Divorce Attorney Cape Town

Parental Alienation Disorder


Father’s Rights activists in the USA have been attempting to have Parental Alienation Disorder added to the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM V), the American Psychiatric Association’s “bible” of diagnoses.

Parental Alienation Syndrome explains a child’s estrangement from one parent or allegations of abuse at the hands of one parent by blaming the other. The theory, developed by the late Richard A. Gardner, M.D., portrays the preferred parent as an evil “alienator” who is virtually solely responsible for turning a vulnerable child against their estranged parent. Parental alienation syndrome occurs when one parent’s efforts to consciously or unconsciously brainwash a child combine with the child’s own bad-mouthing of the other parent. In severe cases, the child won’t want to see or talk to the alienated parent.

Parental Alienation Syndrome is a disturbance in the child who, in the context of divorce, becomes preoccupied with deprecation and criticism of one parent, which designation is unjustified or exaggerated or both. Parental Alienation Syndrome arises primarily from a combination of parental influence and a child’s active contribution to the campaign of deprecation, factors which may mutually reinforce one another.

Parental Alienation Syndrome may be divided into three categories – severe, moderate and mild. Although there is actually a continuum, and many cases do not fit neatly into one of the three classifications, the differentiation is important. The alienation of the child is gradual and consistent. It becomes worse if the child has no time with the targeted parent. Time is on the side of the alienating parent. Children who are exposed to Parental Alienation Syndrome may develop mental illnesses; it can have profound long-term consequences. Studies of adults who had been victims of Parental Alienation Syndrome when they were young showed that the Parental Alienation Syndrome impacted on their ability to trust and to believe in things like honesty and openness and those relationships with members of the opposite sex can work. Parents should be able to trust each other but children who had been victims of Parental Alienation Syndrome believed that the alienated parent could not be trusted. The studies showed that, as the persons concerned had grown up and severed ties with the alienating parent, they discovered that many of the things that they had been told by that parent were not true. They discovered that the targeted parent was not as bad as they had been led to believe and, in some cases, that he was in fact ‘a good guy’. The young person then found himself or herself in the position that he or she could no longer trust the alienating parent but at the same time could not trust the targeted parent. In many of the cases, the studies showed that the person concerned was maladjusted and failed in inter-personal relationships. Typically, when a child is aware of the alienation it is not happy.

Parental alienation syndrome is not a gender specific issue. It was once believed women were the main perpetrators of parental alienation, but no longer almost 50% are men. Perpetrators who are men tend to be narcissistic, characterized by a sense of entitlement, arrogance and low empathy. Female alienators often have borderline personalities, marked by insecurities, neediness, a strong fear of abandonment and chronic emptiness.

When it comes to parental alienation the focus should be on the child who has a right to equal time with both father and mother.

Making parental alienation a disorder instead of a syndrome has nothing to do with whether or not you have a “uterus, divorce papers and bruises.” Most mothers put their children’s needs first. Most fathers do the same.

It is trite in family law that the ‘best interests’ of each child is paramount in determining the contact and care of and access arrangements to such child. Such interests have been described as ‘an elusive concept’.

In determining what is in the best interests of the child, the Court must decide which of the parents is better able to promote and ensure his physical, moral, emotional and spiritual welfare. This can be assessed by reference to certain factors or criteria which are set out hereunder, not in order of importance, and also bearing in mind that there is a measure of unavoidable overlapping and that some of the listed criteria may differ only as to nuance. The criteria are the following:

  • the love, affection and other emotional ties which exist between parent and child and the parent’s compatibility with the child;
  • the capabilities, character and temperament of the parent and the impact thereof on the child’s needs and desires;
  • the ability of the parent to communicate with the child and the parent’s insight into, understanding of and sensitivity to the child’s feelings;
  • the capacity and disposition of the parent to give the child the guidance which he requires;
  • the ability of the parent to provide for the basic physical needs of the child, the so-called ‘creature comforts’, such as food, clothing, housing and the other material needs – generally speaking, the provision of economic security;
  • the ability of the parent to provide for the educational well-being and security of the child, both religious and secular;
  • the ability of the parent to provide for the child’s emotional, psychological, cultural and environmental development;
  • the mental and physical health and moral fitness of the parent;
  • the stability or otherwise of the child’s existing environment, having regard to the desirability of maintaining the status quo;
  • the desirability or otherwise of keeping siblings together;
  • the child’s preference, if the Court is satisfied that in the particular circumstances the child’s preference should be taken into consideration;
  • the desirability or otherwise of applying the doctrine of same sex matching;
  • any other factor which is relevant to the particular case with which the Court is concerned.

Compiled by: 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.

http://www.divorceattorney.co.za

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

Antenuptial contracts


The Antenuptial Contract is one of the most important documents that a person will sign in his or her lifetime, well that is if you opt to get married.  The problem however is that people somehow disregard the importance of the Antenuptial Contract and many embark on a getting married without due cognisance of the repercussions that might follow at a later stage, especially when the marriage end in divorce. Somehow many people merely see the Ante nuptial Contract as a mere formality, something that needs to be signed prior to the wedding day, without realising the consequences of such an important legal instrument.

No one goes into a marriage contemplating a divorce but when you consider that the Antenuptial Contract governs what will happen to your assets and liabilities on divorce or death, it makes lots of sense that considerable thought should be given to concluding it and that its contents should be fully understood by all parties concerned. Unfortunately many people are more drawn into the eyes of their spouse prior to the marriage than to the importance of the wording of a proper Antenuptial Contract. It is best that both parties obtain independant legal advice prior to entering into such a contract

The various matrimonial property regimes in South Africa:-

MARRIAGE IN COMMUNITY OF PROPERTY

If you do not conclude an Ante nuptial Contract prior to your wedding day, you will by default marry in community of property. ‘In community of property’ means that everything the spouses own, and their debts, from before their marriage are put together in a joint estate and everything they earn or buy after their marriage is also part of this joint estate. Any money or possessions belonging to either of the spouses at the time of the marriage, or acquired by them at any time thereafter, cease to be the private property of the one person and become part of a joint estate in which each of the partners has an equal, undivided share.

Upon dissolution of the marriage, the husband and wife are each entitled to a half-share of the joint estate and they are jointly liable for any liabilities. A major disadvantage is that if one partner becomes insolvent, the other is protected only if he or she owns property that does not form part of the joint estate. Everything in the joint estate will be attached and sold off to pay any creditors.

MARRIAGES OUT OF COMMUNITY OF PROPERTY

Each spouse retains his or her own assets and liabilities whether acquired before or during marriage. There is no sharing of profits and losses. Both spouses have full and independent contractual capacity. Upon death or divorce, each spouse keeps control over their own assets.

This clearly gives parties absolute independence of contractual capacity and protects the estates of each party against claims by the other party’s creditors. There is no provision for any sharing whatsoever.  A party who contributed to the other party’s estate whether in cash or otherwise would have a heavy onus to prove that he or she was entitled to anything from that party’s estate on dissolution of the marriage.

The marriage is governed by a contract known as an ante nuptial contract which is concluded by the parties before the marriage. If the marriage occurred after 1 November 1984, the contract had to specifically exclude the system of accrual. In the absence of this exclusion the rules of accrual will automatically apply.

MARRIAGES OUT OF COMMUNITY OF PROPERTY WITH THE INCLUSION OF THE ACCRUAL SYSTEM

In most cases the accrual system is, perhaps, the fairest marriage system for the majority of couples. Before the introduction of the accrual system in 1984, if prospective spouses chose to be married out of community of property, there was no form of sharing between them of what was built up during the marriage. The accrual system was introduced to remedy this.

The Matrimonial Property Act 88 of 1984 brought with it the “accrual” system which permits a form of sharing, consistent with a primary objective of marriage, but permitting retention of each party’s independence of contract and ability to retain their own unique separate estates.

“Accrual” means increase. The accrual system is a form of sharing of the assets that are built up during the marriage. The underlying philosophy in respect of the accrual system is that each party is entitled to take out the asset value that he or she brought into the marriage, and then they share what they have built up together. One spouse’s property cannot be sold to pay the other’s creditors if the other becomes insolvent – in contrast to the case where the parties are married in community of property.

It is of utmost importance that a party wishing to enter into an Antenuptial Contract must fully understand what it is they are signing. It is for this reason that a standard form contract cannot be used, that consultations cannot be held over the phone or by means of email and that, unfortunately.

The important features of an accrual marriage are in essence the following:-

  • Each party retains his or her own estate. Each party may accumulate assets and incur liabilities without interference from or assistance of the other spouse.  The estate of each party is determinable separately.
  • The monetary value of the smaller estate is subtracted from the monetary value of the larger estate, the difference is split, and the party having the larger estate pays half of the difference between the two estates to the party with the smaller estate.
  • At dissolution of the marriage, the estate of each party is calculated by listing all assets, listing all liabilities, subtracting liabilities from assets and arriving at a net asset value.
  • In practical terms this amounts to a similar division to a marriage in community of property.  However there are certain crucial factors of an accrual marriage which add complexity and much more freedom of choice.
  • When drafting the Ante Nuptial Contract, the parties can each decide to exclude certain assets.  The effect of excluding an asset will be that it does not feature on the asset statement at dissolution of the marriage and is completely excluded from the calculation. Assets which are not properly described can cause huge problems when the executor or the divorce attorney tries to decide what to do with it in calculating the net accrual value.
  • To exclude either a specific asset, or a commencement value, or both (which must be separate and not derived from the same asset), can effectively ensure that couples share only what they choose to share and keep separate any item or items, or values, which they do not believe it fair to share (for example something acquired before the relationship commenced).
  • Parties not wishing to exclude specific assets may exclude a certain sum of money which is the agreed equivalent of assets which they do not wish to share, and which is termed a “commencement value”.

Excluded from the Accrual

Certain property belonging to either the husband or the wife may not be taken into account when the accruals are worked out:

  • Any damages awarded to either spouse for defamation or for pain and suffering;
  • Any inheritances, legacies or gifts that either spouse has received during the marriage, unless the parties have agreed in their antenuptial contract to include these or the donor has stipulated their inclusion;
  • A donation made by one spouse to the other. This is not taken into account as part of either the giver’s or the receiver’s estate, with the result that the giver cannot recover part of what he or she gave and the receiver need not return any of it.

Calculating the Accrual

The accrual is calculated by subtracting the net asset value of his/her estate at the commencement of marriage from the net asset value of his/her estate at dissolution of the marriage.

If you do intend to get married, it is well worth your while to consult a reputable attorney, to discuss your particular requirements and ensure that you fully understand the application of the accrual system to your particular situation.

The Antenuptial Contract must be signed before the marriage and must be signed in the presence of a notary and two competent witnesses. The notary will then register the contract in the local registry of deeds.  If parties wish to conclude an Ante Nuptial Contract after their marriage it is necessary to launch an application to the High Court.

Compiled by:

Bertus Preller is a family and divorce law attorney at Abrahams and Gross Inc. and co-founder of Divorce Attorney (DA). He was admitted as an Attorney of the High Court in 1989. Prior to co-founding DA, Bertus was Managing Director and co-founder of Van Wyk & Preller Attorneys in Bloemfontein, a director of Honey & Partners Attorneys in Cape Town and founder of  eLaw initiatives such as eDivorce, eWills and eTrust.

Bertus was also a past Part Time Commissioner at the CCMA an Arbitrator and Mediator at various Bargaining Councils, an Appeals Authority for the South African Police Services and he acted in a number of high profile matters in all Courts in South Africa. Bertus also negotiated the contracts of rugby players on behalf of the SARFU Rugby unions and more recently advised a number of South African Book Publishers on the Google Book Settlement. Bertus matriculated at Grey College in Bloemfontein and graduated from the University of the Orange Free State in 1988 (cum laude – Criminal Procedure) he articled at Symington & De Kok Attorneys in Bloemfontein. Bertus specializes in Family Law issues, such as, access, adoption, biological fathers’ rights, grandparent’s rights, divorce (uncontested & contested), divorce mediation, divorcing a missing spouse, same-sex and other non-marital life partnership agreements, parenting plans, maintenance and antenuptial agreements.

Pastor Benny Hinn and Paula White’s adultery?


Even Pastor’s don’t practice what they preach it seems. Evangelist Benny Hinn recently admitted at a crusade in 2010 in Oakland, Calif., to having a “friendship” with fellow minister Paula White while he’s still married after a tabloid pictured them holding hands in Rome on July 13. But the well-known healing minister says the relationship is over.

“A friendship did develop,” Hinn said of White in Oakland on July 30. “Hear this: No immorality whatsoever. These people out there are making it sound like we had an affair. That’s a lie.”

Hinn invited his daughters Natasha and Eleasha on stage in Oakland and asked the crowd to pray for him, his estranged wife, Suzanne, and their four children. He said he and his wife had problems in their marriage for years and “could no longer exist in the same house.”

Hinn’s wife, Suzanne, filed for divorce in February after the couple had been separated for years, but it has not been finalized.

Hinn aired segments from the Oakland crusade and made additional personal comments on his This Is Your Day program on TBN Aug. 5, the day after his 31st wedding anniversary. A ministry executive said the program will air on other networks this week, including on Daystar Friday.

Hinn told the crowd in Oakland that the Vatican made him a Patron of the Arts and invited him to visit Rome. He said patrons are asked to find donors to help maintain the Vatican’s art collections, and he wanted White to become a donor.

“I let her come with me to Rome so she can donate money,” Hinn said. “That was stupid on my part. And for that I do ask forgiveness.”

The National Enquirer published photos in its Aug. 2 issue of Hinn walking hand-in-hand with White in Rome. The article, which released July 23, claimed the two spent three nights in a five-star hotel Hinn booked under a false name.

Hinn said in Oakland that he and White found “common ground” after she appeared on This Is Your Day in late May. White and her ex-husband, Randy, went through a public divorce in 2007. She now leads the Tampa, Fla., church they founded, Without Walls International Church, and has her own national television show called Paula Today.

He said he and White were never alone in Rome, but claims he ended his friendship with her after the tabloid report was published. “I said, ‘Paula, we can’t even be friends right now.'”

Hinn admitted that he contributed to the demise of his marriage by putting ministry over his family. “I was so busy in the ministry, I was so caught up with the ministry, I forgot about my family,” Hinn said. “That’s probably what broke the whole thing up.”

He said he often preached that ministry comes first, acknowledging that he knew that teaching hurt his children. “You know what? It’s wrong,” he said of the teaching. “I’m here to admit I was wrong because the call of God first should touch the family. If you have no family, you can’t go on anyways.”

Hinn admitted he and his wife had “challenges” but said he didn’t expect her to end the marriage.

“We had troubles for a long time, and I would ask her often, ‘Would you ever divorce me?'” Hinn said. “She said, ‘Never because I fear God too much.’ She said, ‘My covenant is with God, not you.’ And I guess she could no longer handle it. One day she did it to my shock.”

Hinn said it’s painful to talk about his marital problems, noting that he and his wife were separated long before the divorce filing.

“We’ve had to be very quiet to protect the ministry, the work of the Lord,” he said. “But sadly when you are a public person, everything you do becomes public.” “I don’t care how strong you are,” Hinn added. “I don’t care if the anointing of God is mighty on you. Nobody wants to be alone. I don’t care who you are. I am a human being just like you.”Hinn said he is “still focused on the Lord’s work,” adding, “I’m going to go on serving Jesus with all my being, and whatever the future holds, that’s His business.”

Source: charismamag.com

Divorce Law and Pension Benefits in South Africa


When the parties are married in community of property or out of community of property with accrual is it possible to have a claim directly against the pension fund. If the parties are married out of community of property, excluding the accrual then in terms of the Divorce Act, 1979 they are not entitled to claim any benefits from the pension fund directly. One must first establish whether the divorce order is enforceable directly against the fund.

If the Divorce Settlement Agreement is not drafted properly a party may find that the claim against the pension fund might not be enforceable, it is therefore of utmost importance that the Settlement Agreement is drafted properly, otherwise a party will have to approach the court again on application which will involve further legal costs. This happened in the case of Maharaj v Maharaj, where the parties divorced and no mention was made about pension in regard to the division of the joint estate. A claim was made for 50% of the proceeds of the pension benefit, but the court held that a simple division of the joint estate was not sufficient to award a former spouse a portion of the member’s pension interest. The court must make a specific award. The Fund must be specifically named in the court order, preferably with its registration number and the court order must order the fund to endorse its records with the provisions with the order. Once the order has been received by the fund administrator, then, the records can be flagged. The fund will not be liable to pay interest to the non-member spouse as the Divorce Act does not allow payment of interest. The member will in his/her personal capacity be liable for payment of such interest.

So, for the order to be enforceable it must meet all the requirements of section 7(8) of the Divorce Act, namely:

1 The court must award to the non-member spouse a certain percentage of the member’s pension interest;

2 The order by the court must express a percentage of the pension interest.

3 The retirement fund must be named or capable of being ascertained;

4 The retirement fund must be ordered to make an endorsement in its records to ensure that the awarded part of the pension interest is paid to the non-member ex-spouse.

It is important that the parties understand exactly what is meant by “Pension interest”. Preservation funds are not included in the definition of pension interest and so divorce orders cannot be enforced against preservation funds unless they are registered in terms of the new definition of “pension interest” as per below. A preservation fund is a fund in which employees, who leave the service of an employer owing to dismissal (including retrenchment) or resignation, or in the event of the dissolution of the employer’s pension or provident fund, may invest their accrued fund benefits.

With effect from 1 November 2008, certain changes were introduced to the old definitions.

1 Pension or provident funds- Pension interest is defined as basically the fund value at date of divorce (no growth after date of divorce included)

2 Retirement annuity funds- return of contributions plus annual simple interest at a rate determined by the minister from time to time, subject to the simple interest being limited to the actual fund growth (still no growth after date of divorce included)

3 Preservation funds- An attempt has been made to include preservation funds into the definition of pension interest.

Section 37D(6) states that the value of the pension interest is the member’s value of the preservation fund as at the date of divorce. Once established that the divorce decree is enforceable against the pension fund, one need to understand how and when payment is made and what the tax consequences are.

What about tax?

For all divorce orders, even those granted before 13 September 2007, the ex-spouse would be entitled to payment of his/her share of the benefit immediately. The idea is that s/he would be able to invest the money in their personal capacity and enjoy the growth thereon, which seems on the face of it to be more equitable than the old regime.

Further legislative amendments (The Revenue Laws Amendment Act 60 of 2008) have resulted in the tax on the benefit being treated differently depending on the date of the divorce.

a) Divorces effective before 1 March 2009, the benefit will still be taxable in the hands of the member spouse should the non-member spouse select to take the benefit as a cash lump–sum. The member spouse is however able to recover the tax payable from the ex spouse, but is not able to recover the “tax on tax”. The ex-spouse also has the option to transfer the benefit to a retirement annuity fund or to some sort of preservation fund, which has yet to be clearly defined and established, but this transfer occurs after the tax has been paid by the member spouse.

b) Divorces effective after 1 march 2009; the benefit will be taxed in the hands of the non-member ex-spouse if s/he takes the benefit in cash. If it is transferred to another retirement fund, the transfer will be tax-free.

These benefits will be taxed as if the recipient is a separate taxpayer in terms of the new tax dispensation on withdrawal benefits.

By:

Bertus Preller

B.Proc; AD Dip L Law

Family Law Attorney Abrahams and Gross Inc.

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

Twitter: www.twitter/edivorce

Facebook: www.facebook.com/divorceattorneys

January is Divorce Season in South Africa


Divorce Season

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

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

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

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

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

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

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

Collaborative Family and Divorce Law in South Africa, a fresh approach


Collaborative Family Law

A fresh new approach to family law

The adversarial court system in South Africa is often not well-suited for resolving family law disputes. For this reason, I often question our ability to help clients heal and move forward with their lives in a productive and constructive manner.

In a court, legal representatives are constrained by the principles and rules of law which are often not well suited to a client’s particular situation and his/her needs. The problem is that the legal community as a whole, our laws, our courts, court rules, and legal institutions – values and rewards ‘victory’ at any cost and this makes it difficult for us to focus on the post-divorce needs of clients.

Despite any intentions to the contrary, a court-sanctioned outcome is very seldom a good fit for families. The issues at stake are way too personal and require a high level of detail that the overburdened South African court system is not able to provide.

The mere fact that the judiciary is not in a position to gain more than a superficial understanding of the dynamics of any family, divorce attorneys find it challenging to maintain a balanced professional relationship with a family law client. The client’s perception is that he/she has few options and very little control over the outcome. When the divorce attorney explains that the courts are subjective, impatient, slow and inconsistent, it undermines the client’s confidence in the legal process during one of the most stressful periods in his life. The attorney has the delicate task of managing the client’s expectations while trying to give the client some confidence that the court process will meet his needs. The result is a difficult dynamic that causes many divorce attorneys to grind their teeth whenever a client call.

Most family law attorneys interact with child experts and other mental health professionals who can assist families in using their resources to create a more stable life for themselves after a separation or divorce. However, in a divorce trial setting, divorce attorneys and advocates are often forced to blindly refute or defend these experts’ recommendations. Often, the information is not used as a guide for the clients but as a weapon against the client’s spouse.

Several years ago, Stuart Webb, a lawyer in the United States of America decided that he wanted to make a positive difference in most cases and pledged to himself and his legal community that he would find a way to practise family law in a principled manner. His commitment resulted in an international movement known as ‘collaborative law’, which is practised in many countries, including the USA, Canada, Australia, New Zealand, the United Kingdom, Ireland, Germany, Austria and the Netherlands.

Webb analysed the court-based system and concluded that, in most instances, if a client resorted to the court or even threatened to do so, it resulted in a powerful disequilibrium. For most clients, the reconstruction of the family after court intervention was at best delayed and at worst unattainable.

Webb bravely decided to make his own practice ‘court-free’ and advised his legal community that any case in which he was involved had to be settled. His idea and its implementation were tactically very astute. When the lawyers and their clients adopt the ‘no court’ rule, any opportunity to strong-arm, bully or pressure is removed because such tactics are no longer effective in the settlement environment. Absent ultimatums, both lawyers and their clients can explore settlement in an atmosphere of cooperation.

Collaborative law is a ‘one-idea’ or ‘one-rule’ process: There is a contractual requirement that the collaborative attorney and all members of his firm must withdraw if the matter goes into litigation. This requirement is set forth in the participation agreement, which is signed by both parties and both attorneys. It provides that the clients must retain new litigation counsel if they decide to terminate the process and litigate. It is substantively different to be contractually bound to non-litigious resolution than to negotiate ‘nicely’ with the threat of court still available.

The lawyers limit the scope of their representation to collaborative law negotiations. The lawyer and client enter into a separate retained agreement wherein the client acknowledges the limited scope of the lawyer’s representation (for settlement purposes only) and acceptance of the waiver of the lawyer/client privilege during settlement meetings. The agreement also contains commitments to voluntary full disclosure.

The process plays out in a series of ‘all party’ meetings with the clients and their collaborative lawyers present. Negotiations are conducted in a principled fashion, exploring interest rather than discussing positions. Negotiations are interest-based rather than positional.

The participation agreement also provides that the substance of all negotiations is confidential and thereby creates a safe environment where clients can freely explore different options to meet their goals and needs.

In the collaborative law process all participants form a team with a common goal: To concentrate all efforts towards reaching a settlement that is acceptable to both parties. As a team, they are less likely to give up. Impasse becomes a challenge rather than an opportunity to assign blame, and successful negotiations are much more likely. The team approach also provides the opportunity for the lawyers to discuss the legal context and its application to the clients and assist in brainstorming options for resolution of the issues.

Collaborative law training assists lawyers in accomplishing the shift from ‘warrior’ to ‘facilitator’. Traditionally, the client provides a set of facts and we rush to reconstruct them into a ‘triable issue’. A collaborative lawyer assists the client in formulating a forward-looking set of goals and understanding the goals of his spouse. A collaborative lawyer does not solicit a recitation of woes, but encourage the client to take a broad view. The lawyer must be vigilant not to raise expectations of a particular outcome. The choice of the collaborative law process provides a framework for the client to work towards his broad goals with the lawyer’s support and assistance.

Collaborative law has been expanded to include financial and mental health professionals as members of the professional team. Financial professionals, such as accountants, financial planners and appraisers assist with the financial details of the settlement. Mental health professionals help design a parenting plan and act as facilitators. Although this team approach may seem costly to the family, the total cost is often the same as in a lawyer-only model because the assistance provided by other professionals results in more efficient, focused negotiations. The allied professionals can help facilitate discussions and formulate options for resolution. Together, the professionals and clients leave behind the troubled history of ‘winning battles but losing wars’ that has left so many families without a road map for rebuilding their lives and those of their children after divorce.

The effect of collaborative law on family Law attorneys is overwhelmingly positive. It dramatically improves the relationship between attorneys and eliminates litigation surprises and stressful relationships with clients resulting from unrealistic expectations. The focus shifts from differences to commonalities. All possible assistance is provided to help formulate a plan for restructuring the post-separation family.

The clients cannot abdicate responsibility to their lawyers and cannot use judicial discretion as a sword or a shield. Planning for the best outcome is their responsibility and requires their full participation. They ultimately decide their own future and the future of their children with the assistance of the professionals.

Collaborative law is different from mediation. In mediation, a neutral mediator assists the parties in reaching a resolution. In collaborative law, each client’s representative is present during negotiations to provide support and legal advice and to manage the process. Legal advice is concurrent with and integrated in negotiations.

The collaborative lawyer meets with his clients between negotiation meetings to prepare for the next meeting. The lawyer also assists the client in expressing his or needs and concerns during the meetings. Many clients prefer to have a representative present during negotiations, particularly where there is a power imbalance between the parties.

By Bertus Preller

Family and Divorce Law Attorney

http://www.divorceattorney.co.za

email: info@divorceattorney.co.za

Free Sample Cohabitation Agreement


Cohabitation  – Living  Together Agreement

The following form is intended for illustrative purposes only. You and your attorney can use this sample as a guide in drafting a cohabitation agreement that best protects your interests and complies with the laws in effect where you live.

Why do I need a Cohabitation Agreement?

A Cohabitation Agreement sets out the financial terms of a couple’s relationship, and provides protection for the parties upon death, or should the relationship fail. 

Who should use a Cohabitation Agreement?

Any unmarried couple in a relationship and living with each other could find this agreement useful.

Also known as:

  • Conditions of Cohabitation
  • Cohabitation Contract

It is advisable that you contact an attorney in regard to drafting such an agreement.

COHABITATION AGREEMENT

Between

(The 1st Party)

and

(The 2nd Party)

PREAMBLE

WHEREAS

1.  The parties are currently living together in a domestic partnership and intend to continue living together in this arrangement;

2.  The parties wish to define their respective proprietary rights and liabilities arising from their domestic partnership arrangement;

3.  The parties each acknowledge that they enter into this agreement voluntarily, without any duress or undue influence, and that each has had the opportunity to consult with an attorney of his/her choice;

THE PARTIES AGREE:

1.         Marital Status

The joint residency of the parties shall in no way render the parties married in any way, whether by operation of common law or any other law.

2.         The Agreement

2.1       This Agreement consists solely of the mutual promises contained herein and the mutual promises of each party to act as the living companion and partner to the other.

2.2       This Agreement fully contemplates and compensates any and all services provided by either party for the benefit of the other during the course of their joint residency. The furnishing of sexual services shall in no way be construed as consideration for this Agreement.

3.         Disclosure of Current Financial Status

Each party has fully and completely, to the best of his/her knowledge, disclosed to the other party his/her current financial condition including all assets and liabilities. Each party has attached a balance sheet to this agreement indicating his/her current assets and liabilities with the understanding that this balance sheet reflects his/her current financial status to the best of his/her ability.

4.         Division of Living Expenses

Necessary and jointly approved living expenses shall be divided between the parties as below:

4.1       The 1st Party shall contribute _____________ percent ( ____%) per month;

4.2       The 2nd Party shall contribute _____________ percent ( ____%) per month.

The parties shall contribute their monthly pro rata contributions into the joint savings/current account of the parties. Any property purchased using funds in this account shall be considered to be the joint property of the parties and owned according to the respective party’s percentage of contribution as stated above. Either party may draw upon this checking account.

5.         Separate Property

The following properties shall be kept by the parties as the separate property of the recipient and the said properties shall not be subject to division at the termination of this Agreement:

5.1       All and any property, real or personal, owned by a specific party at the date of execution of this Agreement;

5.2       Individual gifts, bequests or inheritances acquired before or after the execution of this Agreement;

5.3       Individual earnings, salary or wages acquired before or after the execution of this Agreement;

5.4       All income or proceeds derived from the aforementioned properties.

6.         Commingling of Property

All commingled property shall be presumed to be joint property of the parties unless otherwise agreed.

7.         Joint Property

All property acquired by the parties after the date of execution of this Agreement and before the termination of this Agreement and procured jointly with joint resources and funds shall be considered joint property of the parties with each party possessing his/her aforementioned percentage of ownership.

8.         Division of Property upon Termination

Upon termination of this Agreement or termination of the joint residency, all jointly owned property shall be divided among the parties according to their pro rata share listed above.  If the parties are unable to agree on the appropriate division of joint property, they may appoint an independent and mutually agreed upon Third-party to act as Appraiser.  The Appraiser shall divide the property among the parties according to his/her pro rata share.

9.         Duty of Good Faith and Confidentiality

9.1       This Agreement creates a fiduciary relationship between the parties in which each party agrees to act with the utmost of good faith and fair dealing toward the other in the management of their joint property and in all other aspects of this Agreement.

9.2       Without obtaining a parties’ written consent in advance, a party shall not directly or indirectly publish, or cause to be published, any diary, memoir, letter, story, photograph, interview, article, essay, account, or description or depiction of any kind whatsoever, whether fictionalised or not, concerning the relationship or any other aspect of a parties’ personal, business or financial affairs, or assist or provide information to others in connection with the publication or dissemination of any such material or excerpts thereof.

10.       Legal Names of Parties

Each party shall retain his/her legal name, including surname, as printed and signed in this Agreement.

11.       Duration of Agreement

This Agreement shall become effective at the date of execution and shall remain in effect until termination. Termination shall be effected by written notice by either party, cessation of the joint residency by either party or death of either party.  Either party may terminate this Agreement unilaterally at any time.

12.       Death of Party

Upon the death of either party, the surviving party waives all rights to support by the deceased party.

13.       Complete Agreement

It is the intent of the parties that this Agreement be the full and complete agreement between the parties regarding their joint residency.  No variation of this agreement shall be of force or effect unless reduced to writing and signed by both parties.

14.       Severability of Provisions

Should any paragraph or provision of this Agreement be held invalid, void, or otherwise unenforceable, it is the intent of the parties that the remaining portions shall nevertheless continue in full force and effect without impairment.

15.       Governing Law

This Agreement shall be governed by, interpreted and construed in accordance with the laws of the Republic of South Africa.

DATED at                                     this                  day of                                    201_

AS WITNESSES:

 

1.

 

2.

 

DATED at                                     this                  day of                                    201_

AS WITNESSES:

 

1.

 

2.

 

Compiled by:

Bertus Preller

Family Law Attorney

Abrahams and Gross Inc.

Cohabitation Agreements in South Africa


Cohabitation Agreements

None of the consequences of a marriage automatically ensue if partners simply live together. Thus life partners do not automatically have the right to share in the other’s property during or after the relationship. Life partners are able to use contracts to achieve a measure of protection as against each other as well as against third parties. They may for example purchase assets jointly, or jointly enter into lease agreements, credit agreements etc. in such cases the terms of each contract will determine the rights, duties and obligations of each of the life partners. Usually the life partners are the joint owners of the assets acquired and joint debtors in respect of the obligations incurred.

Where the life partners are the joint owners neither of them can exclude the other from using or controlling such assets. Unless they have entered into a partnership agreement either of them may alienate his/her own share of the jointly owned assets without the other’s consent. If the life partnership breaks down and the life partners can’t agree how to divide the assets either of them may institute the action communi dividundo in which event the court will then appoint a receiver or liquidator to divide the assets.

It is best that life partners regulate their rights in terms of a cohabitation agreement. In this agreement they may for example undertake that they will maintain each other while the relationship lasts, agree to posy separation maintenance, regulate ownership of the property each of them owned before the start of the relationship, agree on property acquired after the relationship started, agree on occupation of the common home during the relationship and after termination and so forth.

Partners living together should enter into a cohabitation agreement. I have dealt with numerous disputes over the years where partners terminated a relationship with or without an agreement in place and it is usually where there is no agreement in place that the turmoil starts.

Bertus Preller

Family and Divorce Law Attorney

Abrahams and Gross Inc.

 

Is adultery in South African Law still a basis for a claim against the mistress?


From a personal, 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:

(a)               The relationship and love between the adulterer and mistress is treated as morally reprehensible or without opprobrium;

(b)               The mistress is held wholly responsible for damage caused to an aggrieved spouse by the other spouse’s marital infidelity; and

(c)                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:

(a)               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;

(b)               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;

(c)                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;

(d)               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:

(a)               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;

(b)               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

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