Divorce Attorney Cape Town

More children are being raised by single parents than married parents


Many of South African children are growing up in dysfunctional families. Millions of children grow up living without one of their parents. The consequences for young people our country’s future entrepreneurs, workers and leaders may be dire.

More than 20 000 children are affected by divorce each year in South Africa. According to Stats SA, the distribution of the number of children affected by divorce in 2010 shows that 37,9% (7 719) were from the black African population group; 27,6% (5 633) from the white population group, 17,3% (3 529) from the coloured population group and 5,5% (1 113) from the Indian/Asian population group.

According to a 2011 study by the South African Institute of Race Relations only a third of children in South Africa are growing up living with two of their parents, 98 000 children live in child-headed households, 81 percent of whom have a living mother and 9 million children are growing up with absent but living fathers. As in any country, single parenthood arises because of divorce, death or estrangement of a spouse and teenage pregnancy.

According to the study, increasing numbers of fathers are absent, and a ‘crisis of men’ in South Africa seems to be perpetuating patterns of abuse and desertion that will most likely continue with future generations. A racial dimension is also evident in many of the trends associated with family life. African families are more likely to have single parents and absent fathers than other race groups, particularly Indian families.

In South Africa, questions need to be asked about why these trends increase. Issues such as attitudes to parental responsibility and attitudes to monogamy and commitment to relationships need to be publicly discussed, and addressed by broader society. Why do parents, particularly fathers, fail to acknowledge their parental responsibilities? If this is seemingly acceptable to broader society, why is this so? What values are being passed on to our children?

It is not only in South Africa that there seems to be an increase in single-parent families. Also in the UK more couples shun weddings and children are increasingly likely to live with unmarried parents as married ones. In the UK some 8,000 same-sex couples now have children according to the Office for National Statistics, while almost 8million people are living alone.

There is a continuing decline in the popularity of marriage as more relationships break down and fewer couples choose to wed. In the UK over the past decade the number of married couples fell by 262,000 to 12 million, while the number of cohabiting couples rose from 2.1million to 2.9million and there are 1.8 million children living with unmarried partners.

Only 35% of children in South Africa grow up living with both their biological parents. Dysfunctional families are damaging the prospects of younger generations and there is evidence that children from broken families are more likely to have relationship problems and create fractured families themselves in future.

From a marriage point of view people have to rid themselves of the dream that they are going to find a spouse one day who is perfect in every way – physically, emotionally and intellectually, it is simply impossible.

In today’s digital age we live by “remote control”, if we don’t like the channel that we are watching we simply switch channels and watch something more entertaining. Only to find that the new partner is as flawed as the last. Almost like a hydra, cut off one head and get rid of a boring partner but inherit 20 new problems, your new partner’s children, insecurities, family and so on. It may be so that not all second marriages are doomed but the statistics colour a different picture. Family breakdown affects everyone and a break-up shocks the whole foundation of the family and mostly it never recovers.

Source: http://voices.news24.com/bertus-preller/2012/03/single-parent-families-on-the-rise-in-south-africa/

Bertus Preller

Family Law Attorney

Abrahams and Gross Inc.

Tel: 021 422 1323

Email: info(@)divorceattorney.co.za

Follow on Twitter: @bertuspreller

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

REASONS WHY A PENSION FUND MAY REJECT A DIVORCE SETTLEMENT AGREEMENT


Never rush into a division of retirement savings in a divorce settlement.

Divorce settlement agreements or court orders that award a share of a fund member’s retirement savings to a non-member spouse are rejected by retirement fund administrators for various reasons, including the court order not stating the name of the fund.

Where a spouse belongs to a number of retirement funds (for example, a pension fund and a provident fund), it may not be clear against which fund the divorce order can be enforced, especially if the order states only the words “the fund” instead of the words “the funds”.

  • Date of divorce

The situation where the date of the divorce is after the member spouse left the fund complicates the issue. The definition of a “pension interest” in the Divorce Act has a connotation that, in order to calculate the pension interest, the member has to be in active employment and active fund membership at the date of divorce so that it may be deemed that he or she has resigned on the date of divorce and his or her former spouse is now entitled to a portion of his or her fund benefit as at that date.

But, if your employment (which is a condition for fund membership) already terminated at the date of divorce, then you cannot be deemed to have resigned at the date of divorce and your former spouse cannot be paid a portion of what would have been your fund benefit at the date of divorce.

  • Decision-making

A non-member spouse is at liberty to make a decision in terms of the divorce settlement agreement. It happens frequently in some divorce orders that the non-member spouse, as part of the divorce settlement, is compelled to preserve the benefit and is being forced to transfer the benefit to a preservation fund.

In terms of the Pension Funds Act, a retirement fund is compelled to give the non-member spouse the right to decide how the pension interest award should be paid out to the member. On presentation of a valid divorce order, the fund has normally 45 days to request the non-member spouse to decide how the pension interest due to him/her must be paid. The non-member spouse has 120 days in which to make a decision.

If the decision is made in terms of the divorce settlement agreement and the fund is not made a party to that agreement, the fund cannot enforce the provision.

  • Interest on the benefit

In terms of legislation, no interest is payable in the first 120 days from the date of the divorce to the date on which the non-member spouse decides what to do with his/her share of the benefit. Interest is added only for periods exceeding 120 days. This should be reviewed to allow interest to be payable from the date of the divorce, because, when markets are volatile, it can make a difference to the non-member spouse or the member spouse.

Before obtaining a divorce, both the member spouse and the non-member spouse should ask the retirement fund or its administrator about the current fund value and the present value of the pension interest – these two values may differ – to ensure an equitable division of the assets.

Frequently the member spouse is reluctant to co-operate in this process, but the non-member spouse is entitled to ask the fund for the relevant information. If the fund is not prepared to divulge the information, the non-member spouse may be entitled to it in terms of the Promotion of Access to Information Act.

The current fund value is the amount typically reflected on a benefit statement and indicates the value of the member’s investment – the rand value of all the assets in the member’s underlying portfolios on a given date in a defined contribution fund or an RA fund, or the actuarial reserve value (the amount notionally held by the fund to provide for the future retirement benefit) in a defined benefit fund.

In most defined contribution funds, the resignation benefit will equal the current fund value, but this may not be the case in defined benefit funds. In retirement annuity (RA) funds, because the pension interest consists of contributions plus simple interest, the effect of compounded returns usually means that the current fund value will be significantly higher than the pension interest.

If sufficient uncertainty exists as to which fund is in fact intended, the divorce order will not be enforceable. Orders are frequently obtained in which the insurance company that sponsors or administers the pension fund is mistakenly cited instead of the fund. It is not sufficient to refer to the sponsor or administrator (for example, the Old Mutual pension fund), as these financial institutions typically operate several funds.

The law provides for two separate systems for a non-member spouse to access a member spouse’s pension on divorce.

These are:

  • Ordinary matrimonial law – The principles of ordinary law concerning the division of assets on divorce cover pension benefits that have already accrued to a fund member at the time of divorce. An example of an accrued benefit is where a member has retired from a fund and has been paid a lump sum benefit and/or a monthly pension at the time the divorce order is granted.
  • Section 7(7) of the Divorce Act – In terms of an amendment to the Divorce Act, a non-member spouse is entitled to share in the assets of a pension fund member where the benefit has not accrued to the member at the date of the divorce.

Pension Funds and Divorce: Be careful how you word a settlement agreement in a divorce


THE CLEAN-BREAK PRINCIPLE IN A DIVORCE DOES NOT APPLY TO DEFERRED PENSIONS

The legal definition of the words “pension interest” is vital in deciding when a non-member spouse becomes entitled to a share of a fund member’s retirement savings.

A recent judgment by Supreme Court of Appeal highlighted the fact that the date on which a member resigns from a pension fund and the date of the divorce directly affect when the non-member spouse may expect to receive his/her pension interest.

In this matter the ex-wife of a former member of a Pension Fund, was not entitled immediately to receive a share of her former husband’s retirement savings in the fund. This was despite a divorce settlement that awarded her a share of the savings and a determination by the Pension Funds Adjudicator that the fund must pay up.

Long before the divorce, the husband resigned from his employment and had elected to defer his pension benefit in the fund. He had thus become a deferred pensioner in terms of a rule of the fund.

The divorce settlement, which had been made an order of court, recorded that the husband had a pension interest in the pension fund and provided that his wife was entitled to 25% of that pension interest, payable to her as soon as the husband became entitled to the pension interest.

The settlement agreement further provided that the spouse’s attorneys would secure the registration of an endorsement against the records of the fund – as provided for in the Pension Funds Act. But the fund refused to register the endorsement against its records on the basis that, at the time of the divorce, the husband was a deferred member and no longer had a pension interest in the fund as contemplated in the Pension Funds Act.

The court held that the legislation contemplates an award to the non-member spouse of part of the pension interest, calculated at the date of the divorce but with effect from a future date when the benefit accrues to the member spouse. It held that, where the benefit has already accrued, the provisions of the Act do not apply and that the husband could not again be deemed to become entitled to a resignation benefit.

The court ruled that the wife could claim her share when the husband turned 55 and the benefit became due to him.

What parties in a divorce cannot do by agreement is to invoke the statutory mechanisms under the Pension Funds Act in a situation to which that Act simply does not apply. This means, for example, that a non-member spouse cannot impose obligations on a pension fund (rather than on the member spouse) in terms of the Pension Funds Act in a situation in which the Act does not apply.

Facebook ‘Friend’ Offer Exposes Man’s Other Wife


Facebook’s automatic function to connect its users through “friends” they might know recently led two women in the United States to find out they were in fact married to one and the same man, at the same time.

This led to the man being charged with bigamy.

The man married a woman in 2001, separated in 2009, then changed his name and remarried without divorcing his first wife. The first wife first noticed this to her shock when Facebook suggested the friendship connection to wife number 2 under the “People You May Know” feature.

Neither the man nor his first wife had filed for divorce. The man allegedly told wife No. 1 not to tell anybody about his dual marriages and that he would fix it. But wife No. 1 alerted the authorities.

Facebook over the years has played a role in both creating relationships and destroying them. It’s just the latest vessel by which people can stray if they want to.

Bigamy is the act of entering into a marriage with one person while still legally married to another. Bigamy is a criminal offense in most western countries, and when it occurs in this context often neither the first nor second spouse is aware of the other. The legal status of the parties is as if they never concluded a marriage, the second marriage is thus void and has no legal consequences and its effect is absolute. It is also unnecessary to obtain a court order, although this may be done for sake of legal certainty.

A void marriage, like in the case where Bigamy was committed means that legally no marriage has come into existence.

Save for in a case of Bigamy a marriage will also be void where the parties have not adhered to some formal or material requirements. Examples of formal requirements that will render a marriage null and void include the following:

  • The marriage was not conducted by a competent marriage officer
  • No witnesses were present at the marriage ceremony
  • A boy under 18 years or a girl under 15 years of age married and did not obtain the consent of the Minister of Home Affairs
  • The parties are related to each other within the prohibited degrees of relationship
  • One or both of the parties were mentally incapable when they concluded the marriage
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