SA father loses custody battle in US

SA father loses custody battle in US

A Cape Town father who lives in the US has little to celebrate this Father’s Day, after receiving the news that he may never see his daughter again.

An Ohio court dealt the blow, stripping him of any rights to custody of his daughter in its finding that an earlier order he had obtained for temporary sole parental rights and responsibilities had been improperly granted.

The man is currently embroiled in a Western Cape High Court battle with his wife.

He lodged a claim in terms of The Hague Convention on the Civil Aspects of International Child Abduction for the return of the child to the US.

But his wife has countered that they were married by Muslim rites only, and so their marriage was not recognised as valid.

According to her lawyers, this meant she was regarded as unmarried and had sole custody, unless a court ordered otherwise.

According to court papers, the mother and child – who cannot be identified in order to protect the identity of the minor child – have been in Cape Town since late last year after leaving Ohio to visit relatives here.

She did not return to the US, and said in an affidavit before the court that the marriage had turned sour and that the father was not involved in caring for the child.

She claimed the father had been aggressive towards her, but said she had told him she was prepared to return if he sought intervention for his anger issues.

The father, in turn, instituted legal separation proceedings in Ohio and, in an attempt to get back his daughter, obtained a court order which awarded him temporary sole parental rights and responsibilities.

The mother then succeeded in having the order set aside, and the father later lodged objections against the setting aside of the order.

The Hague Convention application could not proceed until the Ohio court had made a decision on the objections the father had lodged.

This week, the parties informed Judge Siraj Desai of the Western Cape High Court that the Ohio court had ruled against the father.

Since the marriage was invalid where it was solemnised, the mother’s lawyers submitted, it would also be invalid in Ohio, meaning she had sole custody of the child, they said.

But the father’s lawyers countered that, for the purposes of the Hague Convention, he had rights of custody because he was named as the father in the child’s passport, which had been applied for jointly with the mother.

He had been required to give his written consent for the child to travel.

They also submitted his rights of custody were not dependent on marriage.

The decision now lies in Judge Desai’s hands.


Original Article Taken from Link:

This article is reposted as relevant industry news and is not related to an actual case of PDR Attorneys.

Business dealings with trusts

Business dealings with trusts

In Smith versus ABSA Bank Limited (A892/2014) [2015] ZAGPPHC 409 the bank tried to enforce a trustee’s personal suretyship after a trust concluded installment sale agreements with the bank. Owed R1m by the trust, the bank tried to enforce a personal suretyship signed by one of the trustees in which she had bound herself as surety and co-principal debtor with the trust.

The High Court however found that the suretyship was invalid because the installment sale agreements were invalid. They had only been signed by one trustee, whereas the trust deed required a unanimous decision by two trustees.

Business dealings with trusts are common and more likely to happen when selling a property to, or buying a property from, a trust. The following documents regarding the trust should be checked:

1. Letters of Authority: The Master of the High Court must authorise the trustees to act.

2. Identity Documents: Keep copies of all signing trustees’ I.D.s to avoid any dispute as to identity.

3. The trust deed: The trust will only be bound by what the trustees do if their appointment and actions comply strictly with the trust deed’s requirements, such as:

3.1 Appointment of trustees: Check that the Board of Trustees has been properly constituted.

3.2 Capacity to contract: Make sure the trustees have authority for your particular type of contract.

3.3 Minimum number of trustees: If the deed requires a minimum number of trustees to be in office, they must all be in place for the trust to have any capacity at all.

3.4 Number of trustees required to act jointly: Unless the trust deed provides to the contrary, trustees must always act jointly.

3.5 Delegation of authority: Trust deeds may empower the trustees to authorise one or more of them to sign certain documents, request written proof of this upfront.

4. All the other little requirements and formalities: Always check the full trust deed for any other applicable requirements.

Link to full judgement: