Divorce Attorney Cape Town

Divorce – What every woman should know


Divorce - What women should know
Divorce - What women should know

Making the decision to divorce is a tough one, and the chances are it’s followed by an even more traumatic lead-up to the divorce, it is like a roller-coaster on an emotional track.

Women are mostly in the dark when it comes to the financial affairs of her husband and women are encouraged to gather as much financial information about their husband’s financial affairs before the divorce proceedings commence, to establish the magnitude of the estate.

It is extremely important for any woman to know what’s going on in her husband’s financial affairs. It’s difficult when you don’t have access to his share portfolio or balance sheet, but one must reasonably expect to get an idea of financial affairs.

An attorney cannot negotiate on behalf of a spouse without knowing in advance what the estate is worth.

In many divorce settlements, the wife ends up seeing what the estate is worth only late in the divorce process.

16 Important points to consider in divorce:

  1. Make copies of your husband’s bank statements, credit card statements and get hold of the short-term insurance policies as well as copies of pension funds and retirement funds. This will provide input on the extent of assets available and the value of the estate.
  2. If you are married in community of property or out of community of property with the accrual you have to ask your attorney to build a clause into the settlement agreement to say if any assets that come to light after the divorce settlement, you will be entitled to 50% of those assets and the husband will have to pay the legal fees involved in the recovery process of those assets when they do come to light.
  3. A more accurate sense of assets will come to light if the divorce is contested as parties are required to disclose any information to do with financial affairs. In terms of the court rules the husband can be required to make full disclosure of his assets and liabilities and you will be able to obtain all financial information spanning over a period of 3 years or more, including bank statements, credit card statements, investments etc.
  4. Women are advised not to leave the matrimonial home if there are minor children involved, because it provides a sense of stability for the kids. It’s better for the husband to leave if the husband is not the primary caregiver. If a husband makes himself guilty of abuse, the wife can get a restraining order to evict him from the property under certain circumstances or restrain him to enter certain areas of the house.
  5. Where the parties are married in community of property the wife is entitled to half the pension or retirement annuity fund. In a marriage out of community with the accrual, the pension fund will be regarded as part of the husband’s assets for purposes of calculating the accrual that the wife will be entitled to.
  6. In terms of the Divorce Act, the wife (if married in community of property) can choose to ask for the pension fund money to be paid in cash, or transferred to a pension fund of her choice.  Normally pension funds pay out the wife’s portion in 3 to 6 months after the divorce.
  7. Make a list of your monthly income and expenses, as if you’re going to live on your own with your children. It’s important because you get situations where the wife is not working or earns much less than the husband and doesn’t have the money to fight a divorce battle.  She can bring an application pending a divorce, for interim maintenance, which means contributing maintenance before the divorce is finalised. She can also apply for contribution to her legal expenses. If interim-maintenance is granted and the husband does not comply with the court order, he is in contempt of court.
  8. In some instances the wife can apply for emergency monetary relief in the magistrate’s court pending the institution of an application for interim maintenance by utilizing the provisions of the domestic violence act because the husband has blocked the use of credit.
  9. Interim maintenance falls away once the divorce order is granted. There have been situations where the wife has been granted very favourable interim maintenance terms, so sometimes a divorce is stalled  in order to continue getting a hearty amount of money each month.
  10. The granting of interim maintenance in a Rule 43 application cannot be appealed. The only way the husband can minimize this is if he goes back to court and explains and proves that his financial situation has changed so much that he’s entitled to a reduction. But this does not happen easily.
  11. Many battles in a divorce surround the children. Normally the wife is the parent of primary residence and the husband the parent of alternate residence. Increasingly, there’s a shared parenting approach with children staying with the mother for a week and then the father for a week and each party takes care of the children during that period.  I see a lot of children used as a pawn. It is important to get a parenting plan in place as soon as possible, and register that with the family advocate and stipulate that if issues arise with parenting and the children the parties need to go to a psychologist or a social worker to facilitate contact.
  12. In matters where money is not fought over, it may make financial sense to go to one lawyer who can work for both parties. But a divorce that is acrimonious requires that each party needs a lawyer to assist.
  13. A few mediation organizations exist where people can see a mediator to resolve disputes, to settle with both parties. The mediator doesn’t have the authority to issue and award for damages but he can facilitate the settlement process. If an abusive husband is involved, mediation is unlikely to work.  But it can work if the divorce is not acrimonious. Normally the spouses have to pay the costs of a mediator 50/50. Sometimes this route can be more expensive than an uncontested divorce, depending on the amount of sessions that the parties have to attend.
  14. Where a couple owns a property together, they need to decide whether both parties want to keep the interest in the property, sell the property and split the proceeds, or whether one wants to buy out the other. The decision has financial implications because of transfer duties and tax.
  15. It’s important to consider instances where the husband has no real assets. An insurance policy should be taken out in the event that the husband passes away and there is no money to help cover maintenance, in case of his death.
  16. The decision to divorce is always a business decision. You need to look at what happens until the children turn 21 or becomes self supporting, that there’s maintenance, medical cover for them, a school education and whether it’s government or private school and tertiary education.

About the Author:

Bertus Preller is a Divorce Attorney at Abrahams and Gross in Cape Town, a law firm that has been in existence since 1935 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 in and handles divorce and family law matters across South Africa. Bertus is also the Family Law expert on Health24.com, he blogs regularly on news24.com and nuus24.com and has been quoted on Family Law issues in various newspapers such as the Sunday Times and Business Times and magazines such as Noseweek, Keur, Living and Loving, Longevity, You and Huisgenoot, and also appears frequently on the SABC television show 3 Talk. His clients include artists, celebrities, sports people and high net worth individuals. 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.

Contact details

bertus@divorceattorney.co.za

O: 021 422 1323

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Watershed Case About Parental Rights and Responsibilities of Children from a Same-Sex Relationship


Some time ago I wrote an article about an application argued in the Cape Town High Court in the matter of CM v NG. Judgement in this matter was reserved and handed down by Gangen A J on 26 April 2012. Family Law experts, Adv Julia Anderssen and Adv Retha Maas two Cape Town Advocates argued this matter. The case can be regarded as a watershed case for same sex couples with children and will be a reported judgement.

This was an application in terms of Sections 23 and 24 of the Children’s Act 39 of 2005 (“the Act”) and concerned parties that was involved in a same sex relationship for several years. The parties did not register a marriage. During the relationship, a child was conceived by artificial insemination.

The relationship between the parties started in May 2005 and ended in November 2010. The applicant (not the biological mother) lodged an application to court and requested an order granting her full parental rights and responsibilities in respect of the minor child.

When the parties ended their relationship the Applicant still had contact with the minor child until approximately April 2011. During April 2011 the Respondent (biological mother) advised the Applicant that she wanted to stop her contact with the minor child. Her reason was that it was not in the minor child’s best interests. The child was in the biological mother’s care at the time. The applicant then lodged an application to court in April 2011 compelling the biological mother to co-operate with the Family Advocate and an expert identified by the applicant.

The South African Children’s Act is clear on the point that someone does not have automatic parental rights in terms of Sections 19 and 22 of the Act if there is no biological link to a child and such a person. Furthermore an Applicant does not acquire automatic rights and responsibilities in terms of Section 40 of the Act which deals with children conceived by artificial insemination. Without a parental agreement an Applicant could therefore only apply to the court in terms of Sections 23(2) and 24(2) of the Act. Common to both these Sections is the “best interests” of the child.

The court found that the Applicant did indeed have parental responsibilities and rights as set out in Section 18 as it would be in the best interests of the child to have a relationship with both parents. The court concluded that both parties be co-holders of parental rights and responsibilities in respect of the minor child as contemplated in sections 18(2) (3) (4) and (5) of the 2005 Children’s Act and that both parties shall be co-guardians of the child.

About the Author:

Bertus Preller is a Divorce Attorney at Bertus Preller & Associates in Cape Town. He specializes in Family Law and Divorce Law in and handles divorce and family law matters across South Africa. Bertus is also the Family Law expert on Health24.com, he blogs regularly on news24.com and nuus24.com and has been quoted on Family Law issues in various newspapers such as the Sunday Times and Business Times and magazines such as Noseweek, Keur, Living and Loving, Longevity, You and Huisgenoot, and also appears frequently on the SABC television show 3 Talk. His clients include artists, celebrities, sports people and high net worth individuals. 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.

Contact details

bertus@divorceattorney.co.za

O: 021 422 2461

Your job might predict the length of your marriage


 

Source: http://voices.news24.com/bertus-preller/2012/04/your-occupation-may-predict-the-length-of-your-marriage/

According to a study done at the Radford University in the United States people who are working in stressful jobs or extrovert environments have a much higher risk of getting divorced. While it is not surprising that marriages fail when spouses have jobs that demand long hours and unpredictable work cycles studies did find that a few occupations carried a higher risk for divorce than what one might expect.

One may assume that people working in extrovert environments like for example in the entertainment or hospitality industries, will obviously meet more people and have more opportunity to develop relationships with them but studies also found that people working in the nursing and caring-type professions have a higher risk of divorce than what one would normally expect.

There are many factors at play in the occupation that a person has. Your occupation defines the amount of hours you work, the mental toll it takes, and also the personality you may develop during the course of your employment and conversely, on may argue that the occupation you choose maybe a reflection of your personality.

It is believed that individuals who are habitually unhappy with their work often those in low-earning, low-skilled professions may transfer this dissatisfaction to their spouse and children. A frustrating job may lead to immature defences such as displacement onto others, especially one’s closest family members.

A recent study by the Florida State University College of Business that questioned 400 working couples on the health of their relationship and how stressful their daily life was found that when work related stress strongly affects a couple, that couple risks a deteriorating relationship unless they are willing to emotionally support each other. When you are still angry or upset from yesterday’s stress, your workday will likely go in only one direction – down. Whenever this type of stress permeates through a relationship, it either brings the couple together or splits it apart.

The study also found that not only does work stress at home affect a relationship, but it also makes spouses less alert and less focused at work.

The jobs with the highest divorce rate

Low divorce rates around 5 to 6% were reported for optometrists and podiatrists. Dancers (including the exotic variety), massage therapists and bartenders still top the list of occupations likely to result in divorce with a 38 – 43% divorce rate. Those who work in the evenings are a distinct disadvantage, because the marital friendship usually suffers, with ensuing significant loneliness.

The table below identifies that the highest divorce rates are for dancers, bartenders, and, all around 40%. The extroverted nature of these jobs may reflect a personality that is unwilling to commit.

The occupations with the lowest divorce rates (of less than 10%) mostly seem to be engineers.

Below is a list of some of the occupations and the corresponding divorce rates:

Occupation

Divorce Rate

Dancers and choreographers 43.05
Bartenders 38.43
Massage therapists 38.22
Waiters and waitresses 27.12
Hotel, motel, and resort desk clerks 25.94
Security guards and gaming surveillance officers 23.67
Sociologists 23.53
Social workers 23.16
Commercial divers 22.98
Emergency medical technicians and paramedics 22.75
Forest and conservation workers 22.69
Cashiers 22.5
Counsellors 22.49
Agents and business managers of artists, performers, and athletes 22.3
Meeting and convention planners 22.24
Property, real estate, and community association managers 22.12
Actors 22.08
Health diagnosing and treating practitioners, all other 22.04
Food servers, nonrestaurant 21.38
Taxi drivers and chauffeurs 21.3
Court, municipal, and license clerks 20.92
File Clerks 20.91
Cooks 20.86
Carpenters 20.85
Cargo and freight agents 20.82
Hairdressers, hairstylists, and cosmetologists 20.58
Reservation and transportation ticket agents and travel clerks 20.45
Receptionists and information clerks 20.45
Medical, dental, and ophthalmic laboratory technicians 20.31
Chefs and head cooks 20.1
Telecommunications line installers and repairers 19.85
Office and administrative support workers, all other 19.85
Earth drillers, except oil and gas 19.78
Textile, apparel, and furnishings workers, all other 19.77
Transportation inspectors 19.76
Psychologists 19.3
Tax examiners, collectors, and revenue agents 19.19
Insurance claims and policy processing clerks 19.18
Mathematicians 19.15
Driver/sales workers and truck drivers 19.14
Human resources, training, and labor relations specialists 19.1
Medical and health services managers 19.06
Butchers and other meat, poultry, and fish processing workers 19.04
Computer support specialists 18.93
First-line supervisors/managers of office and administrative support workers 18.93
Archivists, curators, and museum technicians 18.92
Office clerks, general 18.9
Health diagnosing and treating practitioner support technicians 18.71
Military enlisted tactical operations and air/weapons specialists and crew members 18.68
Prepress technicians and workers 18.66
Automotive body and related repairers 18.64
Electrical and electronics repairers, industrial and utility 18.62
Insurance underwriters 18.5
Sewing machine operators 18.5
Paper goods machine setters, operators, and tenders 18.48
Bus drivers 18.44
Photographers 18.23
Models, demonstrators, and product promoters 17.71
Couriers and messengers 17.69
Producers and directors 17.68
Financial specialists, all other 17.21
Other life, physical, and social science technicians 17.19
Real estate brokers and sales agents 17.17
Artists and related workers 17.13
Musicians, singers, and related workers 17.11
Helpers–installation, maintenance, and repair workers 17.08
Gaming managers 17.06
Stationary engineers and boiler operators 16.99
Retail salespersons 16.99
Engineering technicians, except drafters 16.97
Librarians 16.9
Dieticians and nutritionists 16.89
Child care workers 16.83
Other installation, maintenance, and repair workers 16.8
Heavy vehicle and mobile equipment service technicians and mechanics 16.75
Designers 16.74
Logisticians 16.73
Human resources managers 16.69
Recreation and fitness workers 16.57
Special education teachers 16.55
First-line supervisors/managers of retail sales workers 16.52
Lodging managers 16.48
Machinists 16.48
Electricians 16.48
Tour and travel guides 16.13
Travel agents 16.09
Writers and authors 15.92
First-line supervisors/managers of production and operating workers 15.9
Mining machine operators 15.89
Boilermakers 15.89
Insurance sales agents 14.83
Chemical processing machine setters, operators, and tenders 14.83
Financial managers 14.77
Electrical power-line installers and repairers 14.76
Advertising and promotions managers 13.05
Preschool and kindergarten teachers 13.02
Elementary and middle school teachers 12.93
Fire inspectors 12.91
Personal financial advisors 12.89
Tellers 12.85
Judges, magistrates, and other judicial workers 12.48
Astronomers and physicists 10.71
Chief executives 9.81
Pharmacists 9.79
Environmental engineers 9.62
First-line enlisted military supervisors/managers 9.57
Signal and track switch repairers 9.41
Civil engineers 9.35
Religious workers, all other 9.35
Physicians and surgeons 9.23
Mechanical engineers 9.22
Medical scientists 9.11
Physical scientists, all other 8.79
Biomedical engineers 8.74
Legislators 8.74
First-line supervisors/managers of fire fighting and prevention workers 8.68
Engineering managers 8.52
Dentists 7.75
Farmers and ranchers 7.63
Actuaries 7.61
Chemical engineers 7.48
Conservation scientists and foresters 7.4
Nuclear engineers 7.29
Podiatrists 6.81
Sales engineers 6.61
Directors, religious activities and education 5.88
Clergy 5.61
Transit and railroad police 5.26
Optometrists 4.01

Children are not pawns in the deadly game of divorce


Parental alienation involves the systematic brainwashing, poisoning and manipulation of children with the sole purpose of destroying a loving and warm relationship they once shared with a parent.  As everyone knows, divorces can often be acrimonious. Add children to the mix, and the animosity heightens even more, as both parents strive to do what they feel is in the best interests of the children. At times these efforts evolve into accusations that the other parent is “bad” causing the child to side with one parent over his/her dislike for the other. This world is rife of parents using their children as pawns in the dirty game of divorce or where children are born out of wedlock. We have all heard of the old saying “no maintenance no kids” or “you left me so you won’t see your kids”. Parents don’t realise the damage they are doing in using their children as a means to get back at the other parent.

So often you hear about a mother complaining that a father sexually abused a child, with no evidence to substantiate the claim, simply in an attempt to isolate the father from having a relationship with the child or a mother obtaining a restraining order against a father simply to restrain the father from having a relationship with a child. Although it seems to be mostly women that play this deadly game, there are also fathers who use their children as pawns against the mother. Unfortunately in battles of this sort attorneys are sometimes also to blame and fuel the battles on behalf of a client losing sight of what the best interest of a child really means. Depriving the other parent of a relationship with his/her children is possibly one of the most devious methods to ruin a solid society.

“Parental Alienation Syndrome” (PAS), is a term first used by the late child psychiatrist Richard A. Gardner in 1985. Dr. Gardner studied the behaviour of parents involved in child custody disputes. He noted that sometimes the children align themselves with one parent. While this is natural to a degree, Dr. Gardner noticed that in some cases it could be extreme to the point it borders on a physiological disorder. He described the so-called disorder or syndrome as follows:

“Its primary manifestation is the child’s campaign of denigration against the parent, a campaign that has no justification. The disorder results from the combination of [either deliberate or unconscious] indoctrinations by the alienating parent and the child’s own contributions to the vilification of the alienated parent”.

The American Psychiatric Association is contemplating adding PAS to the new edition of the Diagnostic and Statistical Manual of Mental Disorders, scheduled to be published in May 2013. William Bernet, a professor of psychiatry at the Vanderbilt University School of Medicine and an advocate for its inclusion in the Diagnostic and Statistical Manual of Mental Disorders, describes it as “a mental condition in which a child, usually one whose parents are engaged in a high conflict divorce, allies himself or herself strongly with one parent, and rejects a relationship with the other parent, without legitimate justification.”

The form of PAS most experienced is that of negative words by one parent about the other, leading the child’s thoughts and attitudes in the same direction. The alienating parent might also cause the child, through manipulation and access blocking, to unjustifiably fear and/or hate the target parent. The parent with primary residence may engage in direct and indirect methods designed to alienate the child from his or her non-residential parent. As a result the child becomes preoccupied with unjustified criticism and hatred of the non-residential parent. This sometimes lead to brainwashing which result in conscious acts of programming the child against the other parent”. Examples include accusing the father of being an “adulterer” and “deserter.” The father is unjustifiably accused of providing too little maintenance, sometimes to the point that the mother misleads the children to believe that terrible things will happen to them. When a father leaves the home, the mother may make statements such as, “your father has abandoned us,” to teach the child that the rejection extends not only to the mother but to the c. children as well. Minor negative attributes one the father’s side are exaggerated greatly. For example, the father who occasionally has a drink after dinner is described as an alcoholic.

Section 35 of the South African children’s act criminalizes the refusal to allow someone access or who holds parental responsibilities and rights in terms of a court order or a parental responsibilities and rights agreements that has taken effect, to exercise such access or parental responsibilities and rights. It also criminalizes prevention of the exercise of such access or parental responsibilities and rights. Punishment for any of these offences is a fine or imprisonment for up to one year. The section further obliges a person who co-holds parental rights and responsibilities with another person in terms of an agreement or court order to notify the other party in writing immediately of any change in his/her residential address. Failure to notify such party will result in an offence.

http://voices.news24.com/bertus-preller/2012/04/children-are-not-pawns-in-the-game-called-divorce/

Court confirms ex-spouses access to government pension fund in divorce


The Constitutional Court on Friday confirmed the declaration by the Western Cape High Court of the constitutional invalidity of the “clean-break” principle of the Government Employees Pension Law.

This case highlighted the plight previously experienced by people married in community of property and whose spouses were, upon divorce, members of the Government Employees Pension Fund (Government Pension Fund) established under the Government Employees Pension Law (GEPL).

Under the matrimonial laws, non-member spouses could, in certain circumstances, be entitled to payment of part of the pension interest due or assigned to the member of the Government Pension Fund when any pension benefit accrued to that member. Prior to the Government Employees Pension Law Amendment Act (GEPL Amendment Act), the non-member’s benefit would be frozen on divorce until any pension benefit accrued to that member, unlike that of a counterpart under the Pension Funds Act (PFA). The effect of this was that non-members could not benefit from any interest or capital growth on the portion of the pension interest allocated to the member spouse – thus resulting in the portion devaluing over time.

Invoking the equality provision in the Constitution, the GEPL was originally challenged by the applicant on the ground that it did not afford to a former spouse of a member of the Government Pension Fund the same rights and advantages that are afforded to former spouses of members of funds subject to the PFA. The applicant also sought a constitutional remedy of reading in certain provisions of the PFA into the GEPL together with an order for costs.

Parliament passed the GEPL Amendment Act to cure the defects in the GEPL. As such the Constitutional Court did not pronounce on the constitutional issues in this matter. As a result of this legislative intervention, a question arose whether any live constitutional issue requiring determination by this Court was extant.

There are two parallel regimes of pension funds at play: first, those private funds governed by the PFA and second, government funds which are not governed by the PFA but, rather, by a statute unique to that fund. This latter class of government funds includes, but is in no way limited to, the Government Pension Fund.

During 1989, section 7(7)(a) was added by the Divorce Amendment Ac to deal with certain problems. Under the Divorce Act non-member spouses were, in certain circumstances, entitled to payment of part of the pension interest due, or assigned to, the member of the Government Pension Fund when any pension benefit accrued to that member. A pension interest which had not yet accrued was not considered an asset in the spouse’s estate. To cure this defect, the amendment provided that a pension interest is deemed to be an asset in the estate for the purpose of determining patrimonial benefits.

The Divorce Amendment Act was, however, not without difficulties. One was the question of when the payment of a pension interest should occur. Generally, this depended on the rules of a specific fund but usually took place on retirement, dismissal or some other defined “exit event”.

The problem was that a non-member spouse would be severely prejudiced if the value of his or her benefit was frozen at the date of divorce and the beneficiary would have had to wait for a later exit event.

To cure this defect, various amendments were made to the PFA, in particular, the Pension Funds Amendment Act, which incorporated the “clean-break” principle into section 37D of the PFA. The effect of this amendment is that the non-member spouse no longer has to wait for an exit event to occur. This means that a pension benefit awarded to a non-member spouse in terms of the Divorce Act is deemed to have accrued on the date of the divorce. This demonstrates the interplay between the Divorce Act and the PFA.

The oversight, however, was plainly that these amendments only apply to the PFA and, by extension, to funds that are governed by the PFA. As mentioned above, this is only one leg of the parallel regime. The Government Pension Fund could not benefit from the clean-break principle, as it was governed by its own statute, the GEPL.

In its amended form, section 3 of the GEPL Amendment Act introduces a clean-break principle by incorporating section 24A after section 24 of the GEPL. Section 24A is, in effect, similar to section 37D of the PFA.

Section 24A authorises the Government Pension Fund to make payment of a pension interest upon divorce or dissolution of a customary marriage.

Non-members of the GEPF were denied their share of the pension benefit immediately upon divorce or on dissolution of a customary marriage. They had to wait until their member and former spouse became entitled to his or her pension benefit. This was the subject of a challenge in the Western Cape High Court.

The Applicant Mrs Wiese submitted that it was unfair for the GEPF not to allow her access to the pension benefits that were awarded to her in terms of a divorce order. The High Court found in her favour and declared it unconstitutional as the GEPF failed to give former spouses of members the same rights as those afforded to spouses of members of pension funds falling within the ambit of the Pension Funds Act.

It granted Parliament a year to amend the Government Employees Pension Law so that the GEPF could amend its rules.

The High Court’s declaration was referred to the Constitutional Court for confirmation. The suspension of invalidity was appealed by Wiese.

While the proceedings in the Constitutional Court were pending, Parliament amended the law. Wiese and the GEPF agreed that the amendment disposed of the main issues before the Constitutional Court and the matter had become moot.

The court found that although the absence of a live controversy did not constitute an absolute bar to justifiability, the matter had become moot in the light of the amendment. It could still consider the question of costs.

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