Divorce Attorney Cape Town

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

More Christians Get Divorced


A recent study released by the Barna Group—a leading research company focused on the intersection of faith and culture—has been the spark plug for a surge of editorials around the country because of the study’s eye-opening, statistical revelations regarding Christianity and divorce.

Among the findings, divorce rates among conservative Christians are not only counter to Christian ideals, they are significantly higher than that of other faith groups, including atheists and agnostics.

George Barna, the director of the study observed, “There no longer seems to be much of a stigma attached to divorce. (Instead), it is now seen as an unavoidable rite of passage. Interviews with young adults suggest that they want their initial marriage to last, but are not particularly optimistic about that possibility.”

Offering a unique insight into the depths of modern-day Christian marriages is minister and author, Rodney Winters, who’s new book, Go Into the House, much like the Barna study, has Christians talking.

Winters explores a wide range of marital mysteries among Christians, particularly when held up against the chasm between the sexes.

Why do Christian men choose to commit adultery? Why don’t men share their fears and emotions with women? Why do women want and need to hear the man’s perspective on “when a wife cheats”?

Further, Winters writes about the other side of Christian marriage, when a spouse is facing the aftermath of divorce. Barna pointed out in his company’s report that, “(our) research also raises questions regarding the effectiveness of how churches minister to families. The ultimate responsibility for a marriage belongs to the husband and wife, but the high incidence of divorce within the Christian community challenges the idea that churches provide truly practical and life-changing support for marriages.”

Rihanna and baseball player Matt Kemp divorce


Rihanna and her baseball player beau, Matt Kemp, have called it quits, Us Weekly reports.

Rihanna and the L.A. Dodgers outfielder began their romance in early 2010, almost one year after she ended her tumultuous relationship with Chris Brown. Kemp was reportedly an integral part in the ‘Only Girl in the World’ singer’s recovery after being assaulted by Brown.

Only months ago, Rihanna said of Kemp, “I have a boyfriend. I’m so happy. I feel really comfortable, and it’s so easy,” but according to an Us source, “Matt’s sick of always following after her like a puppy dog all over the world. He wants something more normal.”

The singer seems to be coping well with the split. “It was never as serious as it looked. It was always just [about] having fun,” says the source. “She basically was just over it.”

Celebrity Divorce Records


Britney Spears and Jason Allen Alexander. Lasted for 55 hours.

Dennis Rodman and Carmen Electra. Lasted for 9 days in November 1998.

Mario Lopez married Ali Landry on 24 April 2004; two weeks later she had the marriage annulled.

Drew Barrymore and Jeremy Thomas, from 20 March to 28 April 1994.

Rick Rockwell and Darva Conger, married on the television program Who Wants to Marry a Multi-Millionaire February 15, 2000. Annulled April 5, 2000.

Colin Farrell and Amelia Warner, from July to November 2001.

Chad Michael Murray and Sophia Bush, married 16 April 2005, announced their separation 26 September 2005. Bush sought an annulment (citing “fraud”) in February 2006.

Jennifer Lopez and Cris Judd. Lasted 6 months.

Shannon Doherty and Ashley Hamilton. Lasted 6 months.

Axl Rose and Erin Everly, married April of 1990. Rose filed for divorce one month later, but the two made up; the marriage was annulled in January 1991.

Jennifer Lopez and Ojani Noa married on 22 February 1997, lasted 11 months

Drew Barrymore and Tom Green, married 7 July 2001, Green filled for divorce on 17 December 2001, became official 15 October 2002.

Liza Minnelli and David Gest, married from March 16, 2002 to July 25, 2003

Source Wikipedia

Compiled by: http://www.divorceattorney.co.za

Divorce Statistics in South Africa


The South African Divorce Rate

Marriages in South Africa

In 2008, 186 522 marriages were registered in South Africa. This number includes 959 marriages of South African citizens solemnised outside the borders of South Africa but were registered in South Africa. Information from the Department of Statistics show that the number of registered marriages has generally been increasing over the last ten years (1999–2008). In 1999, 140 458 marriages were registered. This number had increased to 186 522 in 2008 showing an annual increase of 2,9% since 1999. The 2008 186 522 shows an increase of 3 492 (1,9%) from 183 030 marriages recorded in 2007.

Age at the time of marriage

In 2008, marriages of 930 men and 6 774 women aged less than 21 years were registered. Women enter marriage for the first time at younger ages than men. In 2008, the median age for grooms was 34 years compared to 29 years for brides. Major differences however, are observed when the marital status at the time of current marriage is considered. For first time marriages, the median age for bachelors was 32 years and that of spinsters was 29 years giving a difference of three years. The age at first marriage for both men and women has remained the same as 2006. For remarriages, the median age of divorce men was 52 years compared to 46 years for their female counterparts yielding an age gap of six years. Similarly, the median ages for widowers and widows were 45 years and 29 years respectively resulting in a 16 years’ gap. Despite the fact that men tend to marry younger women, in 2008 14,6% of bridegroom were younger than their brides whilst 7,1% were of the same age.

Divorces

Trends in divorces (1999-2008)

The published data on divorces indicate that the number of granted cases has been fluctuating between 37 098 and 28 924 per annum in the past decade (1999-2008). The distribution of couples divorcing by population group shows that there were more divorces among the African population group compared to the other groups. Despite the general fluctuations, the proportions of divorces from the mixed and the African groups have been increasing whilst that of the White group has been declining in the past ten years. In 1999 the African, Indian/Asian, White and mixed groups made up 18,4%; 5,3%; 39,9% and 1,0% of the number of divorces respectively. However, in 2008 the contribution of the African, Indian/Asian and mixed groups increased to 35,0%; 6,2% and 3,1% respectively whilst that of the White group declined to 32,8%.

Who is suing who?

The 2008 data reveal that there were more female (50,6%) than male (37,8%) plaintiffs. However, there were significant differences among population groups. Among African plaintiffs, more husbands (43,5%) than wives (41,1%) initiated the divorce. This is in sharp contrast to the other population groups, particularly among the White (58,0%) and the Coloured (57,9%) whereby most divorces were initiated by women.

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 (19,8%) were in clerical and sales occupations whereas husbands (14,9%) were in managerial and administrative occupations. Very few plaintiffs were in farming and related occupations.

Number of times married

The 2008 divorce cases were mainly from first marriages. The pattern of remarriages among husbands was quite similar to that of the wives. Slightly fewer (76,4%) husbands were from first marriages compared to 77,1% of wives. Approximately 9,0% were second time divorcees for both husbands and wives. About 2,0% of husbands and wives were getting divorced for at least the third time.

Age at the time of divorce

The median age at divorce in 2008 was 41 for men and 38 for women. African men had the highest median age (43) at divorce. Women from the mixed and India/Asian group had the lowest median age (36 years).

Duration of marriage of those divorcing

The median duration of marriage in 2008 was 9 years. The largest number of divorces (7 859 or 27,2%) lasted five to nine years. This group is followed by marriages that lasted less than five years (6 143 or 21,2%). Thus, almost half (48,4%) of the 28 924 divorces in 2008 were from marriages that lasted less than 10 years. As the duration of marriages increased the number of divorces decreased. Irrespective of the population group of the divorcees, the distribution of divorces continues to be skewed towards earlier years of marriage.

Divorces involving couples with children

In 2008, there were 26 947 children (younger than 18 years old) involved in divorce. It is observed that 16 370 (56,6%) of the 28 924 divorces had children younger than 18 years indicating that, on the average, there was between one and two children per divorce.

Source: http://www.edivorce.co.za

Divorce Settlement Agreements in South Africa


In South Africa it is accepted practice to regulate the consequences of a divorce by means of a Settlement Agreement between the parties. In most divorces the parties enter into a settlement agreement, also called a consent paper or deed of settlement in which they agree on matters such as the division of the assets, payment of maintenance, care of and contact to the children and the payment of costs of the proceedings.

Parties in a divorce matter may include any provision in their deed of settlement which is not impossible, illegal, or contrary to good morals. They may for example agree on a division of their assets that differ completely from the normal rules regarding the matrimonial property system that regulates their marriage. For example the parties may agree that neither will have a claim for the accrual against the other and that each party will simply retain his or her own assets.

In terms of the Divorce Act the court may incorporate the spouses’ settlement into a court order if it is in writing. Once the settlement agreement is made an order of the court a party may only vary or amend it on application to the court. The parties may do so by mutual consent, it is important to note that any amendment to the settlement agreement should be made an order of court.

If one of the parties disagrees to amend or vary the settlement, the aggrieved party may approach the court on application in terms of Section 8 (1) of the Divorce Act for variation or rescission if a particular provision relates to guardianship, custody, access or maintenance. If the dispute relates to maintenance the maintenance court may be approached in terms of the Maintenance Act.

If the settlement agreement is not incorporated into the divorce order it is merely a contract and it can therefore not be enforced in the same way as an order of court.

Written by:

Bertus Preller

Family Law Attorney

Abrahams and Gross Inc.

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

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

(ArticlesBase SC #3934823)

 

Divorce, moneys lent and advanced to the other spouse


It is not uncommon for parties in a marriage to advance to advance to the other spouse amounts of money from time to time. Between the two spouses this would normally be regarded as a transaction of borrowing money or lending, but the legal implications might be otherwise depending on the matrimonial system (married in community or out of community of property) applicable to the marriage.

Where the spouses are married to each other in community of property, the joint estate is divided on the date of divorce as it exists on date of divorce, including all the assets and liabilities. Parties who are married in community of property obtain an undivided half share in all the assets which constitute the joint estate and in most instances become jointly liable for all debts incurred. So if the spouses were married in community of property and enter into an agreement in terms whereof the one party lends an amount of money to the other, the right to claim such an amount is an asset of the joint estate and the liability to pay the amount is a liability of the joint estate. It therefore follows that it is impossible to enforce such a claim on divorce as a result of the fact that the parties are married in community of property.

Where spouses are married out of community of property it is possible to claim as a result of the fact that the parties are married out of community of property and does not share in the profit or loss. The right to claim such an amount would be an asset for purposes of determining the value of a spouse’s estate.  Where parties’ were married before 1 November 1984 a claim in respect of moneys lent will form a basis of a claim to claim a transfer of assets in terms of section 7 (3) of the Divorce Act. Where parties married after 1 November 1984 a claim to recoup moneys advanced would be simple if proved.

It is also interesting to note that a claim for moneys advanced where the parties married out of community of property, cannot prescribe in terms of the Prescription Act 68 of 1969.

It is therefore important to note that where a party is married in community of property and that party advanced moneys to the other spouse that a claim cannot be instituted for the recovery thereof.

Bertus Preller

Family Law Attorney

Abrahams and Gross Inc.

www.divorceattorney.co.za

info@divorceattorney.co.za

Troubreuk – die Sunette Bridges saak


VAN JAARSVELD v BRIDGES 2010 (4) SA 558 (SCA)

Hierdie saak het gegaan oor ‘n eis vir skadevergoeding ingestel word deur sangeres Sunette Bridges (Respondent), teen Mnr Deon Van Jaarsveld (Applikant), op grond van ‘n verbreking van ‘n belofte om met haar te trou.

Die partye het op 29 Julie 2005 verloof geraak. Die huwelik was vir 14 Januarie 2006 bestem. Van Jaarsveld het die verlowing verbreek in ‘n sms aan Bridges op 4 Desember 2005 en meegedeel dat hy nie meer bereid is om voort te gaan met die troue nie. (Alhoewel die partye het telefoniese kontak gehad het, was hulle gewone modus van kommunikasie per sms.) Hy het geskryf dat: hy jammer is oor sy besluit, maar kon nie lieg nie en dat hy nie dieselfde oor haar gevoel het as in die verlede nie. Hy kon nie met haar trou in lig van sy huidige gevoelens nie en hy kon homself nie bluf nie. Hy het bygevoeg dat hy geweet het dat haar ma die sms sou lees en hy het ook om verskoning gevra teenoor haar. Hy het afgesluit deur te sê dat Bridges is ‘n pragtige mens. Hierdie sms is voorafgegaan deur ‘n e-pos gestuur aan Bridges vroeër die dag waarop hy uiting gee aan sy bedenkinge oor die troue. Sy het gereageer deur ‘n e-pos om sy besluit te heroorweeg. Hy het gereageer deur die stuur van die voornoemde sms. Die volgende dag het hy haar gehelp met die uitstuur van die uitnodiginge maar op 6 Desember, het hy haar ingelig:

“Ek is so jammer dat alles so ver laat gaan het, ek is jammer as ek jou siener maak, maar ek is nie opgewonde nie en dit is nie reg nie. Ek kan nie met jou trou nie”.

Bridges het die verwerping aanvaar en op 9 Desember haar prokureurs opdrag gegee om ‘n aanmaning vir ‘n eis om skadevergoeding van meer as R1 miljoen. Dagvaarding is gedurende Februarie 2006, uitgereik vir R678 203,08. Sy het ook dagvaarding uitgereik teen sy moeder, maar die saak het nie voort te gaan nie.

Agtergrond Feite

In haar dagvaarding het Bridges aangedui dat sy ‘n sanger ‘n liriekeskryfster en promotor, en het sy haarself gesien as ‘n potensiële radio en televisie persoonlikheid. Sy het ‘n relatief suksesvolle loopbaan gehad, maar haar sukses aldus die hof was deels te wyte aan die feit dat sy die dogter is van Bles Bridges,’ n bekende romantiese sanger wat ‘n paar jaar gelede gesterf het.

Sy het ook ‘n aantal huwelike agter haar rug gehad. Terwyl getroud was  met haar vierde man het haar “betrokkenheid” met Van Jaarsveld begin. Sy het ook twee kinders. Die hof het opgemerk sonder enige relevansie dat binne minder as ‘n maand en voor die dagvaarding uitgereik was, sy reeds ‘n nuwe minnaar gehad het.

Van Jaarsveld was jonger en nooit getrouf nie. Hy het geboer op ‘n familie plaas. Hy het geen aanspraak op die plaas gehad nie, maar slegs die verwagting van ‘n erfenis van die plaas of deel daarvan. Sy familie, veral sy moeder, was nie opgewonde oor die verhouding nie, veral oor Bridges se “track record” met mans aldus die hof oorkonde. Sy het nie gehou van Bridges se waardes nie en het haar kleredrag as onwelvoeglik beskou. Daar was ‘n diep botsing van beginsels. Sy het ook gedink dat Bridges wou net met haar seun trou vir geld, wat blykbaar in ieder geval behoort het aan die familie.

Deur die aard van haar loopbaan en die baie mans, het Bridges se betrokkenheid by Van Jaarsveld baie media-aandag gelok en sy was gewillig om ‘n aantal onderhoude toe te staan, selfs voor hul verlowing en meegedeel dat dinge anders sou wees hierdie keer. Sy het ook aangedui sy gaan nie nog ‘n Elizabeth Taylor  wees nie. Sy was oppad na haar vyfde huwelik en die koerante het bespiegel of die ene sou werk.

Bridges was bewus van die feit dat sy was nie aanvaarbaarwas vir sy familie nie en sy het hom voor ‘n keuse gestel om te kies of sy moeder of sy. Sy ma weer op haar beurt het Van Jaarsveld voor ‘n keuse gestel.

Die hooggeregshof het skadevergoeding van meer as R282 000 aan Bridges toegeken, maar Van Jaarsveld is appèlhof toe, waar vyf regters in ’n rigtinggewende uitspraak ten opsigte van troubreuk-eise beslis het Van Jaarsveld hoef Bridges nie ’n sent te betaal nie.

Die beslissing deur Hof

Die Hof was van mening dat die historiese benadering tot ‘n verlowing verouderd was en dat dit nie meer inpas met die mores van ons tyd nie en dat die openbare beleid vereis het dat ons howe die reg ten opsigte hiervan moes hersien, veral waar ‘n belofte om te trou verbreek word.

Die appèlregters het onder meer verwys na “me. Bridges se geskiedenis, haar vinnige herstel in die arms van ’n ander man, haar ywerigheid om skadevergoeding te eis en die gebrek aan die vooruitsig op ’n gelukkige huwelik”.

Met dié bevinding het die appèlregters die geykte reg in verband met troubreuk-eise aansienlik gewysig sodat sulke eise voortaan nie baie maklik toegestaan sal word nie.

‘n Verbreking van ‘n verlowing kan aanleiding gee tot twee verskillende eis oorsake. Die een is die actio iniuriarum. Die tweede eis is op grond van kontrakbreuk. Die eerste aspek wat die hof ontleed het was dat ‘n velowing verbreek kon word sonder finansiële gevolge indien daar is ‘n regverdige rede was vir die verbreking.

Die hof was van mening dat: “Just cause is usually defined as any event or condition or actions of the other party which would jeopardise a long and happy marriage and which could induce any right-minded member of society to rescind the engagement. The origin of this restricted meaning is to be found in Canon Law and Germanic Law influences at a time when churches controlled the lives of people, when a woman was deemed to be of a lower status than a man, and when a party to a promise to marry could be obliged to marry by an action for specific performance. The world has moved on and morals have changed. Divorce, which in earlier days was available in the event of adultery or desertion only, is now available in the event of an irretrievable breakdown of the marriage. Guilt is no longer an issue. There is no reason why a just cause for ending an engagement should not likewise include the lack of desire to marry the particular person,  irrespective of the ‘guilt’ of the latter. Unwillingness to marry is clear evidence of the irretrievable breakdown of the engagement. It appears illogical to attach more serious consequences to an engagement than to a marriage. The second aspect that has to be considered in the context of contractual damages is the justification for placing an engagement on a ‘rigid contractual footing’. It is difficult to justify the commercialisation of an engagement in view of the fact that a marriage does not give rise to a commercial or rigidly contractual relationship. It cannot be accepted that parties, when promising to marry each other, contemplate that a breach of their engagement would have financial consequences, as if they had in fact married. They assume that their marital regime will be determined by their wedding. An engagement is more of an unenforceable pactum de contrahendo providing a spatium deliberandi – a time to get to know each other better and to decide whether or not to marry finally”.

Aldus die hof moes daar onderskei word tussen eise vir toekomstige skade en die vir werklike skade. Dit is nie maklik om eise vir toekomstige skade te regverdig nie en howe kan derhalwe nie daaroor spekuleer nie. Eise vir die werklike skade is makliker om te regverdig maar moeilik om te rasionaliseer in terme van gewone beginsels met betrekking tot die berekening van skadevergoeding in die geval van kontrakbreuk.

Bridges het hierna ’n aansoek om appèl in die konstitusionele hof gevra dat die appèlregters se uitspraak hersien en tersyde gestel word.

Tien regters van die konstitu­sionele hof het Bridges se aansoek oorweeg en kort en kragtig korte mette daarvan gemaak.

“Ons het die aansoek oorweeg en tot die gevolgtrekking gekom dat dit verwerp moet word omdat daar geen vooruitsig op sukses is nie.”

Bridges se eis is toe afgewys met koste.

Saamgestel deur:

Bertus Preller

Family Law Prokureur

Abrahams en Gross Inc

http://www.divorceattorney.co.za

bertus@divorceattorney.co.za

Maintenance and Child Support in South Africa


Maintenance and Child Support in South Africa

Every magistrate’s court in South Africa is within its area of jurisdiction a maintenance court for purposes of the Maintenance Act 99 of 1998.

Any party to the proceedings under the Maintenance Act may be represented by a legal representative.

Lodging your complaint

To commence proceedings in an application for maintenance or an application for the substitution or discharge of an existing maintenance order, the applicant (or complainant as he is called in the Maintenance Act) must lodge a complaint in writing with the maintenance officer at the maintenance court, to the effect that

  • the person legally liable to maintain the complainant or person (for example, dependent child) on whose behalf maintenance is claimed is failing to do so; or
  • good cause or reason exists for the substitution (increase or decrease) or discharge of an existing maintenance order.

Applying for a maintenance order

In the first instance the complaint must be made in form A of the Annexure to the Maintenance Regulations (GN R1361/15-11-1999). The complainant must state in the complaint the reason why the person from whom maintenance is claimed is legally liable to maintain the person in respect of whom maintenance is claimed. The following people have reciprocal duties to maintain each other:

Parents & children

Both parents of a child have a duty to maintain the child according to their respective means. The duty exists irrespective of whether the child is adopted, born in or out of wedlock, or born of the first or a subsequent marriage.

When the court makes an order in respect of the maintenance of a child it will take into account inter alia

  • what the reasonable maintenance needs of the child are;
  • that both parents jointly have a duty to support a child; and
  • that the parents’ respective shares of their obligation are apportioned between them according to their means.

Husband & wife

At common law this duty comes to an end on divorce. However, in terms of the Divorce Act 70 of 1979, the court granting the decree of divorce may make an order directing one spouse to pay maintenance to the other spouse after divorce, either by agreement between the parties or, in the absence of such an agreement, after taking into account various factors set out in s 7(2) of the Divorce Act. If no such order was granted at the time of the divorce, the divorcé cannot at a later stage approach the maintenance court for an order directing his ex-spouse to pay him maintenance. However, if such an order was granted by the divorce court, the divorcé may approach the maintenance court at a later stage to apply for a substitution (increase or decrease) or the discharge of the existing order, provided that good cause exists for such a substitution or discharge.

Application for substitution or discharge

In the second instance, ie where application is made for the substitution or discharge of an existing maintenance order, the complaint must be made in form B of the annexure to the Regulations Relating to Maintenance (GN R1361/15-11-1999). The complainant must state the alleged reason or cause on which he relies for such substitution or discharge of the maintenance order.

In both instances, ie when application is made for a maintenance order or for the substitution or discharge of an existing order, the complainant must provide full details of his assets, income and the monthly expenditure in respect of himself and the children on whose behalf maintenance is claimed, supported by documentary proof. This information must be attested to under oath. Form A and form B to the Regulations Relating to Maintenance contain all the necessary information, including a comprehensive list of monthly expenses. The attorney should assist his client to complete the relevant form in full to avoid the matter being referred back to the complainant for further information, which will result in delay. Once the relevant form has been completed, it must be handed to the maintenance officer at the maintenance court who will issue a reference number for the particular matter.

The investigation

Once the complaint has been lodged with the maintenance officer, the latter will investigate the complaint. For purposes of the investigation, the maintenance officer may subpoena both the complainant and the defendant to appear before him on a date and time mentioned in the subpoena and to provide, inter alia, information regarding the financial position of the people affected by the application. In practice, to save costs, a subpoena is normally served on the defendant only, whereas the complainant receives mere written notification of the date and time of the investigation.

The investigation affords the parties’ attorneys the opportunity to exchange information regarding the maintenance needs of the people in respect of whom maintenance is claimed and the financial position of the parties. Settlement negotiations often take place at the informal inquiry. The normal rules relating to discovery do not apply in the maintenance court. The attorney should, therefore, at the investigation make use of the opportunity to obtain as much information as possible from the opposing party, necessary for the preparation of the inquiry (trial). It is advisable that a list of the documents and information required for purposes of such preparation be prepared in advance and handed to the opponent at the investigation. The magistrate may be requested to warn the party requested to furnish the information and documents, within a certain period of time.

The inquiry

After the maintenance officer has investigated the complaint he may institute a formal inquiry, which is in effect a maintenance trial before a magistrate of the maintenance court. A date for the inquiry must be arranged with the maintenance officer and magistrate. The magistrate will warn both parties to be present at the inquiry.

The maintenance officer may subpoena any person to appear before the maintenance court on the day of the inquiry and to give evidence under oath or affirmation, or to produce any book, document or statement relating to the financial position of any party affected by the legal liability of a person to maintain any other person. This includes full particulars of the person’s earnings signed by his employer. If the attorney of any of the parties to the proceedings requires a person to be subpoenaed to give evidence regarding the financial position of either of the parties or to produce a book, document or statement as referred to above, he should approach the maintenance officer and request that a subpoena be issued in respect of such a person.

At the maintenance inquiry the court may also examine any person who is present at the inquiry although he was not subpoenaed as a witness, and may recall and re-examine any person already examined.

The normal rules of evidence applicable in respect of civil proceedings in the magistrate’s court apply in respect of the inquiry.

At the inquiry documentary evidence in the form of a statement in writing by any person other than the person against whom a maintenance order may be made may be placed before the court as evidence, provided that a copy of the statement together with any documents referred to in the statement are served on the person against whom a maintenance order may be made at least 14 days before the date on which the statement is to be submitted as evidence. Such person may then, at least seven days before the commencement of the inquiry, object to the statement being submitted as evidence.

It is important to note that the maintenance court may take into account any evidence in any proceedings in respect of the existing maintenance order or accept as prima facie proof any finding of fact in any such proceedings. In other words, evidence led and findings of fact in a divorce action may at a later stage be used in proceedings in the maintenance court. The record of such evidence or findings shall on its production at the inquiry be admissible as evidence, and so will any copy or transcription or extract from it certified as a true copy, transcription or extract by the registrar or clerk of the court or any other officer having custody of the records of the court where the existing maintenance order in question was issued.

After consideration of the evidence at the inquiry the maintenance court may decide as follows:

  • Where no maintenance order is in force, the court may make a maintenance order against the person proved to be legally liable to maintain the person in respect of whom maintenance was claimed. The court may be requested to order that the maintenance be paid in at the maintenance court where the complainant will then have to collect the payments from month to month, or that the maintenance be paid into an account at a financial institution by stop order or in another manner.
  • Where no maintenance order is in force the court may also make an order, in the case where maintenance is to be paid in respect of a child, for the payment to the mother of the child of such sum of money together with interest thereon, as the mother is in the opinion of the maintenance court entitled to recover from the person in respect of expenses incurred by the mother in connection with the birth of the child and expenditure incurred by the mother in connection with the maintenance of the child from the date of the child’s birth to the date of the inquiry.
  • Where there is already a maintenance order in force, the court may substitute the existing maintenance order with a new order or discharge the existing maintenance order, or the court may make no order.

Maintenance orders by consent

A maintenance order may also be obtained by consent.

The person against whom the maintenance order is sought must consent in writing to the maintenance order being granted. A copy of the written consent must be handed to the maintenance officer at the inquiry. Where such written consent has been obtained it is not necessary for the person against whom the order is to be made to appear in court at the inquiry. An example of such written consent can be found in part A of form G of the annexure to the Maintenance Regulations. A copy of the order made against the person not present at the inquiry must be delivered or tendered to him by a maintenance officer, police officer, sheriff or maintenance investigator. The return of any such officer, sheriff or investigator showing that a copy was delivered or tendered to the person shall be sufficient proof of the fact that he is aware of the terms of the order.

Maintenance orders by default

A maintenance order may also be obtained by default.

If the person against whom a maintenance order is sought does not appear in court on the date and time mentioned in the subpoena issued for his attendance at the inquiry to give evidence or for the production of a book, document or statement, the complainant may apply to court for an order by default. This application may be brought through the maintenance officer on the date of the inquiry.

The court must be satisfied that the person against whom the order by default is sought has knowledge of the subpoena issued for his attendance at the inquiry and/or to produce any book, document or statement at the inquiry. The return by a maintenance officer, police officer, sheriff or maintenance investigator showing that the subpoena was served on such person will be sufficient proof that he has knowledge of the fact that he had to attend court or that he had to produce a book, document or statement, as the case may be.

The court may request the complainant to adduce evidence in writing or orally, in support of his complaint, before an order by default is granted.

A copy of the order by default must be delivered or tendered to the person against whom the order was granted, by any maintenance officer, sheriff, police officer or maintenance investigator. The return by such officer, sheriff or investigator showing that a copy was delivered or tendered to such person will be sufficient proof that he is aware of the terms of the order.

The person against whom the order by default was granted may apply to the maintenance court for the variation or setting aside of the order within 20 days after the day on which the person became aware of the order by default or within such further period as the maintenance court on good cause shown shall allow. Notice of an application to set aside an order granted by default must be given to the person who lodged the complaint at least 14 days before the day on which the application is to be heard.

Appeal

Any person not satisfied with the order made by the maintenance court may appeal against such order to the High Court having jurisdiction.

Enforcement

When a person against whom a maintenance order has been made fails to comply with the terms of the order, and the order remains unsatisfied for a period of ten days, the person in whose favour the order was made may apply to the maintenance court where the person against whom the order was made is resident, for authorisation to issue a warrant of execution or for an order for the attachment of emoluments or for an order for the attachment of debt.

An order for the attachment of emoluments may also, on application by the complainant, be granted in respect of future monthly maintenance payments. The effect of such an order is that the defendant’s employer will be directed to deduct the amount mentioned in the order monthly from the defendant’s salary and to pay such amount to the complainant on behalf of the defendant.

Warrant of execution

The warrant of execution must substantially correspond with form L of the annexure to the Maintenance Regulations and must be prepared in triplicate.

The complainant must prepare part A of form L and thereafter the form must be lodged in triplicate with the clerk of the maintenance court concerned, who will issue the warrant of execution by preparing part B of form L of the annexure, provided that he is satisfied that

  • authorisation for the issuing of a warrant of execution was granted; and
  • the warrant of execution has been properly prepared;
  • The clerk of the maintenance court will, after the warrant of execution has been issued,
  • return the original warrant of execution and one copy to the complainant; and
  • file the second copy of the warrant of execution in the relevant court file.

The original warrant and a copy must be handed to the sheriff or maintenance investigator for execution. Such person shall complete part C and, if applicable, part D of form L of the annexure and return the form to the clerk of the maintenance court, once the warrant has been executed.

The person against whom a warrant of execution had been issued may apply to the maintenance court concerned to have the warrant of execution set aside or suspended, by giving notice of his intention to make the application to the person in whose favour the maintenance order was made at least 14 days prior to the date on which the application is to be heard. The court may at the hearing of the application request either or both parties to adduce evidence in writing or orally, as the court considers necessary.

The court may, when suspending a warrant of execution, grant an order for the attachment of emoluments or the attachment of debt.

Attachment of emoluments

The complainant may request the maintenance court to make an order for the attachment of any emoluments at present or in future owing or accruing to the person against whom the maintenance order was made, for the amount necessary to cover the amount such person has failed to pay, together with interest thereon as well as the costs of the attachment. This order will authorise the employer of the person who failed to comply with the maintenance order to deduct from that person’s emoluments and to pay on that person’s behalf the amount specified in the order until the amount due, plus interest and costs, has been paid in full.

To give effect to the order for attachment of emoluments, the maintenance officer shall within seven days after the order was granted cause a notice with a copy of the order to be served on the employer of the person against whom the order was granted. The notice to the employer must substantially correspond with part A of form O of the annexure to the Maintenance Regulations.

An order for attachment of emoluments may, on application by the person against whom such order was granted, be suspended, amended or rescinded. Notice of such application must be given to the person in whose favour the maintenance order was made at least 14 days prior to the date on which the application is to be heard. The application must substantially correspond with part A of form N of the annexure to the Maintenance Regulations whereas the notice must substantially correspond with part B of the form.

Attachment of debt

The maintenance court may on application by the person in whose favour a maintenance order was made, or when it suspends a warrant of execution, make an order for the attachment of any debt at present or in future owing or accruing to the person against whom the maintenance order was made, for the amount necessary to cover the amount which the creditor failed to pay, together with interest thereon as well as the costs of the attachment. This order will direct the person who has incurred the obligation to make the payment specified in the order.

As in the case of the attachment of emoluments, an order for the attachment of debt may, on application by the person against whom the order was granted, be suspended, amended or rescinded. Notice of such application must be given to the person in whose favour the maintenance order was made at least 14 days prior to the date on which the application is to be heard. The application must substantially comply with part A of form P of the annexure to the Maintenance Regulations, whereas the notice must substantially correspond with part B of the form.

Compiled by Bertus Preller

Family Law Attorney

Abrahams and Gross Inc.
http://www.divorceattorney.co.za

info@divorceattorney.co.za

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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