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

 

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.

Divorce Statistics – South Africa

Trends

The 2011 data was published in December 2012 by Statistics South Africa. 20 980 divorces from civil marriages were processed. This indicates a decrease of 1 956 (8,5%) divorces from the 22 936 cases processed in 2010, which may largely be explained by some 2011 divorce forms that did not reach Statistics South Africa before the publication. The total number of divorces generally fluctuated over the period 2002–2011, with the highest number observed in 2005 (32 484) and the lowest in 2011 (20 980).

Population groups

Couples from the white population group dominated the number of divorces between 2002 and 2007, after which the black African couples had the highest number of divorces up to 2011. In 2002, 45,2% of the divorcees were from the white population group whereas 22,5% came from the black African group. By 2011, 35,8% of the divorcees were from the black African population group and 32,1% from the white population group. The proportions of the divorcees from the coloured and the Indian/Asian population groups were quite invariable during the ten-year period. However, there was a notable increase in the proportions of divorcees from the coloured population group (from 13,9% in 2010 to 16,6% in 2011).  The data show that there were more females 10 408 (49,6%) than males 7 212 (34,4%) who instituted divorce (plaintiffs). With the exception of females from the black African population who had a lower proportion of plaintiffs (39,7%), the proportion of female plaintiffs from other population groups was above 50,0%. That is, 56,8%, 56,2% and 52,4% of plaintiffs from the white, coloured and Indian/Asian population groups, respectively, were females.

Occupations that divorce

A high proportion of the plaintiffs (13,5% of the males and 19,4% of the females) did not indicate the type of occupation they were engaged in at the time of divorce. In addition, 27,3% and 30,6% of the males and females respectively were not economically active at the time of divorce. For specified occupations, most of those who divorced in 2011 were in clerical and sales occupations (11,5%) and managers and administrators (10,2%), with some differences observed by sex of the plaintiff. Husbands who divorced were largely managers and administrators (14,7%) while females who divorces were mainly in clerical and sales occupations (18,2%). Less than a quarter of males (23,6%) and females (20,2%) were in the professional and managerial occupations. Very few plaintiffs were in farming and related occupations.

Number of times married

The 2011 divorce cases for both males and females were mainly from individuals who had married once. About 80,0% of divorces for males and females were from first-time marriages compared to approximately 10,0% from second-time marriages. About 2,0% of males and females were getting divorced for at least the third time.

Age at the time of divorce

The median ages at divorce in 2011 were 42 years for males and 38 years for females, indicating that males generally divorced at older ages than females, with a difference of about four years. The median age for males was up from 41 years in 2010 while it remained the same for females for 2010 and 2011. The pattern of median ages in 2011 by population group shows that black African males had the highest median age (43 years) at the time of divorce while females from the mixed group had the lowest median age (34 years). The age difference at the time of divorce was highest for black African couples (five years) and was between two and three years for other couples. Although there are differences in the ages at which most males and females from the various population groups divorced, the age patterns are quite similar. The data reveal that there were fewer divorces among the younger (less than 25 years old) and the older (55 years and older) divorcees. For male divorcees, the peak age group at divorce was 35–39 for Indian/Asian and coloured population groups while the peak for the black African and white population groups was 40–44. In the case of females, the peak age group was generally at age group 35–39 for all population groups.

Duration of marriage of divorcing couples

The largest number [5 535 (26,4%)] of the divorces were for marriages that lasted between five and nine years. This group is followed by marriages that lasted less than five years [4 489 (21,4%)]. Thus, almost half (47,8%) of the 20 980 divorces in 2011 were marriages that lasted for less than 10 years. Divorces for the black African, coloured and Indian/Asian population groups occurred mostly to couples who had married for five to nine years whereas for the white population group those that divorced did so mostly during their first five years of marriage. Furthermore, the number of divorces for the white population consistently declined as the duration of marriage increased and this pattern is observed for marriages lasting for five to nine years for the other population groups.

Divorces involving couples with children

In 2011, 11 475 (54,7%) of the 20 980 divorces had children younger than 18 years. The proportions of divorces with children were quite high among the coloured population group (64,4%), Indians/Asians (57,8%) and the black Africans (57,1%). The distribution of the number of children affected by divorce shows that 37,4% were from the black African population group; 27,1% from the white population group and 20,2% from the coloured population group. There were 18 571 children (younger than 18 years old) involved in divorce indicating that, on average, there was between one and two children per divorce.

Source: http://voices.news24.com/bertus-preller/2013/02/latest-south-african-divorce-statistics  

Compiled by:

Bertus Preller

Family Law Attorney

Abrahams and Gross Inc.

A:1st Floor, 56 Shortmarket Street, Cape Town, 8000

O: +27 (0) 21 422 1323

Twitter: @bertuspreller

In January divorces are on the increase

Source:

http://voices.news24.com/bertus-preller/2013/01/january-is-divorce-season 

Divorces follow the seasons and divorce season is upon us.

It is a well-known fact that divorces in January and February dramatically increase. Spouses do not want to upset the apple cart over the holidays, and they need a peaceful Christmas or New Year’s. And then, because they do not want to spend another lost year with that spouse of theirs, as soon as the holidays are over they pull the plug and file for divorce.

While there are no specific reasons this can be related to the fact that people don’t want to interrupt their summer holiday so they wait until it is over before filing for divorce. Couples are also forced to spend more time together on holiday during which time they come to the conclusion that they are totally incompatible. Some people reach the New Year with the idea that they do not ever want to have to spend another Christmas with exactly the same group of family. Another reason may be that couples stay together until the children leave the house, a daughter may be getting married, so her parents wait until after her wedding to file for divorce.

These days people work often far too hard to make a living, so they do not see enough of each other to keep their relationships working as they should. Instead of talking to one another about their problems they ignore them until Christmas when they appear with a vengeance.

Worse of all is that Christmas is expensive, and couples argue more about money than about anything else so when the pricey presents start piling up the arguments increase. People often overspend on money during the festive season, and when there is a financial breakdown, often the whole marriage breaks down and comes to a halt.

The reality is that divorce makes financial problems even more worse. In marriage, every burden is generally shared but in divorce the burdens are double, not just emotionally, but also financially. One house usually becomes two houses, one electricity bill, two electricity bills and two lifestyles to deal with so when a marriage breaks down everyone usually has to suffer.

If you are considering divorce, here are some tips to consider:

Can your marriage be saved? Divorce can be expensive and will have an emotional toll for you and your children that can last for many years. You must ask yourself if you have done everything possible to avoid divorce. If there is the slightest chance to reconcile counselling should be considered.

Have a plan. Become familiar with our divorce laws and your marital regime. The latter will be crucial when there are assets to be divided. When there are children involved make sure that the decisions that you take is in their best interests. Remember that a child needs the involvement of both parents post-divorce, so for the sake of your children act like adults. It is not always the divorce that is detrimental but the conflict in the divorce.

Build a support network, remember that divorce is also hard on those close to you your family and friends.

Save, divorce is not cheap. Besides legal fees, you will also need extra cash to create a new household. In addition, you should expect disagreements with your spouse about who pays what. Talk to your attorney about a temporary maintenance application (pending finalization of the divorce) and an application for a contribution to your legal expenses. Many spouses are unaware of the chance to obtain a court order against the other spouse for a contribution to his/her legal costs.

Protect your safety. Filing for a divorce may unleash angry and potentially violent feelings and reactions. Before you do file for divorce, think about how your spouse may react, and consider obtaining a restraining order if there is a history of violence in your family.

Put your children first. It is critical to reassure them that they are not at fault. It is also important that both parents tell the children that they are loved, as angry as you might be, it is imperative not to belittle your spouse in front of your children.

Get your documents in order. Before you do file for divorce, get all important documents in order, make copies and start your own file. You should know the status of all accounts, assets and liabilities, the balances of current and savings accounts, debts, the sources and the amount of income entering the home each month as well as the monthly expenses.

Bertus Preller

Family Law Attorney

Abrahams and Gross Inc. – Cape Town – 021 422 1323

Follow him on Twitter: @bertuspreller

Web: www.divorceattorney.co.za

Domestic Violence and Abuse in South Africa

“When you’re in a broken family and your role model is a violent male, boys grow up believing that’s the way they’re supposed to act. And girls think that’s an accepted way men will treat them.” –Rep. Jim Costa

On 25 November 2012 the 16 days of activism for no violence against women and children commenced and will end on 10 December 2012. It is an international campaign and takes place every year from 25 November (International Day for the Elimination of Violence Against Women) to 10 December (International Human Rights Day). During this time, the South African Government runs a 16 Days of Activism Campaign to make people aware of the negative impact of violence on women and children and to act against abuse. It is estimated that one in every four women is assaulted by an intimate partner every week, that one adult woman out of every six is assaulted by her partner, and that in at least 46% of these cases, the men involved also abuse the woman’s children.

It is extremely important to increase awareness of abuse and build support for victims and survivors of abuse. South Africa has one of the highest incidences of domestic violence in the world. And, sadly, domestic violence is the most common and widespread human rights abuse in South Africa. Every day, women are murdered, physically and sexually assaulted, threatened, and humiliated by their partners, within their own homes. Organisations estimate that one out of every six women in South Africa is regularly assaulted by her partner. More than 56 000 rapes and sexual offences were reported in South Africa in the 2010 financial year. This equates to 154 reported sexual offences each day. It is conservatively estimated that only one in ten sexual offences are reported, due to a lack of faith in the system. In 2010, most incidents of assault 35,7%, occurred at home. 29,8% of sexual offences took place at home and 18,5% of sexual offences took place at someone else’s home. The available data also indicates that incidents of domestic violence, in which especially women are victims, are increasing. A recent survey conducted in Gauteng found that half the women living in Gauteng 51.3% have experienced abuse or violence, and 75.5% of men admitted to perpetrating abuse or violence against women. The same study found that one in four women had experienced sexual violence, and 37.4% of men disclosed perpetrating sexual violence

According to Independent Complaints Directorate (ICD) statistics last year, up to 65% of police stations were not compliant with the Domestic Violence Act, which means that they were not providing the necessary support to victims of domestic violence and 53% of domestic violence victims were incorrectly told they were not allowed to lay a charge after being abused and 96% of domestic violence victims were not given information on their rights, such as having the right to apply for a Protection Order when they go to their local police station. It is inconceivable that a woman who has had to endure the trauma of being abused by a family member or partner is subjected to the indignity of having their case poorly managed by the police.

Although the exact percentages are in dispute, there is a large amount of cross-cultural evidence that women are subjected to domestic violence significantly more often than men. In addition, there is consensus that women are more often subjected to severe forms of abuse and are more likely to be injured by an abusive partner. Determining how many instances of domestic violence actually involve male victims is difficult. Some studies have shown that women who assaulted their male partners were more likely to avoid arrest even when the male victim contacts the police. Another study concluded that female perpetrators are viewed by law enforcement as victims rather than the actual offenders of violence against men. Other studies have also demonstrated a high degree of acceptance of aggression against men by women. Domestic violence also occurs in same-sex relationships. Gay and lesbian relationships have been identified as a risk factor for abuse in certain populations. Historically, domestic violence has been seen as a family issue and little interest has been directed at violence in same-sex relationships.

Domestic violence is a pattern of abusive behaviour that transgresses the right of citizens to be free from violence. When one partner in a relationship harms the other to obtain or maintain power and control over them, regardless of whether they are married or unmarried, living together or apart, that is domestic violence. The ‘harm’ can take a variety of forms, whether it be from verbal abuse like shouting, emotional abuse like manipulation, control and/or humiliation, physical abuse like hitting and/or punching, and/or sexual abuse like rape and/or inappropriate touching of either the woman or her children.

The majority of adult victims are women. The victims and survivors are not more likely to belong to any particular racial, cultural or language groups. The majority of perpetrators are male and usually live with the victim at the time of the abuse. There is an important association between the propensity to domestic violence and drug and alcohol use.

What can you do if you are abused?

Domestic violence is regulated by the Domestic Violence Act 116 of 1998. The Act was introduced in 1998 with the purpose of affording women protection from domestic violence by creating obligations on law enforcement bodies, such as the South African Police Services, to protect victims as far as possible. The Act attempts to provide victims of domestic violence with an accessible legal instrument with which to prevent further abuses taking place within their domestic relationships. The Act recognises that domestic violence is a serious crime against our society, and extends the definition of domestic violence to include not only married women and their children, but also unmarried women who are involved in relationships or living with their partners, people in same-sex relationships, mothers and their sons, and other people who share a living space.

A protection order, also called a restraining order or domestic violence interdict is a court order which tells an abuser to stop the abuse and sets certain conditions preventing the abuser from harassing or abusing you again. It may also help ensure that the abuser continue to pay rent or a bond or interim maintenance.  The protection order may also prevent the person from getting help from any other person to commit such acts. Victims may also file a criminal charge in addition to obtaining a protection order and get a court order to have the perpetrator’s gun removed, if applicable. Other remedies may also be available, depending on the exact nature of the abuse.

A restraining order can be applied for at your local magistrate’s court.

Important Numbers:

Women Abuse Helpline:  0800 150 150

Childline:    0800 055 555

SAPS Crime Stop:   08600 10111

Bertus Preller

Family Law Attorney

Twitter: @bertuspreller

Email: bertus@divorceattorney.co.za

Tel:  021 422 1323

Source: 
http://voices.news24.com/bertus-preller/2012/11/abuse-and-domestic-violence-south-africa/ 

International Child Abduction South Africa

South Africa is a party state of the Hague Convention on Civil Aspects of International child abduction. South Africa ratified the convention in 1996 and it came in operation on 1 October 1997. Emphasis is placed on securing the prompt return of any child wrongfully removed to or retained in a contracting state.

The Hague Convention is a treaty designed to expedite the return of children back to their country of habitual residence, in cases where they have been wrongfully removed. Habitual residence sometimes differs from citizenship and nationality. The Hague convention aims to curb the international abductions of children by providing additional remedies to those seeking the return of the child were a child has been wrongfully removed or retained. It provides a simplified procedure for seeking the return of the child to his/her country of habitual residence.

The purpose for of the speedy return is to place the child in the jurisdiction of a court that is best appraised to deal with the merits of the parental dispute. A child removed from one parent and taken to a country different from that in which the child was habitually resident is then likely to be subject to the concentrated influence of the custodial parents.  Unless firm steps are taken to ensure the prompt implementation of the Convention procedures, in a prolonged separation from a parent his or her influence on the child would have a tendency to wane.  Time would favour the abductor. The parent remaining in the place of the child’s habitual residence, from which the child is taken, would ordinarily be at a considerable disadvantage in litigating a contested claim for custody and access (or equivalent orders) in the courts of another country rather than those of the place of habitual residence.

Few persons can readily afford litigation in their own jurisdiction, still less contemplate the prospect of participating in courts (or administrative authorities) far away, where the legal system may be different, laws and even language unfamiliar, costs substantial and facilities for legal assistance difficult to obtain or non-existent.

The removal or the retention of a child is to be considered wrongful where -

a)      it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention, and

b)      at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

The rights of custody mentioned in (a) above, may arise in particular by operation of law or by reason of judicial or administrative, or by reason of an agreement having legal affect under the law of that State. The Convention shall apply to any child who was habitually resident in a contracting State immediately before any breach of custody or access rights.

Where a child has been wrongfully retained and, at the date of the commencement of the proceedings before the judicial or administrative authority of the contracting State where the child is, a period of less than one (1) year has elapsed from the date of the wrongful removal of retention, the authority concerned shall order the return of the child forthwith.

In practice, applications are generally heard on an urgent basis or semi-urgent basis by way of notice of motion proceedings. Inevitably, the overriding principle that our courts have regard to is the best interest of the child principle. In South African law the right to consent or refuse the removal of the child from South Africa is entrenched in the concept of guardianship. In terms of section 18 (2)(c) of the Children’s Act, 38 of 2005), a person who has parental responsibilities and rights in respect of a child has the right to act as guardian of the child. In terms of section 18 (3)(c)(iii) of the Act a guardian must consent to the child’s departure or removal from South Africa and where more than one person on has guardianship over a child all of them must consent before the child can be removed.

The role of the Central Authority

A contracting state is bound to set up an administrative body known as a “Central Authority”, which has the duty to trace the child and to take steps to secure a child’s return. In South Africa the Chief Family Advocate is designated as Central Authority.

The Central Authority assists in both “outgoing” cases (when a child has been wrongfully taken from South Africa to a foreign country or retained in a foreign country, as well as “incoming” cases (when a child has been wrongfully brought to, or retained in South Africa). A party may submit an application for the return of a child, or access to a child to the Central Authority.

What does habitual residence mean?

This concept is not defined by the Convention itself. It has been interpreted according to “the ordinary and natural meaning of the two words it contains, as a question of fact, to be decided by reference to all the circumstances of any particular case” The intention thereby is to avoid the development of restrictive rules as to the meaning of habitual residence, so that the facts and circumstances of each can be assessed free of presuppositions and presumptions. However, the fact that there is no “objective temporal baseline” on which to base a definition of habitual residence requires that close attention be paid to the subjective intent when evaluating an individual’s habitual residence. When a child is removed from its habitual environment, the implication is that it is being removed from the family and social environment in which its life has developed, The word “habitual’ implies a stable territorial link, which may be achieved through length of stay, or through evidence of a particularly close tie between the person and the place. A number of reported foreign judgements have established that the possible prerequisite for “habitual residence” is some “degree of settled purpose” or “intention”. A settled intention or settled purpose is clearly one which will not be temporary.

What can South African parents do when a former spouse or partner has abducted a child and taken them abroad?

Establish the details of the departure and destination of the abducting parent and/or the child. The left behind parent has an option of approaching the office of the designated Central Authority for the Republic of South Africa, which is the office of the Chief Family Advocate or the Central Authority of the country where the child has been abducted to. The abducted child must be below 16 years of age. In order to facilitate the processing of the application in the office of the Chief Family Advocate, the left behind parent furnish the following documents:

• Original or certified copies of setting out care and contact (custody) and/or guardianship rights. Examples of these are marriage certificate, court orders granting the alleged rights, unabridged birth certificates, parenting plan or parental rights and responsibilities agreement etc;

• Recent photographs of the abductor as well as the child;

• A detailed sworn statement setting out the exact facts and circumstances that led to the alleged abduction;

• Copies of all pleadings filed in pending litigation in South African courts, where applicable.

If the parent who has taken a child overseas feel that the left behind parent in South Africa is abusive, a danger to the child or cannot provide adequate care for the child, can the parent defend his/her actions, in terms the Hague Convention and SA Children’s Act?

The Hague Convention makes provision for the abducting parent to oppose the application for return of the child. When there is a grave risk that the return of the child will expose the child to physical, psychological harm, or would place the child in intolerable situation, then the court hearing the application is not bound to order the return of the child. Mere allegations of grave risk will not persuade a court to refuse the return; it must be shown that the risk is a serious or that the envisaged harm is of significant proportion.

What countries are subscribed to the Hague Convention?

Most European and Commonwealth countries and the USA are members. On the African continent, only South Africa, Mauritius and Zimbabwe subscribed to the convention. When a child is removed to another country that is not a party state to the convention, the South African High Court, as the upper Guardian of the minor children, will have jurisdiction and the application should be made to such a court for the return of the child.

What are the steps to be taken in recovering an abducted child, in terms of the Hague Convention and SA Children’s Act?  

The South African Central Authority (CA) must immediately after receipt of the necessary documents consider the legal aspects of the request as well as the Convention status of the country to which the child has been taken.

If the child has been taken to a contracting country and all legalities have been satisfied, the CA will compile a bundle and forward the application to the foreign CA, requesting prompt return of the child. The procedure does not apply where a child has been taken to a non-Convention country. All CA’s are required by the Convention to take steps to obtain a voluntary return of the child. This is done through cross-border mediation. Litigation is resorted to in the event that the mediation fails. This approach is also consistent with the general principles set out in the Children’s Act, namely, that in any matter concerning a child ‘an approach which is conducive to conciliation and problem-solving should be followed’.

It is however, important that the left-behind parent alert the Central Authority to the possibility of further movement/possible harm to the child, should the abducting parent know of the application for return. In such cases the CA will take steps to obtain an urgent court order to prevent further movement of, or possible harm to the child.

How does the Hague Convention on the Civil Aspects of International Child Abduction relate to care and contact (custody) rulings made in South African civil courts?

An order granting care and contact can be used as proof of the existence of parental rights by the parent seeking return of the abducted child. Where an abductor seeks an order in the South African court, which will have an effect of ratifying the wrongfulness of the removal or retention of the child in South Africa the CA will invoke article 16 of the Convention to stop or suspend the proceedings until a decision has been made on the return of the child to his/her country of habitual residence. The judicial authorities/courts of a contracting state to which a child has been taken or retained are required by the Convention not decide on the merits of custody rights until a determination has been made that the child will not be returned.

There are limitations to the treaty’s application, in that the Convention applies only between countries that have adopted it as “Contracting States.” What are the procedures for recovering a child from a non-Contracting State?

From a South African perspective, it is advisable that the left behind parent obtain an order through the normal civil procedures, which declare the removal/retention of the child unlawful and a breach of their parental rights. Once such an order has been obtained, the left behind parent must obtain a mirror order or an order for enforcement in the foreign jurisdiction which also orders return of the child. This route is very expensive as it involves the instruction of lawyers in foreign countries. For this reason, the Hague Conference on Private International Law is taking steps to encourage other countries to consider contracting under this Convention.

Are there time frames that apply under the Hague Convention on the Civil Aspects of International Child Abduction?

Among the most popular defences that have been raised in return applications is that the child objects to the return. In such instances, an assessment must be made, usually through the assistance of a Family Counsellor or psychologist, whether the child possesses sufficient maturity to form a viewpoint that the court may consider. The child’s reasons for the objection will also be examined in order to exclude possible influence by the abducting parent.

Some of the defences available are that the removal was not wrongful, that the left behind parent was not exercising his/her parental rights at the time of removal or retention, or that the left behind parent had agreed or subsequently acquiesced to the removal/retention:

Where available evidence indicates that the child has become settled in the new environment the court may not necessarily order a return. In cases where a child’s return would be contrary to the South Africa’s fundamental principles relating to protection of human rights and fundamental freedoms, our courts are also under no obligation to order the return of the child.

A court may withhold permission to return the child for the following reasons:

• that the child is above the age of 16 years and therefore not covered by the Convention.
• If a child has been wrongfully removed for less than one year, the child’s removal is to be ordered forthwith under the Convention. The Convention makes it mandatory for the judicial authority to order return.
• If a child has been wrongfully removed for more than one year, the child should still be returned but an exception is allowed -a court may choose not to return the child if there is evidence that the child is settled in his/her new environment. The court has discretion to order/refuse the return.
• Courts and administrative authorities should act quickly in such cases but if one has not reached a decision within six weeks from the date proceedings commenced, an applicant or the Central Authority of the requested State may officially request a reason for the delay.
• The Convention only applies to wrongful removals/retentions occurring after the treaty became effective between the involved countries.
• The Convention requires that countries act without delay in child abduction cases that fall within its parameters. It is one of the objectives of the Convention to protect children internationally from the harmful effects of wrongful removal or retention and to establish procedures of ensuring prompt return of children to their country of habitual residence. The aim is to ensure that a competent court in the country of habitual residence decide on the merits of custody, access and even permanent removal to another country. This is based on the premise that court in the country of habitual residence is better apprised to obtain all relevant evidence regarding the merits of custody, care and contact and in a better position to grant an order that will be in the best interests of and/or least detrimental to the welfare of the child. For this reason, the Hague Convention is deemed to be consistent with our applicable laws and the Constitution, through affording the best interests of the child paramount importance.

Compiled by:

Bertus Preller
Family Law Attorney

Abrahams and Gross Inc. Cape Town