Divorce Attorney Cape Town

Interview with one of Cape Town’s Best Divorce Attorneys Bertus Preller


Interview with one of Cape Town’s Top Divorce Attorneys Bertus Preller at Abrahams and Gross Inc.

Why do people and celebrities from all over South Africa come to you for divorce and family law matters?

Well, firstly, I guess it is because I care a great deal, I work hard and I am involved personally in my client’s cases. I am only as good as the team behind me and our office staff and junior attorneys really assist in alleviating a lot of the pressure associated with my work

What is a typical day look like for you?

I commence work at 5am in the mornings doing my normal correspondence until 7am, drop my daughter at school at 8 am and start seeing clients from 9am till 3pm by the hour, three days a week other days I will be in Court. Evening times I use to read and blog on Family Law issues, study case law and spend time with my family.

You are also the founder of eDivorce a do it yourself divorce platform in South Africa, can you tell us more about this?

eDivorce is a divorce document generating platform and generates all the documents that you will need to conclude an uncontested divorce in South Africa with a click of a button.

So how does the eDivorce process work?

A user will browse a web page, http://www.edivorce.co.za fill in a questionnaire and the technology platform will then generate all the necessary documents such as the Summons, Particulars of Claim, Settlement Agreement, Family Advocate Affidavit, Notice of Set Down and Statistics Form. A team of experts then checks whether the documents were drafted correctly and release them to the user. The document generation process takes 24-hours and the divorce itself, depending which court you file in takes between 3 – 8 weeks.

How many divorces have you handled so far?

It is difficult to say, more than 400.

What are the reasons why people divorce in South Africa?

There are so many reasons, but the most frequent reasons are infidelity, physical, emotional or verbal abuse, money, in-law problems, life transitions, addictions, childhood baggage, different life agendas, life overload, mid life crisis and controlling behaviour.

Are you not concerned about the high divorce rate in South Africa?

Yes, most definitely. A healthy society is built on a solid marital foundation and it is the reason why I urge my client’s always to reconcile if the slightest possibility exist to make things work. If that is not possible, then my roll becomes clinical and the interests of my client and the minor children come first.

Are people generally up to scratch with their rights in a divorce?

Yes and No. The internet and media have played a significant role in educating people on all aspects of life, so in many instances you will find that a party in a divorce matter will know what he/she will be entitled to claim, but in other instances people seem to lack that knowledge, especially women.

Don’t you get subjectively involved in your clients lives?

In order to be successful you have to look at a case clinically. Like a doctor operating on a patient. You have to distance yourself from the emotional aspects. But yes, there are times that you are touched by the hurt of the parties involved, especially when there are children involved. So to answer your question, I am human after all.

Don’t you think people give up to easy in their marriage?

It is difficult to say. It depends on the facts of each case. In a matter concerning adultery, it is very difficult for instance. People can forgive, but forgetting is rather difficult, so unless there is not a huge effort from both spouses to mend the relationship, it will not work and divorce will be inevitable. But then there are many instances where parties can mend their relationships and where opting for divorce would be wrong. Unfortunately life has become like a remote control, if you don’t dig the channel you simply click and change it, so if you don’t like the relationship you click and move on, I don’t think that is a good thing for society as a whole.

What advice can you give to someone going through a divorce?

When there are children involved you have to set the emotions apart and make decisions in the best interests of the children. Divorce is always an emotional rollercoaster and although how difficult it may sound, you have to think with your brain and not with your heart. Relationships are all about control, like using a remote to change the TV channels, one of the parties constantly changes the channels, the kids, the money etc. and that is where many problems surface.

Bertus Preller can be contacted on email at: info@divorceattorney.co.za or at http://www.divorceattorney.co.za

Adultery in South Africa, can I claim against a third party in a divorce


adultery

From a moral, ethical and religious perspective adultery is a sin and an act contrary to the basis of trust between married spouses and so is the behaviour of that infamous third party that broke up the marriage seen as immoral.  The purpose of this article is to revisit the law in respect of an aggrieved parties’ right to institute a claim for damages against the third party that was privy in the break-up of a marriage, i.e a claim against the mistress for monetary relief, to make good the hardship caused by the affair and the enticement of the spouse to leave the communal home in search of the greener pastures. The article is purely focussed on the law and not the public view or for that matter the religious viewpoint.

Our law has recognised in the past a claim for damages that can be instituted by an aggrieved spouse against a mistress. But what does our law say on the subject and is the law evolving away from the public view and religious views.

It is argued that the South African common law on which a Plaintiff’s claim is predicated for damages against a spouse who committed adultery in a marriage must be developed to promote the spirit, purport and objective of the Bill of Rights contained in Chapter 2 of the Constitution of South Africa, 1996 (“the Constitution”) and the interests of justice (under Section 39 (2) and section 173 of the Constitution).

According to the view expressed above it is argued that the time has come to develop the common law so as to remove or curtail claims for damages by a married person, utilising the actio iniuriarum, against a person involved in an intimate relationship with the married person’s spouse. The actio iniuriarum is used to claim for the impairment of one’s personality.  The purpose of this action is to compensate for the intentional injury to one’s mental integrity.

The argument against such a claim is that it breaches the right to human dignity (of the adulterer and mistress) under Section 10 of the Constitution, in that:

  1. The relationship and love between the adulterer and mistress is treated as morally reprehensible or without opprobrium.
  2. The mistress is held wholly responsible for damage caused to an aggrieved spouse by the other spouse’s marital infidelity; and
  3. The mistress is treated as an instrument, in that her human relationship with the adulterer is used as a means to express condemnation for the adulterer’s marital infidelity, and/or to generate sympathy for the aggrieved spouse.

It is further argued that such a claim breach the adulterer and mistress’s rights to equality and freedom from discrimination under Section 9 of the Constitution on basis of marital status, conscience and belief in that:

  1. No similar claim for damages is possible against a person who begins an intimate relationship with a man or a woman   involved in a long-term homosexual or heterosexual relationship, customary law marriage or religious union;
  2. The emotional consequences and loss for the aggrieved partner (i.e the person who learns of the infidelity of his or her partner with a third person) in all of the above relationships may be no more or less serious than a spouse in a marital relationship;
  3. The law accordingly differentiates between a person who enters a relationship with a married person; and a person who enters a relationship with a person in other types of committed, long-term relationships;
  4. The differentiation amounts to unfair discrimination on the basis of marital status and on the basis that it impairs, or has the potential to impair, the fundamental human dignity of an adulterer and a mistress.

It can further be argued that an adulterer and mistress’ right to privacy under Section 14 of the Constitution is violated in that it causes a public inquiry into the details of their relationship, how it formed and its strength.

Furthermore it seems that an adulterer and mistress’ rights to freedom of conscience, thought, belief and opinion under Section 15 of the Constitution, expression under Section 16 (1) of the Constitution and freedom of association under Section 18 of the Constitution also come into play for the following reasons:

  1. Burdening people such as the mistress with damages will have a detrimental effect on her ability to honestly and openly express her emotions and love for another person;
  2. The expression of emotions and love between the adulterer and mistress will be treated as morally reprehensible or tainted with moral opprobrium.

Therefore it seems that the common law must be developed in the interests of justice taking in to account the recognition that both parties contribute to the breakdown of the marriage relationship, which is inherent in the ground for divorce introduced in Section 4 of the Divorce Act 70 of 1979, namely “the irretrievable breakdown of the marriage”.

It is so that many foreign jurisdictions don’t tolerate such claims anymore and that there seems to be developments in South African case law to that effect. The historic view in our law that damages are awarded on the basis of the insult caused to the innocent party and of the loss of consortium seems to be outdated and time will tell on how our courts will develop the common law.

Bertus Preller

Family Law Attorney

Abrahams and Gross Inc.

www.divorceattorney.co.za

info@divorceattorney.co.za

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