Pension Funds and Divorce: Be careful how you word a settlement agreement in a divorce

THE CLEAN-BREAK PRINCIPLE IN A DIVORCE DOES NOT APPLY TO DEFERRED PENSIONS

The legal definition of the words “pension interest” is vital in deciding when a non-member spouse becomes entitled to a share of a fund member’s retirement savings.

A recent judgment by Supreme Court of Appeal highlighted the fact that the date on which a member resigns from a pension fund and the date of the divorce directly affect when the non-member spouse may expect to receive his/her pension interest.

In this matter the ex-wife of a former member of a Pension Fund, was not entitled immediately to receive a share of her former husband’s retirement savings in the fund. This was despite a divorce settlement that awarded her a share of the savings and a determination by the Pension Funds Adjudicator that the fund must pay up.

Long before the divorce, the husband resigned from his employment and had elected to defer his pension benefit in the fund. He had thus become a deferred pensioner in terms of a rule of the fund.

The divorce settlement, which had been made an order of court, recorded that the husband had a pension interest in the pension fund and provided that his wife was entitled to 25% of that pension interest, payable to her as soon as the husband became entitled to the pension interest.

The settlement agreement further provided that the spouse’s attorneys would secure the registration of an endorsement against the records of the fund – as provided for in the Pension Funds Act. But the fund refused to register the endorsement against its records on the basis that, at the time of the divorce, the husband was a deferred member and no longer had a pension interest in the fund as contemplated in the Pension Funds Act.

The court held that the legislation contemplates an award to the non-member spouse of part of the pension interest, calculated at the date of the divorce but with effect from a future date when the benefit accrues to the member spouse. It held that, where the benefit has already accrued, the provisions of the Act do not apply and that the husband could not again be deemed to become entitled to a resignation benefit.

The court ruled that the wife could claim her share when the husband turned 55 and the benefit became due to him.

What parties in a divorce cannot do by agreement is to invoke the statutory mechanisms under the Pension Funds Act in a situation to which that Act simply does not apply. This means, for example, that a non-member spouse cannot impose obligations on a pension fund (rather than on the member spouse) in terms of the Pension Funds Act in a situation in which the Act does not apply.

Facebook ‘Friend’ Offer Exposes Man’s Other Wife

Facebook’s automatic function to connect its users through “friends” they might know recently led two women in the United States to find out they were in fact married to one and the same man, at the same time.

This led to the man being charged with bigamy.

The man married a woman in 2001, separated in 2009, then changed his name and remarried without divorcing his first wife. The first wife first noticed this to her shock when Facebook suggested the friendship connection to wife number 2 under the “People You May Know” feature.

Neither the man nor his first wife had filed for divorce. The man allegedly told wife No. 1 not to tell anybody about his dual marriages and that he would fix it. But wife No. 1 alerted the authorities.

Facebook over the years has played a role in both creating relationships and destroying them. It’s just the latest vessel by which people can stray if they want to.

Bigamy is the act of entering into a marriage with one person while still legally married to another. Bigamy is a criminal offense in most western countries, and when it occurs in this context often neither the first nor second spouse is aware of the other. The legal status of the parties is as if they never concluded a marriage, the second marriage is thus void and has no legal consequences and its effect is absolute. It is also unnecessary to obtain a court order, although this may be done for sake of legal certainty.

A void marriage, like in the case where Bigamy was committed means that legally no marriage has come into existence.

Save for in a case of Bigamy a marriage will also be void where the parties have not adhered to some formal or material requirements. Examples of formal requirements that will render a marriage null and void include the following:

• The marriage was not conducted by a competent marriage officer
• No witnesses were present at the marriage ceremony
• A boy under 18 years or a girl under 15 years of age married and did not obtain the consent of the Minister of Home Affairs
• The parties are related to each other within the prohibited degrees of relationship
• One or both of the parties were mentally incapable when they concluded the marriage

Social Networks and Divorce

It used to be lipstick on the collar,  then there were the give-away text messages that spelled the death for many marriages, but these days it is said that one in five divorces involve  social networking sites.

There was a recent article on the internet where a Pastor in New Jersey USA said that 20 couples in his congregation of about 1,100 members have all experienced marital trouble as a result of Facebook. As a result he urged his congregants to delete their Facebook profiles, calling Facebook a “portal to infidelity”.

The Pastor’s statement also seemed to have been a matter of the pot calling the kettle black and he himself was later forced to take a leave of absence after his own non-Facebook transgressions were revealed when he admitted that he took part in three-way sexual trysts in the past.

Although the Pastor’s view of Facebook is extreme, it does lead to the question: Whether new technologies are bringing people closer together, or does it tempt people to stray from those who matter to them?

In a survey by the American Academy of Matrimonial Lawyers it was found that 81% of divorce attorneys have seen an increase in the amount of cases where evidence was used that was obtained from social networking websites. It is also becoming more common for divorce attorneys in South Africa to use information from Facebook and Twitter in divorce proceedings.

In the United States various Attorney and Advocate Associations are conducting workshops on how to find evidence through social media sites. Before, private investigators would follow a spouse where infidelity was suspected but these days evidence could show up on a Facebook wall.

According to media reports celebrities as well as ordinary people have been humiliated online in connection with a separation or divorce.  For example, former NFL star Deion Sanders’s wife discovered that he announced his decision to divorce her on a social network.  When actors Katy Perry and Russell Brand separated, Perry “unfollowed” her estranged husband.

There are a number of ways in which Facebook can cause relationship stress or breakdown. Some ways would be by sharing way too many information, the photo factor, where a person is tagged in posts of an ex, getting a friend request from an ex or not deleting conversations in your inbox between you and an ex. If divorcing spouses do not sabotage themselves, their friends on Facebook or in real life, can do it for them whether intentionally or accidentally. Peter may be dating Ann, if they go out with friends, she does not tell them he is married. Ann’s friend takes pictures and posts them on Facebook, where his wife then sees them.

Experts say that opportunity is a major predictor of infidelity and opportunities for connections have never been greater than in the digital age we live in. Years ago, there were numerous barriers to getting in touch with an ex or potential partners.  These days, by Googling people one is likely to find what their email address is, where they work and their Facebook page. The lure of relationships based on social media is based on the premises that they seem so innocent at first. Research at Lehigh University in the US had found that people who communicate online fell for each other 1 to 3 times faster than those communicating face-to-face. The reason lies in the fact that when there is nonverbal communication, the likelihood of being able to disclose at a deeper level is far greater, because there’s less inhibition. Spending too much time on social networking sites can have a negative impact on any relationship. Just like sitting in front of the television.

The conduct of the parties leading to the break-down does play a role in South African divorce law. In terms of section 10 of the Divorce Act a court may have regard to a parties’ conduct when making a cost order in contested divorce proceedings. Section 7 (2) of the Act also states that when making a maintenance order, a spouses’ conduct insofar as it may be relevant to the break-down of the marriage, should be taken into account.

When a Facebook affair results in adultery (extramarital sex with a third party that willfully and maliciously interferes with marriage relations which renders the irretrievable breakdown of the marriage relationship) a court may award damages against such a third party.  According to South African law adultery conflicts directly with the undertaking of spouses towards one another and towards the outside world to have sexual intercourse only within the marriage. As such our law regards it as a violation of a collection of personality rights each spouse has arising out of the marriage. The convictions of the community are that the exclusive sexual relations of marriage have to be respected and that it is unlawful to interfere with them. In terms of legal policy it is necessary to protect the exclusivity of sexual relations to which spouses have bound themselves from interference by third parties. A court will consider the spouse’s financial and social situation, their moral reputation and the state of the relationship before the adultery was committed. When an innocent spouse’s behaviour was partly responsible for driving his or her spouse into another person’s arms, the damages awarded can be considerably lower.

Source: http://voices.news24.com/bertus-preller/2012/02/social-media-and-divorce/

Bertus Preller

Divorce and Family Law Attorney

Abrahams and Gross Inc.

info@divorceattorney.co.za

Tel: 021 422 1323

Twitter: @bertuspreller

Blog: http://www.divorceattorneys.wordpress.com

Ordering a bride on the internet may be costly

 

At best, marriage can be a bit of a gamble even more so when you are looking for love at a mail-order bride service on the Internet. A mail-order bride is a woman who lists herself in online catalogues and is then selected by a man for marriage. The majority of mail-order brides are mainly from Southeast Asia, countries of the former Soviet Union and from Latin America. Since the collapse of the Soviet Union, large numbers of women from Russia, Belarus, Ukraine and Moldova are looking to marry western men.

A leading marriage agency has told Sky News some time ago that the number of Russian and Ukrainian women joining online marriage agencies has tripled since 2005, while the number of Western men signing up as candidates has more than quadrupled in that time. So how does it work? Mail-order bride services are everywhere on the Internet. It is probably more accurate to call the industry the email order bride service with today’s technology. Finding a potential mail-order bride is quite simple, by logging on to one of the many websites, creating an account, and browsing the classified sections of women.

Once you have found the woman of your dreams, you go through the website’s specific process and contact the woman. After going through the necessary steps, you are given the contact information on how to communicate with your potential mail order bride. If after communicating you and the woman agree that you want to marry, you pay the service for the connection and move on with the marriage process. The image of a woman with a husky accent and a pair of legs that run all the way to heaven like the spy in a James Bond movie is tempting. This may also be the reason why many middle aged South African men browse the internet these days in search for a Russian beauty. As one of the mail-order bride sites state: “…The male to female ratio in Russia is 100 to 88 and the economy of Russia isn’t doing that great. Like every woman, Russian girls want to be married to someone who is financially sound and can take good care of the family. This is precisely why Russian women look forward to marrying men from different countries.

There is also a sociological reason behind the number of Russian mail order brides being on the higher side. In Russia, women who are above 30 years of age and are unmarried are looked down upon. So, Russian women who have not been able to find a match in their own country and are on the wrong side of thirty sign up as Russian mail order brides”. As a divorce attorney I have dealt with a couple of matters where the love that once blossomed ended in a nightmare, normally quite soon after the wedding.

The following facts in a recent divorce matter illustrate the possible dangers associated with choosing the wrong spouse. The names of the parties have been changed for sake of confidentiality. Norman divorced 5 years ago and was 65 years of age. He was the CEO of a successful financial services company prior to going on pension. Norman browsed various Russian mail-order bride sites on the internet and met beautiful 28 year old Tatiana fromRussia online. After 3 months of email exchanges Tatiana arrives with her suitcases in Cape Town. Norman is in seventh heaven he can’t believe his eyes. A month later, blinded by love, Norman and Tatiana got married on a wine farm, the wedding cost a staggering R 75 000. In addition Tatiana got a brand new BMW as a wedding gift. Norman was so in love that he forgot to register an ante nuptial contract /pre-nuptial contract and by default the marriage was in community of property. After the wedding they moved into Norman’s beach front apartment in CampsBay. Norman was in love, but for Tatiana it was more a matter of obtaining South African residence and experiencing the luxury of living in beautiful Cape Town. Six months later, one evening while Norman was watching television on the sofa enjoying a good glass of red wine, the South African Police services arrived unexpectedly at their home armed with a restraining order issued in terms of the Domestic Violence Act. Norman was restrained from certain areas in the house and was also prohibited from entering the main bedroom. He was interdicted not to talk to or stalk Tatiana. The reasons listed in the restraining order were inter alia that Norman abused Tatiana emotionally and physically. Norman felt like a prisoner in his own house and had to sleep in the guest room, Tatiana on the other hand armed with Norman’s credit card enjoyed the glamour and glitz of Cape Town’s night life. The following week a divorce summons arrived. Tatiana claimed half of Norman’s estate as they were married in community of property, maintenance of R 25 000 per month and half of Norman’s pension fund. If Norman had concluded an ante nuptial contract prior to his marriage to Tatiana and married her out of community of property without the accrual system or out of community of property including the accrual system with an exclusion of his assets, he would have been in a much better position. The ante nuptial contract is one of the most important documents that a person will ever sign in his or her lifetime.

The problem however is that people somehow disregard the importance of the ante nuptial contract and many embark on marriage without due cognisance of the repercussions that might follow at a later stage, especially when the marriage end in divorce. Somehow many people see the ante nuptial contract as a mere formality, something that needs to be signed prior to the wedding day, without realising the consequences of such an important legal instrument. In most cases the focus is unfortunately more on the wedding ceremony than the ante nuptial contract. No one goes into a marriage contemplating a divorce but when you consider that the ante nuptial contract governs what will happen to your assets and liabilities on divorce or death, it makes lots of sense that considerable thought should be given to concluding it and that its contents should be fully understood by all parties concerned. Unfortunately many people are more drawn into the eyes of their spouse prior to the marriage than to the importance of the wording of a proper ante nuptial contract.

Where spouses did not conclude an ante nuptial contract prior to their wedding day, they will automatically marry in community of property. ‘In community of property’ means that everything the couple owns, and their debts, from before their marriage are put together in a joint estate and everything they earn or buy after their marriage is also part of this joint estate. Any money or possessions belonging to either of the spouses at the time of the marriage, or acquired by them at any time thereafter, cease to be the private property of the one person and become part of a joint estate in which each of the partners has an equal, undivided share. On termination of the marriage, the husband and wife are each entitled to a half-share of the joint estate and they are jointly liable for any liabilities. There is however some protection afforded in a case such as Norman’s. In terms of section 9 of the South African Divorce Act an order for forfeiture of benefits may be granted if the court is satisfied that one spouse will be unduly benefited in relation to the other.

In deciding whether an order for forfeiture should be granted, the court should first determine whether or not the party against whom the order is being sought will in fact be benefited if the order is not made. Once this is established, the court must determine whether the benefit is undue. Factors which the court will take into account when deciding whether the party against whom forfeiture is sought would be unduly benefited or not are the duration of the marriage, the circumstances that gave rise to the breakdown of the marriage and any substantial misconduct on the part of either of the parties. Want to reply to this blog or share your views? #

Original Article: http://voices.news24.com/bertus-preller/2012/02/divorce-and-the-mail-order-bride/

Bertus Preller Family Law Attorney Abrahams and Gross Inc.

Twitter: @bertuspreller

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

Facebook: https://www.facebook.com/divorceattorneys

The Top 10 Reasons For Divorce In South Africa

It is said that divorce is more emotionally devastating than losing employment, about equal to experiencing a major illness, and somewhat less devastating than the other spouse’s death.  Reasons perceived by both men and women as the causes of divorce include loss of love and incompatibility, poor communication, addiction, basic unhappiness, infidelity, emotional problems, conflict over roles, and spouses’ personality traits. The common conclusion to all studies on prevention of relationship breakdown and the causes of divorce is that a constellation of factors, not one, is normally responsible for the breakdown of a marriage relationship. Men, women and especially children benefit from a secure, stable and nurturing marital partnership and family environment. Since relationships are dynamic and family circumstances alter through the course of the marriage (birth of a child, dealing with teenagers, a change in employment, illness of a family member), spouses can only benefit more from ongoing counselling options across the different stages of marriage and family life.

The reasons below were the most commonly cited drawn from the records of 500 divorce actions instituted in South Africa during 2011.

10. Difference in priorities

The difference in priorities amongst married couples, which a lot of men and women discuss and anticipate prior to their marriage do become major issues for many marriages at a later stage. If one spouse wants to start a family and the other does not, it may create immense conflict between the spouses. It happens often that one spouse starts spending less time with their family and focus on other priorities. This often creates a struggle for any marriage to survive. No matter how much the spouses try to harmonize their priorities, they still remain complete unique, distinct and complete different individuals.

9. Religious Differences

Couples of a different religion, culture or ethnicity sometimes disregard the expectations of their partner’s religion and this often cause resentment amongst them. These differences are mainly due to the several taboos posed by a specific culture. Besides this, most parents prefer that the children’s religion should be the same as themselves.

8. Parental Responsibilities

It often happens that spouses aren’t able to constructively co-parent their children during their marriage. Children are reflections of our own selves, and sometimes parents are not being able to let go of their own egos and put their children in the backburner. Differences in ideas on how to raise children properly cause rifts in marriages, contributing to the list of reasons for divorce. It often happen that one parent creates a rift between the other parent and the children by siding with the children and thereby forming two camps within the marriage. This often causes the other parent to feel rejected within the marriage. Differences between parents on how to discipline children also create tension in the marriage, to the extent that the other parent feels rejected, especially where a parent reprimands the other parent in front of the children.

7. Finances

In the face of tough times, some marriages spiral downwards. Money or anything related to it is a cause of disagreement between spouses. Married couples, whether happy or not, may have disagreements over little financial issues. Money is not always the sole or primary cause of divorce in married couples and is usually combined with other top reasons for divorce causing distress.

6. Sexual incompatibility

Men and women are different emotionally, mentally, sexually. Things can change as the marriage progress, i.e children, health challenges, career changes etc. In most cases sexual dissatisfaction in a partner usually results in divorce. The issue of sexual incompatibility varies significantly from case to case. If a spouse is not being emotionally and physically fulfilled, he/she will look elsewhere.

5. Addiction

Marriage, family and addiction certainly don’t mix well at all. Before the internet, strip clubs, videos and DVDs were the catalyst to pornographic addiction. These days more and more people spend countless hours viewing pornography online, buying into a fantasy. Addiction not only has a degrading effect on the person and his/her spouse, but most often it leaves disastrous emotional scars on children, close relatives and friends. Spouse who spend countless hours on social networks to the exclusion of valuable family interaction, create a permanent disconnect that cannot be repaired, and divorce follows. Addiction is like a black hole, sucks everything in its path of destruction throwing a relationship out of balance and the more it continues the stronger it gets.

4. Social Networks – Facebook, Twitter and Mxit

Facebook flirting and comments contribute to an increasing number of divorces and social media is affecting privacy and family interaction. Social media blurs the line between public and private. The nature of Facebook, Twitter, Mxit, Google+ and other social media outlets encourages free-spirited commenting, posting and sharing of information. What’s posted on social networking sites is not as private as you think. Facebook has made it really easy for people to look if the grass is greener on the other side especially when there are so many profiles that are just a click away.

3. Marriage Infidelity

Infidelity, Adultery or more commonly known as “cheating” is on top of the list of reasons for divorce in South Africa. Most people know exactly what infidelity or cheating is but in more formal terms infidelity goes to the root of the basis of any relationship, namely trust and it is a violation of mutually agreed rules or boundaries that a couple assume in their relationship. Adultery may be defined as extramarital sex that wilfully and maliciously interferes with marriage relations which renders the irretrievable breakdown of the marriage relationship.

2. Physical, psychological, financial or emotional abuse

Abusers can be either a husband or a wife and it is a big area of concern for many couples. Domestic violence and abuse occur among heterosexual couples, same-sex couples, as well as any people living together in the same household. While women and children are the most victimized, men are also abused, especially verbally and emotionally, although sometimes physically too. Domestic violence occurs in all age ranges, ethnic groups, and class levels. Abuse varies from family to family, however in a short list they include things like telling a spouse that they are unwanted, name-calling, ignoring, restricting person to a room, monitoring phone calls, forcing spouse in doing something which they are not comfortable with, withholding of finances etc. Abuse is one of the top reasons for divorce.

1. Lack of communication

Josh Billings once said that “Silence is one of the hardest arguments to refute”. The lack of communication is the single biggest cause for divorce and account for almost 70% of all breakdowns in a marriage relationship. Without communication properly no relationship can ever be effective. Communication in a marriage does not mean agreeing with each other. Couples who have communication problems, which usually lead to divorce and breakdown are not able to find the middle way and are not able to compromise. Many couples lack communication when it comes to making decisions about finances. The lack of communication cause financial problems and endless arguments. Many couples also have a complete lack of communication when they have to make decisions about their children for instance. The lack of communication in all areas of marriage cause major damage to the marriage relationship.

About the Author

Bertus Preller is a Divorce and Family Law Attorney in Cape Town and has more than 22 years experience in most sectors of the law and 14 years as a practicing attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. in Cape Town. Bertus is also the Family Law expert on Health24.com and is frequently quoted on Family Law issues in newspapers such as the Sunday Times and Business Times and magazines such as Noseweek, You and Huisgenoot, and also appeared on SABC television on the 3 Talk TV show. His clients include artists, celebrities, sports people and high networth individuals. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Parenting Plans, Parental Responsibilities and Rights, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters, international divorce law, digital rights, media law and criminal law.

Source: http://voices.news24.com/bertus-preller/2012/01/top-10-reasons-for-divorce-in-south-africa/

Contact details:

Blog: http://www.divorceattorneys.wordpress.com

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Christianity and Divorce – Survey shows Christians divorce more than atheists and agnostics

If you look at divorce statistics by religion it may be a bit surprising. While the assumption may be that people who are practicing members of a religious faith are less likely to divorce, the statistics paint a complete different picture.

The slogan: “The family that prays together, stays together” is well known among Christians.

But the slogan seems to fall by the wayside when cognizance is taken of the outcome of the research.

These divorce statistics come from a study conducted by The Barna Research Group in the USA. A total of 3,854 people living in different regions of the United States participated in the survey.

Divorce Statistics by Religion
Religious Faith	Percentage of Membership Divorced
Non-denominational	34
Baptist	29
Episcopal	28
Pentecostal	28
Methodist	26
Presbyterian	23
Catholic	21
Lutheran	21
Atheist/Agnostic	21

The results of the survey reached the conclusion that divorce rates are higher among people who are members of conservative Protestant faiths. Being a member of a church does not afford couples an immunity from the issues that affect all couples that can lead to divorce.

The survey found that divorce rates were lower for people who described themselves as atheist or agnostic. The study results indicate that having religious faith does not safeguard believers from the stresses on a marriage that can led to divorce. It is alarming to discover that born again Christians are more likely than others to experience a divorce.

“Even more disturbing, perhaps, is that when those individuals experience a divorce many of them feel their community of faith provides rejection rather than support and healing”, according to George Barna.

The research also raises questions regarding the effectiveness of how most churches minister to families. The ultimate responsibility for a marriage however belongs to the husband and wife, but the high incidence of divorce within the Christian community challenges the idea whether churches provide truly practical and life-changing support for marriages.

About the Author:

Bertus Preller is a Divorce Attorney in Cape Town and has more than 20 years experience in most sectors of the law and 13 years as a practicing attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. in Cape Town. Bertus is also the Family Law expert on Health24.com and on the expert panel of Law24.com and is frequently quoted on Family Law issues in newspapers such as the Sunday Times and Business Times and magazines such as Noseweek, You and Huisgenoot, and also appeared on SABC television on the 3 Talk TV show. His clients include artists, celebrities, sports people and high networth individuals. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Parenting Plans, Parental Responsibilities and Rights, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters, international divorce law, digital rights, media law and criminal law.

Divorce Season

Divorce season is nearly upon us

More divorces are filed in January and February than in any of the other months of the year. Being stranded in a bad marriage during the holiday season many spouses find themselves moving into the New Year determined to never spend another Christmas in their marriages. This is sad, but unfortunately a reality of the world we live in. Unfortunately in many instances, divorce doesn’t end suffering, it actually doubles suffering.

In practical terms, the big “D” means one house becomes two houses with all the expense it takes of running both. In other words the income that it took to maintain one home will now have to somehow cover the expense of maintaining two households.

One can argue that divorce is basically trading one set of problems for another, unless you educate yourself and navigate the process in such a way that it cuts down the expense and is fair to all involved.

Divorces in January annually dramatically escalate, this is often because of spouses being compelled to spend time together on holiday and during this period they scrutinise and evaluate their relationship and come to the conclusion that they are completely incompatible.

Couples who marry at a young age are most likely to divorce. Among 25 to 29 year-olds, the rate is more than twice as high as people in older age groups.

Finances also cause domestic arguments and put a strain on any relationship, potentially resulting in divorce. However, having said that many couples looking to divorce are being forced to stay together under the same roof due to the lack of movement in the housing market and because some simply can’t afford to go through divorce proceedings.

A typical marriage these days in the UK will last for 10 years. By contrast, a cohabiting relationship is likely to last only two or three years before the couple either marry or break up.

South African Statistics on Divorce

In 2010, 170 826 civil marriages of South African citizens and permanent residents were registered. This number includes 3 830 (2,2%) marriages of South African citizens and permanent residents that were  solemnised outside  the  borders  of  South  Africa  but  subsequently  registered  in South  Africa.

In 2010, data on 22 936 divorces from civil marriages were processed, indicating a drop-off  7  827  or  25,4%  from  the  30  763  cases  processed in  2009. The distribution of couples divorcing by population group shows  that the  highest  proportion  of  divorces  between  2001  and  2007  came  from the  white  population  group followed by the black African population group. In 2001, 43,2% of the divorcees were from the white population group whereas 23,1% came from the African black group. However, from 2008 to 2010, the pattern changed. The black African population exhibited the highest proportion of divorces followed by the white population group. Thus 35,6% of the 2010 divorcees came from the African black population group and 30,5% from the white group. The proportions of the coloured and the Indian/Asian groups were quite variable during the ten year period.

In 2010 there were more female 11 309 (49,3%) than male 7 999 (34,9%) initiating divorce. The population group was unspecified in 15,8% of divorces. With the exception of females from the black African  population  group  who had  a  lower  proportion  of  plaintiffs  compared  to  males,  the  proportion  of female plaintiffs from the other population groups was above 50,0%. For example, 39,5% of black African plaintiffs were females compared to 57,6% female white plaintiffs.

In 2010 divorce cases for both males and females were mainly from people who had married once. About 80,0% of divorces for males and females were from first 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.

The median age at divorce in 2010 was 41 years for males and 38 years for females. The median age for males was  down  from  42  years  in  2009  but that  of  females  remained  unchanged.  This indicates that males generally divorced at older ages than females, with a difference of about three years in 2010. The pattern of median age by population group and sex in 2010 was basically the same as that observed in 2009 where black African  males  had the  highest  median  age  (44  years)  at  the  time  of  divorce  and  females from  the  Indian/Asian group had the lowest median age (35 years) at the time of divorce. Furthermore, the 2010 data for black African women (38 years) show a drop of one year from 39 years in 2009 whereas the ages for white males and females had increased by one year from 41 and 38 years to 42 and 39 years respectively.

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 young (less than 25 years old) and the old (55 years and older). For male divorcees, the peak age group at divorce was 35–39 for each of the population groups with the exception of the black Africans which peaked at 40–44. In the case of females, the peak age group was 35–39 for each of the population groups except the Indian/Asian group that peaked at 30-34 and the mixed group that did not show and particular pattern

2010 indicate that the largest number 5 989 (27,3%) of the divorces lasted between five and nine years. This group is followed by marriages that lasted less than five years 4 577 (20,9%). Thus, almost half (47,7%) of the 22 936 divorces in 2010 were marriages that lasted less than 10 years.

In  2010,  12  486  (54,4%)  of  the  22  936  divorces  had  children  younger than  18  years. The proportions of divorces with children were quite high among the coloured population group (64,9%), black Africans(58,0%) and the Indians/Asians (55,4%). The distribution of the number of children affected by divorce shows that 37,9% were from the black African population group; 27,6% from the white population group and 17,3% from the coloured population group. Overall, there were 20 383 children (younger than 18 years old) involved in divorce indicating that, on the average, there was between one and two children per divorce.

Statistics courtesy of Stats SA

About the Author

Bertus Preller is a Divorce Attorney in Cape Town and has more than 20 years experience in most sectors of the law and 13 years as a practicing attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. in Cape Town. Bertus is also the Family Law expert on Health24.com and on the expert panel of Law24.com and is frequently quoted on Family Law issues in newspapers such as the Sunday Times and Business Times and magazines such as Noseweek, You and Huisgenoot, and also appeared on SABC television on the 3 Talk TV show. His clients include artists, celebrities, sports people and high networth individuals. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Parenting Plans, Parental Responsibilities and Rights, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters, international divorce law, digital rights, media law and criminal law.

Tel: 021 422 1323

Email: bertus(@)divorceattorney.co.za

Hacking a mobile phone until death do us part

You hacked my mobile phone until death do us part

Mobile phone Hacking is a global issue

I suppose privacy is one of an individual’s most sacred rights, but for all practical purposes, the concept of privacy in our digital age is just about gone. In the traditional spy stories, intelligence agencies such as MI5 bug the mobile phone of one or two people. In the last ten years however systems for mass surveillance have become the norm.

According to Wikileaks, intelligence companies such as VASTech (based in South African) are alleged to secretly sell equipment to permanently record the phone calls of entire nations. Other companies record the location of every mobile phone in a city, down to about 50 meters. Systems to infect every Facebook user or smart-phone owner of an entire population group are on the intelligence market, a scary thought.

Paul McCartney, Scarlett Johannsen, Sienna Miller, Jude Law, Mila Kunis, Christina Aguilera, Miley Cyrus and Hugh Grant are just a few high-profile celebrities who’ve had their mobile phones hacked. A host of celebrities have been giving evidence to the Leveson inquiry in the UK about the fact that the media hacked into their private lives. Sir Paul McCartney, the former Beatle believed that journalists from several different newspapers have listened into his phone calls and messages.

The recent hacking scandal at News International dragged down one of the UK’s oldest news outlets, affecting the great and the good, the attention hungry and the deeply private. Yesterday, the former Labour cabinet minister Tessa Jowell accepted a £200,000 settlement from Rupert Murdoch’s News International over the hacking of her phone.

Last week Julian Assange the founder of Wikileaks asked attendees of a press conference in London “Who here has an iPhone?” “Who here has a Blackberry? Who here uses Gmail? Well you are all screwed.

The reality is intelligence contractors are selling right now to countries across the world mass surveillance systems for all of those products.” On an interactive map he showed how 160 security companies across 25 countries developed “spying systems”, and the information is being sold. The companies are said to be peddling these invasive devices, either ignoring or bypassing regulation and “turning a blind eye to dictatorial regimes that abuse human rights.” According to Wikileaks, the industry is worth $5 billion a year.

South Africa

But it is not only some newspapers who allegedly hacked into the communication methods of third parties. Mobile phone hacking software is readily and cheaply available on the internet to members of the public to download for as little as R 1000.00. It is often used, illegally, in divorce cases where a spouse suspects that the other spouse is having an affair.

In what appears to be the first mobile phone hacking probe in a divorce matter in South Africa a South African businessman and former Natal rugby player Dr Graham Hefer, is now at the centre of a criminal investigation over his alleged illegal interception of his estranged wife’s private e-mails, SMSes and BlackBerry messages, or BBMs. According to Hefer’s estranged wife, Hefer allegedly installed Flexispy® software on the phone, according to a report in the Sunday Times during the end of last year.

The hacking was first suspected when his estranged wife filed divorce proceedings against him. Court documents in that case seemed to show that Hefer had access to more than 50 BBMs, over a dozen SMSes and at least five e-mails between his wife and others this year. The case has revealed that the BBM facility, one of the preferred “secure” methods of communication can be hacked with relative ease.

In an affidavit, his estranged wife said she first became suspicious when her husband beat her to filing for divorce in May this year.

She confidentially instructed her attorney to issue summons to begin divorce proceedings. She was shocked when Hefer’s attorney, without having been informed who her legal representative was, faxed a copy of the summons one working day before we issued summons. What astonished her was how his attorney knew who her attorney was. What followed was a systematic pattern of hacking incidents. In the Hefer matter it is alleged that Hefer listened to all the conversations his estranged wife had with her attorney. Conduct such as this is a serious infringement of attorney and client privilege.

In order to hack a mobile phone a hacker must have the phone in his possession to install the software on the phone. Once the software is on the phone every bit of information is known to the hacker. The scary part is that the software is completely undetectable on the phone and mobile banking pin numbers, Facebook and Twitter accounts can all be accessed totally unbeknown to a user. Just think of a scenario where you take your phone to a cell phone repair shop or when you purchase the latest BlackBerry or iPhone from a cellphone shop. Without you knowing about it, the technician or salesperson loads hacking software on your phone and then hacks your bank accounts and personal data. This seems a bit far fetched but not impossible.

What the software can do

The software available can record the key strokes on a Blackberry, iPhone or any other mobile phone and can hold everything a person types, while other technology claims to be able take a picture of an owner sitting at their macbook. Once a mobile phone is hacked, there is absolutely no privacy to its owner and the hacker is able to clone the phone.

Mobile phone hacking software such as Flexispy® and CellSpy® offers call interception and spy call features and all phones can be hacked, whether you have an iPhone or BlackBerry. Call interception lets a hacker specify a series of phone numbers that he wish to listen to. As soon as an incoming or outgoing call from these numbers occurs, a hacker will be notified and are then able to listen to the conversation in real time.

Another feature is the ability to let a hacker listen into the Blackberry surroundings from anywhere in the world by making a phone call to the target Blackberry, it will be silently answered with no indication on the target device. One can eavesdrop in to the phone surroundings from anywhere in the world. The software can also send GPS locations to a secure web account, where you can view and examine locations on a map.

The software also captures all sms, call records and email activity and send it to the hacker’s private web account, and forward it to his email. Through the software you have full control to remotely stop and start the software. You can view all contacts, photos, calendars, reminders, remotely and monitor the phone even if the sim is changed or enable the phones camera to view the phones surroundings. The software is also undetectable on the phone.

The Law

Mobile phone hacking is in contravention of the Regulation of Interseption of Communications and Provision of Communication-Related Information Act No 70 of 2002 (RICA) in South Africa. Section 2 of the RICA Act states that subject to this Act, no person may intentionally intercept or attempt to intercept, or authorise or procure any other person to intercept or attempt to intercept at any place in the Republic, any communication in the course of its occurrence and transmission.

According to section 49(1) any person who intentionally intercepts or attempt to intercept, or authorises or procures any other person to intercept or attempt to intercept at any place in the Republic, any communication in the course of its occurrence or transmission, is guilty of an offence.  In terms of section 51(1) any person who is convicted of an offence referred to in section 49(1) or 54, is liable of a fine not exceeding R2 000 000.00 or imprisonment for a period not exceeding 10 years.

Section 54(1) of RICA states that any person who, intentionally or unlawfully, in any manner modifies, tempers with, alters, reconfigure or interferes with, any telecommunication equipment, including a cellular phone and a sim card, or any part thereof reverse engineer or decompile, disassemble or interferes with the software installed on any telecommunication equipment, including a cellular phone or sim card by the manufacturer or allows any other person to perform any of the acts referred to in that paragraph will also be guilty of an offence.

If you own an iPhone or a Blackberry or for that matter any mobile phone or use Gmail, Yahoo or whatever you are screwed it seems, not to mention those lovely pictures or videos that a hacker can take while controlling your phone from a distance….

Source: http://voices.news24.com/bertus-preller/2011/12/mobile-phone-hacking-in-divorce-cases-in-south-africa/

About the author

Bertus Preller is a Divorce Attorney in Cape Town and has more than 20 years experience in most sectors of the law and 13 years as a practicing attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. in Cape Town. Bertus is also the Family Law expert on Health24.com and on the expert panel of Law24.com and is frequently quoted on Family Law issues in newspapers and magazines and also appeared on SABC television on the 3 Talk TV show. His clients include artists, celebrities, sports people and high networth individuals. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Parenting Plans, Parental Responsibilities and Rights, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters, international divorce law, digital rights, media law and criminal law.

Same-Sex partners not in a Civil Union – Do they automatically acquire parental rights to children?

An interesting question that arises in South African family law is whether a woman that was in a same-sex relationship (Lesbian) is able to acquire parental responsibilities and rights to a child that was born as a result of artificial fertilisation from the other partner. Where one party is the biological mother of a minor child born after she was inseminated with the sperm of an unknown donor the situation becomes somewhat problematic when the relationship ends and the other partner attempts to obtain full parental responsibilities and rights in respect of the child as contemplated in s 18(2), (3), (4) and (5) of the Children’s Act 38 of 2005 (“the Children’s Act”), including guardianship.

The problems that arise

Our Children’s Act does not provide an applicant in this position with parental responsibilities and rights automatically.  Such parental responsibilities and rights are, however, granted automatically to the mother who is biologically linked to the child as well as to a father who was married (or even unmarried) to the mother at the time if he is biologically linked to the child.  If the biological mother and father were in a permanent life partnership at the time of the birth of their child, the father will automatically acquire parental rights and duties in respect of his child.  In a scenario of a same sex partnership however, one does not acquire such rights automatically even though the parties was in a permanent life partnership at the time of the birth of the minor child.

Essentially, where the other partner is not biologically linked to her minor child, she must utilise the provisions of ss 23 and 24 of the Children’s Act in order to obtain full parental responsibilities and rights despite the parties’ agreement in this regard or their relationship at the time.

In terms of s 18(2) of the Children’s Act the parental responsibilities and rights that a person may have in respect of a child, include the responsibilities and the rights:

• to care for the child;
• to maintain contact with the child;
• to act as guardian of the child; and
• to contribute to the maintenance of the child.

There is very little reported case law in respect of ss 23 and 24 of the Children’s Act.  The only reported cases in which reference has been made to these sections are Ex parte Sibisi 2011 (1) SA 192 (KZP) and FS v JJ and Another 2011 (3) SA 126 (SCA).  None of these cases dealt with the following questions:

• When can a second mother/father in a same sex relationship, who is not biologically linked to a minor child, acquire parental responsibilities and rights and can such rights, include both care and contact?
• Can such a second mother/father acquire full parental responsibilities and rights or are her/his rights limited to that of contact or care?
• It is submitted that the test set out in Drummond v Drummond 1979 (1) SA 161 (A) regarding when it can be said that a person is living with another as man and wife on a permanent basis is appropriate to define whether or not the applicant and the respondent were in a permanent relationship. Trengove AJA stated that it denotes ‘the basic components of a marital relationship except for the formality of marriage’ and that ‘the main components of a modus vivendi akin to that of husband and wife are, firstly, living under the same roof, secondly, establishing, maintaining and contributing to a joint household, and thirdly maintaining an intimate relationship … in which sexual intercourse, in the case of parties of moderate age, would usually, but not necessarily always, be an essential concomitant. And, in that context, the phrase “on a permanent basis” connotes, in my view, a continuing relationship, one that is intended by the parties to continue indefinitely without change.’

The legislature has recognised the development of the rights of third parties by introducing ss 23 and 24 of the Children’s Act.  The mechanism for the recognition of the rights of parents whose children are born through artificial insemination.

If a Court should hold that the one partner cannot acquire both care and contact (as well as guardianship) of the minor child the Children’s Act and the Court may be discriminating against such a partner on the basis of gender, marital status and sexual orientation.

The use of the word “or” in s 23(1) does not exclude the awarding of rights of care and contact at the same time.  If that should be its meaning it would compel an applicant to launch more than one application to obtain care of and contact with a child.

The common law had not precluded applications seeking the awarding of care or contact.  It is generally accepted that the Children’s Act has expanded on the common law in that it is the first time that the legislature specifically states that any person with an interest may make such an application.

Subsection 23(4) which provides that the granting of care or contact to a person in terms of s 23 does not affect the parental responsibilities and rights that any other person may have in respect of the same child, does not exclude the granting of more than one parental responsibility and right.

The term “care” does not only refer to primary care.  As a co-holder of the parental responsibilities and rights of contact and care the other partner would be party to decision-making and both she and the mother of the child would have to comply with the provisions of ss 30 and 31 of the Children’s Act.

In addition if both have rights of care and contact the parties could conclude a parenting plan and would be compelled to mediate disputes in accordance with the provisions of the Children’s Act and relevant case law.

A child’s best interests are of paramount importance in every matter concerning the child.

The Law Relating to a child conceived as a result of artificial fertilization

Prior to the Children’s Act artificial fertilization was governed by section 5 of the Children’s Status Act. The provision of section 5 of the Children’s Status Act which treated children as ‘legitimate’ if the birth mother was married but not if she was a partner in a permanent same-sex life partnership was held by the Constitutional Court in J v Director-General, Department of Home Affairs 2003 (5) SA 605 (D) to be unconstitutional. The court found that the impugned provision unjustifiably discriminated against the same-sex life partners on the ground of their sexual orientation. The court cured the unconstitutionality by striking out the word ‘married’ and reading in the phrase ‘or permanent same-sex life partner’.

The  Civil Union  Act  17  of  2006  has  since  come  into  operation. That  Act provides that reference to marriage, husband, wife or spouse in any other law includes ‘civil union’ and ‘civil union partner’. Therefore a child born as a result of artificial fertilisation of one of the parties to a civil union is now treated exactly as a child whose parents are married.

Section 40 of the Children’s Act deal with the rights of children conceived through artificial insemination.  In terms of s 40(1)(a) whenever the gamete or gametes of any person other than a married person or his or her spouse have been used with the consent of both such spouses for the artificial fertilisation of one spouse, any child born of that spouse as a result of such artificial fertilisation must for all purposes be regarded to be the child of those spouses as if the gamete or gametes of those spouses had been used for such artificial fertilisation.

In terms of s 40(3) no right, responsibility, duty or obligation arises between a child born of a woman as a result of artificial fertilisation and any person whose gamete has or gametes have been used for such artificial fertilisation or the blood relations of that person, except when that person is the woman who gave birth to that child or that person was the husband of such woman at the time of such artificial fertilisation.

Thus the Children’s Act has recognised that a non-biological parent can acquire parental responsibilities and rights in certain circumstances without an application to Court.

What is the situation where the parties did not register a Civil Union

In terms of the Children’s Act, a child born as a result of artificial fertilisation of a  partner  in  a  same  sex  life  partnership  is  regarded  as  a  child  born  of unmarried persons. At first glance this appears to be in contradiction of the decision in the case of J v Director-General, Department of Home Affairs.

However, since the Civil Union Act 17 of 2006 came into operation on 1December 2006, it has been possible for same sex partners to enter into a civil union. If they choose not to do so, therefore, they are treated in the same way as unmarried partners.

An unmarried partner of the birth mother of a child conceived  by way of artificial fertilisation does not automatically acquire parental responsibilities and rights. This is so whether the partner is a man or a woman. The unmarried partner can acquire such rights through agreement (in terms of section 22) or via a court order.

It appears that this scheme was always the intention of the legislature. The South African Law Reform Commission (SALRC) Report on the Review of the Child Care Act (which was accompanied by the draft Children’s Bill) specifically discussed whether one partner in a same sex relationship should also automatically acquire parental responsibilities and rights in respect of his or her partner’s biological children. Although at that time Civil Unions by same-sex partners were not permitted under the law, the SALRC recommended that the partner in a domestic relationship can acquire parental responsibilities and rights either by agreement with his or her partner or on application to the court.

Summary

A party in a same-sex relationship, after breakup has no automatic parental responsibilities and rights in terms of sections 19-21 of the Children’s Act. Despite the equality provision of the Constitution, the law treats her differently from a biological father simply because she has no biological link to the child. This may not be unfair discrimination because biology plays a real and important role in the determination of parental responsibilities and rights.

The law also  fails to provide an Applicant with automatic parental responsibilities and rights via section 40, which deals with children conceived by artificial fertilisation. If the couple had entered a civil union, the Applicant would have enjoyed automatic parental responsibilities and rights. Despite the judgment of J v Director-General, Department of Home Affairs this differentiation may not amount to unfair discrimination because subsequent to the Civil Union Act coming into operation the Applicant and the respondent could have entered into a civil union, but did not do so. They are thus treated under section 40 as an unmarried couple, in the same way that a heterosexual unmarried couple is treated.

In relation to both of the abovementioned apparent impediments an approach to interpretation should be utilised that accords with the best interests of the child principle, and is within the power of the High Court as upper guardian of children.

Once  an Applicant  is applying  for a  court  order regarding parental responsibilities and rights, section 29(3) becomes applicable:

• According to section 29(3) the court hearing an application contemplated in subsection (1) may grant the application unconditionally or on such conditions as it may determine or may refuse the application but an application may be granted only if it is in the best interests of the child.

• Furthermore, section 29(4) provides that when considering such an application the court must be guided by the principles in chapter 2 of the Children’s Act to the extent that they are relevant.

A court should therefore pay careful consideration to the best interest of the child standard in section 7 – these are the issues that a court must have regard to when making a decision that affects the best interests of the child. Section 9 states that such best interests are of paramount consideration.

Over and above those considerations, the court should also take note of the special circumstances of each case, in particular for instance the fact that the parties planned the conception of the child together.

Only time will tell how our courts will interpret the issue.

My thanks to Advocates Julia Anderssen and Adv Rheta Maass from the Cape Town Advocates Bar for their valuable input.

About the author:

Bertus Preller is a Divorce Attorney in Cape Town and has more than 20 years experience in most sectors of the law and 13 years as a practicing attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. in Cape Town. Bertus is also the Family Law expert on Health24.com and on the expert panel of Law24.com and is frequently quoted on Family Law issues in newspapers such as the Sunday Times and Business Times and magazines such as Noseweek, You and Huisgenoot, and also appeared on SABC television on the 3 Talk TV show. His clients include artists, celebrities, sports people and high networth individuals. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Parenting Plans, Parental Responsibilities and Rights, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters, international divorce law, digital rights, media law and criminal law.

 

A Court can enforce the implementation of Parenting Plan

In the case of MM v AV 2011 ZAWCHC 425, the mother of a child adopted the stance that she did not wish to co-parent their minor child with the father. In the past however she did facilitate the father’s involvement in the child’’s life to a significant degree since the time of his birth. The court was of the view that it was not open to the mother, in the absence of the father failing to act in the child’s best interests, to simply elect not to co-parent with him. The mother’s primary objection and opposition in this matter was that she could not be ‘forced’ to enter into a parent plan with the father on the basis sought by him. In her affidavit she claimed that she did not like the father and that she did not trust him and that in those circumstances she should not be compelled to co-parent the child with him.

Background

The parties met one night in August 1999. Their son, was conceived that night and the parties’ respective versions of events surrounding the child’s conception were divergent. According to the father he had no recollection of the events of that night due to his state of intoxication and had in fact no recollection of having had sexual intercourse with the mother on that night. He stated that the only proof he had that the parties indeed had sexual intercourse on the night in question is the outcome of paternity tests conducted on the child, which established the father to be the child’s biological father.

The mother stated that she had no recollection of having had sexual intercourse with the father due to her intoxicated and/or drugged state and that she could not have consented to sexual intercourse in the circumstances. Because, so she contended, the father could remember having sexual intercourse with her, he must have been in a position to know that she was not able to consent to sexual intercourse with him: accordingly she stated that she was raped and that the father could therefore not acquire parental rights and responsibilities in respect of the child as contemplated in s 21 of the Children’s Act 38 of 2005 (‘the Children’s Act) as read with the definition of ‘parent’ contained in s 1 of the Children’s Act. The allegation of rape was raised for the first time by the respondent on 1 February 2010 when the child was 9 years old, shortly prior to the father commencing proceedings in court on 12 February 2010 for the recognition and definition of his parental rights and responsibilities in respect of the child.

The Law

Prior to the implementation of the Natural Fathers of Children Born out of Wedlock Act, 86 of 1997 (“the Natural Fathers Act’), such fathers were obliged, in terms of the common law, to apply to the High Court, as upper guardian of all minor children, to be granted rights in respect of a child born out of wedlock. In the event of there being a dispute, the rights to be conferred on such a father and the manner in which these rights were to be exercised were determined by the court. Such an order was essentially a ‘parent plan’ setting out how parental rights were to be exercised.

With the implementation of the Natural Fathers Act, these fathers were afforded, by statute, locus standi to apply for certain rights in respect of their children born out of wedlock. Again, in the event of there not being an agreement with the mother of the child, the court was required to determine which rights should be granted to the father. Similarly, if there was a dispute in respect of the manner in which any of such rights were to be exercised, the court made a determination and gave an order setting out the manner in which such rights were to be implemented; again, a ‘plan’ setting out how parental rights were to be exercised.

Section 21 of the Children’s Act similarly makes provision for parents of children born out of wedlock to agree upon a parent plan. Where the parties are not able to agree either directly or through mediation then either party has the right to approach court in order to determine how their parental rights and responsibilities are to be exercised.

Accordingly, the provisions of s 21 of the Children’s Act are nothing new: they simply serve to ‘codify’ the legal position which previously pertained. What is important to note is that this is entirely consistent with the ‘best interests of the child’ principle enshrined in the Constitution of the Republic of South Africa. Section 28 of the Constitution stipulates that in all matters concerning a child it is the child’s best interests which are paramount and that every child has the right to parental care. In my view those provisions recognise and moreover dictate that a court as upper guardian of all minor children must place the interests of the child and the rights of the child above those of his or her parents.

In matters pertaining to children, Section 28(2) of the Constitution of the Republic of South Africa reads as follows:

’2. A child’s best interests are of paramount importance in every matter concerning the child.’

The concept that the interests of the child are of paramount consideration is also contained in Article 3(1) of the United Nations Convention on the rights of the child. The convention was adopted unanimously by the general assembly of the United Nations on 20 November 1989. South Africa became a signatory to the convention on 29 January 1993 and it was ratified by South Africa on 16 June 1995.

The ‘best interests of the child’ principle has underpinned both statutory provisions pertaining to children as well as our case law and is retained in the Children’s Act. In fact, the Children’s Act goes further and places significant emphasis on child participation in decisions in respect of their care and wellbeing.

It was stated in Terblanche v Terblanche 1992 (1) SA 502 (W) at 504C-D that the court has ‘extremely wide powers in establishing what is in the best interests of minor or dependent children. It is not bound by procedural strictures or by the limitations of the evidence presented or contentions advanced by the respective parties. It may in fact have recourse to any source of information, of whatever nature, which may be able to assist it in resolving custody and related disputes’.

In September v Karriem 1959 (3) SA 687 (C) at 689A Herbstein, A J P stated:

‘If the Court is of the opinion that it should interfere with the rights of the parents, because the interests of the children demand such interference, it should be at large to act in the manner best fitted to further such interests.’

He stated further ‘It seems to me that the Court as upper guardian should be given as complete a picture of the child and its needs as possible. Nothing of relevance should be excluded. For while certain aspects taken separately might appear to be of no real importance, in combination they might build up a strong case in favour of one or other conclusion.’

In E v S 1995 (3) SA 571 (A) at 581 A, Howie JA referred to Re KD (a minor)(ward: termination of access) [1998] 1 All ER 577 (HL) at 588g-j, and quoted with approval:

‘Parenthood, in most civilised societies, is generally conceived as conferring on parents the exclusive privilege of ordering, within the family, the upbringing of children of tender age, with all that that entails. That is a privilege, which, if interfered with without authority, would be protected by the courts, but it is a privilege circumscribed by many limitations imposed both by the general law and, where the circumstances demand, by the courts or the authorities on whom the Legislature has imposed the duty of supervising the welfare of children and young persons. When the jurisdiction of the court is invoked for the protection of the child the parental privileges do not terminate. They do however, become immediately subservient to the paramount consideration which the court has always in mind, that is to say the welfare of the child.’

And further (in reference to rights of contact), that:

‘Whatever the position of the parent may be as a matter of law, and it matters not whether he or she is described as having a ‘right’ in law or a ‘claim’ by the law of nature or as a matter of common sense, it is perfectly clear that any ‘right’ vested in him or her must yield to the dictates of the welfare of the child.’

In Bobera’s Law of Persons at page 319 footnote 17 it is stated that:

‘It has long been recognised in South Africa that the parental power (or “natural guardianship”) is in fact concerned more with duties and responsibilities of parents than with parents’ rights and powers – the modern emphasis in this regard being on the rights and interests of children rather than parents’.

The law is thus clear: it is the interests of the child which are paramount in all matters concerning a child and the interests of the child take preference over the interests of the parents.

In South Africa, and sadly by virtue of its appalling history of human rights failures and the consequent legacy of social and societal disadvantages, it seems to me that the protection and promotion of the rights of children is all important. When these most vulnerable members of our society are protected by our courts so that they can have, inter alia, proper parental care it will follow (at least in the majority of cases) that as adults they will in turn inculcate the same values in their own children. If we ‘get it right’ with our children we will be making a valuable contribution to our constitutional vision of a society based on human dignity, rights and freedoms.

Cost orders in child matters

It has been held that in disputes relating to children, it may not be appropriate to make a costs order adverse to either party because of the predominant interests of the child involved. King J (as he then was) in McCall v McCall 1994 (3) SA 201 (CPD) at 209B-C stated:

“As I have said, both parents have, in contesting this case, acted in what they believed to be in the best interests of their child. There is no winner and no loser. There are two concerned parents. I intend to make no order as to costs. The effect of this is that each party will bear their own costs.”

In Bethell v Bland & Others 1996 (4) 472 (W) at 475E-I Wunsch J considered that the correct approach would be that generally speaking a successful litigant would be entitled to his or her costs. He states further:

“1.    Generally speaking, a successful litigant is entitled to his or her costs.

2. While it is quite true that a custody dispute should not be seen as an adversarial contest in the ordinary sense but rather as an enquiry into the best interests of the child, it cannot be denied that in most cases the litigants are advancing their own preferences and seeking satisfaction of their love of the child. Often, too, the papers contain many attacks on the character and conduct of the opponents.

3. On the other hand it is also a consideration that a party should not be discouraged from putting up a case which he or she, on broadly reasonable grounds, thinks to be in the interests of the child for fear of having costs awarded against him or her if unsuccessful. By the same token, a party who is, on what turn out to be good grounds, confident that his or her case will prevail, should not be discouraged from taking or resisting actions because of the costs which he or she will incur.

4. However bona fide and concerned a party may be, if his or her opponent’s judgment of the issue prevails, it is not, in the absence of circumstances justifying it, fair that the opponent should be mulcted in his or her own costs.”

In this matter the court did implement a parenting plan and made a cost order against the Respondent mother.