that you have agreed to pay (read the order in front of you)? He must then confirm that it is all correct. 3.2 Ask the respondent to confirm that he can afford the amount offered. If the answer is no stop the proceedings and refer it back to the maintenance officer doing the enquiry. If it is yes, then. 3.3 Ask the applicant if she/he accepts if she has a “but” or if the answer is no then no refer it back to the maintenance officer. 3.4 Confirm with the applicant and respondent that they both signed the consent order. 4. Only now should you sign the order. 5. Now inform the Respondent as follows: 5.1 if he changes his employment or residential address it is his duty to inform the clerk of court. 5.2 if he pays later than either the 7th or 2nd (check order granted), or pays less than the order states or pays nothing at all, then he will be in contempt of court and may be arrested and placed on trial and if found guilty be sentenced to imprisonment. 5.3 it is the respondent’s duty to inform the court immediately if he is not able to pay the maintenance as set out in the order. He must do this as soon as he knows he will be unable to pay. He will then apply for a reduction in maintenance and will have avoided being arrested for non-payment of maintenance. NO SETTLEMENT REACHED MATTER REFERRED TO COURT BY MAINTENANCE OFFICER – SEC 10 ENQUIRY 1.Prosecutor deals with this enquiry and must act as a facilitator for the court does not represent either party. This is important as the pp must assist both parties and one of them if they are unrepresented. This means that Prosecutor must assist in leading evidence of both parties if unrepresented and still has opportunity to ask questions of the same party after cross-examination. BEFORE THE PROSECUTOR BRINGS MATTER TO COURT IT IS ADVISABLE TO INSIST THAT THE PARTIES CONFIRM TO THE PP WHAT ISSUES ARE IN DISPUTE (MAY USE FORM CREATED TO ASSIST PARTIES AND COURT WITH THIS). IN THE EVENT THAT ONLY SOME ISSUES ARE DISPUTED HEARING MAY PROCEED WITH BOTH PARTIES HANDING IN DOCUMENTS NOT IN DISPUTE THAT ARE ADMITTED AND THEN TRIAL CAN PROCEED WITH EVIDENCE BEING LEAD ON DISPUTED ITEMS ONLY. NB the pp must ensure that the court gets the original documents as proof of each parties claims and that there are sufficient copies of each parties’ documents for the other party and for the Prosecutor before this matter is called in court. 2.If parties are unrepresented the court must as soon as the matter is placed on the role by the Prosecutor advise the parties of their right to legal representation and record their election. If they elect to remain unrepresented the court should advise them how the process is going to proceed, i.e., that this is an application for maintenance or first application/application for increase/application for decrease/ application for discharge. The person applying is referred to as the applicant and the other party is the respondent. Explain how this process will be dealt with so that both parties understand. You can give a summary of what follows hereunder to explain to them how the full trial proceeds. Remember that Magistrate must take active part in this enquiry and if evidence has not been led the court MUST call for evidence that either party has left out. This is an enquiry and not a purely civil process. It is a good idea to insist that all items that are either disputed or admitted which have supporting documents be numbered for easy reference by the parties and the court. 3. Prosecutor or attorney should after calling the case advise the court which items are in dispute in respect of the applicant and respondent matters and those which are not each party should confirm which pages of the documents of evidence they refer to. The trial then proceeds on opposed items only. 4. Prosecutor or attorney for applicant calls complainant, court swears in the applicant who then proceeds to give evidence of her income and expenditure and hands in documents as proof of each item. (Only disputed items as admitted items already handed in. The respondent will have an opportunity to cross-examine evidence leading to disputed items after the evidence in chief is led. The Prosecutor must then be given the opportunity to ask any questions regarding the evidence lead and thereafter the court may ask any question. The duty of the Prosecutor in this process is to assist the court in the court process and not to represent any party. 5. Applicant may call any other witness to prove his/her case who will lead evidence and be cross-examined and asked questions by Prosecutor and court as with any other witness. 6. Applicant will close his/her case and the respondent will be called to give evidence. 7. Court swears in Respondent and Prosecutor or Attorney leads evidence in respect of disputed items only as admitted undisputed items already handed in as evidence. 8. After evidence in chief the applicant/ attorney for the applicant can cross-examine the respondent where after the Prosecutor will be entitled to ask questions of the Respondent and thereafter the court may ask questions. 9. Any witnesses for the Respondent will be called next and the same procedure as in 7. above will be followed. 10. Respondent will close the case. 11. The applicant or attorney will address the court 12. Respondent or attorney will address the court 13. Prosecutor will address the court 14. Judgement by Magistrate. 15. Order is recorded on form J168E A useful source of case law for maintenance matters: HANDBOOK OF HTE SOUTH AFRICAN LAW OF MAINTENANCE – Lesbury van Zyl and specifically pages 113-152. Remember to check for updated case law! APPLICATION FOR ARREARS IN TERMS OF SECTION 31 OF MAINTENANCE ACT THIS BECOME CRIMINAL PROCEEDINGS IN CRIMINAL COURT This process can only be brought before a magistrate by a public prosecutor. This process can be used first for recovery of arrears, but other options of recovery should be considered by the public prosecutor first (i.e.) garnishee orders, warrant of execution of assets and attachment of debt. The Section 31 process should be dealt with as follow: 1.The prosecutor will call the matter. 2. The Magistrate advises the accused of his right to legal representation. If the accused elects to conduct his own defence the court must advise the accused of the charge and the possible defences to the charge of arrear maintenance and the sentence which can be imposed if found guilty. The process of the trial should also be explained. 3. The prosecutor reads out charges to the accused. 4.The Accused is asked what he pleads. If the accused pleads: a.A Guilty Plea – then a statement may be presented to the court by either the accused or his legal representative or the court can ask the accused to what he pleads guilty. The accused must admit the following to be found guilty of an offence in terms of Sec. 31- that an order of court existed that maintenance was to be paid, from when and for how much and for whom and that he failed to pay that amount for that period. He must further confirm that he knew it was an offence not to make payment of that amount and that he had the means to pay the amount which was in arrears. b.A Not Guilty – the court will now ask the accused whether he/she wishes to make any formal admissions. He can admit the following: - there was an order of maintenance made. He was aware of the order and precisely what it ordered and that he failed to make payment of this amount and if he wants to disclose the reason for non-payment he can do so. if the accused admits some of these element’s state does not need to lead evidence in relation to that if the accused does not admit any of the elements the state must lead evidence on all elements. 5. The Prosecutor must now call the complainant to give evidence. The court must administer the oath and then Prosecutor may lead evidence must, through the evidence of the complainant prove: 5.1 the existence of a court order (produce original or court-certified copy) hand it up to court. 5.2 prove that respondent was aware of the order. 5.3 ask the complainant if the accused made regular payments and if not prove to the court how much was paid and how much is in arrears. The complainant must hand in bank statements as proof of non-payment. 5.4 complainant must state whether according to him/her, the accused had employment and/or had assets to sell to pay the maintenance yet did not. If the accused was unemployed did he have a provident or pension fund which he could have used to pay maintenance? These are all general questions and any question unique to these parties should be asked by the Prosecutor. 6. Accused or legal representative can now cross-examine the complainant. 7. The Prosecutor can re-examine if necessary, then call the next witness if they have one and follow the same procedure. 8. The Prosecutor will then close the case and the accused will be asked if he wishes to testify. 9. if the accused wants to testify, he should be sworn in. Once he has given evidence and either proved he has paid the amount or had no means (money or assets to pay the maintenance at the time of arrears). 10.The Prosecutor will be able to cross-examine the accused based on evidence he has produced. 11. If at this stage it is clear to the court or the state that the accused did not have the means to pay the maintenance the court must consider converting the criminal proceedings into an inquiry in terms of section 41 of the act. this means that the criminal prosecution ceases, and the matter is converted into an enquiry as would be done Ito Section 10. 12. If the process is not converted then the accused can bring any further witnesses to testify and be cross-examined. 13. The accused will close his case and both Prosecutor and the accused or legal representative will be given the opportunity to address the court. 14. The Court will Deliver Judgement and if required deal with sentence. A magistrate may not write off arrears! The Maintenance Officer may make a maintenance order compelling the defendant to pay maintenance in a particular form and manner. He may also order the defendant to pay arrears from the date of birth as well as costs of birth. The Maintenance Officer may make specific orders such as compelling the defendant to add his child as a dependent on his medical aid scheme. He may also attach annuities, provident funds and similar for maintenance, but this is restricted to cases where the defendant has acted in bad faith. He may also order an emolument attachment order. When variation of the existing order is sought, the defendant must show “good cause” - basically changed circumstances of the minor child or the parents, that would justify a higher or lower amount. Should Defendant not arrive but has consented in writing to the judgement (Form G) an order may be made. An order may be made against an absent Defendant if he consents in writing to judgement. Should the defendant fail to attend, and he does not consent to judgement in writing and Maintenance Officer is satisfied that he had knowledge of the proceedings, he may allow the plaintiff to adduce evidence and make an order as he sees fit, including default judgement.

Teachings on Children's Court

CHILDREN'S RIGHTS IN TERMS OF THE CHILDREN’S ACT 38 OF 2005 Children have the right to an education suitable to my aptitudes and abilities. Children have the right to a say in my care, and any changes to how they are cared for, according to age & maturity. Children have the right to get special care for special needs. Children have the right to be protected from being hurt. Children have the right to good health care and to be kept away from cigarettes, alcohol & drugs. Children are real people and have a right to be treated properly. Children have the right to privacy. Children have the right to speak and visit in private with their family or a person standing in for them like a social worker, or an attorney. Children have a right to a legal representative in court matters and hearings. Children have a right to live in a pleasant place and not be put in prison or a police cell. Children have the right to raise in a loving and caring family, a proper safe, and comfortable home, clothing, and healthy food. Definitions The age of the majority is 18, then they become a major person moving on into adulthood. Adoption is a legal way for an adult or adults, when unable to give birth to a child or want to bring another child into the family, to become the legal parents of a child. When you adopt a child, the child becomes your child as if the child was born through you. Adoption (inter-country) is a situation where the parents, who want to adopt, live in a different country than the child. An adoptive child means a child that can be adopted by parents who are not their biological parents because the child has either been abandoned, orphaned, abused, neglected, or because his or her parents cannot be found or are unable to care for the child. Adoptive parents are parents who are legally appointed to permanently look after and care after a child that is not their biological child. Biological father or mother means the parents who brought the child into the world, technically this means they biologically created the child. A guardian person or persons who have been legally appointed to protect and take care of a child or children. The High Court is where a judge sits to hear and decide the alimony matter of money paid to a parent or children for their parental support, usually by a divorced or separated spouse, or the father of a child whose parents are not married. A civil marriage is a registered marriage that took place in front of a magistrate or a minister of certain religions. A common law marriage is when parties live together without being legally married. What is a Children’s Court? 1.A Children’s Court is a court that deals with issues affecting children. 2.The children’s court also takes care of children who need care and protection and makes decisions about children who are abandoned, neglected, or abused. 3.Any person or child may approach the clerk of the children’s court when he or she believes that a child may need care and protection. 4.The children’s Court can place a child in safe care or refer the child and or the parent to social services that may require mediation or treatment when dysfunctional. 5.The Children’s Court does not deal with criminal cases. 6.The following people MUST report a case of possible child abuse. Dentists Teachers Social workers Attorneys Ministers of religion Nurses Traditional leaders 7.A child may be adopted jointly by a husband and wife; partners in a permanent domestic life partnership; or other persons sharing a common household and forming a permanent family unit. What is adoption? Adoption is a process where an adult receives parenting rights and responsibilities from the biological parent/s of a child who is under 18 years of age. Adoption is intended to effect a permanent change in the status of a child and is needed in terms of a Court Order. Who may be adopted? Any child in terms of Section 230, may be adopted if: (a) The adoption is in the best interests of the child. (b) The child is adoptable. (c) The provisions of the Act are followed. A social worker must also assess to decide if a child may be adoptable, and who is an orphan (where there is no legal guardian or caregiver who is willing to adopt the child). 1.A child or children whose parent/s or legal guardian/s cannot be proved. 2.A Child who was abandoned. 3.A Child who was abused by their parent/s or legal guardian/s; or 4.A Child who needs a permanent home. The following adults can adopt: Section 231 regulates who may adopt a child. A child may be adopted jointly by: 1.a husband and wife or partners in a permanent domestic life partnership. 2.other persons sharing a common household and forming a permanent family unit. a widow or widower, divorcee, or unmarried person. 4.a married person whose spouse is the parent of the child or by a person whose permanent domestic life partner is the parent of the child. the foster parent of the child. When will a person be allowed to adopt? A prospective parent must be over 18 years of age; who can be entrusted with full parental rights and responsibilities; who wants to take care of a child, exercise, and support these rights and responsibilities; and who must be assessed by a social worker. Who must give consent to the adoption? 1.Each parent of the child, or legal guardian where necessary. 2.Parent of the child has a mental illness. 3.Parent of the child abuses or neglected the child or allowed this to happen. 4.When the child is 10 years of age or older; and 5.When the child is under the age of 10 years if they have the maturity and understanding to consent. 6.Parent/s who abandoned the child/children. 7.Consent must be reduced to writing, signed, and verified by the Children’s Court. Can consent be withdrawn? Yes, for up to 60 days after the consent has been given - a Children’s Court must not make an order for adoption final before the period of 60 days has expired. What is the adoption procedure? When a child becomes available for adoption, a notice must be served by the sheriff to each consenting party to request consent to the adoption. An interview is arranged between a prospective parent and a social worker. Following the interview, the social worker compiles a report holding information on whether the child can be adopted; if adoption is in the best interest of the child; medical information about the child; and the eligibility of the prospective parent/s. An application for the adoption of a child is made which must: be made to a Children’s Court and be accompanied by the report of the social worker and be accompanied by a letter by the provincial head of social development recommending the adoption of the child; and A consent form (the parent/s of a child may choose a specific person to adopt his or her child in the consent form where the Children’s Court will determine the prospective parent/s eligibility). The Children’s Court must consider these factors before deciding on whether to allow the adoption, the community, religious and cultural background of the child, the child’s parent/s, and the prospective parents. The information contained in the application (a person may not be disqualified from adopting a child due to their financial status). The Children’s Court will allow or disallow the application for adoption and a prospective parent may have to pay fees for the child to be adopted (for example, for professional fees such as medical expenses, legal fees for the application to the Children’s Court. What are the consequences when an adoption order is made? When an Adoption order is granted. The termination of the rights and responsibilities of the original parents or legal guardians. The child can take on the surname of the adoptive parents to the adopted child (unless the Children’s Court states otherwise), the adopted parents must, together with the child’s birth certificate, be given to a Home Affairs office to record the adoption and change in surname. What is guardianship? This means the administrative part of taking care of a child. Married parents have both natural and legal guardianship. What is a legal guardian? A legal guardian is chosen to be a guardian either in a will or by a court. What is a natural guardian? Sometimes the biological parents are called the natural guardians. Sole guardians When a child only has one guardian, that person is referred to as the sole guardian. Their tasks are to: 1.administer and safeguard the child’s property and property interests. 2.aid or represent the child in administrative, contractual, and other legal matters; and 3.if it is required by law in any aspect in respect of the child. 4.for the child to marry if the child is not yet 18 years old. 5.for the alienation or encumbrance of any of the child’s immovable property. 6.In their will, a sole guardian may appoint a fit and proper person to take over guardianship of the child in case of their death. When a child has more than one guardian, those people are referred to as co-guardians. In cases such as these, all guardians must give their consent: 1.administer and safeguard the child’s property and property interests. or represent the child in administrative, contractual, and other legal matters; and 3.if it is required by law in any aspect in respect of the child. 4.for the child to marry if the child is not yet 18 years old. 5.for the alienation or encumbrance of any of the child’s immovable property. In their will, a sole guardian may appoint a fit and proper person to take over guardianship of the child in case of his or her death. What does contact mean? This is about keeping in touch even though maybe the parent is not living in the same home. It is about talking and or seeing the child often enough to develop a relationship. What does care mean? Care means thinking about the child’s daily needs such as supplying a safe home, food, education, and love. The child’s development is part of care. A biological father must prove that he: Was living with the child’s mother in a serious, long-term relationship at the time of the child’s birth, 1.Wants to claim paternity of the child, 2.Chooses to pay customary law damages, 3.Contributes to the child’s upbringing, or 4.Contributes or tries to contribute to the maintenance of the child. When an unmarried father of a child wants to claim paternity, it means he wants everyone to know that he is the child’s father even if he and the child’s mother do not have a relationship. The High Court is the only court that can give someone permission to become a guardian. The divorce court and the children’s court can permit a person to take care of a child or just for visiting a child. What is a parenting plan? The Children’s Act offers parenting plans as a method to help parents how to exercise their parental responsibilities and rights after separation or divorce. A parenting plan sets out how parents will exercise their respective responsibilities and rights. It must follow the best interests of the child principle as set out in the Act, and must be in terms of a prescribed form and include the following issues: Where and with whom the child is to live. 1.the maintenance of the child. between the child and any other person; and 3.the schooling and religious upbringing of the child. A parenting plan is an essential document or contract directing how children will be raised after separation or divorce. As a co-parenting solution, it is a written agreement drafted by both parents with the help of a neutral third party, usually a social worker, psychologist, or family lawyer, acting as a mediator. Once the plan is completed, it is signed by both parents. Parenting plans need to be continually reviewed, as children’s developmental needs change over time.

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