Divorce Attorney Cape Town

Parental Alienation, are you guilty?

There are thousands of divorces every year in South Africa…

A sad statistic and topic that is all by itself. But these numbers don’t even come close to reflecting the pain and heartache that divorce brings with it. Most of the time, both spouses feel hurt, anger and possibly even betrayal. If not by their spouse, then by the hopes, dreams and commitment that they once shared.

If you have ever “survived” a divorce you know exactly what I mean. If you haven’t experienced one then you are most fortunate. The emotions, demands and the decisions that need to be addressed while going through and after a divorce are staggering in scope and importance. It’s a wonder any of us survive.

My heart goes out to anyone that has ever had to rebuild a shattered life and dreams because of divorce. The difficult scenario that I’ve just shared describes a husband and wife navigating through this life changing event. I think we would all agree, when children are introduced into the equation the stakes go up considerably for everyone involved. That’s where the potential for “Parental Alienation” rears its ugly head.

In fact, Parental Alienation is so ugly that very few that very few people even want to admit its existence. They would much rather debate whether it should be classified as a “syndrome” or not. Or assign self-serving motives to anyone who dares to shed light on its deadly impact on children.

No matter what you “label” Parental Alienation, it comes down to this. Any parent that deliberately and maliciously attacks their child’s other parent, and does everything they can to destroy the relationship their children have with that parent is abusing that child.

Now I’m not talking about occasionally venting about your ex-spouse (although even that is not healthy for your children), I’m talking about a wilful desire to use your children to “hurt, control or attack” your ex-spouse by turning the children against him or her.

Most of the time these attacks are hidden behind the guise of “protecting” the children from their “father or mother. In reality there are very few situations (although there are some) where the children are in need of protection at all.

What about the children? Do they deserve to be caught up in a deadly game of hate and manipulation just to make one of their parents feel better about themselves or meet their needs? What about our God-given (or at the very least our humane) responsibility for their welfare?

The sad fact is that the same parents that would probably fight to the death to shelter their children from harm end up being a perpetrator that inflicts some of the deepest wounds their child will ever receive. It boggles the mind and daunts the spirit to even consider such a thing! Doesn’t it?

The statistics are bleak concerning children of divorce to begin with. The incidence of depression, fear, anger and feelings of pain directly related to divorce and a “broken” family are significant by anyone’s standards. The statistics for children that have successfully been alienated from a loving parent is even more staggering and alarming!

Can you imagine how horrible it must be for a child to be torn from the loving arms of a parent that has loved, protected and provided for that child since the day they were born? Someone that comforted them, spent time with them and nurtured them for as long as they can remember. Now for reasons they can’t comprehend, that parent is suddenly “the enemy”.

What must it be like to be told (or at the very least strongly encouraged) that they must “hate mommy or daddy” to keep the alienating parent’s love and acceptance. What must go through their fragile little minds when they are taught to call the parent they once looked up to and respected by their first name, essentially taking them out of the role of parent in that child’s life?

How does a child feel when every reference made about one of their parents by the alienating parent to others, is demeaning and cruel. I would speculate that it makes them embarrassed by and resentful of the targeted parent. It makes them hate a part of themselves…

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.

Source partly from: http://www.keepingfamiliesconnected.org

Forfeiture of patrimonial benefits – it’s not really about what’s fair

Forfeiture of patrimonial benefits – it’s not about what’s fair

The law regarding forfeiture of patrimonial benefits on divorce continues to trouble most legal practitioners in South Africa. This is reflected by the way most pleadings are drafted and the prayers sought in these pleadings. As such, divorce courts have become hesitant to grant forfeiture orders. It has long been accepted that when parties enter into a marriage in community of property one joint estate will be formed. It has been stated that: ‘Community of property is a universal economic partnership of the spouses. All their assets and liabilities are merged in a joint estate, in which both spouses, irrespective of the value of the financial contributions, hold equal shares’ (HR Hahlo The South African Law of Husband and Wife 5ed (Cape Town: Juta 1985) at 157-8).

Choosing community of property

In most instances, parties entering into a marriage do not make equal contributions towards the joint estate for a variety of reasons, including, but not limited to –

  • one spouse might enter into the marriage already owning property (movable or immovable);
  •  one spouse’s salary might be more than that of the other;
  •  one spouse might not be employed;
  •  one spouse might request the other to stop working in order to take care of the household and children; and
  • one party might have been employed for some time and have substantial pension benefits.

As such, entering into a marriage in community of property is a risk that each spouse takes. The spouses will, on the date the joint estate is created, become joint owners of all the assets brought into the estate and will also share each other’s liabilities.

The law provides alternatives to a party who believes that the other party will end up being unduly benefited by the marriage. Such a party can conclude an antenuptual contract and ensure that the marriage is one out of community of property or out of community of property subject to the accrual system, where he will be able to exclude assets that he does not wish the other party to benefit from. However, if parties decide to marry each other in community of property, then ‘joint ownership of another’s property is a right that each of the spouses acquires when concluding a marriage in community of property’ (JW v SW 2011 (1) SA 545 (GNP) para 18, citing the headnote in Engelbrecht v Engelbrecht 1989 (1) SA 597 (K)). It is well established that if an antenuptial contract is not signed before the marriage, the marriage will automatically be in community of property. The parties to such a marriage will be contracted to deal with both the advantages and disadvantages of this marital regime. ‘One of the ordinary consequences of marriage in community of property is that the property of the spouses is brought together in a joint estate that is owned by them in equal undivided shares’ (Du Plessis v Pienaar NO and Others [2002] 4 All SA 311 (SCA) para 1). It can be reasonably argued that parties entering into marriage in community of property tacitly and expressly consent to build one joint estate that will hopefully grow and mutually benefit them. However, in practice when a marriage sours one party might decide to divorce and attempt to ensure that the other party does not share in the joint estate. A division of the joint estate is a natural consequence of a divorce where the parties were married in community of property. However, a party to the divorce proceedings who believes that the other party should not share in the joint estate may request the court to order forfeiture of benefits when issuing the order of divorce.

Forfeiture of benefits: Undue benefit NOT fairness

On divorce the court is empowered to order forfeiture of all or only some of the patrimonial benefits derived from the marriage (Ex Parte De Beer 1952 (3) SA 288 (T)). Schäfer has argued that courts do not have the power to order forfeiture ‘merely because this might seem equitable’.

‘While the court has a wide discretion in that it may order forfeiture in relation of the whole or part only of the benefits, it is not empowered to award a “portion of an errant husband’s separate estate” to his wife, for example, merely because this might seem equitable in the circumstances. Nor may a forfeiture order be granted simply to balance the fact that one of the spouses or partners has made a greater contribution than the other to the joint estate. The forfeiture order relates only to the benefits of the marriage … . The precise nature of these benefits depends on the particular matrimonial regime’ (Schäfer Family Law Service: Issue 54, October 2010, 26 – 27).

The party claiming forfeiture must show the court that the other party will be benefited if the order is not made. However, it is the nature of marriages in community of property to benefit parties thereto and it will not be enough to just prove that the other party will be benefited. As such, ‘the court may not use a forfeiture order as a mechanism for deviating from the normal consequences of the spouses’ matrimonial property system and achieving a redistribution of assets simply because it considers this fair and just’ (Cronje & Heaton South African Family Law 2ed (Durban: LexisNexis Butterworths 2004) at 132). The second leg of the inquiry is for the party claiming forfeiture to show that the other party will be unduly benefited if the order is not made. The courts have ‘emphasised that a party who seeks a forfeiture order must first establish the nature and extent of the benefit’. Unless that is proved, the court cannot decide if the benefit was undue or not’ (JW para 18). It has, however, been held that:

‘Unless the parties (either before or during the marriage) make precisely equal contributions the one that contributed less shall on dissolution of the marriage be benefited above the other if forfeiture is not ordered. This is the inevitable consequence of the parties’ matrimonial property regime.

The legislature (in s 9 of the Divorce Act 70 of 1979) does not give the greater contributor the opportunity to complain about this. He can only complain if the benefit was undue’ (Headnote in the Engelbrecht case at 599).

It is at this stage that the court should look at s 9(1) of the Divorce Act 70 of 1979, which lists the following factors which the court ought to take into account when deciding whether the party against whom forfeiture is sought would be unduly benefited or not –

  • the duration of the marriage;
  • the circumstances that gave rise to the breakdown of the marriage; and
  • any substantial misconduct on the part of either of the parties.

The court is not called on to decide what is fair and equitable in the circumstances, but rather to decide whether or not the party against whom forfeiture is sought would be unduly benefited if such an order is not granted. The fairness principle was rejected by the Supreme Court of Appeal in Wijker v Wijker 1993 (4) SA 720 (A) at 731C-H:

‘The finding that the appellant would be unduly benefited if a forfeiture order was not made, was therefore based on a principle of fairness. It seems to me that the learned trial judge, in adopting this approach, lost sight of what a marriage in community of property really entails. … The fact that the appellant is entitled to share in the successful business established by the respondent is a consequence of their marriage in community of property. In making a value judgment this equitable principle applied by the court a quo is not justified. Not only is it contrary to the basic concept of community of property, but there is no provision in the section for the application of such a principle. Even if it is assumed that the appellant made no contribution to the success of the business and that the benefit which he will receive will be a substantial one, it does not necessarily follow that he will be unduly benefited. … The benefit that will be received cannot be viewed in isolation, but in order to determine whether a party will be unduly benefited, the court must have regard to the factors mentioned in the section. In my judgment the approach adopted by the court a quo in concluding that the appellant would be unduly benefited should a forfeiture order not be granted was clearly wrong.’

To date the courts have not fully unpacked the concept of ‘undue benefit’. However, I submit that undue benefit will be illustrated by, among others, the relatively short period of the marriage. It is advisable, therefore, to have regard to the date of separation and not necessarily the date of divorce. I submit that the date the parties stopped residing together as husband and wife provides a clear indication of when the marriage broke down, as opposed to the date of divorce. The parties must also have been consistent, in that they denied each other conjugal rights, among others, during the period of separation and divorce. Undue benefit can also be proved where one party continually makes the living conditions in the household intolerable by, inter alia

  • not contributing to household expenses;
  • selling assets of the joint estate without the other’s consent;
  • inviting friends and family members to reside in the common home against the will of the other party;
  • continually undermining the other spouse; and
  • abusing the other spouse emotionally, verbally, financially and/or physically.

Undue benefit may also be established by proving that the other party is having an extramarital affair and also if such an affair has resulted in the birth of an illegitimate child. Lastly, it appears that failure to contribute financially with respect to the acquisition and/or maintenance of the asset to be forfeited by the spouse against whom forfeiture is sought will also be considered by the court. In practice, this is an allegation most practitioners rely on for an order of forfeiture.


It was held in the Wijker case that not all of the factors in s 9(1) of the Divorce Act need to be alleged and proved for forfeiture to be granted. The court was of the view that ‘the context and the subject matter make it abundantly clear that the legislature could never have intended that the factors mentioned in the section should be considered cumulatively’ (at 729E-F). The factors in s 9(1) are a closed list and ‘[t]he trial court may therefore not have regard to any factors other than those listed in s 9(1) in determining whether or not the spouse against whom the forfeiture order is claimed will, in relation to the other spouse, be unduly benefited if such an order is not made’ (Botha v Botha 2006 (4) SA 144 (SCA) para 8). Finally, a party claiming forfeiture must plead the necessary facts to support that claim and clearly identify those assets he wishes the other party to forfeit by relying on s 9(1) of the Divorce Act and not any other factor that is not recognised by that section. Furthermore, such a party must formulate a proper prayer in the pleadings to define the nature of the relief sought.

By Clement Marumoagae LLB (Wits) LLM (NWU) Certificate in Advanced Broadcasting Law (Wits) is a candidate attorney at the Wits Law Clinic. This article first appeared in the July 2011 edition of De Rebus, the SA attorneys’ journal published by the Law Society of South Africa.

The divorce rate amongst celebrities

Nearly 50% of Americans divorce at some point of time in their lives, but somehow we always hope the happily-ever after continues from the reel life to real life for our celebrities too. But by celebrity standards, year 2011 already seems to have a reached a nadir.

The break-ups number more than a dozen this year. Long time sweet-hearts Chalize Theron and Stuart Townsend split after nine-years of togetherness.

Sandra Bullock got bit by the Oscar curse and divorced husband Jesse James. The ball kept on rolling with Kate Winslet separating from husband Sam Mendes.

The list so far includes the divorces of Jennifer Lopez and Marc Anthony, Daniel Baldwin and Joanne Clare Baldwin, Maria Shriver and Arnold Schwarzenegger, Brad Womack and Emily Maynard, Elizabeth Hurley and Arun Nayar, Cheryl and Ashley Cole, Tiger Woods and Elle Nordegren, Courtney Cox and David Arquette, Al Gore and Tipper, Halle Berry and Gabriel Aubry, George Lopez and wife Ann, Jim Carrey and Jenny McCarthy, Kelsey Grammar and wife, and Christina Aguilera and Jordan Bratman.

The US has the world’s highest marriage rate of 9.8 per 1000 as well as the world’s highest divorce rate of 4.95 per 1000.

In a recent study done on Golden Globe award winners revealed that of the celebrities who had been married, the average number of marriages was 1.4, while the average number of divorces was 0.65. The probability of a famous union surviving is only 35 percent, so the odds are 1.9 to 1 against the marriage.

Celebrity marriages are remarkable for their instability. The much-touted 50 percent failure rate for American marriages soars as one’s star rises. The divorce rate among celebrities may be as high as 80 percent, according to Raul Felder a celebrity divorce lawyer in the United States who has represented Rudy Giuliani, Robin Givens, Carol Channing, David Merrick, Riddick Bowe, the former Mrs. Carl Sagan, the former Mrs. Tom Clancy, the former Mrs. Patrick Ewing, and the former Mrs. Martin Scorsese.

An article based on interviews of divorce lawyers in the United States reveals that the most common factors for celebrity divorces are that one of the couple moves up or trades up in movie biz parlance, addiction of some kind, waning of stardom, public infidelity and narcissism.

The most expensive celebrity split was that of Rupert Murdoch, who we will remember as the owner of the now infamous News of the World Newspaper when he divorce from wife Anna where he paid up $1.7 billion to her. Guy Ritchie and Madonna divorce cost $76 million, Tiger Woods- Elle Nordegren have reportedly settled for an estimated $750 million.

If somebody adds up all the expenses on marriages and divorces of celebrities the world over, it surely might even exceed the gross national income of a fairly mid-sized nation like South Africa.

Indian divorce in South Africa rates rise

Experts say it’s women who want out of marriage

24 July 2011 – Sunday Tribune – Devaksha Moodley

DIVORCES among Indians are on the rise, with more women filing suits and being caught cheating on their husbands.

The popularity of social networking sites and online pornography are also said to be leading more Indian couples to the divorce court.

In the past five years, the percentage of Indian divorces in the country has increased from five percent to 6.2 percent, according to Statistics SA – which correlates with the increase of users on Facebook. Of the 1 610 Indian divorces in 2009, 851 were filed by women.

Bertus Preller, a divorce and family law attorney, attributed this to Indian women now being more independent and secure – financially and socially.

Moreover, Rakhi Beekrum, a counselling psychologist at eThekwini Hospital and Heart Centre, said that “contrary to popular belief, it is not always the male partner who is unfaithful”.

Women are using modern technology to hook up, including Facebook, Twitter and internet sites. Rather than taking place behind closed doors, like they used to, affairs are flourishing in cyberspace.

Psychologists and lawyers are convinced this is one reason for the rise in divorces among Indian couples.

Beekrum, who mainly works in marital therapy, said: “A growing number of Indian couples, married and single, are seeking therapy because of infidelity linked to social networking sites and internet pornography.”

There are about 4 million active users on Facebook in South Africa, with the number having increased by 40 percent a year in recent years.

During this period, the divorce rate for Indian couples has also gone up.

Preller said he considered Facebook the unrivalled leader in “turning virtual reality into real-life divorce drama”.

Attorney Fawzia Khan said a client of hers had been horrified to discover her husband’s relationship status on Facebook was single and “looking for a relationship”.

Khan added that more Indian women were complaining about their husbands’ use of pornographic websites.

Beekrum said that when a partner felt his or her needs were not being met, they looked for satisfaction elsewhere.

“Internet pornography and social networking sites are easily accessible, so many people turn to them when unhappy in their marriages.”

However, psychologists say that internet pornography and cyberspace affairs are merely symptomatic of a problem that already exists in a relationship.

Sarojini Naidoo, a counselling psychologist, said that couples needed to look at what was causing them to spend less time with each other and more time on the internet.

On whether couples could overcome such betrayal, Naidoo said “communication is key”.

Beekrum said counselling could work if both spouses were willing to put in the effort.

Khan said: “One of the spinoffs for lawyers is the availability of evidence, which can be obtained through the social networking sites and used against a spouse in the divorce process.”

Such evidence can also be used in custody battles.

Preller cited the example of a father forcing his son to “defriend” his mother on Facebook “to establish some sort of parental alienation”.

Most of the Indian couples getting divorced are in their Thirties and have children.

Beekrum said: “While divorce used to be the last recourse, many Indian couples nowsee it as a primary option.”

Regarding cyber-adultery, Preller said that the degree of betrayal would vary from one individual to the next, but it had to be borne in mind that physical contact was not the only thing that defined an affair in the world of new media.

Khan said: “Some clients have complained that even where no intimacy is involved it creates an environment of distrust that ultimately leads to the marriage failing.”

The increase in divorces among Indian South Africans indicates that women are no longer standing idly by in unhappy marriages.

The higher divorce rate also suggests that the consequences of seeking instant gratification on the internet are dire.

Divorce and Pension Funds – Landmark Case For Government Employees

Divorce and Pension Funds –Landmark Case For Government Employees

In a divorce, where one spouse was awarded a portion of the pension benefits of the other spouse, who is a member of a Pension Fund in the private sector the waiting period for payment of such benefits would normally be 3 to 6 months. However, when the spouse is a member of a Government Pension Fund the spouse that was awarded such benefits had to wait until resignation, termination of employment or death of the other spouse before the benefits could be paid. This has now changed by a landmark decision handed down by Judge Bozalek in the Cape Town High Court in the matter of  Wiese v Government Employees Pension Fund. The Goverment was granted a period of 12 months to change the legislation.

In this case it was declared that the Government Employees Pension Law,  Proclamation 21 of 1996, was inconsistent with section 9(1) of the Constitution of the Republic of South Africa, Act 108 of 1996, insofar as it fails to afford to former spouses of members of the Government Employees Pension Fund  the same rights and advantages as are afforded to former spouses of members of funds subject to the Pension Funds Act, 24 of 1956, more particularly those contained in section 37D(1)(d), (3) (4) and (5), and is invalid to the extent of that inconsistency.

The applicant was a former spouse of a member of the Government Employees Pension Fund (‘the Fund’), the first respondent, who, in March 2008, in terms of a settlement agreement which formed part of a divorce decree, was awarded a 25% share of her spouse’s pension interest in the Fund. The applicant was unable to realise this interest, however, since the legislation governing the Fund, unlike that governing private pension funds, only allows for the realisation of such an interest as and when an ‘exit event’ takes place in relation to the former spouse, such as resignation, termination of employment or death, and no such event has occurred.

As a result of financial hardship the applicant has at all time unsuccessfully sought to realize her share of her former spouse’s pension interest in the Fund. Having exhausted all other avenues she seeked an order that the governing legislation, the Government Employees Pension Law, Proclamation 21 of 1996, (‘the Law’) is inconsistent with s 9(1) of the Constitution of the Republic of South Africa and is invalid to that extent. She seeked, furthermore, an order whereby, broadly speaking, certain provisions in the Pension Funds Act 24 of 1956, (‘the PFA’) which allow for the immediate realization of pension benefits awarded on divorce to the non-member spouses of members of private pension funds, be read into the ‘Law’.

The applicant’s case was that differential treatment of a non-member spouse of a Fund member to that of a non-member spouse of a member of a pension fund governed by the PFA violates the affected party’s right, in terms of s 9(1) of the Constitution, to the equal protection and benefit of the law. More particularly, she contended that the applicant’s right of access to social security as entrenched in s 27 (1)(c) of the Constitution, and that of others in her position, was violated.

Given that the ‘clean break’ principle is applied to the divorced spouses of private pension fund members, there appears to be no rational reason why this should be withheld from their counterparts on divorce from a member of the Fund (or any other public pension fund, for that matter).

Bertus Preller

B.Proc; AD Dip L Law

Family Law Attorney

Bertus Preller & Associates

O: +27 (0) 21 422 2461

F: 086 572 8373

E: bertus@divorceattorney.co.za

New Research Gives Insights into Guidance about Parenting Plans

New Research Gives Insights into Guidance about Parenting Plans

Is shared parenting the best arrangement for kids? Should infants and toddlers be shuttled between two homes? Is it important to include children in decisions about care and contact? These are just some of the difficult questions facing parents, attorneys, judges, mediators and others who are involved in navigating children through the divorce process.

Recently, several numbers of reports have been released that summarize the state of the research on parental issues. The results are surely not simple, but they provide some really helpful insights into what parents need to consider in managing parenting following a divorce.

Marsha Pruett, Smith College of Social Work, provides a general set of guidelines for children at different ages. She notes that children at different ages have varying needs and differing abilities to navigate through and cope with the variations in changing families. She notes further that equal time in parenting is not always the best arrangement for families. She also reminds parents, “It is the quality of time and parenting – not the quantity – that is more highly related to closeness between parent and child.” According to her, “The absolute amount of parenting time should be emphasized less than a plan that allows for a schedule that enables both parents to feel and act engaged and responsible.”

A particularly challenging divorce situation is one in which the children are very young–infants and toddlers. There has been much debate about the appropriateness of overnight stays and shared parenting arrangements in general. Jennifer McIntosh has been studying this issue that provides a good summary of the research evidence to date. There is lots of evidence that parenting during the first 3 years of a child’s life is critical to health development, particularly in how child manage their emotions and cope with stress. McIntosh’s summary of the current evidence is that children in the first 3 years of life should not involve overnight care in two homes. She also notes that young children’s attachment to the non-residential parent can be achieved through regular contact that involves “warm, lively, attuned caregiving.” In short, children’s development depends less on whether or not children sleep in two homes, than on the quality of the parenting.

There are three primary ways parents can help insure that their children have fewer difficulties following divorce writes, JoAnne Pedro-Carroll, “the degree and duration of hostile conflict, the quality of parenting provided over time, and the quality of the parent-child relationship.” She summarizes the important research findings that focus on each of these factors. She emphasized that it is important for children to have rules and routines that give them a sense of security. Likewise, they need to know that they are loved and cared for by hearing the words, but also by actions that reflect active and engaged talk and play. And they will thrive better when their parents manage their own strong emotions and conflicts. She recommends that parents reframe their relationship to a more business-like model in which the goal is the well-being of the children. For high-conflict parents she describes a model of parallel parenting that can best serve children and minimize conflict.

Source: Huffington Post

Divorce Settlement Agreements – can they be varied without a formal court application?

It happens frequently that the circumstances change years after a divorce Settlement Agreement was concluded. For example, as in the case of GF v SH and Others 2011 (3) SA 25 (GNP). In this case, the ex  husband and ex wife agreed amongst themselves with the intervention of a mediator that their children would spend more time at the ex husband’s house and adopted a shared parenting approach. Necessarily the new arrangement had a bearing on the maintenance that the ex husband paid to his ex wife for the children as the children spent more time in the ex husband’s care. The mediated agreement was never signed between the parties, or the original Settlement Agreement varied, but the ex husband paid the reduced maintenance. After some time the wife, probably acting out of scorn issued a warrant of execution for the non payment of maintenance as per the original court order. The facts appear below.

In terms of the settlement agreement custody of the minor children was awarded to the wife, subject to the applicant’s reasonable rights of access. In addition the settlement agreement provided that the applicant was to pay maintenance at the rate of R5000 per month per child, escalating annually at the consumer price index rate. In addition the applicant was to pay for all the educational and medical expenses incurred in respect of the minor children.

Following the divorce, the parties appeared to have had ongoing problems and disputes that related to the payment of maintenance, timeousness and the adequacy of such payments, as well as issues relevant to the parenting of the children, including decisions related to their upbringing and well being.

On 15 April 2010 the wife caused a warrant of execution in the sum of R303 154,62, plus interest and costs, to be issued at court for arrear maintenance and non-compliance with their divorce order. Following the issuing of the warrant the wife attached certain goods from the home of the ex husband and belonging to him.

The ex husband’s case was based on the fact that changes were made by himself and the wife to the residency arrangements in respect of the minor children, which changes became operative from March 2008 until about June 2009 and as such his liability to pay the maintenance provided for in the court order of 27 August 2002 had been varied by agreement between himself and the wife. He further contended that, in terms of the change of residency arrangements reached in March 2008, the parties agreed to have the minor children with them for alternate weeks. In addition there was a further mediated agreement with regard to a new payment regime, insofar as it related to the payment of maintenance, in terms of which regime the applicant would not be required to pay any maintenance directly to the wife, but instead would cover all expenses incurred in respect of the maintenance of the minor children and make such payments directly to third parties or, in appropriate instances, to service providers and the children. In this regard it appeared that the parties were assisted by one Charles Cohen, a mediator with expertise in the area of family law.

The wife’s contention was that even though there may have been changes to the residency arrangements insofar as these related to the minor children, it did not absolve the husband from complying with the express provisions of the court order and settlement agreement of 27 August 2002 relating to maintenance payments. In this regard it was the wife’s stance that since the written agreement of settlement provided that ‘save for the above, the provisions of this agreement shall not be capable of being varied (save by a court of competent jurisdiction), amended, added to, supplemented, novated or cancelled unless this is contained in writing and signed by both parties’, any oral or informal arrangement was of no force or effect and not binding on the parties. Alternatively the wife contended that even if there was a variation, it only applied in respect of a trial period from August 2008 to November 2008, and that at best her ex husband would be absolved from paying maintenance for three months (August 2008 to October 2008), and the warrant of execution, if incorrectly issued, was incorrect to that extent, and that extent only.

The agreement was never signed by the parties and the question that the court had to pronounce was whether a Settlement Agreement in a divorce action could be varied by mutual agreement, without resorting to court to vary the Agreement formally.

The principle of non-variation of a written agreement in the context of a non-variation-except-in-writing clause was firmly established in the matter of Shifren and Others v SA Sentrale Ko-op Graanmaatskappy Bpk 1964 (2) SA 343 (O). The stance, which essentially proceeds from the premise that any attempt to agree informally to vary a contract containing a non-variation clause, except in writing, must fail, was affirmed by the Supreme Court of Appeal in Brisley v Drostky 2002 (4) SA 1 (SCA) (2002 (12) BCLR 1229; [2002] 3 All SA 363). The court however found that there must be instances where public policy may justify a departure from the Shifren principle in the area of family law. Without suggesting that such departure should be easily justified or readily countenanced, there must be due regard to the context within which parenting takes place, and within which decisions that may on the face of it vary an express obligation, are arrived at to attain some other socially desirable objective — the best interests of the child. In all the circumstances the demands and the consideration of public policy, in the context of ensuring the development of family law, that are consistent with the values of the Constitution, including the values of equality and non-discrimination, as well as ensuring the advancement of the best interests of the child, would in the court’s view, in appropriate instances and where a proper case is made out, certainly justify a departure from what has become known as the Shifren principle.

The court further noted that if indeed the Shifren principle were entrenched and did not apply in the context of family law, it may well have the effect of achieving all kinds of unintended consequences that may well militate against the development of a public policy consistent with the norms and values of our Constitution. In particular, a strict adherence to those principles may well mean that parents become saddled with a disproportionate share of their responsibility in respect of the maintenance and upbringing of a minor child. It may well have the effect of restricting the ability of parents to do that which the best interests of the child demand, as opposed to that which they are obliged to do in terms of an agreement of settlement, which terms and provisions may well not have kept in touch with the changing times and developments relevant to the context.

From the above it is clear that a Settlement Agreement in a divorce, that was not varied by a formal application to court, may be varied by agreement between the parties, without formally applying to the court to vary such order. It is however of utmost importance that agreements that vary an existing Settlement Agreement be reduced to writing and signed by both parties.

About the Author

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

Rights and obligations of unmarried fathers – a court should never be biased

Rights and obligations of unmarried fathers

The facts in FS v JJ and Another 2011 (3) SA 126 (SCA) were as follows. A child, C, was born while the appellant, the father, and her mother, who died shortly after her birth, were living together. They intended to marry. The first respondent was C’s maternal grandmother, who was married to the second respondent (the grandparents). The father and grandparents had been engaged in a protracted battle for the custody of C, during which several applications were heard in the Northern and Western Cape High Courts. The present appeal was against a series of orders made by Kgomo JP in the Northern Cape High Court in terms of which custody of C was awarded to the grandparents – an order at odds with the other orders made by both the Northern and Western Cape High Courts.

On appeal, the Supreme Court of Appeal (SCA) was asked to determine, inter alia, the best interests of C, the rights of unmarried fathers, and the extent of grandparents’ rights in respect of their grandchildren.

As to the grandparents’ rights and responsibilities, the court held that these were from 1 April 2010 governed by ss 23 and 24 of the Children’s Act, which governed non-parental rights to care and guardianship. Before then, grandparents had no inherent rights or responsibilities and it was only the High Court that could confer access, custody or guardianship on a grandparent if it was in the best interests of a child, which had to be assessed in the light of the rights of the biological parents.

As far as the father’s allegation of bias by the trial court was concerned, the present court held that it was clear from the conduct and language of Kgomo JP that he was biased against the father and that he had entirely failed to consider C’s best interests. Kgomo JP’s decision in ordering that C be returned to her grandparents had no basis in fact or in law, evinced bias on his part, and failed to consider the only real issue – C’s best interests.

It was clear from the various reports studied by the court that C’s best interests would be served by placing her with her father.

The High Court is the guardian of all children. However at times as seen in this case, the court was biased against the father of the child. One hears allot of father’s complain of a biased attitude that prevails in our courts. Ultimately the only issue that a court should pronounce on is whether its decision is in the best interests of the child. The interests of the parties should always be secondary to that of the child and the court as guardian of all minors should always live up to such expectation.

About the author:

Bertus Preller is a Family Law and Divorce Attorney based in Cape Town and has more than 20 years experience in most sectors of the law and 13 years as a practicing attorney. He specializes in Family law and Divorce Law at Bertus Preller & Associates Inc. and deals with Family and Divorce matters across the country. Bertus is also the Family Law expert on Health24.com and on the expert panel of Law24.com and is frequently quoted on Family Law issues in newspapers such as the Sunday Times and Business Times. His clients include celebrities, actors and actresses, sportsmen and sportswomen, television presenters and various high net worth individuals.  His areas of expertise are Divorce Law, Family Law, International Divorce Law, Divorce Mediation, Parenting Plans, Parental Responsibilities and Rights, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters, digital rights, media law and criminal law.

Can the media report on divorce cases?

Can the media report on Divorce cases?

A recent article in the Rapport newspaper under the heading “Steekse Steve laat sy egskeiding sloer” certainly may have raised some legal eyebrows, especially having regard to the fact that the South African Divorce Act strictly prohibits the media from publishing the names of the parties involved in divorce proceedings.

Divorce can have severe and traumatic effects on children and private details made available through the media may exacerbate this.

One of the most important questions in a free, open and democratic society that is based on human dignity, equality and freedom, is how one should balance the right of freedom of expression, against the right to privacy and dignity of an individual on the other hand.

In the case of Johncom Media Investments v Mandel and Others the Constitutional Court balanced this important right against the rights of dignity and privacy. The court found that the objective of section 12 of the Divorce Act was “to protect the privacy and dignity of people involved in divorce proceedings, in particular children”. By doing so the Court decided to invalidate section 12 of the Divorce Act, but also to prohibit the publication of the names of any of the parties to a divorce or the children. What this in actual fact means is that the media is free to report on the details of a divorce matter but that they may not publish the names of any of the parties involved in a divorce when doing so.

The judgment was referred to as a ‘lukewarm triumph for press freedom’, by retired academic Marinus Wiechers in a Beeld newspaper report as saying that the judges’ qualification of the order declaring Section 12 of the Divorce Act unconstitutional may leave the media in a worse position as no names may be published. In the judgment, the Constitutional Court gave to the media with one hand and took away with the other. While the court has basically struck down a provision of the Divorce Act which prevented the media from publishing any particulars of a divorce action, or any information that emerges in the course of such an action, it also ordered that no party or child involved in divorce proceedings may be identified.

Even attorneys are bound by confidentiality and may not divulge information to the press.  Unless there are exceptional circumstances and the media successfully applies for an order to publish the names and identities of those involved, any story on divorce proceedings that does so will amount to contempt of court.

The judgement of the Constitutional Court resulted in a situation which is actually the reverse of Section 12 meaning that the media can now report all the detail they wish, as a means of informing and educating the public about divorce matters, but unless there are exceptional circumstances, they may not name or identify the people involved.

Where there is a clear public interest in a particular case, the media must apply for an order enabling them to name the parties involved in the divorce matter. Such cases may include, for example, public figures. The key would be to ensure that there is a clear and genuine public interest in naming and or identifying the people involved.

The ruling highlight the importance of media freedom as well as children’s rights and it also has the effect of requiring stronger legal and ethical adherence to reporting not only on children but also, more broadly, on areas that are normally private and personal by nature.

The Divorce Act imposes a criminal sanction in that a person who in contravention of this section publishes any particulars or information shall be guilty of an offense and liable on conviction to a fine not exceeding one thousand rand or to imprisonment for a period not exceeding one year or to both such fine and such imprisonment.

The Constitutional Court has clearly stated that as important as freedom of expression is, it does not enjoy any preferential status over any other rights.

The question is whether Rapport was entitled to name Steve Hofmeyr…….You be the judge.

About the author:

Bertus Preller is a Family Law and Divorce Attorney based in Cape Town and has more than 20 years experience in most sectors of the law and 13 years as a practicing attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. and deals with Family and Divorce matters across the country. He is also the Family Law expert on Health24.com and on the expert panel of Law24.com and is frequently quoted on Family Law issues in newspapers such as the Sunday Times and Business Times. His clients include celebrities, actors and actresses, sportsmen and sportswomen, television presenters and various high net worth individuals.

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