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

More women file for divorce than men

Although the novel Fifty Shades of Grey portrays Anastasia Steele as a submissive woman, more women are ending marriages and are filing for divorce these days, proving the point that women in general, are not as submissive as men would want them to be.

In the past the majority of Plaintiffs (the party initiating divorce) in South Africa were male, these days they are in fact women.

Recent figures released by the Department of Statistics has revealed that there were more female (49,8%) than male (35,9%) plaintiffs in divorces instituted during 2010.

According to the statistics there were significant differences among population groups. Among the white population group 55,8% of the wives filed for divorce compared to 41,3% of wives among the African population group.

Even though a high proportion of the plaintiffs did not indicate the type of occupation they were engaged in at the time of divorce, the highest percentage of wives (18,9%) were in clerical and sales occupations whereas husbands (15,3%) were in managerial and administrative occupations.

Adultery has become more common with the introduction of infidelity websites such as Ashley Madison.com with their slogan “Life is short have an affair”. Years ago it was more likely men who committed adultery, but research into the behaviour of 4,000 cases of infidelity in the UK claimed that women in general are more promiscuous, having an average of 2.3 secret lovers compared to a mere 1.8 for men. The survey found that while unfaithful men have their first affair until almost six years of married life the average female cheater strays just five years after exchanging wedding vows.

Catherine Hakim, a British social scientist and bestselling author argues that a “sour and rigid English view” of infidelity is condemning millions of people to live frustrated “celibate” lives with their spouses. According to her sex is no more a moral issue than eating a good meal. This view may be a bit skew especially since her view propagates the moral decline of our society.

She attacks the traditional morality and also accuses relationship counsellors and therapists of trying to “pedal a secret agenda of enforced exclusive monogamy”. Her argument is that the rise of the internet, has brought about a change in sexual behaviour on a par with the invention of the contraceptive Pill. Adultery is now, she says, simply the “21st-century approach to marriage”.

It is a fact that children living in families with greater parental supportiveness, from both mothers and fathers and less marital conflict live healthier lives. History repeats itself many times before we really learn that values matter. Families matter, moral courage matters, honour and integrity matter. Not only for individual happiness and prosperity, but more importantly for the good and strengthening of our society. The most important cause of our lifetime must be our family.  Devoting ourselves to this cause will improve every other aspect of our lives.

Source: http://voices.news24.com/bertus-preller/2012/09/beware-men-more-women-are-suing-for-divorce-these-days/

Bertus Preller

Family Law Attorney

Abrahams and Gross Inc.

Twitter: bertuspreller

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

Tel:  021 422 1323

Act like an adult when you divorce, not like a child!

It is well understood that the single most damaging thing for children of divorce is exposure to on-going conflict between the parents. It makes every transition fraught and difficult, and forces the child to take sides on things he/she should not have to take sides on. It pushes the child into painful loyalty conflicts, and often causes chronic anxiety states in children. Exposure to on-going conflict is also commonly associated with problems in the child’s own relationships when he/she grows up.

It’s a common assumption that children are negatively affected by their parents’ divorce, but a new divorce study shows that parental conflict and a lack of co-parenting are actually the true culprits when it comes to harming a child’s mental health.

According to psychologists at the University of Basque Country, divorce in itself isn’t the issue when it comes to a child’s long- and short-term problems associated with parents breaking up. The real issue when it comes to children and divorce are the presence of fighting parents, family instability, and family conflict.

The study followed over 400 families through the various stages of divorce. Throughout marital issues, separation and divorce, children were observed for signs of depression, anxiety, behavioral issues, and other common issues associated with divorce. Surprisingly, the study found that these problems only surfaced in cases where divorce was accompanied by other issues in the household, including parental conflict, changes in daily routine, and issues with co-parenting.

Separation and divorce is a traumatic event for children, regardless of their age.  When they’re told of the decision they have fears, worries and questions.  They wonder, Where will I live? Who will I live with? Do I have to leave? What about my friends? Will we still go on holidays? Will I get to see Dad? What about the dog? How much time will I spend with people? Can I still have lessons, hockey, rugby… The questions speak volumes on children’s interests’ and their wellbeing.

Conflict between parents can have a devastating effect on children during the divorce process, particularly during the time immediately before and after the divorce. Witnessing conflict can be confusing to the children because they love both parents and are generally torn in their loyalties to each of them.

While it is often difficult, to shield children from all parental conflict, it is of utmost importance to do so. Parents must always agree to put their children first by keeping them out of parental disagreements.

It is not uncommon to find that a custodial parent use the child as a weapon in the matrimonial combat and is sabotaging the contact and interaction of the non-custodial parent.  This is predominantly evident in high-conflict divorce cases where a parent might even go so far as to abduct the children to an overseas country, thereby alienating the relationship the other parent has with his/her children.

Of great concern, however, are the allegations one often hear of some lawyers making a practice of escalating the acrimony between divorcing / separating parents.

These practices occasionally include encouraging clients to make false claims of abuse, encouraging women to invoke violence as a way to ensure an advantage in parenting and financial disputes.  For instance, some unethical lawyers are encouraging clients to apply for protection orders under the Domestic Violence Act 116 of 1998 in order to frustrate the attempts by the non-custodial parent to see his or her children.

Untruthful allegations also enter divorce proceedings by way of lawyers who place allegations of criminal behaviour in affidavits, without substantiation from child welfare practitioners or police authorities and without consequence to the accusing parent or lawyer involved. It may be that lawyers acting in such a way are pretty few and far between, but they certainly are there.

Children are often surprised by their parents’ decision to divorce and some knew things were tense before their parents separated but they never expected them to divorce.  Children sometimes feel they have no say in the decision to get divorced, and they are left unsure about what to expect in the future.

Most families experience a significant drop in income after a divorce. Money that was once applied to one household now have to support two, and often a single mother earn less than a single father. It is often impossible to have the same lifestyle that the family enjoyed before the divorce. This is a common risk in divorced families because maintaining economic stability is clearly a protective factor for children.

Source: http://voices.news24.com/bertus-preller/2012/07/if-you-do-divorce-act-like-an-adult-for-the-sake-of-your-children

Bertus Preller

Famly Law Attorney

Abrahams and Gross Inc.

Twitter: bertuspreller

Tel:  021 422 1323

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

Religion and Divorce – Can parents dictate a child’s religion?

 

Katie Holmes (Cruise) filed for divorce in a New York court last week after being married to Tom for five years, and they are expected to clash about how 6 year old Suri their minor child is brought up, with the 49-year-old actor adamant she remains part of the Scientology religion he is part of. We all know that Tom Cruise is incredibly passionate about Scientology and that this isn’t just some hobby for him. According to reports he truly believes in the church and its teachings and truly believes that it is imperative that his children are raised as Scientologists. Tom believes Scientology changes people’s lives for the better and, obviously, he wants what is best for his children.

The media frenzy about the divorce between Tom Cruise and Katy Holmes prompted two interesting questions in South Africa law, namely what if parents can’t agree on the spiritual upbringing of their child? and what if a child disagree with their parents religion or traditional socio-cultural beliefs?

There has been a dramatic shift during the twentieth century in the law regarding the relationship between parents and their children, both internationally and in South Africa. In the past there was an emphasis on the rights and powers of parents (termed parental authority), but this emphasis moved towards a more child-centred approach with the best interest of children at the forefront. Today parental authority is concerned more with parental responsibilities and duties, which should be exercised in the best interest of children, rather than with parental rights and powers. The Constitution of the Republic of South Africa specifically protects the rights of children in that it recognises that children, as a vulnerable group within society, have specific and unique interests different from those of adults, and that these interests deserve special and separate protection.

The question regarding religion within the family relationship has been dealt with in 2001 in the case of Allsop v McCann. In this matter the custodian parent applied for an interdict to restrict the minor children in certain religious practices whilst in the non-custodian parent’s care. The custodian parent was from the Anglican denomination and the non-custodian parent from the Roman Catholic denomination. The custodian parent sought an interdict from preventing the children from attending the Catholic Church. The court held that the custodian parent (the parent who has primary care of the children) is entitled and required to direct the daily lives of the children and that educational, religious and secular activities fall within that duty. However the court ruled that neither parent may dictate what religion, if any, their children eventually adopt, but each parent is entitled to provide religious instruction. The application was accordingly dismissed.

In 2003 in the case of Kotze v Kotze the court refused to incorporate into a settlement agreement a provision which stated that both parties undertook to educate the child in the Apostolic Faith Church. The court, being the upper guardian in matters involving the best interests of a child, has extremely wide powers in establishing what such interests are. It was held that the clause was not in the best interest of the child as it did not afford him the freedom of religion that he was entitled to.

Recognising that children are the holders of fundamental rights may conflict with the rights of other holders of human rights especially within the family context, where different fundamental rights can come into conflict with one another, for instance between the parents’ right to religious freedom and their children’s rights to life and human dignity. This requires a weighing or balancing act to determine which right must take preference. This balancing of interests often creates tension, which can have serious negative implications for those involved within the family context.

In a ground-breaking case not so long ago the Western Cape High Court was requested for the first time to use its discretion to interfere in the parent-child relationship, due to the “traditional socio-cultural beliefs” of the parents. In what has been described as “every parent’s nightmare; the fancy of many teenagers”, a 16 year-old schoolgirl from the Western Cape asked to be “freed” from her parents to live semi-independently from them because of her unhappiness with the conservative manner in which her parents treated her. According to reports her parents came from a very conservative sector of South African society and kept her under constant supervision, barred her from talking to boys, communicating with friends on her mobile phone, reading what she likes (her parents found Harry Potter inappropriate) or even going out with friends after school.

The court granted her request to live semi-independently with a school friend and her family (referred to by the judge the host family) until she reaches the age of 18 (her majority). It was further ordered that the parents could have contact with her for two to three hours a week at a neutral venue and could phone her between 8:00 and 8:30 pm on a Tuesday and Friday. Holidays were shared between the host family and her parents. Despite the fact that the child no longer resided with her parents, the parents retained their responsibility to contribute to the maintenance of their child.

When parents are acting within the law, even though they are seen to be conservative, and their actions don’t reflect any form of abuse or neglect, their responsibilities and rights must take preference above the rights of their children, for without this kind of recognition the value of the traditional family unit as the natural and fundamental unit of our society will not be recognised. A child’s mere dislike or disapproval and personal preferences in their upbringing cannot alone tip the scales of justice in a child’s favour.

The relationship between parents and their children is very personal in nature. This domain forms part of the world of morality and not even the state should interfere unless the parents’ conduct towards the child is harmful or amounts to unlawfulness. When the conduct is not in the best interests of the child or contravenes constitutional rights, such conduct is inconsistent with the principles of the Constitution and thus invalid.

Source: http://voices.news24.com/bertus-preller/2012/07/divorce-can-parents-dictate-what-religion-a-child-should-adopt/

Bertus Preller

Family Law Attorney

Abrahams and Gross Inc. Cape Town

021 422 1323

Can a wife claim maintenance from her husband when she lives with another man?

The Supreme court of appeal recently gave an interesting judgement in the matter of Harlech-Jones v Harlech-Jones [2012] ZASCA 19. The question raised in this matter was inter alia whether it would be against public policy for a man to pay maintenance to his wife while she is living with another man.

The appellant appealed against an order obliging him to pay R2 000 per month to his wife of almost 29 years, upon dissolution of their marriage. His principal objection against the order lied in the fact that for some eight years prior to the divorce his wife had been cohabiting with another man. This, the husband contended, disentitled her from receiving maintenance from him.

The parties were married out of community of property in December 1972. Two sons, both majors and self-supporting, were born from their marriage. After 28 years of marriage, the husband left the matrimonial home in Port Elizabeth as he had formed a relationship with another woman and had decided on a new life. He purchased another residence in the city, but his new relationship also failed and within six months he had formed an intimate relationship with another man with whom he had cohabitated.

The wife was friendly with a married couple, whom she had come to know some years previously when their sons attended the same school. Shortly after the husband had moved out of the common home, the friend’s wife passed away. When her husband was already cohabiting with his male partner a relationship began to blossom between the wife and her new partner. With the passage of time the relationship became more intimate and the wife moved into the home and bedroom of her new partner, and they thereafter cohabited as man and wife. During the first two years that they had lived together the wife’s youngest son, lived with them as well.

Although the evidence established that when the wife initially moved in with her partner it was regarded as a temporary arrangement, the relationship between them matured over the almost eight years that they had lived together before the trial. By then they both regarded their relationship as permanent and neither had any intention of terminating it. The wife’s partner supported her unconditionally and was prepared to continue to do so indefinitely. By the same token, not only was the wife being maintained by him but she, reciprocally, assisted him in his business, for which he paid her a small gratuity.

Relying upon judgments such as Dodo v Dodo 1990 (2) SA 77 (W) at 89G; Carstens v Carstens 1985 (2) SA 351 (SE) at 353F; SP v HP 2009 (5) SA 223 (O) para10 it was argued, both in the high court and in the appellant’s heads of argument, that it would be against public policy for a woman to be supported by two men at the same time. The court was of the opinion that while there are no doubt members of society who would endorse that view, it rather speaks of values from times past and the court was of the opinion that  in the modern, more liberal (‘enlightened’) age in which we live, public policy demands that a person who cohabits with another should for that reason alone be barred from claiming maintenance from his or her spouse. Each case must be determined by its own facts,and counsel for the husband did not persuade the court to accept that the mere fact that the wife was living with her new partner operated as an automatic bar to her recovering maintenance from the husband.

Under the common law, the reciprocal duty of support existing between spouses, of which the provision of maintenance is an integral part, terminates upon divorce. This might well cause great hardship and inequity particularly where one spouse, during the subsistence of the marriage, has been unable to build up an estate and has reached an age where he or she is unable to realistically earn an adequate income ─ the classical case being that of a woman who has spent what would otherwise have been her active economic years caring for children and running the joint household. This potentially iniquitous situation is alleviated by s 7 of the Divorce Act 70 of 1979. Section 7(1) which provides for a court on granting a decree of divorce to make a written agreement between the parties in regard to the payment of maintenance by one party to another an order of court ─ while in other cases s 7(2) provides:

‘In the absence of an order made in terms of subsection (1) with regard to the payment of maintenance by the one party to the other, the court may, having regard to the existing or prospective means of each of the parties, their respective earning capacities, financial needs and obligations, the age of each of the parties, the duration of the marriage, the standard of living of the parties prior to the divorce, their conduct in so far as it may be relevant to the break-down of the marriage, an order in terms of subsection (3) and any other factor which in the opinion of the court should be taken into account, make an order which the court finds just in respect of the payment of maintenance by the one party to the other for any period until the death or remarriage of the party in whose favour the order is given, whichever event may first occur.’

It is trite that the person claiming maintenance must establish a need to be supported. If no such need is established, it would not be ‘just’ as required by this section for a maintenance order to be issued. It is on this issue that the wife’s claim failed. Both she and the husband had moved on with their respective lives and had formed intimate and lasting relationships with others.

The wife was therefore being fully maintained by her new partner in life, and had no need for that maintenance to be supplemented in any way. Accordingly, the respondent’s claimed failed at the first hurdle as she failed to show that she actually required maintenance from the husband.

Father, please give me my daily bread – child maintenance

According to the Institute of Race Relations 9 million children in South Africa grow up with absent fathers. One may assume that the majority of these fathers don’t pay any child maintenance and then an alarming number of fathers in South Africa default on their child maintenance payments. It is a novel idea when people and celebrities alike engage in projects such as “Save the Rhino” but don’t we miss the point? Has the time not come to throw our weight behind projects to save the many thousands of children in South Africa who must suffer the consequences of an absent father who don’t pay child maintenance?  With the increase in divorce and the number of children born outside marriage, more and more women find themselves bearing the sole responsibility of caring for their children.

It is generally accepted that children with fathers who default on their maintenance payments grow up with a strong sense of resentment and rejection. When a parent fails to pay maintenance for their child, the child ends up feeling depressed, disadvantaged and unloved. The non-payment of maintenance, results in degeneration of the family unit and the children are sometimes driven to a life of crime.

In 2005 the government launched Operation Isondlo a maintenance defaulter programme with its aims to decrease the backlog of maintenance cases. This was indeed a noble initiative for which government must be applauded but in reality the effectiveness of the programme is doubtful having regard to the many women complaining about the ineffectiveness and inability to bring defaulters to book.

In 2011 the Western Cape Department of Justice and Constitutional Development released a list of 7 084 fathers across the Western Cape who were in arrears with their maintenance payments. The fathers collectively owed close to R16 million to their children in maintenance, with one father owing more than R200 000. Some women don’t even bother to approach the maintenance court because they feel that it is a pointless exercise. But the reality is that it is not only fathers who default in paying their child maintenance and the second biggest maintenance defaulter captured last year in Cape Town was a woman who owed her child R112 000. It was also found that there are mothers who did not collect their child maintenance and in 2011 about R 1 million in maintenance had been allocated for mothers who simply failed to collect it.

Much sterner measures need to be put into place to compel fathers to pay maintenance. In reality many of these father’s also shift the responsibility to the mother’s new husband or partner which is an extra burden in the harsh economic climate that we live in.

Some of the problems in our maintenance system include inadequately trained court staff and insufficient facilities and resources. The problems in our maintenance system cannot be resolved through the process of legislation alone, but by also creating a culture of maintenance payment amongst all those that are legally liable to maintain those in need of maintenance. If there is no respect for the law, the maintenance system will fail. A well functioning and effective maintenance system is critical not only for the children in South Africa.

We need to find measures to expedite maintenance application procedures, application processing, payments and punitive measures for defaulting parents. The possibility of Saturday courts for maintenance and other matters related to family law need to be investigated and the possibility to introducing mediation services in maintenance matters. In order to address the problem the media need to be engaged in creating awareness of the growing problems regarding child maintenance.

Legally, a duty of support exists between people who have a familial bond. A person who owes another person a duty of support may have to pay maintenance for that person, if the person has the means to provide maintenance and if the receiving person is in need of maintenance. The law requires a child to be supported or maintained by both his/her parents, whether married, living together, separated or divorced or by both his/her grandparents, in certain cases. South African law imposes a duty on both maternal and paternal grandparents to contribute towards maintenance if the child’s parents are unable to do so in part or in full. There is a duty of support between siblings, both full and half brothers and sisters where the parents and grandparents are unable to provide support, but the support does not extend to include tertiary education of a major sibling. Effectively this means that a mother in need of maintenance of her child may summons the paternal grandparents to the maintenance court if the father is unable to pay.

Source: http://voices.news24.com/bertus-preller/2012/05/child-maintenance/

Contact details

bertus@divorceattorney.co.za

O: 021 422 1323

Divorce – What every woman should know

Divorce - What women should know

Making the decision to divorce is a tough one, and the chances are it’s followed by an even more traumatic lead-up to the divorce, it is like a roller-coaster on an emotional track.

Women are mostly in the dark when it comes to the financial affairs of her husband and women are encouraged to gather as much financial information about their husband’s financial affairs before the divorce proceedings commence, to establish the magnitude of the estate.

It is extremely important for any woman to know what’s going on in her husband’s financial affairs. It’s difficult when you don’t have access to his share portfolio or balance sheet, but one must reasonably expect to get an idea of financial affairs.

An attorney cannot negotiate on behalf of a spouse without knowing in advance what the estate is worth.

In many divorce settlements, the wife ends up seeing what the estate is worth only late in the divorce process.

16 Important points to consider in divorce:

1. Make copies of your husband’s bank statements, credit card statements and get hold of the short-term insurance policies as well as copies of pension funds and retirement funds. This will provide input on the extent of assets available and the value of the estate.
2. If you are married in community of property or out of community of property with the accrual you have to ask your attorney to build a clause into the settlement agreement to say if any assets that come to light after the divorce settlement, you will be entitled to 50% of those assets and the husband will have to pay the legal fees involved in the recovery process of those assets when they do come to light.
3. A more accurate sense of assets will come to light if the divorce is contested as parties are required to disclose any information to do with financial affairs. In terms of the court rules the husband can be required to make full disclosure of his assets and liabilities and you will be able to obtain all financial information spanning over a period of 3 years or more, including bank statements, credit card statements, investments etc.
4. Women are advised not to leave the matrimonial home if there are minor children involved, because it provides a sense of stability for the kids. It’s better for the husband to leave if the husband is not the primary caregiver. If a husband makes himself guilty of abuse, the wife can get a restraining order to evict him from the property under certain circumstances or restrain him to enter certain areas of the house.
5. Where the parties are married in community of property the wife is entitled to half the pension or retirement annuity fund. In a marriage out of community with the accrual, the pension fund will be regarded as part of the husband’s assets for purposes of calculating the accrual that the wife will be entitled to.
6. In terms of the Divorce Act, the wife (if married in community of property) can choose to ask for the pension fund money to be paid in cash, or transferred to a pension fund of her choice.  Normally pension funds pay out the wife’s portion in 3 to 6 months after the divorce.
7. Make a list of your monthly income and expenses, as if you’re going to live on your own with your children. It’s important because you get situations where the wife is not working or earns much less than the husband and doesn’t have the money to fight a divorce battle.  She can bring an application pending a divorce, for interim maintenance, which means contributing maintenance before the divorce is finalised. She can also apply for contribution to her legal expenses. If interim-maintenance is granted and the husband does not comply with the court order, he is in contempt of court.
8. In some instances the wife can apply for emergency monetary relief in the magistrate’s court pending the institution of an application for interim maintenance by utilizing the provisions of the domestic violence act because the husband has blocked the use of credit.
9. Interim maintenance falls away once the divorce order is granted. There have been situations where the wife has been granted very favourable interim maintenance terms, so sometimes a divorce is stalled  in order to continue getting a hearty amount of money each month.
10. The granting of interim maintenance in a Rule 43 application cannot be appealed. The only way the husband can minimize this is if he goes back to court and explains and proves that his financial situation has changed so much that he’s entitled to a reduction. But this does not happen easily.
11. Many battles in a divorce surround the children. Normally the wife is the parent of primary residence and the husband the parent of alternate residence. Increasingly, there’s a shared parenting approach with children staying with the mother for a week and then the father for a week and each party takes care of the children during that period.  I see a lot of children used as a pawn. It is important to get a parenting plan in place as soon as possible, and register that with the family advocate and stipulate that if issues arise with parenting and the children the parties need to go to a psychologist or a social worker to facilitate contact.
12. In matters where money is not fought over, it may make financial sense to go to one lawyer who can work for both parties. But a divorce that is acrimonious requires that each party needs a lawyer to assist.
13. A few mediation organizations exist where people can see a mediator to resolve disputes, to settle with both parties. The mediator doesn’t have the authority to issue and award for damages but he can facilitate the settlement process. If an abusive husband is involved, mediation is unlikely to work.  But it can work if the divorce is not acrimonious. Normally the spouses have to pay the costs of a mediator 50/50. Sometimes this route can be more expensive than an uncontested divorce, depending on the amount of sessions that the parties have to attend.
14. Where a couple owns a property together, they need to decide whether both parties want to keep the interest in the property, sell the property and split the proceeds, or whether one wants to buy out the other. The decision has financial implications because of transfer duties and tax.
15. It’s important to consider instances where the husband has no real assets. An insurance policy should be taken out in the event that the husband passes away and there is no money to help cover maintenance, in case of his death.
16. The decision to divorce is always a business decision. You need to look at what happens until the children turn 21 or becomes self supporting, that there’s maintenance, medical cover for them, a school education and whether it’s government or private school and tertiary education.

About the Author:

Bertus Preller is a Divorce Attorney at Abrahams and Gross in Cape Town, a law firm that has been in existence since 1935 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 in and handles divorce and family law matters across South Africa. Bertus is also the Family Law expert on Health24.com, he blogs regularly on news24.com and nuus24.com and has been quoted on Family Law issues in various newspapers such as the Sunday Times and Business Times and magazines such as Noseweek, Keur, Living and Loving, Longevity, You and Huisgenoot, and also appears frequently on the SABC television show 3 Talk. His clients include artists, celebrities, sports people and high net worth 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.

Contact details

bertus@divorceattorney.co.za

O: 021 422 1323

Watershed Case About Parental Rights and Responsibilities of Children from a Same-Sex Relationship

Some time ago I wrote an article about an application argued in the Cape Town High Court in the matter of CM v NG. Judgement in this matter was reserved and handed down by Gangen A J on 26 April 2012. Family Law experts, Adv Julia Anderssen and Adv Retha Maas two Cape Town Advocates argued this matter. The case can be regarded as a watershed case for same sex couples with children and will be a reported judgement.

This was an application in terms of Sections 23 and 24 of the Children’s Act 39 of 2005 (“the Act”) and concerned parties that was involved in a same sex relationship for several years. The parties did not register a marriage. During the relationship, a child was conceived by artificial insemination.

The relationship between the parties started in May 2005 and ended in November 2010. The applicant (not the biological mother) lodged an application to court and requested an order granting her full parental rights and responsibilities in respect of the minor child.

When the parties ended their relationship the Applicant still had contact with the minor child until approximately April 2011. During April 2011 the Respondent (biological mother) advised the Applicant that she wanted to stop her contact with the minor child. Her reason was that it was not in the minor child’s best interests. The child was in the biological mother’s care at the time. The applicant then lodged an application to court in April 2011 compelling the biological mother to co-operate with the Family Advocate and an expert identified by the applicant.

The South African Children’s Act is clear on the point that someone does not have automatic parental rights in terms of Sections 19 and 22 of the Act if there is no biological link to a child and such a person. Furthermore an Applicant does not acquire automatic rights and responsibilities in terms of Section 40 of the Act which deals with children conceived by artificial insemination. Without a parental agreement an Applicant could therefore only apply to the court in terms of Sections 23(2) and 24(2) of the Act. Common to both these Sections is the “best interests” of the child.

The court found that the Applicant did indeed have parental responsibilities and rights as set out in Section 18 as it would be in the best interests of the child to have a relationship with both parents. The court concluded that both parties be co-holders of parental rights and responsibilities in respect of the minor child as contemplated in sections 18(2) (3) (4) and (5) of the 2005 Children’s Act and that both parties shall be co-guardians of the child.

About the Author:

Bertus Preller is a Divorce Attorney at Abrahams and Gross in Cape Town, a law firm that has been in existence since 1935 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 in and handles divorce and family law matters across South Africa. Bertus is also the Family Law expert on Health24.com, he blogs regularly on news24.com and nuus24.com and has been quoted on Family Law issues in various newspapers such as the Sunday Times and Business Times and magazines such as Noseweek, Keur, Living and Loving, Longevity, You and Huisgenoot, and also appears frequently on the SABC television show 3 Talk. His clients include artists, celebrities, sports people and high net worth 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.

Contact details

bertus@divorceattorney.co.za

O: 021 422 1323