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

A Guide on Divorce in South Africa

 

Click here to download Divorce Guide the South African Divorce Guide

Grounds for Divorce in South Africa

Dissolution of a civil marriage by divorce in South Africa

Three grounds for divorce were introduced by the Divorce Act:

1.  irretrievable breakdown of the marriage (section 4);
2. mental illness of a party to the marriage (section 5);
3. continuous unconsciousness of a party to the marriage (section 3).

Irretrievable breakdown of the marriage

Section 4(1) – court may only grant a decree of divorce on the ground of the irretrievable breakdown of a marriage if it is satisfied that the marriage relationship between the parties to the marriage has reached such a state of disintegration that there is no reasonable prospect of the restoration of a normal marriage relationship between them.  There are thus 2 requirements:

(a)   marriage relationship must no longer be normal;

(b)   there must be no prospect of the restoration of a normal marriage relationship between the spouses.

The legal definition of “normal marital relationship” should be sought in the concept of consortium omnis vitae.  When either spouse or both of them behave in such a way that the consortium omnis vitae is terminated or seriously disrupted, it can be said that a normal marriage relationship no longer exists between the spouses.

Schwartz v Schwartz:  in determining whether a marriage has reached such a state of disintegration that there is no reasonable prospect of the restoration of a normal marriage relationship between the parties it is important to have regard to what has happened in the past, that is, history of the relationship up to the date of trial, and also to the present attitude of the parties to the marriage relationship as revealed by the evidence at the trial.

Swart v Swart:  a marriage has broken down if one spouse no longer wishes to continue with the marriage.  The formation of an intention to sue for divorce is the subjective element in the method of determining marriage breakdown.  However, in order to assess the probability of a successful reconciliation being effected, the court also has to consider the reasons that prompted the plaintiff to sue for divorce, and the parties’ conduct.  Only when the court has determined that there is no reasonable prospect of reconciliation, will it find that the marriage has broken down irretrievably and grant a decree of divorce.  The court looks at the objective scantiness and surmountability of the reasons why a divorce was applied for to ascertain whether the marriage in question can still be saved.

Coetzee v Coetzee:  in order to succeed in a divorce action based on irretrievable breakdown, the plaintiff must prove that there has been a change in the pattern of the marriage from which breakdown can be deduced.  The inherent problem in this conception is that a divorce cannot be obtained in a marriage which was unhappy from the start and remained unhappy throughout.

Guidelines for irretrievable breakdown of marriage (section 4(2))

The guidelines are merely examples of instances where the probability is high that a normal marriage relationship no longer exists and that there is no reasonable prospect for the restoration of a normal marriage relationship.  However, these guidelines are neither exhaustive nor conclusive.

(1)   parties have not lived together as husband and wife for a continuous period of at least one year immediately prior to the date of the institution of the divorce action

Since the legislator requires an unbroken period of at least one year, it is clear that if the period was interrupted by periods of resumed cohabitation, the plaintiff would have to present more evidence to the court than the mere fact that they have lived apart for a year.

The consortium between the spouses must have been terminated. Even if the spouses have continued living together under the same roof there is no reason why the plaintiff cannot show that the consortium between them has been terminated.

If the plaintiff wishes to rely only on the spouses having lived apart for a year without adducing any further evidence in support of the divorce action, he or she would have to produce proof that the full period of a year has elapsed.  If the spouses still share the same dwelling, the plaintiff would have to prove the particular point in time at which the consortium came to an end.

(2)   The defendant has committed adultery and the plaintiff finds it irreconcilable with a continued marriage relationship

The test to determine whether the plaintiff considers the defendant’s adultery irreconcilable with the continuation of the marriage is clearly subjective.  If the plaintiff alleges that he or she cannot continue with the marriage, there is no way in which this allegation can be refuted.  There is support for the contention that it is not necessary to convince the court on a balance of probabilities that adultery was committed.  The plaintiff should however place some evidence of the adultery before the court.  A mere allegation that the defendant committed adultery would not be sufficient to ensure the success of the divorce action.

(3)   A court has declared the defendant a habitual criminal and the defendant is undergoing imprisonment as a result of that sentence

If the defendant has not been declared an habitual criminal, the plaintiff would have to adduce evidence other than the mere fact of the defendant’s imprisonment to prove that the marriage has broken down irretrievably.  In any event, in terms of section 4(2), a plaintiff may sue for divorce after a year’s separation, regardless of whether or not the separation resulted from imprisonment.

Incurable mental illness or continuous unconsciousness

The criteria

Section 5(1) – mental illness

1. The defendant has been admitted to an institution as a patient in terms of a reception order under the Mental health Act, or is being detained as a state patient or mentally ill convicted prisoner at an institution;
2. The defendant has not been unconditionally discharged from the institution or place of detention for a continuous period of at least two years immediately prior to the institution of the divorce action;
3. There is no reasonable prospect that the defendant will be cured of his or her mental illness.  This fact must be proved by the evidence of at least two psychiatrists, one of whom must be appointed by the court.

Section 5(2) – continuous unconsciousness

1.  The defendant must be in a state of continuous unconsciousness caused by a physical disorder;
2. The defendant’s unconscious state must have lasted for a period of at least six months immediately prior to the institution of the divorce action;
3. There must be no reasonable prospect that the defendant will regain consciousness.  This fact must be proved by the evidence of at least two doctors, one of whom must be a neurologist or neurosurgeon appointed by the court.

The requirements of section 5 need not be complied with in order to obtain a divorce order against a mentally ill or unconscious spouse.  A decree of divorce can be granted under section 4 if the plaintiff can prove that the marriage has broken down irretrievably.  Only in the most exceptional circumstances will a court make a forfeiture order against a defendant whose mental illness or unconsciousness is the reason for a divorce which is granted in terms of section 4.

Special rules which apply in terms of the Divorce Act:

(a)   Section 5(3)

The court is empowered to appoint a legal practitioner to represent the defendant at the court proceedings, and to order the plaintiff to bear the costs of the defendant’s legal representation.

(b)   Section 5(4)

The court may make any order it deems ft in respect of requiring the plaintiff to furnish security for any patrimonial benefits to which the defendant may be entitled as a result of the divorce.

(c)   Section 9(2)

Forfeiture of patrimonial benefits may not be ordered against a defendant if the marriage is dissolved on the ground of the defendant’s incurable mental illness or continuous unconsciousness.

(d)   Maintenance

The plaintiff may indeed claim maintenance from the mentally ill or unconscious defendant if he or she qualifies for maintenance in terms of section 7(2) of the Act.

Bertus Preller is a Divorce and Family Law Attorney in Cape Town and has more than 20 years experience in law and 13 years as a practising 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. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters and international divorce law.

Living together, make sure you have a cohabitation agreement, otherwise you leave with nothing!

Personal finance: If you don’t say ‘I do”, get it in writing – Interview with Bertus Preller – Family Law Attorney

Gone are the days of “single” or “married”. You only have to look at Facebook’s relationship declaration options to know that today’s partnerships come in all shapes and sizes.

But what are the financial risks of being involved in a long-term relationship that is not formally recognised as a marriage?

We quizzed some experts to find out the best ways to protect yourself if you don’t fancy walking down the aisle with your life partner.

Family law attorney Bertus Preller said patterns of marriage, divorce and cohabiting without marriage had been changing for years.

“The incidences of domestic partnerships are growing throughout the world.”

Preller said that, according to the 1996 census, 1.3million people described themselves as living with a partner. When the 2001 census came around, this figure had almost doubled to nearly 2.4million.

Many people believe that, if they live together for some time, the relationship will be recognised by the state, and there will be legal rights, duties and protection.

But Preller said there was no such thing as common-law marriage – because the concept has been abolished worldwide.

“The time a couple spend living together does not translate into a default marriage. The consequence is that, at the dissolution of the relationship, the assets or any obligations are determined or distributed on a basis of the arrangement that parties used during their relationship,” he said.

Domestic partnerships were never prohibited in South African law – but neither did they enjoy any noteworthy recognition or protection, Preller said.

“In SA, marriage laws traditionally provided parties with a variety of legal protections. These laws governed what happened to the property of the parties during the marriage and on dissolution, either by divorce or death, and also meant that certain benefits were automatically acquired, such as membership of medical aid funds, pension funds, etc.

“Married spouses also had a reciprocal duty of support under the common law.”

Preller said South African courts had occasionally helped couples by deciding that an express or implied universal partnership existed, but this was usually difficult to prove.

“The only way to be protected in our law is to enter into a cohabitation agreement. Such an agreement clarifies the expectations of the partners and also serves as an early warning of future problems.

“A cohabitation agreement will determine what would happen to the property and assets of the couple if they should decide to separate. The agreement is, however, not enforceable in so far as third parties are concerned.”

However, in terms of the 2005 Children’s Act, the parents of children born out of wedlock had a duty to maintain their offspring, “irrespective of the living arrangements”, Preller said.

“Basically a cohabitation agreement regulates rights and duties between the partners.

“It could almost be compared to an antenuptial contract entered into prior to the conclusion of a civil marriage.

“The agreement can provide for the division and distribution of assets upon dissolution: for instance, the formal agreement may set out the rights and obligations towards each other; the respective financial contributions to the joint home; clarify arrangements regarding ownership of property that they may purchase jointly and the division of their jointly owned assets should they separate,” said Preller.

“An agreement such as this will be legally binding as long as it contains no provisions that are immoral or illegal.

“If there is no agreement on the dissolution of a domestic partnership agreement, a party would only be entitled to retain those assets which he or she has purchased and owns and further would be entitled to share in the assets proportionately in terms of the contribution which they have made to the partnership.”

Preller said, however, that problems arose if a partner tried to enforce a domestic partnership agreement if the partner being sued was married to someone else.

“It has been argued that in such cases domestic partnership agreements violate public policy to the extent that they impair the community of property rights (where applicable) of the lawful married spouse.”

He said the Domestic Partnerships Bill was still being formulated, and it wasn’t clear how it would be implemented.

“In the current constitutional dispensation it is unlikely that a partner will be left in despair, taking into account the Domestic Partnerships Bill,” Preller said.

Fiona Renton, head of the legal services department at financial and risk services provider Alexander Forbes, said: “My advice would be for cohabiting couples to enter into a contract – a written partnership agreement that states exactly what will happen in the event of death or a split, protecting their rights and outlining their obligations.

“For example, when it comes to the ownership of property, the contract should state what happens to ownership of the property (such as one spouse buying out the other) or payments in the event of death or a split.

“Putting any relationship into writing is always helpful, even if it’s just adding someone on your medical aid as a dependant.

“Having said that, in the event of death, having a will is always the best idea.

“Out of the bounds of a legally recognised marriage there is no intestate succession – meaning there is no automatic participation in the estate to make sure the other partner is looked after.”

Joint accounts never a good idea

Money is one of the most important matters a couple needs to resolve when contemplating living together or marriage, according to Sugendhree Reddy, director of banking products at Standard Bank.

“One issue that often comes up in these kinds of discussions is whether to have a joint bank account. In many ways, this can seem like an appealing option.

“However, most financial experts don’t recommend having a joint account at all. We never encourage a joint account because whether you are married or living together, you both need to grow your assets and get a good credit rating. Having a joint account invariably makes it difficult for one of the partners to do so. Besides, a joint bank account puts one partner at great risk in the event of a break-up, death or financial difficulties.”

Reddy said there was no joint bank account with two equal account holders. “A ‘joint’ account is actually an account in one person’s name, to which the other person is a signatory. This causes a number of complications for that signatory. The most important of these is that without a bank account in your name, you will have no credit record at the bank – which makes it difficult to get credit at shops, open a cellphone account or apply for a loan.”

In the event of a break-up, Reddy said, the joint account could be emptied by one partner or the person in whose name the bank account is held could remove the second signatory.

If one partner dies, “banks tend to freeze the account until the estate is resolved – leaving the signatory partner with no access to the funds for an extended time”, said Reddy.

Reddy advises couples to split responsibility for monthly expenses, or open an account for the household into which both pay a portion of their salaries for general expenses.

Who gets your pension?

There are typically two types of benefits payable to “spouses”, says Fiona Renton, head of legal services at Alexander Forbes.

“Firstly pensions, which are payable to those who qualify as spouses – and that would depend on how each fund defines an ‘eligible spouse’: people must check the fund rules to see if their partner/spouse would qualify.

“Fund rules may stipulate that you must be married to the same person at date of retirement and date of death for them to qualify for a spouse’s pension. This prevents so-called ‘death-bed marriages’ where a pensioner marries someone much younger than them after they have already retired – and on their death the fund realises that there is a much younger spouse to whom they have a liability to pay a pension for many years.”

The second benefit type is the typical fund benefit (fund credit or share of fund) plus an insured multiple of a salary (three times annual salary, for example).

“This is allocated by the trustees, to your dependants and nominees.

“A dependant includes a spouse; the Pension Funds Act defines a spouse as ‘a person who is the permanent life partner or spouse or civil union partner of a member in accordance with the Marriage Act, Recognition of Customary Marriages Act, Civil Union Act or the tenets of a religion. A very wide definition.”

To ensure that no partner is overlooked, the pension fund member should always nominate a beneficiary in the relevant form to help the trustees – although trustees are not absolutely bound to follow that nomination, said Renton.

“Unfortunately, when it comes to death and money such decisions by fund trustees are often contested.”

January is Divorce Season in South Africa

Divorce Season

Divorce Attorneys are being flooded with inquiries from unhappy couples following a festive season loaded with over-spending their budgets and obviously too much time spent together.

The number of divorces instituted during December and January is triple than that of the other months, according to top Cape Town Divorce Attorney Bertus Preller at Abrahams and Gross Inc. who handles matters in Cape Town and Johannesburg. “The number of enquiries from spouses about filing for divorce increases to about six times the normal amount during this season”, he said.

It is a well known fact that Divorces in January dramatically escalate, because of spouses being forced to spend time more time together on holiday during which time they come to the conclusion that they are completely incompatible. People often overspend on money during the festive season and, “when there’s a financial breakdown, often the whole marriage breaks down comes to a halt.

Social Networks like Facebook, Myspace and Mxit also light the fire for possible affairs outside the marriage; it’s so much easier these days to make contact with the opposite sex. “I see a lot of cases where men and women provide evidence of the other parties’ extra-marital affair on Facebook and Mxit”, says Preller.

An unopposed divorce settlement could take up to three months to resolve and would cost anywhere between R6000 and R12000. In bigger divorces cases, where there are large estates and the parties quarrel for every last cent, it can cost as much as R1-million.

“Altough January and February are the season for divorce in South Africa, I do believe that a lot of divorces are unnnecessary and that many couples can in fact reconcile, the first issue I always clarify with my client’s are whether a possibility exist to make things work”, says Preller.

Divorce and Family Law Attorney Bertus Preller already has more than 1500 Twitter followers follow at @edivorce.

http://www.divorceattorney.co.za

Source: Newsbreak

Top 10 Divorce Issues Of The Decade: Divorce Attorney Bertus Preller’s Perspective

This past decade has challenged many people in South Africa and around the world with through various emotional events. The outspoken Julius Malema, President Zuma’s acquittal, Shabir Shaik’s release from prison and the murders of Lolly Jackson and Eugene Terblanche, the 9-11, wars in Iraq and Afghanistan, the Tsunami, the deepest recession since the Great Depression, the sacking of President Mbeki and the first African-American President. Many changes happened in the area of divorce and Family Law as well. The following, in no particular order, are my  top divorce and family law related issues since 2000:

The advent of the Internet and social networking

The immense impact of the virtual world and the internet on divorce. Social networking. The rise of Facebook, YouTube, and other sites, where people carelessly share their innermost secrets, with little concern for the consequences of detection by the wrong party. Sms, E-mails, bullying and “sexting” have had a noticeable impact on divorce, and the way family law attorneys handle their cases, and have also impacted our society as a whole.

The recognition of Same-Sex Marriages

Same-sex marriages have come to the forefront during the past several years, became legal in South Africa.

Divorcing without an Attorney

The tremendous rise in people filing for divorce on their own online through divorce services such as eDivorce, people can no longer afford to hire professional legal services.

Parental alienation

Parental alienation, which has been talked about, written about, and discussed, at length, exists in many of my cases. One parent systematically alienates the child/children against the other parent, with devastating and long-term results, not only to the child or children, but to both the parent being alienated, and most assuredly, the alienating parent.

Uprooting families

The poor economy and retrenchments have forced many people to seek employment in other provinces and countries, uprooting entire families and forcing children into unfamiliar surroundings and new schools.

Fathers becoming primary caregivers and parents of permanent residence

The significant increase in fathers becoming primary caregiver and the parent of permanent residence. In addition, there is a considerable increase in the number of couples opting for shared or joint parenting on an equal or close-to-equal basis.

Domestic Violence

The rise in domestic violence, especially with the stress caused by the economic nightmare of the past three years.

Debt Review

During the past two years, people have been inflicted with a brutal reality self-imposed credit card debt, resulting in a lack of financial resources to weather the storm. Couples stayed married, however, simply because of the financial decay each would undeniably face if a divorce action was pursued. Many of my recent divorce cases went hand-in-hand with debt problems.

Unamarried Fathers Rights

The parental rights unmarried fathers gained  automatically to their children was an absolue necessity in our law.

Bertus Preller

Family Law Attorney

Abrahams and Gross Inc.

http://www.divorceattorney.co.za

Email: info@divorceattorney.co.za

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

International Divorce in South Africa, Spouse Living Overseas

A spouse living in South Africa is able to institute divorce proceedings through the divorce courts in South Africa if a spouse lives overseas. The same applies when you are a South African citizen that lives overseas and one spouse resides in South Africa.

In terms of the South African Divorce Act, a South African court will have jurisdiction where the parties or either of the parties are domiciled in the area of the court’s jurisdiction on the date on which the action is instituted or ordinarily resident in the area of jurisdiction of the court on the date on which the action is instituted or has been ordinarily resident in the Republic for a period of not less than one year immediately prior to that date.

The above also implies that foreigners (people who are not South African citizens) and who have been living in South Africa for more than a year, may divorce through the South African courts.

After service has taken place, your spouse will have a month to defend. If he ignores the summons or, if he  defends it, after reaching settlement of the financial terms, the attorney can set the matter down for a trial date that has been pre-arranged.

The person instituting the divorce proceedings are called the Plaintiff. Where the parties reached a settlement, only the Plaintiff appears in Court. So, if a Plaintiff lives abroad he/she will have to appear once the matter is placed on the Court roll. The same applies if the Plaintiff resides in South Africa. In an uncontested divorce it is not necessary for the Defendant to appear in court.

• Where a Defendant (the person against whom the divorce is instituted) lives in another country, a Plaintiff must approach the court by way of what is known in law as an Edictal Citation application. The reason for this is that a Summons in divorce proceedings must be served on the Defendant personally and the Court needs to be satisfied that service will be done properly by an official of the court in that foreign country. Edictal citation is therefore a procedure according to which a legal document such as a divorce summons is served by a sheriff (in some countries known as a “service processor” or a solicitor) in a different country.

• There is also another method to serve summons on the Defendant by serving the Summons on an address in South Africa which the Defendant had chosen in terms of a Power of Attorney.

Where the divorce is uncontested, the process is relatively easy. But where the divorce is of a contested nature it is more problematic.  After serving of the summons in a foreign country, a spouse will have a month to defend the action. If he or she ignores the summons or, if he or she defends it, after reaching settlement on the financial terms the matter may be setdown for a date that has been pre-arranged with the Registrar of the High Court.

If your spouse  disappeared, the court will order that the divorce summons be served by way of substituted service (i.e. other than by way of personal service) so it may order, e.g., that it be served on a relative of your spouse or by way of publication in a newspaper that your spouse used to read.

Where your spouse has disappeared, you will have to satisfy the court that you have done everything in your power to trace him or her as personal service is clearly preferable and the least prejudicial form of service.

Abrahams and Gross Attorneys specialises in international divorce matters concerning South African citizens and has acted in matters for South Africans living in countries such as Australia, United Kingdom, USA, Indonesia, The United Emirates, Germany, New Zeeland, Spain, Namibia and Germany to mention but a few.

info@divorceattorney.co.za

www.divorceattorney.co.za

Hotline: +27834439838

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