Divorce Attorney Cape Town

Act like an adult when you divorce, not like a child!


It is well understood that the single most damaging thing for children of divorce is exposure to on-going conflict between the parents. It makes every transition fraught and difficult, and forces the child to take sides on things he/she should not have to take sides on. It pushes the child into painful loyalty conflicts, and often causes chronic anxiety states in children. Exposure to on-going conflict is also commonly associated with problems in the child’s own relationships when he/she grows up.

It’s a common assumption that children are negatively affected by their parents’ divorce, but a new divorce study shows that parental conflict and a lack of co-parenting are actually the true culprits when it comes to harming a child’s mental health.

According to psychologists at the University of Basque Country, divorce in itself isn’t the issue when it comes to a child’s long- and short-term problems associated with parents breaking up. The real issue when it comes to children and divorce are the presence of fighting parents, family instability, and family conflict.

The study followed over 400 families through the various stages of divorce. Throughout marital issues, separation and divorce, children were observed for signs of depression, anxiety, behavioral issues, and other common issues associated with divorce. Surprisingly, the study found that these problems only surfaced in cases where divorce was accompanied by other issues in the household, including parental conflict, changes in daily routine, and issues with co-parenting.

Separation and divorce is a traumatic event for children, regardless of their age.  When they’re told of the decision they have fears, worries and questions.  They wonder, Where will I live? Who will I live with? Do I have to leave? What about my friends? Will we still go on holidays? Will I get to see Dad? What about the dog? How much time will I spend with people? Can I still have lessons, hockey, rugby… The questions speak volumes on children’s interests’ and their wellbeing.

Conflict between parents can have a devastating effect on children during the divorce process, particularly during the time immediately before and after the divorce. Witnessing conflict can be confusing to the children because they love both parents and are generally torn in their loyalties to each of them.

While it is often difficult, to shield children from all parental conflict, it is of utmost importance to do so. Parents must always agree to put their children first by keeping them out of parental disagreements.

It is not uncommon to find that a custodial parent use the child as a weapon in the matrimonial combat and is sabotaging the contact and interaction of the non-custodial parent.  This is predominantly evident in high-conflict divorce cases where a parent might even go so far as to abduct the children to an overseas country, thereby alienating the relationship the other parent has with his/her children.

Of great concern, however, are the allegations one often hear of some lawyers making a practice of escalating the acrimony between divorcing / separating parents.

These practices occasionally include encouraging clients to make false claims of abuse, encouraging women to invoke violence as a way to ensure an advantage in parenting and financial disputes.  For instance, some unethical lawyers are encouraging clients to apply for protection orders under the Domestic Violence Act 116 of 1998 in order to frustrate the attempts by the non-custodial parent to see his or her children.

Untruthful allegations also enter divorce proceedings by way of lawyers who place allegations of criminal behaviour in affidavits, without substantiation from child welfare practitioners or police authorities and without consequence to the accusing parent or lawyer involved. It may be that lawyers acting in such a way are pretty few and far between, but they certainly are there.

Children are often surprised by their parents’ decision to divorce and some knew things were tense before their parents separated but they never expected them to divorce.  Children sometimes feel they have no say in the decision to get divorced, and they are left unsure about what to expect in the future.

Most families experience a significant drop in income after a divorce. Money that was once applied to one household now have to support two, and often a single mother earn less than a single father. It is often impossible to have the same lifestyle that the family enjoyed before the divorce. This is a common risk in divorced families because maintaining economic stability is clearly a protective factor for children.

Source: http://voices.news24.com/bertus-preller/2012/07/if-you-do-divorce-act-like-an-adult-for-the-sake-of-your-children

Bertus Preller

Famly Law Attorney

Abrahams and Gross Inc.

Twitter: bertuspreller

Tel:  021 422 1323

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

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Religion and Divorce – Can parents dictate a child’s religion?


Katie Holmes (Cruise) filed for divorce in a New York court last week after being married to Tom for five years, and they are expected to clash about how 6 year old Suri their minor child is brought up, with the 49-year-old actor adamant she remains part of the Scientology religion he is part of. We all know that Tom Cruise is incredibly passionate about Scientology and that this isn’t just some hobby for him. According to reports he truly believes in the church and its teachings and truly believes that it is imperative that his children are raised as Scientologists. Tom believes Scientology changes people’s lives for the better and, obviously, he wants what is best for his children.

The media frenzy about the divorce between Tom Cruise and Katy Holmes prompted two interesting questions in South Africa law, namely what if parents can’t agree on the spiritual upbringing of their child? and what if a child disagree with their parents religion or traditional socio-cultural beliefs?

There has been a dramatic shift during the twentieth century in the law regarding the relationship between parents and their children, both internationally and in South Africa. In the past there was an emphasis on the rights and powers of parents (termed parental authority), but this emphasis moved towards a more child-centred approach with the best interest of children at the forefront. Today parental authority is concerned more with parental responsibilities and duties, which should be exercised in the best interest of children, rather than with parental rights and powers. The Constitution of the Republic of South Africa specifically protects the rights of children in that it recognises that children, as a vulnerable group within society, have specific and unique interests different from those of adults, and that these interests deserve special and separate protection.

The question regarding religion within the family relationship has been dealt with in 2001 in the case of Allsop v McCann. In this matter the custodian parent applied for an interdict to restrict the minor children in certain religious practices whilst in the non-custodian parent’s care. The custodian parent was from the Anglican denomination and the non-custodian parent from the Roman Catholic denomination. The custodian parent sought an interdict from preventing the children from attending the Catholic Church. The court held that the custodian parent (the parent who has primary care of the children) is entitled and required to direct the daily lives of the children and that educational, religious and secular activities fall within that duty. However the court ruled that neither parent may dictate what religion, if any, their children eventually adopt, but each parent is entitled to provide religious instruction. The application was accordingly dismissed.

In 2003 in the case of Kotze v Kotze the court refused to incorporate into a settlement agreement a provision which stated that both parties undertook to educate the child in the Apostolic Faith Church. The court, being the upper guardian in matters involving the best interests of a child, has extremely wide powers in establishing what such interests are. It was held that the clause was not in the best interest of the child as it did not afford him the freedom of religion that he was entitled to.

Recognising that children are the holders of fundamental rights may conflict with the rights of other holders of human rights especially within the family context, where different fundamental rights can come into conflict with one another, for instance between the parents’ right to religious freedom and their children’s rights to life and human dignity. This requires a weighing or balancing act to determine which right must take preference. This balancing of interests often creates tension, which can have serious negative implications for those involved within the family context.

In a ground-breaking case not so long ago the Western Cape High Court was requested for the first time to use its discretion to interfere in the parent-child relationship, due to the “traditional socio-cultural beliefs” of the parents. In what has been described as “every parent’s nightmare; the fancy of many teenagers”, a 16 year-old schoolgirl from the Western Cape asked to be “freed” from her parents to live semi-independently from them because of her unhappiness with the conservative manner in which her parents treated her. According to reports her parents came from a very conservative sector of South African society and kept her under constant supervision, barred her from talking to boys, communicating with friends on her mobile phone, reading what she likes (her parents found Harry Potter inappropriate) or even going out with friends after school.

The court granted her request to live semi-independently with a school friend and her family (referred to by the judge the host family) until she reaches the age of 18 (her majority). It was further ordered that the parents could have contact with her for two to three hours a week at a neutral venue and could phone her between 8:00 and 8:30 pm on a Tuesday and Friday. Holidays were shared between the host family and her parents. Despite the fact that the child no longer resided with her parents, the parents retained their responsibility to contribute to the maintenance of their child.

When parents are acting within the law, even though they are seen to be conservative, and their actions don’t reflect any form of abuse or neglect, their responsibilities and rights must take preference above the rights of their children, for without this kind of recognition the value of the traditional family unit as the natural and fundamental unit of our society will not be recognised. A child’s mere dislike or disapproval and personal preferences in their upbringing cannot alone tip the scales of justice in a child’s favour.

The relationship between parents and their children is very personal in nature. This domain forms part of the world of morality and not even the state should interfere unless the parents’ conduct towards the child is harmful or amounts to unlawfulness. When the conduct is not in the best interests of the child or contravenes constitutional rights, such conduct is inconsistent with the principles of the Constitution and thus invalid.

Source: http://voices.news24.com/bertus-preller/2012/07/divorce-can-parents-dictate-what-religion-a-child-should-adopt/

Bertus Preller

Family Law Attorney

021 422 2461

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