The hostility that lawyers create in divorce cases.

It is commonly known in psychological circles that the stress of divorce often reach 9 out of 10 on the Subjective Units of Disturbance scale, the scale for measuring the subjective intensity of disturbance or distress experienced by an individual. Divorce is painful and whenever there are children involved, the family still exists after the relationship ends. The manner in which spouses end a relationship and the way they and their lawyers conduct themselves during this process determines whether the family will be functional or dysfunctional from that day forward.

In an article in the Economist recently it was stated that all around the world, lawyers generate more hostility than the members of any other profession—with the possible exception of journalism. This hostility is even more evident in divorce law, especially when regard is had to how certain divorce lawyers in big divorce cases love to litigate in the media. Family and Divorce Law attorneys may stress that they have a calling, rooted in a deep sense of ethics and commitment to the best interests of their clients. But what they hardly ever mention is the fact that being a lawyer is also a business with at least one eye on profit levels. Without a good business head, very few attorneys will survive today’s economic challenges. So the longer you can stretch the finalisation of a divorce, the more money you will make.

Nowhere is this tension between ethics and business as pronounced as it is with divorce. For some lawyers, a new divorce case is just another client, another day at the office; for the client – vulnerable, distressed and angry – this is usually the worst thing that they have ever experienced and this collision does not always produce a happy result.

South African divorce law is based on the adversarial system where two lawyers represent their clients’ positions before a judge or magistrate, in contested divorce cases, who then attempt to determine the truth of the case. Some writers trace the process to the medieval age old mode of trial by combat, a system that pushes the parties into a mind-set of winners and losers. Let’s face it, we live in an adversarial society, one that approves the idea that every time there is a conflict sides have to be taken. That means one side ending up on top, the other side ending up on the bottom, a looser and a winner. The adversarial system is a poor way to resolve divorce.  This is particularly true where children are involved, the adversarial system is slow and many people are denied justice for too long because the system tends to lengthen the trial process. “Justice delayed is justice denied”. This system is also expensive and requires litigants to have legal representation. The high cost of legal advice and legal representation hinder those who cannot afford it. This may mean that vital evidence which needs to be drawn out by questioning may not be revealed in the trial and as such, the truth may not always emerge.

In the Foreword of the book “Everyone’s Guide to Divorce and Separation”, published by Random House Struik, Judge Denis Davis states as follows: “The adversarial process which is the manner in which the law operates is not at all conducive to a settlement of issues, particularly custody of minor children, which have a long-lasting and vital impact on the lives, not only of the antagonists but also the children who have not, in any way, caused the problem giving rise to the forensic battle. Often in my experience on the Bench, I have wondered how such vicious and counter-productive litigation can be allowed to continue. Lawyers will point to clients, whose disappointment in the breakdown of the marriage now powers such adverse feelings to their erstwhile partner, as the core reason for the ‘legal fight to the finish”.

Divorce attorneys have been taught that the best way to protect their client is to fight for them. When most of them look at a divorce situation all they can see is the conflict that is involved between the spouses. To most divorce attorneys the obvious conclusion is that a fight has to be engaged in, in order to protect their client. If they could step back and take another look at the situation they might be able to see that the conflict and animosity is most of the time of their own creation. Most divorce warfare is created by the attorney’s adversarial nature and the clients play a role in it because it is what they expect and demand from them.

Because our courts operate in an adversarial model, the business of resolving divorce-related issues becomes a contest between starkly opposing extremes. The contest is orchestrated by gladiatorial attorneys whose job it is, in trial-based dispute resolution, to trim down the divorcing couple’s complex emotional, financial, and material issues into readily understood black and white terms. Two people go through a divorce. No matter whose choice it was there is always pain and anger involved on both sides. If you employ an attorney that is going to become aggressive and go on the attack, guess who will get the blame. You will, not your attorney who enjoys being adversarial. He/she may be the person to take the negative action but you will be the one to suffer the consequences of his or her actions.

Like it or not, you are responsible for your attorney’s actions. You did the hiring and you will be paying the legal fees. It is usually in everyone’s best interest that an attorney knows that his/her job is to promote relationships instead of destroying them. It is his/her job to find solutions that mean everyone walks away satisfied and no one is left on the bottom of the pile wondering what the hell happened. Your attorney works for you, you do not work for him/her and if there is not a willingness to work with you in the way you feel most comfortable then find an attorney who is willing to.

It is outrageous to see how much money and effort is spent in contested divorces by preparing for the “main event”: the trial; and while divorce attorneys know that settlement is the likeliest outcome for most cases they handle, it is a common saying among divorce lawyers that the best way to prepare for settlement is to prepare well for trial. The irony is that the marital regime governs the patrimonial consequences of divorce (the manner in which the assets are divided). For example if one is married in community the estate must split 50/50 unless a forfeiture is claimed or when parties are married out of community of property with the inclusion of the accrual an accrual claim will exist, yet many lawyers will advise clients to litigate, spending thousands of rands on legal costs that the parties could have spent on the children for example. Since a judge will never award a party all the relief that he/she requests, divorce lawyers will ask for the moon and the stars.

When two unreasoning spouses create a “divorce of attrition”, the only winners are usually the bank accounts of lawyers. One thing is certain though: the less emotional people are during a divorce, the more likely they are to keep their costs down. Only 3% to 5% of divorce cases actually do go to trial. It should come as no surprise, given the costly and emotional process that family law attorneys go through on the road to settlement, that they worry about negligence suits and frequently find themselves in fee disputes with clients. Unhappy clients are commonplace in family law practice, where disputes above the horizon about rands and hours with children often are the weapons with which clients fight hidden battles that are really about who is aggressor, who is victim, who is good and who is bad. The fees and costs incurred in family law litigation can devastate the savings of all but the wealthiest litigants. Little wonder that family law is a field in which even the most successful practitioners experience high levels of stress and frustration.

The time has come for lawyers specialising in family law to become more collaborative in their approach to solving divorce and family law disputes. In addition we need to re-engineer our family law system. We need problem-solving courts for family matters and the default process for resolving family law matters must be changed from litigation to consensual dispute resolution. After all who has the right to declare parents to be enemies? In family law matters, litigation feeds more than just paranoia. It feeds the lawyers’ bellies and bank accounts. It feeds egos. It breeds contempt (the parties for each other and the parties towards a broken system.) Is there really a place for the courtroom in family law? maybe, but it needs to be tempered with like-minded attorneys, who are more collaborative than adversarial. Litigation has a way of taking two people, who at one time or another cared about each other enough to marry and maybe even have children, and rip their lives to shreds beyond recognition. It turns dislike into pure hatred. It turns tolerance into intolerance.

Mutual respect and renewed confidence leads to solutions. In Germany for example they no longer have adversarial trials when it comes to issues pertaining to children. Judges in Germany no longer tolerate lawyers who try to delay hearings and resolution of issues. The time of uncertainty is itself stressful and leads to destructive behaviour. The role of attorneys in Germany is now de-escalating conflict and the results seem far superior then when they used to escalate conflict. I think the time has come that the public wants psychologically-minded lawyers in family law disputes.

Collaborative Divorce

So just when you thought that mediation was the ultimate dispute resolution process, along came “collaborative lawyering.” Collaborative divorce is a progressive approach to conflict resolution in family law, it facilitates an inexpensive divorce process outside of court. Unlike litigation, collaborative divorce requires cooperation between both attorneys as they help their clients reach a fair solution. The process’ non-adversarial format provides a venue for open dialogue and idea exchange among clients, lawyers and mediators, as well as forensic accountants and other neutral participants. It is a method of dispute resolution whereby the parties and their lawyers contract to settle a matter without involving the court. It is a method of practising law where the parties and the lawyers representing them sign a contract in which they agree to work towards settlement. If the parties are unable to settle and adversarial proceedings are to be filed, the lawyers are required to withdraw. New lawyers must be obtained for trial. In this method, the attorneys must focus on settlement and are free to use their creative problem solving skills. Communication is respectful and the process is future-focused. It works best if several lawyers in the community are trained in collaborative law so there are options for the clients and lawyers to work together. Collaborative practice originated in the United States of America in 1990. It is also practised widely in Canada and has spread to the United Kingdom, Australia, Italy, France, Austria, Switzerland and New Zealand.

What we need is a mind shift among divorce and family law attorneys, a new breed, we need lawyers who lean more towards a therapeutic kind of jurisprudence. Parents also need to understand that what they do and say toward each other has long-term consequences for all parties involved. The things people do with or without the help of their attorneys, have dire consequences that will last for generations to come. Unfortunately divorce is a fact of life and all we can do is to make it a less destructive process. According to research 80 – 85% of family law matters can be resolved without litigation.  When you start a court case, you are starting a war.

Has the time not arrived that law schools start to train lawyers who are able to effectively meet the public’s needs, more psychologically-minded lawyers in the area of divorce and family law?

Source: 
http://voices.news24.com/bertus-preller/2013/06/the-hostility-lawyers-generate-in-a-divorce/

If you want a collaborative divorce contact:

Bertus Preller

Family Law Attorney

Abrahams and Gross Inc., Cape Town

Twitter: @bertuspreller

Web: 
http://www.divorceattorney.co.za

 

Morning Live Interview with Cape Town Divorce Law Attorney Bertus Preller

Morning Live Interview with Cape Town Divorce Law Attorney Bertus Preller on his book Everyone’s Guide To Divorce and Separation.

Onderhoud met Bertus Preller, een van Kaapstad se top egskeiding prokureurs

Huisgenoot 31 Mei 2013

Huisgenoot Uitgawe 31 Mei 2013

Voor die kansel dink `n bruidspaar liefs nie aan die moontlikheid dat hul paadjies eendag weer sal skei nie. Maar met sowat een uit vier huwelike wat Suid-Afrika in die skeihof eindig, moet mens weet wat ná `n moontlike verbrokkeling op jou wag.

“Mense is oor die algemeen nie van hul regte bewus as dit by skei kom nie,’’ sê Bertus Preller (48), ‘n prokureur van Kaapstad wat in egskeidings en familieregsake spesialeer.

Daarom het hy ‘n boek geskryf wat die regsaspekte vir leke verduidelik, getitel Everyone’s Guide to Divorce and Seperation. Daarin word skeidings uit saamblyverhoudings en gay-egskeidings ook behandel.

“Om te skei is nooit maklik nie, maar as mense besef dit gaan nie oor wenners of verloorders nie, kan die proses redelik maklik wees,’’ sê Bertus. Hy is ook die familieregspesialis van die Health24.com-forum en stigter van eDivorce, ‘n selfdoen aanlyn egskeidingsdiens.

Hy praat ook van personnlike ondervinding, want nie net het hy al in sy loopbaan “seker honderde’’ egskeidings hanteer nie, maar hy het ook al self geskei.  Hy en sy huidige vrou het elk twee kinders uit hul vorige huwelike en een kind saam. “Ek weet hoe belangrik dit is om `n egskeiding vreedsaam op te los. Dit is nie soseer egskeidings  wat altyd skadelik is vir kinders nie maar die konflik in egskeidings wat skadelik is vir die kinders,’’ sê hy.

Wat is die 10 vrae wat  kliënte in `n skeisaak hom die meeste vra? wou Huisgenoot weet. Hier antwoord hy daarop.

1.  Hoeveel kos ’n egskeiding?

Dit hang af of dit bestrede of onbestrede is. ’n Egskeiding is bestrede wanneer die egpaar byvoorbeeld verskil oor hoe hul bates verdeel moet word, hoeveel onderhoud betaal moet word  of wie die hoofversorger van die kinders sal wees. As hulle nie daaroor kan ooreenkom nie en ‘n regter moet eindelik uitspraak gee, kan dit honderde duisende rande beloop. Wanneer rykes en beroemdes skei en daar groot bates op die spel is soos in die egskeiding van die biljoenêr-politikus Tokyo Sexwale en sy vrou Judy, kan die regskoste self miljoene wees, sê Bertus. In 90 persent van alle skeisake word ’n skikkingsooreenkoms gewoonlik voor die hofsaak bereik, dit kan selfs enkele ure voor die tyd of tydens die saak gebeur. Dikwels word baie tyd en geld gemors op ’n saak wat op die ou end buite die hof geskik word. In ‘n bestrede skeisaak kan die prokureurs die dienste van verskeie kenners soos forensiese rekenmeesters en sielkundiges aanvra wat onder eed getuig. Dit jaag die koste verder op.

In ‘n onbestrede egskeiding kom jy en jou huweliksmaat saam oor die voorwaardes van jul egskeiding ooreen – soos die verdeling van bates en by watter ouer die kinders sal woon en watter ouer alternatiewe sorg sal hê. ‘n Skikkingsooreenkoms word dan opgestel, albei ouers onderteken dit en dit word ’n hofbevel gemaak.

Net die eiser verskyn dan in die hof wanneer die saak voorkom. ’n Onbestrede egskeiding kan tussen R800 en R20 000 kos, afhangende van hoe kompleks die skikkingsooreenkoms is en hoe moeilik dit is om te bepaal wie moet toesig oor minderjarige kinders kry.

2. Kan ek vra dat die ander party tot my regskostes en maandelikse onderhoud bydra voordat my egskeiding afgehandel word?

Wanneer ’n egskeiding lank sloer of  een van die huweliksmaats ’n tuisteskepper sonder inkomste is, is daar ‘n tussentydse maatreël om so iemand finansieel te help. Volgens reël 43 kan  jy in die Hooggeregshof daarvoor aansoek doen en volgens reël 58 in die Landdroshof. Die regskoste is  minimaal – prokureurs of advokate wat self verskyn in ‘n onbestrede aansoek in die Hoogeregshof mag nie meer as R426 en in die Landdroshof meer as R 404 vra nie en in ‘n bestrede aansoek nie meer as R 1 066.00 en R 929.00  nie. Prokureurs wat nie self in beide howe verskyn nie en wat ‘n advokaat gebruik mag nie meer as R 1491 in ‘n onbestrede en R 2130 in ‘n bestrede aansoek vra nie en in die Landdroshof R 1 414 en R 2020 vra nie.  Volgens hierdie twee reëls kan ook aansoek gedoen word om die betaling van tydelike onderhoud vir ‘n huweliksmaat en/of die kinders, die verband van die huwelikshuis, paaiemente op voertuie, skoolgeld, mediesefondspremies en selfs verhuisingskoste en ‘n deposito vir ‘n  nuwe blyplek. Omrede die Landdroshowe ook nou jurisdiksie het om egskeidings aan te hoor kan mense nou in enige van die twee howe egskeidings aanhangig maak.

3. Hoe lank sal die skeiproses duur?

Onbestrede egskeidings kan binne vier tot ses weke afgehandel word. Bestrede egskeidings kan tot drie jaar lank neem.

4. Hoe beïnvloed my huweliksbestel (die manier waarop ek getroud is) die verdeling van bates?

By huwelike binne gemeenskap van goedere sal die gesamentlike boedel (die bates minus die laste of skuld) op die datum van die egskeiding gelykop tussen die partye verdeel word, maar erflatings word uitgesluit (indien in testament so bepaal word) en ook geskenke of donasies (in sommige gevalle) wat die paartjie tydens of voor die huwelik aan mekaar gegee het.

Met `n huwelik buite gemeenskap van goedere, word die bates volgens hul  huweliksvoorwaardekontrak verdeel. By pare wat voor 1 November 1984 buite gemeenskap van goedere getroud is, moet die bates soms gelykop verdeel word ooreenkomstig artikel 7(3) van die Egskeidingswet, want dit was voordat die aanwasbedeling ingestel is.

Pare wat ná 1 November 1984 buite gemeenskap van goedere maar sonder die aanwasbedeling getroud is, kan nie eis dat bates van die een na die ander oorgedra word, en sal die vrou slegs ‘n onderhoudseis hê. Waar die aanwas ingesluit is sal die party met die kleiner aanwas geregtig wees op die helfte in die verskil van die onderskeie aanwaste.

5. Is ek geregtig op onderhoud?

Ons reg is ten gunste van die “skoonbreuk-beginsel” – dit beteken dat partye moet ná ’n egskeiding  so gou as moontlik ekonomies onafhanklik van mekaar word.

Die Wet op Egskeiding bepaal wel dat ’n hof een huweliksmaat kan beveel om vir ’n ander onderhoud te betaal. Dit hang onder meer af van die ouderdom van die huweliksmaat wat onderhoud eis, die duur van die huwelik en die lewenstandaard van die partye voor die egskeiding. Daar word ook gekyk hoeveel elkeen tot die verbrokkeling van die huwelik bygedra het.

Die idee dat die huwelik ’n vrou se bron van inkomste vir die res van haar lewe moet wees, is in ons howe aan die uitsterf.

Middeljarige vroue wat hulle jare lank daaran toegewy het om die huishouding te bestuur en die kinders te versorg sal vir ‘n sekere tyd rehabiliterende onderhoud ontvang, sodat hulle opgelei of heropgelei kan word vir ’n werk of beroep.

Permanente onderhoud word toegestaan aan ‘n bejaarde vrou wat lank getroud was, nooit gewerk het nie en nie behoorlik vir haarself sal kan sorg nie en waarskynlik nie weer sal trou nie.

6. Hoe word kinderonderhoud vasgestel?

’n Kind is geregtig op redelike onderhoud vir klere, behuising, tandheelkundige en mediese sorg, onderwys en opleiding en ook ontspanning.

Albei ouers het ‘n plig om die kind volgens hul vermoë te onderhou –  of die kind nou aangeneem is, binne of buite die huwelik gebore is, of uit ‘n eerste of ‘n  latere huwelik.

7. Kan ek ‘n derde party dagvaar wat die oorsaak van die egskeiding was?

In ons howe gaan egskeiding eerder oor die onherstelbare verbrokkeling van die huwelik as om die skuld daarvoor op een van die twee partye te pak. Tog kan ’n onskuldige party skadevergoeding van ’n derde party eis met wie daar owerspel gepleeg is.

8. Wie kry die kinders?

Albei ouers moet met ‘n egskeiding besluit by watter ouer die kind gaan woon en wat die ander ouer se besoekregte sal wees. ’n Egskeiding word net toegestaan as die hof tevrede is dat hierdie reëlings in die kinders se beste belang is. Ons howe besluit nie volgens geslag of ‘n pa of ma die bekwaamste is om ‘n kind te versorg.

9. Kan die kinders sê  by wie hulle wil bly?

Kragtens die nuwe Kinderwet moet die kind se mening oorweeg word met die besluit oor toesig. As kinders die nodige volwassenheid bereik het, gewoonlik vanaf 13, het hulle ‘n sê  in enigiets wat hul versorging raak.

10. Sal die egskeiding ons lewenstandaard beïnvloed?

’n Vrou se inkomste daal gewoonlik aansienlik ná ’n egskeiding. Wanneer ’n gesin saamwoon, word albei se inkomste gebruik om die huishouding se uitgawes te betaal. Ná ’n egskeiding moet  twee huishoudings met daardie inkomste onderhou.  Ondersoeke wys deurgaans geskeide vroue, veral dié met kinders, is meer kwesbaarder vir armoede as geskeide mans is.

Volg Bertus Preller op Twitter: @bertuspreller of besoek
http://www.divorceattorney.co.za

How do you tell your children that you are going to divorce?

Breaking the news to children

One of the hardest parts of any divorce is telling the children. It is important that you tell them together about the divorce. It sends a clear message to your children that you are both capable of working together for their benefit. In addition, you have to tell all of the children at once so that each child hears the news directly from Mom and Dad and not from a sibling who heard it first. Let them understand that it was an adult decision; children need lots of reassurance that the divorce is not their fault. Reassure them that you are available and that you will always be there for them. Collectively and individually convey your unconditional love through words and actions. Make it clear to them that parents don’t divorce children. If your children are of different ages, do follow-ups with the older children in separate conversations.

The manner in which you break the news will affect the degree of their anxiety. Don’t let the meeting become a screaming match; the news will be difficult enough for them to handle so don’t cloud things further. Avoid the tendency to assign blame and try to incorporate the word ‘we’ when you’re explaining the decisions that have been made.
Let your children express their feelings. It is a fact that most parents only spend one and a half minutes per day actively listening to their children. Most of the time is spent giving instructions: ‘keep quiet’, ‘brush your teeth’, ‘comb your hair’, ‘get into bed’ and so on. Become active listeners and allow your children the time and freedom to express their own feelings.

Never try to win or lobby support from your children. Your children may try to be your friend out of fear of rejection, but in the end it will only confuse them. Children need to know that they can turn to you for support, not the other way around.

It is not important that you provide specific details about why you are planning a divorce, but your children may want to know why. Older children will know that this is a huge life change, and they may weigh that change against the reasons you give them. So be prepared to give some type of general explanation.

Your children will want to know where they will be living in future and with which parent, and what about their lives is going to change, so be honest about what you know and what you don’t know. The more detail you give to your children about where the departing parent will be living and when they will be seeing him/her, the better. They need to know that they will be able to maintain a quality relationship with both parents.

Parenting after divorce

You can divorce your spouse, but not your family. There are rules parents can follow that will make their lives easier post-divorce. It is extremely important for both parents to create what is called a ‘healthy post-divorce family’.

Realise that you may be completely out of sync with the each other. It may take months if not years for one of you to adjust to the reality of the divorce. It is not unusual for the parent who was considering divorce for a long time to be ready to move on quicker than the parent who may have been taken by surprise and is grieving the loss of the relationship. For the sake of your children, be respectful of these differences.

Don’t rush introducing a new partner. It’s vital that you keep new partners out of the picture for a while. The children must adapt first to the loss they have experienced.

Treat each other like business partners and give each other the respect that the position of parent demands. Many divorced couples treat their employees with more respect than they treat their exes. Yet, the job that has been entrusted to that person is far more important than any other in your life.

Share requests and communicate openly with each other. Let the children see that you communicate openly.

Listen attentively to your children when they speak to you. Encourage them to speak about their own concerns.

Don’t criticise each other. Children don’t need to be privy to adult conversations, and they don’t want to hear personal details about your relationship with their father/mother.

Don’t tell your children all of the unpleasant details of your divorce. Even if your ex was unfaithful. In the end, you may come to understand that you also contributed to the disintegration or your relationship. Feeding your children only one side of the story is misleading and immensely destructive. It is unfair to place your children in a position of having to side with one parent or the other.

Provide your children with routine, consistency and dependability.

Limit familial conflict at all costs. It is one of the most damaging things you can do to your children. Never criticise each other in front of your children. Children see themselves as extensions of their parents, and so they will feel like you are criticising them.

From the book “Everyone’s Guide to Divorce and Separation” – publisher by Random House, by Bertus Preller

Cape Town Attorney Bertus Preller writes South Africa’s first book on Divorce and Separation for the general public

Everyone’s Guide to Divorce and Separation – Kindle Version

Everyone’s Guide to Divorce and Separation

WHAT YOU SHOULD KNOW ABOUT DIVORCE AND SEPARATION …With one in three marriages now ending in divorce, it is imperative to be informed of the pitfalls, challenges and legal aspects involved in divorce and separation. Other rules and laws may apply to the many couples who prefer to cohabit rather than get married, but they, too, need to be informed of their rights when the relationship breaks down.

Everyone’s Guide to Divorce and Separation will help with the following crucial aspects:  your rights when you get divorced, and the monetary aspects relating to divorce (including the consequences relating to assets and the divisions thereof); maintenance issues;  all factors regarding the children, including how to implement a parenting plan, how much child maintenance will likely be required, and how to file for maintenance and child support;  the procedures to obtain a protection order when there is domestic violence or abuse; an unmarried father’s rights and how to acquire parental rights; and the law on cohabitation, same-sex marriages, and how to draft a proper cohabitation agreement. 

Everyone’s Guide to Divorce and Separation will prove to be an indispensable and comprehensive guide at a time when everyone needs expert guidance the most.

In the Foreword of the book, Judge Denis Davis says the following:

“Bertus Preller has filled a very significant gap with this timely book, in that in plain language, he provides a comprehensive guide to the broader community through the thicket of law that now characterises this legal landscape. Having said that, many lawyers, particularly those who do not specialise in the field, will also find great assistance in this work.

From engagement, through the legal nature of the ceremony, to the legal consequences of marriage or civil union and on to divorce with all its complex consequences, the reader will find clear explanations for any or all issues which may vex him/her during this journey.

Early on in the text, Mr Preller makes a vital point – litigation is truly the option of last resort in the event of a matrimonial dispute. The adversarial process which is the manner in which law operates is not at all conducive to a settlement of issues, particularly custody of minor children, which have a long-lasting and vital impact on the lives, not only of the antagonists but also the children who have not, in any way, caused the problem giving rise to the forensic battle.

Often in my experience on the Bench, I have wondered how such vicious and counter productive litigation can be allowed to continue. Lawyers will point to clients, whose disappointment in the breakdown of the marriage now powers such adverse feelings to their erstwhile partner, as the core reason for the ‘legal fight to the finish’. I would hope that, in all such or potential cases, the parties consult this work, which may add some rationality to the process or, in the occasional case, will enable the parties to reassess the legal advice they have been given, thereby allowing a non-litigious settlement of proceedings.

Whatever the context, however, it is important that arcane and often incomprehensible legal jargon be made accessible to those affected by the law. In this way, ordinary citizens can ensure that their rights work for them and at the same time they are assisted to grasp fully the implications of the obligations that the law imposes upon them.

In providing such a gateway to those who are or may be affected by this area of law, which given its nature is the vast majority of the country, Mr Preller has made a significant contribution to ensuring that, in this area, access to justice will become a reality.

- Judge Dennis Davis”

The book will be on the shelves of all major book stores on 1 May 2013 and may be pre-ordered on Amazon.com

Don’t mess up your children in a divorce or separation

The welfare of children in a divorce or separation is the most important aspect of any divorce. Although most couples believe children’s welfare is one of the most important factors to consider in a divorce, a great percentage of parents that divorce or separate see conflict as an inevitable part of the process and are determined to fight battles in court.

From time to time one comes across an intransigent parent who is incapable of objectivity when considering what is best for the child. It may well be that you do not like your partner, but the child’s view of the parent is different. He or she will have love and trust for that person, capable of transcending even the most dreadful scenes that may have been witnessed.

Unfortunately it occurs often that one parent use the machinery of the law in a wrongful manner in an attempt to “legally abduct” or alienate a child by making false allegations against or about the other parent.  Often one would find that a parent will for example falsely accuse the other parent of sexually molesting the child or accusing the other parent of emotional abuse towards the child. In a recent matter a mother who was the custodian parent brought an application for a protection order against the father on behalf of their 8 year old daughter because according to her the father abused the child emotionally, when the father in fact only disciplined the child. The father was trying to make telephonic contact with his daughter for days but the mother frustrated the contact by not answering the phone and replying to his sms messages. When the father eventually did manage to speak to his daughter he disciplined her over the phone for not contacting him. The child burst out in tears and the mother used the incident as the basis for a protection order against the father for alleged emotional abuse of the child. The court granted an interim protection order in the father’s absence and the father was only able to see his child under supervision, previously the father had contact with his child every alternate weekend. A social worker was then appointed as well as a psychologist to investigate. Needless to say the child was dragged through court appearances at the Children’s court.

A child prevented from seeing a parent, they still love will eventually turn the resentment against the one trying to enforce the unenforceable. Parents often fail to comprehend the impact on the children of the conflict in their relationship. The adults in the child’s life, can make the divorce and separation experience for a child much less harmful by being aware of several ways to help the child:

The child must feel and experience unconditional love from each parent.

The child must feel free of fault for the divorce and separation.

The child must feel that each parent respects the rights of the other parent.

The child must feel that he/she will be okay after the divorce and separation.

The child must feel that each parent will be okay after the divorce and separation.

Children sense and feel their parent’s emotions and especially the parent’s emotions toward one another. During a divorce and separation, adults experience some very strong and difficult emotions. It is difficult for a human being to understand how he/she could have so much love and passion for another person at one point in time, and then later have so much disdain and even hatred for that same person. It is okay for parents to talk to the child about the fact that they don’t love each other any more  but the child must hear, sense, and feel that while the parents don’t love each other any more and don’t want to live in the same house, they do respect each other’s rights as a parent to the child. For example, both parents should encourage the child to spend time with the other parent, to respect to the other parent, to obey the other parent, and to love the other parent. This can be very difficult when a parent thinks the other is making poor decisions.

The goal for divorced or separated parents should always be to maintain the best co-parenting relationships possible by moving past previous relationship issues and focusing on children’s well-beings. Conflict within a relationship or marriage where there are children involved or after a divorce or separation is the most harmful thing parents can do for their children’s development. If children go through their parents’ divorce, they have lost some access to both their parents to an extent. If the parental combat continues, the children have not only lost that access, they are still involved in that conflict and it harms children. Focusing on the children instead of the relationship problems can help divorced couples to be better parents, not messed up parents.

Source: 
http://voices.news24.com/bertus-preller/2013/03/if-you-do-mess-up-your-marriage-or-relationship-please-dont-mess-up-your-children-in-the-process/

Bertus Preller

Family Law Attorney

Abrahams and Gross Inc. – Cape Town

Twitter: bertuspreller

Web: 
http://www.divorceattorney.co.za

New Divorce Attorneys at Abrahams and Gross Inc.

Divorce Attorney Melissa Ellis

Melisa Ellis joined Abrahams and Gross in Cape Town as a Junior Associate in 2013 and practises in the Family Law Department. Having attended Stellenbosch University she obtained a Bachelor of Laws degree in 2010. Melissa completed her articles at the law firm Heyns and Partners in Cape Town. Her areas of expertise are uncontested divorces, international divorce law, unmarried father’s rights, same-sex disputes and domestic violence matters.

Mariska Taylor Family and Divorce Law Attorney

Mariska Taylor joined Abrahams and Gross in Cape Town as a Junior Associate in 2012 and practises in the Family Law Department. Having attended Stellenbosch University she obtained a Bachelor of Laws degree in 2010. Mariska completed her articles at the law firm Van Der Spuy and Partners in Cape Town.

Mariska is regarded as a specialist on unmarried fathers rights and maintenance law and have dealt with numerous child maintenance and spousal maintenance cases before the maintenance court. In addition Mariska also specialises in divorce law, care and contact and parental responsibilities and rights disputes.