Divorce Attorney Cape Town

Child participation – can a child choose where he or she would like to live after divorce?

Child participation

Children’s rights are often divided into prevention, protection and participation rights. The right to be heard or the right to express views are some of the manifestations of the participation rights of children.

The right of children to participate or express their views in all matters that affect them as well as their right to be heard in official proceedings are found in various international instruments.

Examples include: ICCPR, Hague Convention on International Child Abduction (art 13), United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules – 14.4)

The United Nations Convention on the Rights of the Child (UNCR)

South Africa ratified the UNCR in 1995 and is therefore bound by its provisions. Article 12 of the UNCR is the most important right guaranteeing children’s participation in all matters that affect them.

Article 12 provides that:

“(1) State Parties shall assure to a child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the view of the child being given due weight in accordance with the age and maturity of the child.

(2) For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law”

Article 12 (2) is focused on child’s right to be heard in any judicial or administrative proceedings affecting him/her either directly or through a representative. This applies to proceedings when child is the main actor (ie cases of abuse and residency has to be determined) or when child in secondary position (i.e conflict situation related to divorce of parents.

Other specific rights include the right to participate in proceedings concerning a child’s legal removal or separation from his or her parents (article 9(2)) and right to participate in juvenile justice proceedings (article 37(d) and 40(2)(b)). The inclusion of these provisions changed the position conferred to children in the past where seen as objects not worthy of expressing a meaningful opinion and their views were not taken into account.

The rights in art 12 only extends to those children capable of forming their own views (so it appears to exclude very young children) – but it does not limit participation rights to children of a specific fixed age. It rather adopts a flexible approach in that the right is extended to children that are capable of forming their own views and it recognises that a child’s capacity to form his/her own views varies according to a child’s individual development and capacity to comprehend the events affecting him/ her and is not necessarily dependent on any age.

The views of the child is to be given due weight according to age and maturity of the child in question and once it is determined that child has the capacity to form an opinion, the next step is then to determine the weight to be attached to that opinion.

The opinion is to be examined according to the child’s age (an objective test) and the child’s degree of maturity (a subjective test). The child’s opinion is to be given “due weight” according to nature of problem and degree of interest it represents to child and others (ie parents, siblings, etc). The more serious and imminent the consequences of the decision are on the child, the more the child’s opinion deserves to be an important consideration.

The African Charter on the Rights and Welfare of the Child

Section 4(2) of the African Charter on the Rights and Welfare of the Child reads:

“In all judicial or administrative proceedings affecting a child who is capable of communicating his/her own views, an opportunity shall be provided for the views of the child to be heard either directly or through an impartial representative as a party to the proceedings and those views shall be taken into consideration by the relevant authority in accordance with the provisions of appropriate law.”

The South African Children’s Act

The Children’s Act mentions child participation as a guiding/general principle in the application or implementation of the Act but sets no particular age as to when a child can decide on his/her own, where he/she want to live.

Section 10 of the Children’s Act reads:

“Every child that is of such an age, maturity and stage of development as to be able to participate in any matter concerning that child, has the right to participate in an appropriate way and the views expressed by the child must be given due consideration.”

Section 10 is not limited only to legal proceedings and hence the principle of child participation echoes throughout the Act it provides for the child to participate in any matter concerning the child, provided that the child is of such an age, maturity and stage of development as to be able to participate.

The principle inter alia extends to children in child-headed households, participating in lay forums, decisions taken by holders of parental rights (ie those that would change or affect child’s living conditions, etc), adoption proceedings, consenting to medical treatment, surgical operations and HIV testing; etc

The right to participate should however not place a burden of choice on the child, especially in care and contact situations where a child might feel caught up between loyalties to one or the other parent or caregiver. Substantial care and skill is required to create opportunities for children to express themselves without them feeling pressurised to choose between either their mother or their father, or between a foster parent and a biological parent.

The right to participate does not mean the child has the right to demand a particular outcome or course of action. The decision-maker still has power to decide what is in child’s best interests even if it is not what the child wishes provided the decision-maker has afforded the child an opportunity to participate and given due consideration to the child’s views.

The right of the child to participate is qualified – limited to children of such an age, maturity and stage of development as to be able to participate. Maturity refers to the ability to understand and assess the implications of a particular matter, and must therefore be considered when determining the individual capacity of a child.

Maturity is difficult to define; in the context of section 10, it is the capacity of the child to express her/ his views on issues in a reasonable and independent manner. The impact of the matter on the child must also be taken into consideration. The greater the impact of the outcome on the life of the child, the more relevant the appropriate assessment of the maturity of the child

Once it is established that child is able to participate – then inquiry shifts to what weight should be given to the view expressed. The more serious the consequences of the decision are, the more the child’s opinion needs to be considered having regard to the nature of the problem and degree of interests it represents to the child.

The question when is a child of an age, maturity and stage of development to participate is no quick and easy answer. Each case is dependent on circumstances and personal competencies of the child; the latter is usually a question of fact. Factors to consider are cognitive ability, biological and mental age, level of maturity in comparison to peers, ability to understand and answer questions and comprehend, school grade appropriate to age, etc.

The importance of recognising the child’s right to participate is further highlighted in section 31 of the Children’s Act, which deals with major decisions involving children by a person holding parental rights and responsibilities, normally the parents. It provides explicitly that, as far as decisions which might constitute a significant change in the education of the child are concerned, or which have an adverse effect on the child or the general well-being of the child, due consideration must be given to any views and wishes expressed by the child, bearing in mind the child’s age, maturity and stage of development.

Section 31(1)(a) of the Children’s Act reads:

“Before a person holding parental responsibilities and rights in respect of a child takes any decision contemplated in paragraph (b) involving the child, that person must give due consideration to any views and wishes expressed by the child, bearing in mind the child’s age, maturity and stage of development.”

South African Case Law

H G v C G 2010 (3) SA 352 (ECP)

In this case the applicant (mother) sought an order declaring her primary carer and an order entitling her to relocate with her three children to Dubai. The children were between the ages of 11 and 13. The court recognised the children’s right to be heard in sections 10 and 31 of Children’s Act. The applicant’s experts (psychologists) approached the matter on the basis that children should be relieved of the responsibility of themselves deciding with which parent to live. The Court determined the matter on the basis that the voice of the child should be heard and the relocation was found not to be in their best interest, accordingly the application was dismissed.

GCH v GNB [2012] ZAGPPHC 218

The applicant (mother) and the respondent were previously married but divorced in 2010. Two sons were born of the marriage, who at the time of the application was 13 and 11 years old. In terms of the settlement agreement concluded between the parties when they divorced, both parties retained their parental responsibilities and rights in respect of the care of the children. The primary residence of the children was awarded to the applicant. The respondent’s rights of contact with the boys were spelt out in the agreement. The applicant was the primary caregiver of the children since the respondent left the common home during May 2008. The applicant applied for an order granting consent for the two boys to relocate with her to Australia. The respondent opposed the application. He also filed a counter-application for an order that, in the event that the applicant leaves South Africa without the two minor children, clauses 2 and 3 of the settlement agreement in the divorce action, which deal with the parties’ rights and responsibilities in respect of the children and with the maintenance which the respondent had to pay for the children, be deleted, alternatively that, in the event that the court granted an order authorising the applicant to remove the children to Australia, that certain specified contact rights with the children be granted to him. A factor which weighed heavily with the court were the views of the children themselves as expressed to the psychologist, the Judge, the family advocate and the family counsellor that they have decided that they want to go to Australia with their mother. In view of the good relationship which they had with the respondent, the decision was undoubtedly very difficult and one which caused them much anguish. The court allowed the mother to remove the children and found that the children’s decision must carry weight and must be respected because of their age, maturity and stage of development.

BROSSY V BROSSY (602/2011) [2012] ZASCA 151

In this case the court took note of international and regional instruments to which South Africa was a party, such as the United Nations Convention on the Rights of the Child (CRC)and the African Charter on the Rights and Welfare of the Child (ACRWC), both of which entrench children’s rights to express their views in all matters affecting them and their right to be heard in all judicial and administrative proceedings affecting them.

LEGAL AID BOARD V R 2009 (2) SA 262 (D)

In this matter the court found that when one is dealing with acrimonious litigation concerning the fundamentally important questions of where a child shall live and who shall be responsible for his/her principal day-to-day care and the central decisions concerning their lives, such as schooling, health, religion and the like, and where the voice of the child has been drowned out by the warring voices of her/ his parents, a substantial injustice to the child will result if he/ she was not afforded the assistance of a legal practitioner to make his/ her voice heard.


There is a real risk of unduly diluting the child’s right to be heard to one of merely listening to children without affording them a real opportunity to voice their own opinions and to take part in decisions in an age- and developmentally-appropriate way.

Children should not only be listened to, but should also be supported in expressing their views – and these views should be taken into account in decision making. By considering the views of children build their self-esteem, create a sense of belonging, increase empathy and responsibility, and lay a proper foundation for citizenship and democratic participation.

About the author

Bertus Preller is a Family Law and Divorce Attorney and Mediator at Bertus Preller & Associates Inc. in Cape Town and has more than 25 years experience. Bertus is the author of Everyone’s Guide to Divorce and Separation, published by Random House.

Maurice Phillips Wisenberg
20th Floor, 2 Long Street, Cape Town, 8000
Telephone: Cape Town Office: +27 21 419 7115
E-mail:  familylaw(@)mpw.co.za
Facebook: http://www.facebook.com/divorceattorneys
Twitter: @bertuspreller

Divorce Attorney Bertus Preller Consults in Johannesburg

Family Law and Divorce Law Attorney Bertus Preller
Family Law and Divorce Law Attorney Bertus Preller

Bertus Preller  a Family, Divorce Law Attorney, Mediator at Maurice Phillips Wisenberg in Cape Town, is now consulting on a weekly basis in Sandton Johannesburg. He has nearly 25 years of experience as an attorney and specializes in Family Law and Divorce Law cases across South Africa. Bertus is the author of Everyone’s Guide to Divorce and Separation, published by Random House. He has also 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, Woman and Home, Women’s Health, You, Huisgenoot and Fairlady and also appeared on the SABC television show, 3 Talk, Morning Live and on the 5FM Breakfast show with Gareth Cliff. 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, child abduction and Hague Convention cases and domestic violence matters and international divorce law. He will consult in Sandton every Wednesday.

To contact Bertus for an appointment:

Maurice Phillips Wisenberg
20th Floor, 2 Long Street, Cape Town, 8000
Telephone: Cape Town Office: +27 21 419 7115
E-mail:  familylaw(@)mpw.co.za
Facebook: http://www.facebook.com/divorceattorneys
Twitter: @bertuspreller

How to have the most horrible divorce ever

Divorce Argument

If you and your spouse have decided to divorce and you want to look back on your divorce process with as much anger and bitterness as possible, then this recipe for a horrible divorce is definitely for you.

Ingredient 1 – Hire a bulldog lawyer who will:

tell you he or she will get everything that you want;

tell you that you have a winning case;

tell you that your spouse’s attorney is an idiot;

tell you he or she will destroy your ex.

This will ensure that you waste thousands of rands in legal costs by approaching the court with interim applications in terms of Rule 43 or 58, by lodging applications for contempt of court or to compel your spouse and by asking the judge to make interim decisions about maintenance and care and contact of your children. In addition you can lodge Domestic Violence applications for protection orders, accuse your spouse of sexual abuse, use your children as pawns and completely alienate your spouse from the children. As a last measure you may want to report your spouse to the Revenue Services. This will ensure that you and your ex remain enemies for the rest of your lives and will need attorneys to do most of the communicating between the two of you. In the process your children will likely suffer the most, the more conflict the better for everyone.

Ingredient 2 – Be as adversarial and confrontational as possible.

Don’t even think about settlement or mediation or collaborative divorce, if you do enter into settlement negotiations use it as a delaying tactic with no intention to settle. Consider this terrifying scenario: You and your spouse being guided by professionals who are committed to helping you communicate effectively to resolve serious issues. Why would you want that? What will you have to add to the conversation when your friends complain and gossip about how badly their divorces are going?

Ingredient 3 – Fight for your principles and ideologies.

Principles are the best way to make sure you spend ridiculous amounts of money on expert and attorney fees. Principles are also a great way to prevent long-term compromise that will make sense a few years down the road.

Ingredient 4 – Insist on having “your” day in court.

By having your day in court you can tell your own story to the judge. You want that judge to hear everything that your spouse did wrong, and rightfully so whether it is relevant or not. You will have a few years to perfect your argument and gather more evidence, in addition to the opportunity to spend hundreds of thousands of rands on legal and expert fees while you wait for that special day. By prolonging the adversity your attorney can enjoy a few relaxing holidays on a tropical island while you prepare for the big fight.

Ingredient 5 – Take out a loan to pay your legal costs.

A divorce like this can easily cost you more than R 300 000. Do not even think of spending this kind of money on your children. It is much better to spend it in your own little war; after all you probably hate your spouse so much that you would rather pay your attorney to fight to the finish. But think about it, hiring a hit man may be cheaper.

Ingredient 6– Hire a psychologist to try and mend all the emotional damage.

By this time you will be so emotionally drained, exhausted and psychologically messed up that you will need help. It may be best at this stage to trade in what is left of your estate and pay for the services of a good psychologist who you will likely need for the rest of your life.

For those of you who want to ensure that you are fighting with your estranged spouse for years to come, I hope this post has been helpful.

Finally, take my advice. If you do divorce, think of your children and for heaven’s sake try to part ways as amicably as possible. High levels of parental conflict during and after divorce are associated with poorer adjustment in children. Conflict costs money.  Clearly, it also costs the children of divorce.

Compiled by Bertus Preller

Family Law and Divorce Attorney and author of Everyone’s Guide to Divorce and Separation – Random House.

Twitter: bertuspreller

Web: http://www.divorceattorney.co.za

Facebook: http://www.facebook.com/divorceattorneys

Source:  http://voices.news24.com/bertus-preller/2013/08/how-to-have-the-worst-divorce-possible/

Everyone’s Guide to Divorce and Separation by Bertus Preller

Simon Cowell’s alleged adultery, can we really judge the judge?

Simon Cowell

Media reports recently stated that Simon Cowell allegedly committed adultery with his friend Andrew Silverman’s wife Lauren Silverman, with whom The X Factor judge is expecting a baby.

In divorce papers filed in New York, which is a no-fault state when it comes to divorce Mr Silverman chose to go the fault route instead. A no-fault state means that spouses do not need a reason to divorce.  Silverman is said to feel betrayed and he alleged adultery as a cause, and along with his future ex-wife listed Cowell as a third party. The affair reportedly came as a shock to Mr Silverman, who has filed for divorce citing ‘adultery’ as the main reason for the breakdown of the marriage and accusing his wife of subjecting him to ‘cruel and inhuman treatment.  This means that if the matter goes to trial in a court, Cowell could be called to testify in a trial about his alleged relationship with Lauren Silverman and there might be DNA tests involved to officially determine paternity of the child. To join a third party as a second Defendant in divorce proceedings is discouraged by some lawyers usually because of the huge legal costs and the bitter fallout it causes between couples. Under US law Andrew Silverman is required to prove his wife’s infidelity even if she and Cowell admit to the affair. This means that Cowell will have to reveal evidence of his meetings with Lauren Silverman.

In South Africa the law in respect of adultery is different. In the US a claim against a third party for monetary compensation on account of the wrong committed is not possible, but in South Africa it still is, for how long still remains to be seen.

In a recent case in the High Court in Pretoria a Judge emphasised that marriage is a sacred institution and that instituting a claim for damages against a third party by an injured spouse resulting from adultery is still a possibility in our law.  In the judgement the third party was ordered to pay R 75 000 to the husband for damages because the third party committed adultery with the husband’s wife.

Damages are awarded on the basis of the insult caused to the innocent party and of the loss of consortium (the right to associate as husband and wife). Compensation can be claimed for financial loss caused by the break-up of the marriage, as well as for the loss of affection. A court will consider the spouses’ financial and social situation, their moral reputation and the state of their relationship before the adultery was committed. When an innocent spouse’s behaviour was partly responsible for driving his/her partner into another person’s arms, the damages awarded will be considerably lower. Although our courts have started to view divorce as a ‘no fault consequence’, an innocent spouse may still bring an action for damages against a third party (the co-defendant) with whom adultery was committed. Such a claim can be brought even if divorce proceedings are not instituted against the guilty spouse. There are two grounds on which one can sue a third party:

adultery, which is the act of having sex with a married person; or

alienation of affection or enticement, which means paying attention to a married person with the intention of drawing that person away from his/her marriage.

A third party who was unaware that the other person was married at the time when the adultery was committed cannot be sued, as the above mentioned grounds are based on a deliberate interference with the marriage. It is not easy to successfully sue a third party for breaking up a marriage. One has to prove that the third party was directly responsible for the breakdown of the marriage, and this is somewhat difficult. Claims against a third party are usually only successful if one can prove that the marriage was still strong and healthy at the time of the affair. If the third party can prove that the marriage had already broken down, then he/she will probably succeed in his/her defence. If the third party behaved particularly callously towards the innocent spouse, for example if he/she openly enticed the wife/husband away from the other spouse, damages may be increased. It is debatable whether, in today’s day and age, there is still place for an action to sue a third party for adultery in South African law.

According to a press release issued by the infidelity site AshleyMadison.com the state of adultery in South Africa is that 82.6% of their male members having affairs are not really concerned about being caught by their wife, which is a shocking revelation since marriage is supposed to be a sacred institution, I mean why get married then in the first place? The website with the tagline “Life is short. Have an affair” has 12 million members worldwide. The website has seen a huge surge in memberships in South Africa with one new member joining every three minutes. The statistics also show that cheating is more of a men’s game. 62 % of AshleyMadison.com members are male and female cheaters are making up just under 40%. When it comes to age, men aged 30 to 39 are most likely to cheat, while 18 to 29-year-old women make up the largest group of females who have signed up. Men according to the statistics are apparently far more willing to cheat with a variety of women, with the average affair partners per man being four, while women’s average is two.

In Johannesburg, over 59.7% of members have signed up for a short-term fling, apparently because their fast-paced lifestyles mean they can only manage quick encounters. Johannesburg has also been called the most popular city for women looking to cheat with 36.2% of female members logging on in Johannesburg for some love outside of marriage. Cape Town is the city where more than 55.3% are looking for an “Anything Goes” affair, while Durban is the city where members are the most steady it seems, at least when it comes to their affairs: 33.4% are looking for a “Long-Term” lover.

The website reports that it has gained over 163 000 South African members within its first year of operation in the country. In a survey of 4,392 South African members it was found that the top five cheating occupations amongst men were:  1. Financial Industry, 2. IT, 3. Physicians, 4. Lawyers and 5. Entrepreneurs and amongst women, 1. Education, 2. Lawyers, 3. Finance/Accounting, 4. Administration and 5. Stay-at-Home Mother.

The sad reality is that whatever the cause, divorce will remain a part of society. Behind the majority of these statistics is a life, a child, tomorrow an adult, still coping with the emotions brought on by the divorce. Divorce and Separation is a invariably traumatic for all concerned, but especially for the 20 000 children affected by divorce each year in South Africa.

Source: http://voices.news24.com/bertus-preller/2013/08/simon-cowells-adultery-are-south-africans-really-in-a-position-to-judge/

Compiled by Bertus Preller

Family Law and Divorce Attorney and author of Everyone’s Guide to Divorce and Separation – Random House.

Twitter: bertuspreller

Web: http://www.divorceattorney.co.za

Facebook: http://www.facebook.com/divorceattorneys

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