DECEMBER … THE MONTH WHEN CHILD ABDUCTION IS ON THE INCREASE.

Source: http://voices.news24.com/bertus-preller/2012/12/december-the-month-when-child-kidnapping-is-on-the-increase/

December is not always the month of fun, happiness and laughter for all parents. For some it could also be a nightmare, particularly when a child is abducted. It is typically in holiday season when abduction of children is on the increase. The increase in parental child abduction cases is a major cause for concern. Before or during school holidays it is one of the most common times for a child to be abducted by an estranged parent. Parental child abduction is not faith or country specific. The number of children abducted and taken abroad by an estranged parent has risen by 88% in just under a decade, according to new government figures released in the United Kingdom. In the UK it is estimated more than 140,000 children go missing every year, one every three minutes. The statistic was calculated by the Child Exploitation and Online Protection Centre, which includes teenage runaways, parental abductions and kidnappings. According to the statistics last year alone the UK Foreign Office’s Child Abduction Section fielded an average of 4 calls per day to its specialist advice line, more than half of which were new cases. Cases were worked on in 84 different countries, showing just how widespread the problem has become.

Each year, 800,000 children are reported missing in the United States, including some who are lost, injured, have run away from home or are abducted. Of those who are abducted, 200,000 are taken by family members, typically during a custody battle, while 58,000 involve non-family members who are familiar to the child and who typically have targeted the child.

Trafficking in children is a global problem affecting large numbers of children. According to UNICEF some estimates have as many as 1.2 million children begin trafficked every year.

According to figures that was released by the South African Police Service Missing Persons Bureau a child goes missing every six hours in South Africa, it means that 1460 children per year goes missing. According to Missing Children South Africa an organisation registered with Department of Social Development at least 13% of these children are never located.

There are 3 types of abductions:

When a stranger takes a child away for criminal purposes (such as sexual assault or ransom – the latter would be classified as a kidnapping in South Africa). When a child is stolen to be brought up by the abductor. When a parent removes a child from the other parent’s care.

Viewing the Facebook profile of Missing Children SA one grasps how common child abduction in South Africa really is. There are plentiful posts of children being abducted by one of the parents. One of the posts on Facebook read: “Christine Kayla Bodden (9) was last seen on the 8 December 2012 with her mother in January in Masilela Drive (General Louis Botha Avenue), Constantia Park, Pretoria, near Hatfield Christian Church. Christine was wearing purple floral shorts, a white t-shirt and flip flops. They may be in the Pretoria suburbs Arcadia / Sunnyside, or may be seeking accommodation at backpacker’s lodges around SA”.

Not long ago there was the case of Stefano Cavinato an Italian American father of a little two year old boy called Matteo Cavinato. Matteo’s mother a South African and was living in the United States since 1995. During 2011, she fell pregnant from a man of Botswana and wanted to move to South Africa with the child. The parties became embroiled in litigation in the United States to determine care and contact (custody) over for the child. An interim order was granted for the parties to have joint custody and residence. However, on 4 February 2012, the mother, Nontobeko Tsotetsi, boarded a plane in the United States without the father’s knowledge or consent, using a false passport for the child and arrived in SA the next day.

Her conduct was in breach of the Hague Convention on International Child Abduction, and the South African Central Authority (Family Advocate), acting on instruction of the American Central Authority, brought an application for the child to be returned to the USA so that the United States court could continue to determine issues the parental responsibility disputes. The High Court in Cape Town then was then approached and the return of the child was ordered. However, the mother sent the father a text message to say she would rather die, and disappeared with the child. The police, courts, Family Advocate and private investigators were all involved in the search eventually the mother and child was found and the child was returned to his father in the United States.

Phillip Dexter well-known politician also opened a case of abduction against his ex-wife last year for apparently leaving the country with his five-year-old daughter without his consent.

Many countries have adopted the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction. This 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. The Hague Convention aims to curb international abductions of children by providing judicial remedies to those seeking the return of a child who has been wrongfully removed or retained. It provides a simplified procedure for seeking the return of a child to his/her country of habitual residence.

As a matter of fact, the child can remain in the care of the abducting parent, if they choose to return together with the child. The elements of a cause of action for the return of an abducted child under the Hague Convention are that:

- the child was habitually resident of the country from which the child was abducted;
- petitioning parent had either sole or joint rights of custody of the child either through a custody order or de jure (by operation of law); and
- at the time of removal, petitioning parent was exercising those rights.

Bertus Preller

Family Law Attorney

Abrahams and Gross Inc.

E: bertus@divorceattorney.co.za

Twitter: @bertuspreller

Nasty or Nice. What Kind of Divorce Attorney Do You Need?

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Nasty or Nice. What Kind of Divorce Attorney Do You Need?

The answer is … A smart attorney. Smart and nice to you is even better. You want someone who specializes in family law and divorce law. Someone that you feel comfortable telling your life story to. You need someone who listens and respects you and who gives you honest and realistic answers and advice.

Divorce is a traumatic experience. You don’t deserve to be bullied and besides, given the challenges of divorcing, it just might send you over the edge.

Often you hear: “I’m not sure if I have the right attorney because s/he is, well, too nice … and my spouse can be very nasty. I need someone I know will fight hard for me.” There seems to be a misconception, especially in high conflict situations, that it takes a really nasty personality to outsmart the other side and get the job done.

Fact is, the “nasty” approach is what drives up legal bills (on both sides) and it creates so much adversity that co-parenting becomes nearly impossible in future. Furthermore, your attorney’s job is negotiating, for you, with “the other side.” If your attorney can’t even treat you well, chances are s/he doesn’t have the skills and talent a negotiator needs to succeed. Such an attorney is probably more comfortable in an adversarial courtroom setting and that means huge legal bills for you. Keep in mind, the more money you spend fighting the less you will have left to create a new life.

So instead of a surly, imposing human, it’s best to hire a smart, strategic-thinking attorney who can creatively apply the rules of law, and facts of your situation, to help you negotiate a fair settlement. Also keep in mind that attorneys, like doctors, also specialize.

For example, some attorneys like the challenge of a contentious, high conflict divorce whereas others won’t take a case likely to end up in court. There are attorneys known by their peers for expertise in custody matters, or dividing complicated estates, or international law as it affects a foreign born spouse and children. Some attorneys don’t value mediation, so if you plan to mediate be sure to select an attorney whose reputation is pro-mediation.

Family law is complicated therefore it is wise to do your homework before you hire someone. Learn about the legal process, know your finances and figure out what type of attorney expertise you need. Then interview several attorneys with a good reputation for handling your situation and trust your instincts. If you don’t connect with a particular attorney, move on and find someone that’s a better fit.

Fortunately, today many judges and family law attorneys believe going to court should be a last resort. Currently only 5% of all divorce cases end up in court. It’s seen as a very expensive, demoralizing, and risky route to take only after all other options have been exhausted. So the skills that make a good divorce attorney today have changed from the traditional bully to a smart negotiator.

That being said, there still are attorneys who prefer the old-style, adversarial theatrics of court. It brings in big bucks for their law firm sweetening the deal for them, but not you. So buyer beware.

As you move through the tasks of divorcing remind yourself you need and deserve a good return on your legal investment. Sadly, that important fact often gets trampled by the painful emotions and egos that drive divorcing. The style of attorney you (and your spouse) choose sets the tone for your divorce and often the cost. Unfortunately, if one of you chooses an inept or litigious attorney it affects both of you.

Tell yourself, and your soon-to-be ex, that this difficult transition is a small blimp on the road of life. It too shall pass and you each deserve the best start possible to build a new life for yourself and any children you may have. You have more control than you realize.

Article appeared in the Huffington Post

About:

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

Maintenance in a divorce – it is a discretion not a right

The recent case of AV v CV 2011 (6) SA 189 (KZP) is of interest in respect of whether a spouse was entitled to maintenance as of right. The court was of the opinion that awarding spousal maintenance was in the discretion of a court and not a right per se.

This was a matter where the granting of life long maintenance by the court was taken on appeal.  The trial court made an order in the following terms:

1. ‘That the bonds of marriage subsisting between the plaintiff (present respondent) and the defendant (present appellant) be and are hereby dissolved.
2. That the defendant be directed to pay maintenance to the plaintiff until her death or remarriage at the rate of R12 000 per month.
3. That the defendant be directed to retain the plaintiff as a beneficiary on his current hospital plan or any equivalent replacement thereof and to pay the premiums in respect thereof timeously and in full.
4.  That the defendant be directed to pay all amounts due in respect of the VW Polo 1.9 motor vehicle timeously and in full until the purchase price and all interest thereof has been paid in full.
5. That the defendant be directed to pay the plaintiff’s costs of suit.’

The appellant appealed against that part of the order contained in par 2, 3, 4 and 5.

 The Facts

The parties were married to each other at Durban on 18 December 1993 in terms of an antenuptial contract, whereby the accrual system was excluded. No children were born of the marriage. This was a second marriage for both parties. The appellant had two children from his previous marriage and the respondent four children. Both parties’ children lived with the couple during the marriage.

During 1995 the marriage relationship became strained largely because of financial difficulties. This led to the parties’ separation in 1997/1998. The respondent left the appellant because she was very unhappy in the marriage. The parties reconciled after a year of separation. The respondent claimed that the parties had always battled financially until she started a new job. In May 2007 the parties were finally separated.

The Law

The court a quo exercised its discretion afforded to it in terms of s 7(2) of the Divorce Act 70 of 1979 (the Divorce Act) and made its findings and delivered its award. Therefore, a court of appeal could only interfere when the court a quo in exercising its discretion misdirected itself or its discretion was not exercised judicially.

On behalf of the appellant it was argued that the court a quo misdirected itself in granting the respondent a permanent maintenance award.

At common law a spouse has no right to maintenance upon divorce. Section 7(2) of the Divorce Act confers discretion upon a court to make a maintenance order which it finds just, having regard to the following factors:

(a)   The existing or prospective means of each of the parties;

(b)   the respective earning capacities of the parties;

(c)   the financial needs and obligations of the parties;

(d)   the age of each of the parties;

(e)   the duration of the marriage;

(f)   the standard of living of the parties prior to the divorce;

(g)   the conduct of the parties insofar as it may be relevant to the breakdown of the marriage;

(h)   any redistribution order made in terms of s 7(3) of the Divorce Act; and

(i)   any other factor which in the opinion of the court should be taken into account.

The authors Hahlo & Sinclair in their book The Reform of the South African Law of Divorce (1980) stated the following at 33:

‘(T)he idea that marriage ought to provide a woman with a ”bread – ticket” for life is on its way out.’ This passage was quoted with approval in Grasso v Grasso where the court stated further at 57H – I:

‘Middle-aged women who have for years devoted themselves full-time to the management and care of the children of the marriage, are awarded rehabilitative maintenance for a period sufficient to enable to be trained or re-trained for a job or profession. Permanent maintenance is reserved for the elderly wife who has been married to her husband for a long time and is too old to earn her own living and unlikely to re-marry.’

The court found in this case that the respondent was not entitled to maintenance as of right, but must persuade the court to exercise its discretion in her favour. In doing so, she has to provide a factual basis for a maintenance award to be made before the quantum and duration thereof are determined by the court.

In Grasso supra the court, having regard to the duration of the marriage, ie 15 years, and the fact that the plaintiff had not worked for most of the marriage and was not working at the time of the divorce, awarded maintenance to the plaintiff. The court also took into account the conduct of the defendant (husband), which was regarded as ‘gross misconduct’ and which ‘must inevitably play no small part in deciding whether or not he should be ordered to pay maintenance to the plaintiff.

In Rousalis v Rousalis, the court stated at 450G – H:

‘A wife of long standing who has assisted her husband materially in building up his separate estate would in my view in justice be entitled to far more by way of maintenance, in terms of this section, than one who did no more for a few years than share his bed and keep his house.’

In Kroon v Kroon, the court found that, having regard to the duration of the marriage, ie 20 years, during which the plaintiff (wife) did not work in the open market but fulfilled the role of housewife and mother, she should be awarded maintenance. However, the court stated at 632F – G that:

‘(T)he Courts do not today distribute maintenance with any degree of  liberality to women who can and ought to work after divorce.’

In the matter of Robert v Robert (DCLD case No 933/2002, 10 March 2003), an unreported judgment, Gyanda J declined to award maintenance to a spouse who was unemployed at the time of divorce on the basis that the marriage lasted only five years, although the plaintiff was no longer a young person to be readily employed. It was a second marriage, and the period during which she enjoyed maintenance in terms of rule 43 had been sufficient to constitute rehabilitative maintenance.

In McCarthy v McCarthy (CPD case No 5570/2003, 15 December 2004), an unreported judgment, the issue in dispute was not whether the wife was entitled to maintenance or not, but the amount and period of such maintenance. The parties were married for 25 years and two children were born into the marriage. The wife had not been employed since 1981. She, however, obtained a BA degree after ceasing employment. The court found that there was no fault to be attributed to either of them in causing the marriage relationship to disintegrate. The court ordered rehabilitative maintenance.

In the case related to this article the parties were married to each other for 15½ years. No children were born of the marriage. It was the second marriage for both the appellant and the respondent. The appellant had two children and the respondent had four, all from previous relationships. At the date of divorce the respondent was 54 years old and was employed earning a monthly net salary of R7980. Her highest level of qualification is Grade 10. She had completed an informal typing course. She was also computer-literate.

The conduct of the parties is undoubtedly a relevant factor to be considered in determining a claim for maintenance in terms of s 7(2) of the Divorce Act. The marriage was of some duration. The reasons given by the respondent for the breakdown of the relationship are trivial. The Langebaan incident and the issues that the appellant had with her children cannot be regarded as ‘gross misconduct’ on the part of the appellant. The difficulties which the appellant and the respondent experienced in accommodating children born of marriages with other parties, within their marriage, coupled with the fact that the parties battled financially, may have placed a strain on their marriage.

The court in Beaumont, referred to the clean-break principle at 993B – F and stated:

‘(O)ur Courts will always bear in mind the possibility of using their powers under the new dispensation in such a way as to achieve a complete termination of the financial dependence of the one party on the other, if the circumstances permit. The last-mentioned qualification is, of course, very important; I shall return to it in a moment. The advantages of achieving a clean break between the parties are obvious; I do not think they need be elaborated upon. The manner of achieving such a result is, of course, by making only a redistribution order in terms of ss (3) and no maintenance order in terms of ss (2). What I have said earlier with regard to the Court taking an overall view, from the outset, of the possibility of making an order or orders under either ss (2) or ss (3) or both, does not mean that the Court will not consider specifically the desirability in any case of making only a redistribution order and awarding no maintenance, having regard particularly to the feasibility of following such a course. With regard to the latter and to the qualification I stressed a moment ago (if the circumstances permit), there will no doubt be many cases in which the constraints imposed by the facts (the financial position of the parties, their respective means, obligations and needs, and other relevant factors) will not allow justice to be done between the parties by effecting a final termination of the financial dependence of the one on the other. In the end everything will depend on the facts and the Court’s assessment of what would be just.’

In the case related to this article the respondent was 54 years old and the appellant is 53 years old. They have been married for 15 ½ years. The respondent was still employed and was computer-literate. In the court’s view the parties had to be allowed to get on with their lives and the appellant had to be relieved of his obligation to maintain two households. This was not a case where the appellant is able to afford and therefore he must maintain. The parties had come to a point in their lives that there should eventually be a ‘clean break’ between them.

Regarding the uncertainty as to what the future holds and the respondent’s prospects of continuing in her employment after reaching 60 years, the court in Beaumont supra stated at 995G – I:

‘Both parties will inevitably suffer hardship because of the parting of their ways. In relation to the areas of uncertainty it is impossible to assess accurately the relative degrees of hardship which each of the parties will suffer, depending upon what assumptions are to be made. Where choices are to be made and decisions to be taken in the dark, as it were, and where the areas of uncertainty are not due to any remissness on the part of the respondent to place available information before the Court, it would be fair, because of the appellant’s misconduct, to allow the scales of justice to be tipped in favour of the respondent and against the appellant, rather than the reverse.’

Section 7(2) of the Divorce Act states that in exercising its discretion, the court has to take any other factor into consideration in making a maintenance order. This includes the misconduct of the parties.

The assets of the respondent amounted to R301 331 as compared to the appellant’s assets of R155 356. The respondent conceded that her assets were more that the applicant’s. The court was of the view that if the respondent can cut her cloth according to her size, she was able to maintain herself on her assets and means.

In awarding maintenance to the respondent, the court a quo compared the present case to Rowe v Rowe (DCLD case No 6166/01), an unreported decision, where the wife, 58 years old, had no formal qualifications and was employed as a receptionist. She had not worked during the duration of the marriage. She was awarded open-ended maintenance. The court in the matter related to this article found the two cases to be distinguishable. Unlike in Rowe the respondent was computer-literate and was employed. In relation to the uncertainty of whether she was be able to continue in her employment after reaching 60 years, ‘it was impossible to assess accurately the relative degrees of hardship which each of the parties would suffer’. To find that she cannot be rehabilitated to become self-supporting was in the court’s view, a misdirection.

The court dismissed the wife’s claim to maintenance.

The Effects of Divorce on Children

The Effects of Divorce on Children

As a family law attorney I am involved on a daily basis in stories about divorce or care and contact issues between parents and children and many times I see how the loss of a parent has affected the lives of children. Although my approach is  always clinical, I’m often saddened by these stories, but in awe as to how many of these adult children have risen above their loss to develop an emotionally healthy outlook on life.

It was with great interest that I watched psychotherapist, Gary Neuman, who appeared on one of Oprah’s shows. Gary interviewed two young children, a brother and sister; they were abandoned by their mother when she divorced her husband, their father. Both children were crying, and yet were remarkably articulate in their description of their thoughts and feelings regarding their mother’s abandonment of them due to divorce. While parents do divorce each other, they don’t divorce their children.

Children nonetheless are the ones who live out the divorce because their day-to-day routines, not to mention their emotional lives, are so deeply affected by it. And of course, the impact of being estranged or abandoned by a parent as a result of divorce can have far reaching and long lasting consequences on their lives. A number of experts on children of divorce question whether the abandonment or estrangement necessarily leads to lifelong behavioural and emotional scarring. What they do find is that one parent’s love, nurturing, and support, can go a long way to helping a child overcome many of the emotional and behavioural issues that otherwise could ensue.

It is a fact that divorce can affect the closeness of the parent versus child relationship for a number for reasons and can take a serious emotional toll on the child. Joan Kelly, one of the America’s foremost experts on children of divorce, defines an estranged relationship between a parent and child as a diminished, thinned out, and less meaningful bond. She says that 24% of children in the United States from divorced families are seeing a parent once a year, if at all and one may assume that this figure is even bigger in South Africa.

In his research, Robert Emery Director of the Centre for Children, Families, and the Law at the University of Virginia, found that non-residential fathers saw their children only 4 times per month following divorce, and about 20% of children had no contact at all with their fathers 2-3 years after divorce. Other research have concluded that, many students of divorced parents who had a limited relationship with their fathers while growing up stated that they would have liked more contact with their fathers during their adolescence, would have liked to have been closer, and wanted more time together. It is a fact that a parent’s rejection of a child or a parent’s inconsistent presence could drastically affect a child’s self esteem.

One good parent who is loving and nurturing can overcome the negative effects of losing the relationship with the other parent. While the emotional impact on a child resulting from the loss of a parent’s relationship could be significant, it doesn’t have to be disastrous.

The following advice should be considered:

• Family is not a just about biology. Find role models who will support and care about you. Be there for your kids.

• Be reliable, pay maintenance, show your love, and do what you say you are going to do.

• Provide help. Initiate the conversation about their loss of the relationship with their other parent.

• Lend an understanding ear. Don’t lecture, and don’t feel you have to have the perfect answer.

• Honesty. Find help for what to say to your children if you don’t know what to say. Children need to be heard.

• You can’t control what the other parent does; you can only control yourself.

• To help your children get through their pain, ensure that they feel heard and listened to –that gives them value.

You want your children to perceive themselves with their own goals and aspirations, independent of their status as the children of divorce.

Bertus Preller is a Divorce and Family Law Attorney in Cape Town and has more than 20 years experience in most sectors of the law and 13 years as a practicing attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. in Cape Town. Bertus is also the Family Law expert on Health24.com and on the expert panel of Law24.com and is frequently quoted on Family Law issues in newspapers such as the Sunday Times and Business Times. 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.

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Divorce Questions: Interview with Bertus Preller Family and Divorce Law Attorney Cape Town

Bertus Preller

Divorce Questions: Interview with Bertus Preller Family Law Attorney

Most couples going through the end of their marriage ask the same divorce questions. Regardless of how long people were married, they still need to find a Family Law Attorney and sort through issues regarding property, finances, children, and emotional trauma. Having accurate information is a crucial part of the divorce and healing process.

Family and Divorce Law Attorney Bertus Preller is a Family Law Specialist. A graduate of the Free State and University of Johannesburg, he represents celebrities and other high-net worth individuals in their divorce proceedings in South Africa.

How does one choose a good divorce lawyer?

Everyone differs in what type of attorneys suits them. For instance, do they want an attorney who will parent them or an attorney who will partner with them? Naturally, there are other variables to consider as well, like reputation, credentials, experience, and background. Getting references from contacts a person knows and trusts, especially from one’s accountant, business attorney, estate planning attorney or therapist, is the best way to find a good divorce attorney.

Does the end of a marriage have to turn into a battle?

“No, it does not,” Bertus Preller said. However, there often is some battle over one issue or another-like the division of property or who gets custody of the children. It is normally the battles over control in one area or another that precipitated the divorce in the first place. If a couple could not get along during the marriage, often the divorce is simply an amplification of those problems. “I tend to try to follow a more collaborative approach in dealing with divorce matters, and consider a number of ways to settle issues, whether through mediation or negotiating the best possible outcome for the client. We tend to see a number of ill experienced mediators offering services such as divorce mediation, offering a quick break with less emotional trauma and less costs. This may be a good option, but the reality is that mediation can be more expensive than an uncontested divorce; the other problem is that some mediators have absolutely no understanding of the legal consequences of the patrimonial issues of the divorce. You simply can’t mediate a divorce with a degree in psychology when there are legal issues involved and it frequently happens that one party is in fact at the end of the day in a much worse position”.

How can parents minimise the affect of divorce on their children?

“They can and should leave the children out of their immediate battles at all times,” Bertus Preller said. “Whether during the divorce process itself or long after it has ended. Spouses have no right bringing children into the differences that they have with each other. They should also give the children support and understanding throughout the divorce trauma and always show the utmost respect to the other spouse no matter how hard that may seem.”

How do courts determine the distribution of assets if one spouse is a stay at home parent or earns substantially less than the other?

In a marriage in community of property, it is important to establish the net value of the communal estate at the date of divorce. Then one can establish what each party is entitled to. Often, spouses can’t agree on a division on the joint estate and a Receiver or Liquidator needs to be appointed to divide the assets. When a marriage in community of property dissolves through divorce, each spouse is entitled to 50% of the joint estate, which includes the parties’ pension benefits.

In a marriage out of community with accrual, an auditor often needs to be appointed to determine the accrual. Preller said however he’s been involved in a number of divorce matters where extremely wealthy people were married in community of property. They may not have received the proper legal advice, “or became so focussed on the wedding ceremony that they forget about the consequences of a failed marriage.

We’re getting divorced because my spouse cheated on me. How do I make him/her “pay” for this mistake?

“Seeking vengeance is never the answer,” Bertus Preller said. “There is an old Spanish proverb: ‘Living well is the best revenge,’ is what the injured party should focus on and strive for. There is no win in trying to make someone pay for any betrayal in a marriage. However, in terms of South African law an aggrieved spouse is able to claim compensation against a third party who was the cause of the divorce.

I’m trying to be reasonable, but my spouse and I just can’t agree on major issues like who gets custody of the kids or who should keep the house. What should I do?

“Seek the advice of your attorney,” Bertus Preller said. “A mediation session might help with a respected attorney. This is what you pay your attorney to do: resolve major issues and help you come to reasonable solutions. If all else fails you may have to take your case to court and have the judge decide, but this is not always the best possible way, settlement soon in the proceedings is always the best outcome for everyone”

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 father’s rights, domestic violence matters and international divorce law.

Love and Money: Tie up the loose ends before you tie the knot

The major problem with an antenuptial contract is that it is drawn up at a time when divorce is probably the last thing on one’s mind.

Yet the contract governs what will happen to a married couple’s assets in the event of divorce or dissolution of the marriage. And it has implications for married life too. Moreover, it’s a bargain compared to what a wedding costs.

There are three types of marriage regimes in South Africa:

• In community of property – everything is pooled into a joint estate; husband and wife become owners of all assets at the time of the marriage, and all assets and liabilities thereafter. The advantage is economic equality; the disadvantage is there is no protection if one of the spouses becomes insolvent or is sued. The joint estate is then liable for the debts of both parties;
• Out of community of property before 1984 – it is common in such a marriage for one party to have significantly more assets than the other. For instance, the wife brought up the children, while the husband was the breadwinner. In the event of divorce in this instance, the courts have discretion to award a redistribution of assets;
• Out of community of property after 1984 - unless specifically stated in the antenuptial contract, such a marriage is subject to the accrual system; what is amassed over the life of the marriage is accrued. If a marriage out of community of property after 1984 with accrual is dissolved, the parties get an equal share of what they have amassed over the marriage, minus what they owe.

If accrual is expressly excluded, the parties have no claims against each other, other than for maintenance.

The advantage is that there is protection for spouses should the other become insolvent. Each spouse has his/her own estate and does not share in the other’s profit or loss. But not sharing in profits could be a major disadvantage for the spouse with a much smaller estate.

When drafting the antenuptial contract, the spouses can expressly exclude certain assets, such as a property or a share portfolio.

The advantage is protection should one of the spouses become insolvent. There is a fair division of profit accumulated during the marriage, but not prior to it.

Wealth, ignorance and poverty play a role in determining which format is chosen, said Bertus Preller, a divorce and family law attorney at Abrahams & Gross. Most married couples from a poor or uneducated background marry in community of property because they don’t have the means to pay the fees for an antenuptial contract, or simply lack the knowledge.

Preller said marriage out of community of property with the accrual system is perhaps, the fairest marriage system for most couples.

One of the advantages of an antenuptial contract is that there is nothing preventing one spouse from making a donation to the other – there is no donations tax between husband and wife – provided that the donor is solvent and that the donation doesn’t render him/her insolvent.

This is the only regime that allows for tax-free donations between spouses.

The reason for the accrual system is, essentially, to protect the wife.

One’s circumstances will usually dictate what marriage option to choose. In a second marriage, for example, the couple may be in their 40s or 50s and exclude accrual altogether. There may be children from earlier marriages. Accrual would affect what children inherit.

To be valid, the antenuptial contract must be signed by both parties prior to the marriage before a notary public. It must be registered at the Deeds Office within three months of marriage.

Attorneys’ and/or notaries’ fees to draft and register a simple antenuptial contract vary between R1000 and R3000.

To change it, the parties must make a court application and place adverts seeking creditors’ approval. The cost is between R10000 and R20000.

Source: Times Live

About Bertus Preller:

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.

Domestic Violence

Domestic Violence

It happens frequently that one parent of a child would abuse the provisions of the Domestic Violence Act to block the contact that the other parent have towards their child. This was an issue that was dealt with in the case of Narodien v Andrews 2002 (3) SA 500 (C).

The matter came before the Court for review at the request of one of the magistrates of the Cape Town magistrate’s court. The applicant and respondent were the biological parents of a boy, L, aged five, born out of wedlock. The applicant father had applied to the magistrate’s court in terms of the Domestic Violence Act 116 of 1998 (the Act) for an interim protection order against the respondent mother. The affidavit accompanying the application had, however, contained no details of any ‘acts of domestic violence’ committed by the respondent. The parties were embroiled in a dispute concerning the applicant’s access to his son. The respondent had allegedly agreed on various occasions to allow the applicant to see the child but would not allow the child to spend an entire weekend with his father. The applicant wanted L to spend every second weekend with him from Friday 6 pm to Sunday 6 pm. The relief applied for by the applicant in the magistrate’s court was that he be granted ‘access to his son’ as stipulated.

The magistrate hearing the matter had issued an ‘interim protection order’ against the respondent. The order did not mention any acts of domestic violence but simply ordered the respondent not to prevent the applicant from having contact with his son. On the return date of the ‘interim protection order’ the respondent opposed the issuing of a ‘final protection order’. It appeared from the evidence that the respondent was unwilling to allow the child to remain with his father for an entire weekend because this would mean that he would miss out on the Sunday morning church service to which his mother habitually took him and, further, that the respondent would be unable to limit the opportunities which the child had to interact with the applicant’s family. The magistrate hearing the matter, however, confirmed the ‘interim protection order’, ordering the respondent to allow the applicant access to his son from Friday 7 pm to Sunday 4 pm every alternate weekend.

The respondent subsequently applied for the setting aside of the ‘protection order’. The magistrate hearing that application varied the previous order made by granting the applicant access to the child from 7 pm Friday to 7 pm Saturday and from 11 am Sunday to 5 pm Sunday every alternate weekend until such time as access could be determined by the High Court. The applicant had been present at court but, due to a misunderstanding, was not in court when the matter was heard. The ‘variation order’ was accordingly granted in his absence. The magistrate subsequently requested the High Court to set aside the ‘variation order’ on the grounds that the order had been incorrectly granted in the absence of one of the parties. Following upon queries by the Court as to the legitimacy of the ‘protection order’, the magistrate referring the matter for review stated that the definition of ‘domestic violence’ in the Act included any controlling or abusive behaviour towards the complainant where such conduct harmed or could cause imminent harm to the safety, health and well-being of the complainant and that the conduct complained of by the applicant in the instant matter had fallen within this definition. The magistrate stated further that the court had been satisfied that undue emotional hardship would be suffered by the applicant if a protection order were not issued immediately.

The court found that the High Court in its capacity as upper guardian of all minor children within its area of jurisdiction, however, had an inherent common-law jurisdiction mero motu to review the so-called ‘protection orders’ granted by the magistrate’s court in the instant matter, as such orders directly concerned the interests of a minor child within its area of jurisdiction.

While the concept of ‘domestic violence’ was defined very broadly in s 1 of the Act, such definition had to be placed within the context of the Act as a whole and not be viewed in isolation.

An interpretation of s 7(6) of the Act which would empower a magistrate’s court to make ‘stand-alone’ orders concerning access to a minor child in cases where the parents were embroiled in a dispute about access amounted to a radical departure from the relevant common-law principles and statutory provisions relating to child welfare and statutory interpretation. Such interpretation of s 7(6) of the Act could even mean, theoretically, that the magistrate’s court would have territorial jurisdiction to make orders concerning access where the High Court would have no such jurisdiction. This construction offended against the tenet of statutory interpretation that, as far as possible, statutes had to be interpreted so as not to give rise to absurd, anomalous or unreasonable results.

The mischief which s 7(6) of the Act had been meant to address was a lack of an express provision in other family violence legislation for the courts granting family violence interdicts to make ancillary orders relating to contact with minor children, so ensuring that children at risk were protected from domestic violence and that the protection of the adult applicant was not compromised by arrangements relating to contact between the respondent and any children living with the applicant. This purpose was a far cry from an interpretation of s 7(6) which would empower the magistrate’s court to make a ‘protection order’ under the Act which consisted solely of an order granting access to a minor child or regulating the exercise of such access. Orders concerning access made in terms of s 7(6) had to be ancillary to a ‘protection order’ of the kind envisaged in s 7(1) of the Act. A stand alone order as to access could not legitimately be regarded as falling within the powers vested in the magistrate’s court by s 7(1) (h).

As such it should be noted that a Domestic Violence order may be taken on review to the High Court if there are grounds to do so. To use the provisions of the Domestic Violence Act simply as a measure to block the contact of the other parent is wrong and may therefore be set aside.

Bertus Preller

Family Law Attorney

Abrahams and Gross Inc.

http://www.divorceattorney.co.za

Parenting Plans and Divorce in South Africa

Parenting plans and the Children’s Act in South Africa

A parental responsibilities and rights agreement is a mechanism by which a person who does not have parental responsibilities and rights acquires them by agreement with the child’s mother or another person who has parental responsibilities and rights in respect of the child.

Two categories of persons can acquire parental responsibilities and rights in this way: the first, which is of particular importance in the context of the law of persons, is the biological father who does not have automatic parental responsibilities and rights in respect of his child in terms of s 21 of the Act and has not acquired parental responsibilities and rights by a court order or by marrying the child’s mother or entering into a civil union with her.

Thus, an unmarried father who does not already have parental responsibilities and rights can acquire them by means of a parental responsibilities and rights agreement. The second category is any other person who has an interest in the child’s care, well-being and development (such as a grandparent).

A parental responsibilities and rights agreement confers only those responsibilities and rights that are set out in the agreement and cannot confer more responsibilities and rights than the conferrer has. Thus, for example, a 16-year-old unmarried mother, generally, cannot in a parental responsibilities and rights agreement confer guardianship on the child’s father, as her guardian is the child’s guardian.

The parental responsibilities and rights agreement must be in the format and must contain the particulars prescribed by the regulations under the Act. The agreement is unenforceable until it is registered with a family advocate or is made an order of court on application by the parties to it.

The courts which may make the agreement an order of court are the High Court, divorce court dealing with a divorce matter, and the children’s court within whose area of jurisdiction the child is ordinarily resident. However, if the agreement relates to guardianship only the High Court may confirm it.

Before registering the agreement or making it an order of court, the family advocate or court must be satisfied that the agreement is in the best interests of the child. Once the agreement has been registered or made an order of court, it can only be terminated or amended by the family advocate or the court. If the agreement relates to guardianship, only the High Court may vary or terminate it.

Adoption is another way in which an unmarried father can acquire parental responsibilities and rights. He can adopt his child either as a single parent, or jointly with his spouse, civil union partner or permanent domestic life-partner.

Regardless of whether or not he has parental responsibilities and rights in respect of the child, the unmarried father’s consent is required if another person wants to adopt the child, unless:

(1)          He is incompetent to give consent due to mental illness.

(2)          He has abandoned the child, his whereabouts cannot be established, or his identity is unknown.

(3)          He has abused or deliberately neglected the child, or has allowed the child to be abused or deliberately neglected.

(4)          He has consistently failed to fulfil his parental responsibilities towards the child during the last 12 months.

(5)          A court has divested him of the right to consent to the child’s adoption.

(6)          He has failed to respond to a notice of the proposed adoption within 30 days of service of the notice.

(7)          He failed to acknowledge paternity in the manner prescribed by the Act.

(8)          The child was conceived as a result of incest.

(9)          Following an allegation by the child’s mother, the children’s court has found on a balance of probabilities that the child was conceived as a result of rape.

Grounds (1) to (6) above apply equally to the unmarried mother of the child. Further, if either parent unreasonably withholds consent to the child’s adoption, his or her consent can be dispensed with and the adoption order granted if the court finds that the withholding of consent is unreasonable and the adoption is in the best interests of the child.

If more than one person has parental responsibilities and rights in respect of a child, a parenting plan may be needed. A parenting plan is an agreement in which co-holders of parental responsibilities and rights make arrangements on the way in which they will exercise their respective responsibilities and rights.

If co-holders of parental responsibilities and rights experience difficulties in exercising their parental responsibilities and rights, they must try to agree on a parenting plan before seeking court intervention.

Thus, for example, if both unmarried parents have parental responsibilities and rights, they must attempt to enter into a parenting plan if they disagree on the exercise of these responsibilities and rights. In preparing their parenting plan, they must seek the assistance of a family advocate, social worker or psychologist, or mediation through a social worker or other suitably qualified person.

Co-holders of parental responsibilities and rights may enter into a parenting plan even if they do not experience difficulties in exercising their responsibilities and rights, but then they need not seek the assistance of a family advocate, social worker or psychologist, or mediation by any person. A parenting plan must be in writing, be signed by the parties and comply with the best interests of the child standard as set out in s 7 of the Act.

Bearing in mind the child’s age, maturity and stage of development, he or she must be consulted during the development of the parenting plan, and he or she must be granted an opportunity to express his or her views. Those views must be accorded due consideration.

Once a parenting plan has been agreed on, the family advocate, a social worker, social service professional, psychologist or suitably qualified person, or the child’s legal representative must inform the child of the contents of the plan, bearing in mind the child’s age, maturity and stage of development.

The plan may be registered with a family advocate or be made an order of court. A parenting plan that was registered with a family advocate may subsequently be amended or terminated by the family advocate upon application by the parties to the plan.

If the parenting plan was made an order of court, it may be amended or terminated only by another order of court. The co-holders of parental responsibilities and rights who are parties to the plan, the child (with the court’s consent), or any other person acting in the child’s interests and with the court’s consent may apply for the amendment or termination.

Finally, in respect of a minor’s capacity to act, and specifically his or her capacity to consent to medical treatment and an operation, s 129 should be noted. It provides that a child who is below the age of 12 years may not have medical treatment or an operation without his or her guardian’s consent.

Consent is also needed if the child has already turned 12 but is immature and does not have the mental capacity to understand the benefits, risks, social and other implications of the medical treatment or operation.

If the child is older than 12 and sufficiently mature and has the mental capacity to understand the benefits, risks, social and other implications of the operation, he or she still needs the assistance (but not the consent) of his or her guardian for an operation on himself or herself or his or her child.

If the guardian unreasonably withholds consent, refuses to assist the minor, is incapable of consenting or of assisting the minor, cannot readily be traced or is deceased, the Minister of Social Development may give consent.