Divorce Attorney Cape Town

Divorce Mediation – a better option

divorce mediation

Frustrated in seeing how families are being torn apart, and their finances depleted by the expensive and adversarial divorce litigation process, Maurice Phillips Wisenberg, attorneys in Cape Town recently launched Family Law Mediation Specialists (FMS) as an extension to the firm’s Family Law Department to eliminate the expense, time, and adversarial nature of divorce with a new website: http://www.familylawmediators.co.za.

The purpose of FMS is to afford couples an innovative, low-stress, low-cost and speedy solution through Mediation. Divorce Mediation puts control of the divorce process in the couple’s hands rather than engaging in an expensive court process thereby enabling the couple to outline the terms of their divorce and so they save time, money and stress.

“I have been working in a number of cases with client’s whose divorces should have been uncomplicated and relatively simple,” Bertus Preller Family Law Attorney at Maurice Phillips Wisenberg, said. “Unfortunately, because traditional divorce litigation is an adversarial process in nature, it tends to stage one divorce attorney against the other in a win – lose  situation for a fight to the finish which just drives up the expense, the time involved and causes a great deal of emotional stress and pain within the family unit.”

Divorce litigation is often very destructive especially where there are children involved and in many cases, particularly if the parties have children, the divorcing spouses will be in each other’s lives for a long time to come. For this reason it is better for them, as well as their children to keep the lines of communication open between them, Mediation, enables this.

Contested divorce (where the parties are not able to agree on the terms of the divorce) requires both spouses to hire separate attorneys, who then “contest” against each other to gain as much for they can for their client at the expense of the other. The lawyer’s objective is to “win” at all costs. Tin many instances the attorneys have absolutely no motivation whatsoever to be concerned with their opponent’s well-being or how the family will communicate when the dust clears and the attorneys’ bills have been paid. This process is adversarial in nature and does not encourage open communication between spouses which can be devastating for their children.

Divorce Mediation is a very different approach to ending your marriage than the common approach of Divorce Litigation. Divorce Mediation is a cooperative process that enables the spouses to work together and resolve the practical matters involved in their separation.

The cost of these comprehensive mediation services are usually a small part of the cost of other forms of divorce, particularly litigation.

Compiled by:

Bertus Preller

Family Law Attorney

Twitter: @bertuspreller

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

Divorce and Separation: Relocating with children to another country or province

relocation with children

Relocation disputes between parents are frequently in our courts. Where both parents have guardianship, it necessarily follows that consent will be needed when one decides to relocate with a minor child. It is important to note that there is no section in the Children’s Act that deals specifically with relocation. The closest the Act gets to relocation is a section that deals with the jurisdiction of the court in matters where a child is removed from South Africa.

It is an unfortunate reality of marital breakdown that the former spouses must go their separate ways and reconstruct their lives. Typically, a relocation dispute will arise when one parent, normally the parent of primary residence and with whom the child usually resides, decides to move town/province/country. Often, the parent who is to be left behind will refuse to give consent for the relocation. The primary caregiver can then approach the High Court for an order dispensing with the other parent’s consent. It must be noted that it is not a given that the court will automatically give its consent. Because the Act does not set criteria, our courts have to consider various facts and case law before they can grant an order allowing relocation.

Factors a court will rely on in cases of relocation

The court will only grant permission based on the best interests of the child. An important factor that the court will take into consideration is whether the decision by the parent to relocate is reasonable and bona fide. Our courts take a pragmatic approach to such cases, and although the move may be detrimental to the other parent who will have less contact with the child, life must go on. That is not to say that the courts don’t consider the impact of the relocation of the left-behind parent, but our courts are compelled to respect the freedom of movement and family life of relocating parents. In looking at what is in the best interests of the child, the court will also consider whether relocation will be compatible with the child’s welfare.

Examples of relocation court cases

The court rejected a mother’s application to relocate with her daughter despite finding that the decision to leave was bona fide. What the court found was that the practicalities of her decision to move were ill-researched and outweighed by the child’s need to not be separated from either parent.

The court rejected a father’s application to relocate with his daughter. The relationship between the parents was acrimonious and, at the time of divorce, the father alleged that the mother had sexually abused their daughter. Based on this and various other factors, the court awarded care to the father. After several years, the father sought to relocate to Israel. Although the mother initially gave her consent because she was led to believe she would be allowed contact with her child, she later withdrew it when she realised that her belief was false. The court refused the relocation based on the fact that the father could not provide sufficient information about when and where he would be employed, where the child would be going to school and how she would be assisted to learn Hebrew. The court also found the father to be thwarting attempts by the mother to rebuild her relationship with her daughter. The court emphasised the fact that it was important for the mother and child to re-establish their relationship, and criticised the experts (psychologists) who had recommended the relocation for not considering all the facts.

The court rejected a mother’s application to relocate with her four children, aged eleven and eight (triplets). The parents had been awarded joint care in the divorce settlement agreement, the intention being that the children would spend an equal amount of time with each parent. Three years after the divorce, the wife filed an urgent application in the High Court for variation of the care order: she sought an order declaring her the primary caregiver and granting her the authority to relocate the children from South Africa to Dubai to live with a new man whom she planned to marry. A social worker and a clinical psychologist commissioned by the mother recommended that she be granted primary care and permission to relocate. Experts not commissioned by her held a different view, finding that relocation would not be in the best interests of the children as they would miss their father, school friends and the city to which they were accustomed. The court found that the mother’s experts’ recommendations were based too heavily on financial issues and did not sufficiently take into account the bond that existed between the children and their father. The court relied, ultimately, on the children’s views, having found that they were of an age and maturity to make informed decisions. The mother’s application was dismissed as the court found that it was not in the children’s best interests.

From the book Everyone’s Guide to Divorce and Separation (Random House 2013) –by Bertus Preller Family and Divorce Law Attorney Cape Town.

Twitter: @bertuspreller

Web: http://www.divorceattorney.co.za


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 and International Child Abduction cases.

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