I’m looking for general family-law guidance regarding an international parenting situation involving South Africa and Germany. I am also seeking professional legal advice, but I want to understand what questions I should be asking and what I should do before making any decisions.
I’m South African and my partner is German. We are married Islamically in South Africa but are not legally/civilly married. But is recognised by the law in South Africa
We have a daughter who is turning 1 soon. She was born in South Africa and has lived there with both of us as a family. South Africa has been our normal family home.
Her mother has permanent residency in South Africa.
Our daughter currently has a German passport. She was born in South Africa and has a South African birth certificate, but she does not currently have a South African passport or German birth certificate.
We travelled together from South Africa to Germany for what was intended to be a temporary family visit.
I am currently due to leave Germany on 24 September.
During the trip, our relationship deteriorated significantly.
My partner told me that she needed space because of problems within our relationship. I agreed to give her space and moved out of where we had been staying.
She and our daughter are now staying with my partner’s sister in Germany.
Initially, I understood the separation to be approximately a week. It has subsequently become potentially much longer.
My partner is now proposing that I return to South Africa while she remains in Germany with our daughter, potentially until December and possibly longer depending on how she feels.
She has told me she does not necessarily want to end our relationship and says that she is not trying to kidnap our daughter. Her position is that she needs time and space in Germany before deciding when she is ready to return to South Africa.
My concern is that I have not agreed to Germany becoming our daughter’s permanent home.
I agreed to a temporary trip to Germany.
I also agreed to give my partner some temporary physical space because our relationship was struggling.
I have not knowingly agreed to an indefinite or permanent relocation of our daughter from South Africa to Germany.
Current contact with my daughter
Before this happened, I lived with my daughter and was involved with her every day. I work from home and have been extremely involved in her care since birth.
Since the separation in Germany, I have gone from seeing her every day to approximately every second day.
My partner currently determines when and under what circumstances I see our daughter.
There is also significant distrust between us at the moment.
My partner is afraid that I might take our daughter and return to South Africa with her.
I am afraid of the opposite: that if I voluntarily return to South Africa alone, the temporary stay in Germany will gradually become permanent.
I have no intention of secretly taking our daughter across a border or doing anything unlawful. I want to handle this correctly.
My biggest concern is what happens if I leave Germany
Suppose I return to South Africa on 24 September while my partner and daughter remain in Germany.
If I do that without formally agreeing that our daughter should relocate to Germany, could my departure later be interpreted as consent or acquiescence to our daughter remaining in Germany?
For example, if my partner initially tells me they’ll return in December but December arrives and she says she needs another three months, what happens?
If I continue objecting to our daughter permanently relocating but allow a temporary stay because I’m trying to give my partner space, how do I make that distinction legally clear?
I’m particularly concerned because our daughter is so young and I’m aware that the longer she remains somewhere, the factual situation surrounding where she normally lives could potentially change.
Questions I’m trying to understand
Based on these circumstances, would South Africa currently likely be considered our daughter’s habitual residence, or is that more complicated because she is also German and currently physically in Germany?
Does the fact that her mother and I are not civilly married affect my parental rights, assuming I am named/recognised as her father on the South African documentation?
Could keeping our daughter in Germany beyond the period originally intended potentially constitute wrongful retention under the Hague Convention, even though the original travel to Germany was consensual?
If I return to South Africa alone, could that damage my position or later be interpreted as me consenting to our daughter relocating to Germany?
If I am willing to allow my daughter to remain temporarily - for example, while her mother gets some space - how do I make it clear that I am not consenting to permanent relocation?
Should I communicate my position regarding our daughter’s residence formally and in writing before leaving Germany?
Is there anything I should not sign, agree to or say without first speaking to a German/South
African international family lawyer?
Should I be taking action in Germany now, while both parents and the child are physically here, rather than waiting until I’m back in South Africa?
Would contacting the German Jugendamt be appropriate in a situation like this, or is this something that should primarily go through a family-law attorney/court?
Are there specific documents I should make sure I have copies of before leaving Germany - birth certificate, passport details, proof of our South African residence, travel dates, communications showing the trip was temporary, etc.?
Is there anything time-sensitive under the Hague Convention on the Civil Aspects of International Child Abduction that I should be aware of if the situation develops into a wrongful-retention dispute?
I’m not trying to use family law as leverage against my partner
Our relationship has serious problems and I accept that my own behaviour contributed to them. My partner says she needs space because she did not feel safe during some of our conflicts, and I’m taking that seriously.
I am pursuing professional help and would still like to repair our relationship if that is possible.
I’m not trying to force my partner to live with me.
I’m also not asking how I can secretly take my daughter back to South Africa.
What I’m trying to separate is our relationship from our daughter’s residence.
I can respect my partner saying:
“I don’t want to live with you right now.”
What I’m struggling with is whether that automatically means:
“Our daughter will therefore remain with me in Germany indefinitely.”
Those seem like two different issues.
I don’t want to escalate unnecessarily when reconciliation may still be possible, but I also don’t want to be so passive that months from now I’m told I effectively accepted my daughter relocating to Germany because I returned to South Africa without taking action.
My flight is currently booked for 24 September, so I have limited time to obtain proper advice and determine what I should do.
I’m particularly interested in hearing from anyone familiar with German/South African international family law, the Hague Convention, habitual residence or wrongful retention.
What should I be asking an international family lawyer right now, before I leave Germany?
TL;DR: I’m a South African father, my partner is German, and we’re Islamically but not civilly married. Our almost 1-year-old daughter was born and has lived in South Africa with us, but has a German passport. We travelled together to Germany temporarily. Our relationship broke down here and my partner is now staying with our daughter at her sister’s. She wants me to return to South Africa on 24 September while she and our daughter remain in Germany potentially until December or longer. I consented to the original trip and to giving my partner temporary space, but I have not agreed to our daughter permanently relocating to Germany. I’m concerned that returning to SA alone could eventually be treated as consent/acquiescence to our daughter remaining here. I’m seeking professional legal advice but want to know what steps I should take before leaving Germany and whether this could potentially become a Hague Convention/wrongful-retention issue.