Unmarried Parents and Parenting Plans

Unmarried parents are a stark reality in our modern society and South African society is no different. Many of these relationships fail and with such failure and separation the arrangements surrounding a minor child born from such a relationship become a serious bone of contention.

The inevitable question(s) surrounding such arrangements arise early after the breakdown of a relationship between unmarried parents, ie. how to go about ensuring the arrangements are in place, whom to approach, what to do regarding maintenance, visitation and encompassing rights towards a minor child, and when to do so.

The first port of call is to ascertain the responsibilities and rights of unmarried fathers.  In doing so we consult the Children’s Act, Act 38 of 2005 (hereinafter referred to as “the Children’s Act”). Specifically section 21 of the Children’s Act, which endeavours to resolve the issues surrounding parental responsibilities and rights of unmarried fathers.

Section 21 sets out certain requirements that have to be met by an unmarried father before he is allowed to acquire the same parental responsibilities and rights towards a minor child as the biological mother (whom, acquires these parental responsibilities and rights automatically without having to adhere to specified requirements).


The requirements for an unmarried father to acquire full parental responsibilities and rights towards a minor child are not as straightforward as one may think. The requirements for an unmarried father to automatically acquire parental responsibilities and rights towards a minor child are listed as follows in the Children’s Act:


  1. “if at the time of the child’s birth he is living with the mother in a permanent life-partnership; or
  2. if he, regardless of whether he has lived or is living with the mother– i. consents to be identified or successfully applies in terms of section 26 to be identified as the child’s father or pays damages in terms of customary law;
    1. contributes or has attempted in good faith to contribute to the child’s upbringing for a reasonable period, and
    2. contributes or has attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period.”

However, it is important to note that the requirements are not cumulative, as was held in the High Court case of GM v KI 2015 (3) SA 62 (GJ), in which matter the High Court stated that an unmarried father can acquire parental responsibilities and rights by contributing to his child’s maintenance, which, in itself, indicated that the court does not consider the requirements to be cumulative. Therefore, it can be argued that if anyone of the requirements are met the unmarried father will automatically acquire full parental responsibilities and rights toward a minor child.

If a dispute should arise between the unmarried parents regarding their parental responsibilities and rights they must be extremely cautious before deciding to approach the Court for the necessary relief sought.

Unmarried parents are usually unaware of section 21(3) of the Children’s Act which governs disputes between them. This section not only requires but makes it compulsory for unmarried parents to first attempt mediation specific to the issues between them, they may not approach the Court as the first resort for resolution. However, this section does not diminish the High Court’s powers as the upper guardian of all minor children, and therefore either party may, if it is in the best interest of a minor child, approach the Court without having engaged in mediation.

An unmarried father may, if it is in the best interest of a minor child, either bring an application to the High Court or approach the Children’s Court in terms of Section 53 of the Children’s Act, especially with regards to vesting his automatically acquired parental responsibilities and rights and/or for access towards his minor child.

Nevertheless, section 21(3) of the Children’s Act compels the unmarried parents to attempt mediation, it follows that from such mediation a parenting plan is usually formulated.

Consequently, sections 33 to 35 of the Children’s Act deal with the specific content of a parenting plan.

The parenting plan may include various and several co-parenting issues in contention between the parties, however, section 33(3) of the Children’s Act briefly mentions the following determinations:

“3. A parenting plan may determine any matter in connection with parental responsibilities and rights, including–

  1. where and with whom the child is to live;
  2. the maintenance of the child;
  3. contact between the child and–
    1. any of the parties; and
    2. any other person; and
  4. the schooling and religious upbringing of the child.”

The parenting plan aims to resolve issues surrounding arrangements for a minor child and meticulously outlines the exercise of the unmarried parents’ co-parental responsibilities and rights.

It is important to point out that section 33(2) echoes section 21(3) of the Children’s Act in that it also discourages parties from approaching the Court as a first resort for their co-parenting issues, yet section 33(2) differs in that it provides as a solution that parties first seek to agree to a parenting plan.

In the event that unmarried parents are either certain or remain sceptical that mediation as envisaged in section 21(3) of the Children’s Act would come to nought, it is a point to remember that before approaching Court, it is advisable to approach a legal representative to draw up a parenting plan as per sections 33 to 35 of the Children’s Act. What such action would achieve is that the draft parenting plan may be proposed to the other parent for their consideration, and amendments and/or negotiations regarding such a draft may be attended to expertly drafted, well-advised and in strict accordance with the law, to avoid any unnecessary litigation and/or issues in future.

Agreeing to a parenting plan is highly advantageous to unmarried fathers, as such agreements will vest their parental responsibilities and rights in a non-litigious manner, which is in the best interest of a minor child.

Where parties have agreed to a parenting plan, they may approach the Court to have such a parenting plan made an Order of Court, which is highly advisable to do for the purpose of the enforcement thereof.

Do I need A divorce lawyer

Why Do I Need A Divorce Attorney?

When it comes to divorces, most people want to get it done as quickly as possible. Whilst it is possible to acquire a divorce without a lawyer this does not mean you should. Depending on your situation prior to your divorce should be a deciding factor on whether you need an attorney or not.

Do I need a divorce attorney

Going through a divorce without an attorney is entirely possible but it is not recommended as there are many facets to divorce that the layman is unaware of.

Whenever children are involved, you may need a lawyer to assist you with custodial issues. Remember that it is always in the best interest of the child that the law will act upon.

If you have assets to be divided or require spousal support you will definitely benefit from a lawyer.
Be sure that you listen to the right advice and make no mistakes when filing for a divorce, that is why a lawyer is the best way to protect your interests. Should you find that you are both in agreement please note that even the most agreeable couples can hit roadblocks during the settlement process so be prepared to consider hiring an attorney if that happens.

If you are not happy with the initial deal you entered into or agreed to something you did not understand then your only recourse will be to go back to court to try to change the final order. Undoing an agreement by the divorce court is difficult and usually only allowed under limited circumstances.

Another consideration is when hiring a consulting attorney who will review the proposed settlement before you sign it. Remember you will be bound by any court order that is signed off by a judge.

Although you may be reluctant to hire a lawyer to remember that divorce lawyers know the law and how to complete the legal paperwork.

Remember an attorney will not advocate for a trial unless your spouse is uncooperative. Most attorneys will attempt to resolve the case as quickly as possible while advocating for their clients.

Protect Yourself

In cases of family abuse there the best advice is to hire an attorney to protect your rights. A fair negotiation is impossible should there be an imbalance of power between partners.

Although you might feel like you can represent yourself in your divorce, when one party has an attorney and the other doesn’t, it often results in the unrepresented party walking away without a fair deal. We advise that you hire an attorney and level the playing field.

Although no divorce is pleasant, some are complicated, especially if the other party in your case is hiding assets, destroying property, wasting marital funds, or threatening you with financial ruin. If you find that you can’t work with your spouse, hiring a qualified attorney to represent you may be your only option. Not only will the attorney advocate for your rights throughout the divorce, but there’s also no question that you will feel some relief from the stress of your divorce knowing that you have someone in your corner.

Unequitable Results

Unequitable results often arise from divorces where each spouse is neither aware of what he or she is entitled to from the marriage nor represented by a divorce lawyer. The role of an attorney in a divorce proceeding is to make sure the end result is fair to his or her client – a necessity when one party is less educated or not as financially well off compared to the other.

No matter the size of the family or marital estate, it’s common for spouses to feel hostile toward one another or upset over the end of their marriage. These feelings can cloud an individual’s judgment and make it harder for the parties to agree on matters themselves.

If extramarital affairs or other issues occurred during the marriage, feelings of anger and resentment can make it difficult for an individual to handle the objective portions of the divorce on his or her own. Instead, an attorney can maintain a clear head, fight to uphold your rights, and help you stay on a path that’s best for your future.


Children are often the most important aspect of a divorce and it is important for you to protect them and yourself.

Feel free to get in touch with us to see how we can protect your rights as a parent.

Examples of Brutal Divorce Tactics

Draining the joint bank account. Your shared bank account is an asset that you both rely on. When suddenly the money is funneled into a different account, one that excludes the other party, bills that are normally set on auto-pay will bounce and other expenses will likely require attention. This forces the victim of the theft to not only spend time straightening out the bills on their own but will also leave them in financial dependence on the other person.
Maxing out shared credit lines. Hiring attorneys and making arrangements surrounding a divorce all require money, which leaves many people to use credit until their decree is finalized and alimony and other payments begin. When one partner uses your joint credit cards to stock up on personal items or make large purchases, it will leave the other person with few other options. Usually, this is a bait-and-switch maneuver: one spouse will agree in court to take on the existing debt, unaware that there have been (many) new charges.
Refusal to support the household until ordered to do so. This is one of the steps in a routine called “starve out the other spouse.” The primary earner of the marriage retaliates after moving out of the family home and subsequently stops providing for the household. The goal is to put the other spouse in a financial position where he or she, out of desperation, will accept an unfair settlement.
Waiting to deliver support payments. If there is no income withholding order, a spouse may wait until the latest possible day to pay support money, even if they have the money to send. In some states, support doesn’t become delinquent until it’s 30 days past due; there is no recourse for the other spouse until the 31st day after the payment was ordered.
Petition the court for primary custody (even though the plan is to have joint custody). Perhaps you both tentatively agree on terms of shared custody or lenient visitation. By petitioning for primary custody, that spouse intends to strike fear into their ex in order to get them to concede on a different issue altogether.
Refuse to speak with the other side. Discussing terms of the divorce privately is imperative to having a conflict-free divorce. By refusing to meet and compromise, they intend to create conflict, increase legal fees, and wear the other side down. It can also cause a serious break in parent-child ties if the non-custodial parent doesn’t get to see the children because he or she can’t set up any parenting time.
File a bogus petition. One spouse may file petitions simply to take advantage of the court’s bureaucracy in order to drag out the proceedings. They may be dismissed, but it will add to the amount of time spent in court, which can disrupt the other spouse’s life in many ways—financial and otherwise.

These are just a few of the sneaky things that can and have happened in divorces. They are sometimes successful but are very destructive to any meaningful and fair settlement negotiations. In addition, the residual bitterness after the divorce could hamper you and your ex-spouse’s ability to effectively co-parent your children. What’s more, they often lead to post-divorce legal proceedings that may cost additional, unnecessary legal fees. Don’t get caught up in the charades—it is best for the entire family to settle fairly and without high-profile tricks.

Closing Thoughts

In conclusion, divorce is hard to go through it is even harder if you have to do it by yourself! Here at SKV we believe in looking after our clients and their best interests so do not hesitate to get in touch with us to help with any divorce proceedings.

Thanks for reading. Until next time!

Effects of divorce on children

Effects of Divorce on Children

Marriages don’t always work out the way we planned and sometimes relationships dissolve over time, unfortunately, it is usually the children who are caught in the middle. Sometimes divorce can end in vicious custody battles other times it can end amicably but one thing that is a constant and that is our children are usually the greatest ones affected.

On the upside, there are a variety of different methods and guidelines to help you and your child throughout the divorce in order to help them better cope with their parent’s separation and day to day life. Divorce is never an easy process and it is important that you understand and are aware of the effects it will have on your children.

Divorce and Children
“Children are more likely to experience a wide range of negative issues associated with their parents separating – independent of age”
Frank Furstenberg

Children & Divorce: The Research

Divorce can be a frustrating, scary and confusing time for many children and teenagers alike, it is imperative that they are given the right structure to cope and thrive within their new surrounding and environment.

Before we begin going through the intricacies of the effects divorce has on our children let’s first look into the research and statistics that has already been done on the topic. Please note, we understand that every child is different and responds differently to divorces, however, this is to give you an idea of what has previously happened to children whose parent’s separated.

  • Children from separated homes are more likely to suffer academically and experience falling grades. Often times they portray behavioural issues in the classroom.
  • Children whose parents divorce are more likely to end up committing crimes and being incarcerated as a minor.
  • Teenagers whose parents are going through a divorce are more likely to use alcohol, drugs and other substances than teenagers with parents who are not divorces.
  • Children of divorced parents experience increased emotional and psychological effects.

Certainly, not every child or teenager whose parents are divorced will be dropouts or criminals but it is just an increased likelihood that these things may happen. Some will even go on to achieve great things but we need to be aware of the influence divorce has on our children, as long as we guide them and nurture them the effects will be lessened.

The First Years Of Divorce & It's Impact

The first one or two years after a divorce is often a challenging time for our children as they are adjusting to their new lifestyles and surroundings. During this period the can suffer from confusion, anxiety and stress according to Sol Rappaport of the Family Law Quarterly.

Children are resilient and most are likely to adjust over-time and grow up to be functional adults; however, some will not and will experience lifelong issues after their parents’ divorce. Children and teenagers will often act out during these stressful times before acclimatizing to their new life.

The Emotional Aspect

Divorce creates disturbance for everyone and most importantly the children especially on an emotional level, dealing with children and their emotions can often be a challenging prospect as children sometimes struggle to convey their feelings. Different age groups often go through different feelings during a divorce;

  • Teenagers may become angry towards one of the parents (depending on how the marriage ended) or both, teenagers have already become accustomed to their current life and the disruption it causes may create a feeling of resentfulness.
  • Children between the ages of 8-12 might blame themselves for the divorce or think their behaviour or actions are the reason for their parents’ separation. It is important to make sure that your child understands that it is not their fault and both parents love them very much.
  • Young children will usually feel quite distressed as they no longer see both parents together and must move between two homes without fully understanding why.

When children are young they often see their parents as capable and competent people that are able to care for them make the best decisions for their well-being. When a divorce happens this shatters that reality for a child. They believe their parents are no longer problem-solving champions and their basic understanding of life is conflicting with what is happening.

“When John was nine his parents got divorced, he lived with his mother and only saw his father every Sunday. A few years after his father got remarried and John added a step-mother to his family. At sixteen John got a girlfriend and then added her family and relatives to his life. Johns mother also got married around the same time causing him to have to move in with his new step-father. John then left to go to college and moved in with a roommate, things turned sour and he moved out.

John thought it would be a good idea to move in with his girlfriend; subsequently, they got married and had a boy. John and his wife experienced problems and got a divorce causing his child to come from separated parents. John remarried 4 years later and had a child with his new wife and thus the cycle repeats. John lived in a joint parent house, a single parent house, a step-fathers house, a roommate and his wives. All John had known was always uprooted and constantly changing, no time to get stable and comfortable; starting from a young age. With millions of divorces happening every year now is the right time to investigate the impact it has on children.”

Andrew J. Cherlin

Adjusting to a New Life

For some children it is no the parents separation that causes them the biggest stress (under certain circumstances this could actually help as there are less arguments and tension in the house) but the changing of daily life; new school, new house, new friends, new relationships and usually living with a single parent.

Children will also need to get used to the new custody agreement, sometimes experiencing a deteriorating relationship with the parent who does not have access to their child anymore on a daily basis (generally the father). We, therefore, have a lot of kids growing up without a fatherly figure that is always present in their lives.

On the other hand, most custodial parents (usually mothers) may experience many struggles in raising a child as a single parent and is more likely to suffer from stress and lack of resources. This means other things such as academics, discipline and attention fall to the waist side.

Financial and monetary problems can also impact the Childs life as there are now two separate households with two separate incomes. Many single parents need to move to new houses and areas to accommodate for a loss of resources.

New Spouses & Partners

According to the American Academy of Child Psychiatry, more than 40% of divorcees get remarried. This means more adjustments and changes for your children; additional step-siblings and extended family are now part of their life.

Stability and structure are essential pillars when raising a child, with constant changes and restlessness comes behavioural issues. Partners, spouses and new family members will have a life-long impact on the child.

As stated by the Andrew Cherlin of the Harvard University Press, some parents will go on to have children with their new spouse, leaving their first child with a feeling of being outcast and excluded from their parents new family. This can cause strong feelings of resentfulness, especially in adolescent children.

Should I get remarried?

Give your children the time and attention they deserve from their parents. Keep the fighting and negativity away from them.

Co-parent peacefully, show your children that you can be civil and mature about hard situations.

Mental Health, Behavioral & Substance Problems

Let’s preface this by saying again that not all kids will end up with these problems but there is an increased risk of behavioural and mental health issues occurring. A Childs mind is very fragile and impressionable therefore we must tread carefully when handling our divorces.

Many studies have been conducted and have concluded that depression, anxiety and other mental health issues are more likely to occur in children whose parents are separated than those whose parents are still together. There are also a few arguments that suggest previously anti-social behaviour decreases when marriages with a lot of fighting, tension and unpleasant environments dissolve. Every child and situation is different; some may only experience problems for a few months before adjusting while others may live their whole life with issues.

A paper by Richard Needle suggests that substance abuse amongst children whose parents are divorced is higher than children whose parents are still together. They examined a sample of children from 3 distinct groups; children whose parents are going through a divorce, adolescents whose parents are going through a divorce and those from families who have been continuously married. They concluded that adolescents had a chance to be more likely to be engaged in substance abuse, they also found that the chances increased slightly when a parent remarried.

Divorce can sometimes cause behavioural problems with children from starting fights at school to being isolated from their parents. A wide range of studies find that children from separated homes are more likely to struggle academically and experience more conflict with others, they are also more likely to be risk-tolerant than their counterparts. One such indication is when a child has an absent father they are more likely to engage in sexual behaviour before age 16 due to the fact that a male is usually the disciplinary figure. Other studies do indicate that when a child is given favourable conditions the negative impacts of divorce are lessened and they are much more likely to lead “normal” lives.

Impact on Adulthood

Adults who have experienced the divorce of their parents often have a few different issues, from relationship difficulties, financial struggles and psychological problems. A study of 18-22-year-olds from separated families found the following:

  • 65% had a bad relationship with their fathers. This is most likely due to mothers being the custodial parent.
  • 30% had a poor relationship with their mothers. Often time’s adolescents will blame both parties for the dissolution of the marriage.
  • 25% had dropped out of high-school. Academics can sometimes fall to the waste side when other issues are present in a teenager’s life.
  • 40% had sought out psychological assistance. Anxiety, depression and other disorders can present themselves when a child is going through a stressful time and is not adjusting to their everyday life.

Even after accounting for different demographics, environments and economic situations it was suggested that children from a divorced family were twice as likely to exhibit the problems mentioned above.

A few helpful tips to guide you through the process

Divorce is never easy and hopefully, with the aid of friends, family and of course the internet you can get through it. Here are a few of our helpful tips and guidelines to ensure a successful divorce:

  • Encourage Honesty: Start by being honest with your child and open up to them about the situation. Encourage them to start expressing their feelings to you and what you can do to make the transition easier.
  • Don’t fight in-front of the kids: This is a big one, show your children that you are both adults and can co-parent peacefully. You are both adults and have your children’s best interest in mind and not your differences. Never put your children in the middle of an argument or disagreement, don’t make them choose sides as this will only lead to resentment.
  • Set Boundaries: Setting boundaries for your children, especially adolescents is extremely important as it shows you are still in control and have their well-being in mind. Create rules and discipline within your household. Studies suggest this helps with academia and less behavioural issues.
  • Teach them coping skills: Children can be resilient if in the right environment, it is crucial you teach them basic skills and cognitive exercises to help them deal with stress and the problems they face. This will help them become well-adjusted adults.
  • Family & Friends: Don’t be afraid to reach out to family and friends for assistance, they can be the difference between a successful divorce or a tumultuous one. These are people you should be able to lean on in times of need.
  • Seek Counseling: Being able to talk through your problems with a trusted professional cannot be understated. Whether it is for you are your child, our mental health is something we always need to look after.
  • Be Patient: Patience is key when dealing with your emotions as well as your kids. Give them time to adjust to their new life and changes, let them know you are there for them no matter what they need.

Should I Stay For My Kids?

This is a dilemma every parent going through a divorce struggles with, and ultimately the decision to stay in an unhappy relationship or environment can be more damaging for your child. According to industry professionals, children in disruptive and or abusive environments are just as, if not more likely to suffer from the same issues a child would when their parents’ separate.

As a parent you also need to take your mental health and happiness into account, by making yourself happy you might be a better fit to look after your child, feel more energized and excited for life like never before. As long as you provide a happy, peaceful and stress-free environment for your child they will flourish under the right circumstances just as any other would.

Closing Thoughts

Here at SKV Attorneys we have seen and done it all when it comes to divorces.  The disintegration of a marriage can be tumultuous but one thing is for certain and that is the children always suffer the most. We believe in looking out for everyone’s best interest and well-being.

Take care of your children and family, if you are ever looking for legal advice or assistance please do not hesitate to contact us for a consultation.  One of our dedicated family law attorneys will assist you through the process in order to ensure that your needs and that of children are met.

7 Myths About Making a Will

“Let’s choose executors and

talk of wills” (Shakespeare)

If you haven’t made your will yet, get it done now. Why is that so important and how should you go about it?

To answer that let’s debunk a few of the more pervasive myths and misconceptions around those questions.

  1. “I’m too young to need a will”

Of course the older you get, the greater your chance of dying from illness or disease. But conversely, the younger you are the higher your risk of sudden violent death. For example, our road fatality stats (amongst the highest in the world) show that 80 percent of deaths are in the 19 to 34 year old age group. No matter your age and no matter your health status, you could die today or tomorrow. No one (least of all you) knows for sure.

And so to this related myth …

  1. “I’m too busy right now, it can wait”

The more frantically busy we are (and that’s most of us in today’s world) the more tempting it is to postpone this one. It’s a hassle, you have other priorities, and besides who wants to contemplate their own mortality? But of course “Death knocks at all doors”, often without warning. And the hassle you save yourself today is just more hassle for your grieving loved ones tohave to deal with tomorrow.

  1. “It’s OK to die without a will”

No it’s not. A will is the only way to ensure that your loved ones are looked after properly after you are gone. It’s the only way to control how your estate is divided and who divides it for you. Without a will you die “intestate” and the law – not you – determines who gets what. You could be inadvertently condemning your spouse to a life of trying to survive on only a “child’s share” of your estate. You have no say in who will be appointed an executor of your estate, or guardian of your children,or trustee of their trust if they are under age or unable to manage their own affairs. Your childrens’ inheritances will sit in the Guardians Fund until they turn 18. If you aren’t formally married but have a life partner, he or she may end up in a bitter dispute with your family over rights of inheritance. Thereare no advantages to dying intestate, only disadvantages – big ones.

  1. “I’m single and have no assets, so a will is pointless”

Firstly, you will have some assets – a bank account perhaps, or a car, or monies in your employer’s pension fund, or perhaps your estate will have a claim on the Road Accident Fund. Even if you have no spouse/life partner/children to worry about, you will still leave loved ones behind – parents perhaps, or siblings. Whatever the case, someone close to you will have to be involved in winding up your estate and you should leave a will to make the process less stressful for them.

  1. “My spouse already holds my Power of Attorney, that’s all he/she


Powers of attorney lapse on your death and from then on only your executor, after being formally appointed by the Master of the High Court, can deal with your estate. Any powers you may have given your heirs – for example, to draw money to live on from your bank account, or to run your business, or to rent out your house – fall away when you die.

  1. “It’s easy to draw a will, I can do it myself”

There is no legal requirement for a professional to draw your will, but before you buy a template will or copy someone else’s, consider these common pitfalls –

Your will must comply with legal formalities to be valid. If it doesn’t pass muster for any reason, your heirs will have to make an expensive application to the High Court to have it validated.Unless the terms of your will are crystal clear, you could ignite a bitter family feud over what your wishes really were, and that’s the last thing your grieving loved ones need to be dealing with in their time of distress. Our law reports are filled with cases caused by imprecision, ambiguity and vagueness, and sometimes there is just no substitute for the legal terminology and the “Latin bits” – unless you fully understand them, don’t go there alone.

Your marital status, marital regime and ante-nuptial contract (if you have one) need to be taken into account when drawing your will, and there are grey areas here which are best left to a professional. If you have foreign assets, you may need a foreign will as well as a local one, but there’s “no one-size fits all” answer – specialised advice is essential. The structure of your will, and upfront estate/tax planning, will reduce unnecessary cost and delay – another issue beyond the average layperson.

A last point – not strictly part of the process of drawing the will but still vitally important – is to leave your heirs with ready access to funds whilst the estate is wound up. All your bank accounts and the like are automatically frozen on death so ensure your heirs have their own bank accounts, nominate them as beneficiaries of life policies etc.

  1. “I made a will years ago, that’ll do the job”

Bad idea. Life events (marriage, divorce, birth, death etc) and a whole host of other factors (like new laws and changes in your financial and business structures) all require review. So diarise to revisit your will regularly, at least once a year.

In closing, don’t confuse this sort of “will”, which only applies after you die, with a “Living Will” (or its close cousin an “Advance Directive”), both of which only apply before you die.

We’ll discuss whether you need a Living Will or Advance Directive in next month’s issue.

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