Divorce Attorney Cape Town

The Marriage Rate Continues to Decline.


Living-Together

Will Valentine’s Day, always a popular moment for popping the question, see less marriage proposals this year than in past?

Information provided by Statistics South Africa in 2014 shows that the highest number of marriages was recorded in 2008 and the lowest number in 2012 which represents a decrease of more than 10% from those marriages recorded in 2008.

The age-old message about marriage that has been communicated by parents that “two are stronger than one” is now brushing up against a 21st-century reality: The number of married households in most countries including South Africa has fallen. Some researchers calls it “The Marriage Crisis”.  Today’s young adults in the US are on track to have the lowest rates of marriage by age 40 compared to any previous generation. If the current pace continues, more than 30% of millennial women will remain unmarried by age 40.

There are several reasons behind the declining marriage rate. The importance of marriage has been fading for years. More couples are living together without getting married, and some are raising families.

Also, marriage used to be the starting point for young adults. They got hitched early and built a life together. Now, many people feel they have to be more established, especially financially, before they walk down the aisle.

In 2013, the economist David H Author found that, “Sharp declines in the earning power of non-college males combined with the economic self-sufficiency of women rising educational attainment, falling gender gap and greater female control over fertility choices have reduced the economic value of marriage for women.”

Sweden has one of the lowest rates of marriage in the world and only 20% of the population bother to marry. In France and Britain it’s about a third. While marriage is in decline, unmarried cohabitation is on the rise.

U.Va. psychology professor Robert Emery says that, in the past, people thought of marriage as “more of a business-like relationship.” Women often received financial support from their husbands and women often provided household and child-rearing labour. Marriage rates fell and divorce rates rose when people started thinking less with their wallets and more with their hearts.

In the US the number of married households fell to 50.5% in 2012 from a high of about 72% in 1960. Among the less well educated, the number of married households has fallen even more. Research indicates that those who find themselves already lower on the socioeconomic ladder may be less likely to ever marry.

The United States has spent approximately one billion dollars since 2006 trying to educate low income Americans of the value of marriage with the goal of minimising divorce and single parent families. President Obama wrote in “The Audacity of Hope” that expanding such marriage education services to low income couples “should be something everybody can agree on.”

Researchers at UCLA however found that the poor not only value marriage just as much as those with more income, they actually have a better grip of the values needed to make a marriage work than wealthier people. Compared to the affluent, poor people “were more focused on the role of a good job, and an adequate income, and having some savings as the important factors in having a successful marriage,” the study’s lead author, social psychologist Benjamin Karney said.

Feminists have claimed that they, have the answer to Freud’s question about “What do women really want?” According to them, women’s utmost desire is to be equal to men and independent of them. Feminists created the myth that men and women are interchangeable and, except for donating sperm, women can be totally independent of men. However data in the US shows that by the time women reach their 30’s, about 70%of them are married and in marriage data we can certainly see the pull between a particular powerful set of values contesting with strong biological needs and the desire for equality struggle with the need for connection and relationship.

One should never underestimate marriage’s economic benefits. In a recent study in the US it was found that children being raised by married parents is generally connected to better economic wellbeing for young adults. So is being married as an adult and that growing up with both parents’ increases your odds of becoming highly educated, which in turn leads to higher odds of being married as an adult.

“Divorce causes a decrease in wealth that is larger than just splitting a couple’s assets in half,” said Jay Zagorsky, an Ohio State University economist. “If you really want to increase your wealth, get married and stay married.” “Marriage carries a sense of meaning, purpose, direction and stability that tends to benefit adults and particularly children. People who get married have an hope of sexual fidelity, and that fidelity tends to engender a sense of trust and security.

Latest marriage statistics in South Africa

Generally, the warmer months (beginning from September and peaking in December) are the most popular months for marriages. The results also show that marriages tends to peak in either March or April depending on the month of Easter holidays for that particular year. In 2012, the highest number of marriages took place in December. July recorded the lowest number of marriages. The results further indicate that, in 2012, the highest number of all marriages was registered in Gauteng (25,0%) and the lowest in Northern Cape (3,1%).

North West (76,1%) had the highest proportion of its marriages conducted by civil marriage officers whereas Western Cape recorded the highest proportion (44,2%) of marriages conducted by religious marriage officers.

A majority of the marriages in 2012 for both bridegrooms and brides were first-time marriages. For bridegrooms, there were (82,9%) bachelors, (3,3%) divorcees and (1,3%) widowers. For the brides, (87,4%) were spinsters whilst (2,2%) were divorcees and (1,0%) were widows. Provincial distribution shows that all provinces had the highest proportion of both bridegrooms and brides marrying for the first time, particularly brides in KwaZulu-Natal and Limpopo where 90,2% and 90,8% respectively were spinsters at the time of marriage

Irrespective of their marital status, men generally married women who had never been married (spinsters). Thus, (94,2%) spinsters, (1,0%) divorcees and (0,9%) widows were married by bachelors. In addition, irrespective of the fact that more divorcees and widowers married spinsters, the proportion of male divorcees who married female divorcees (16,2%) was higher than the proportion that married widows (1,2%). Similarly, the proportion of widowers who married widows (15,0%) was higher than the proportion that married female divorcees (1,5%).

The average ages of first-time brides remained at 29 years, while for bridegrooms the average age was 33 years. The average ages for divorcees for male were generally at 52 years. In comparison, the average age of female divorcees increased to 47 years. Despite the fact that men generally marry younger women, data in indicate that (14,8%) bridegrooms were younger than their brides whilst  (7,6%) were of the same age as their brides.

Source: http://voices.news24.com/bertus-preller/2015/02/marriage-rate-decline/

Bertus Preller

Divorce and Family Law Lawyer

Bertus Preller & Associates Inc., Cape Town

Website: http://www.divorcelaws.co.za and http://www.divorceattorney.co.za

Twitter: @bertuspreller

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

Tel: 021 422 2461

Be careful, living together may cost you half of your assets when you breakup.


Recent case law in South Africa has far reaching consequences for unmarried couples who live together. In one case the court concluded that an unmarried woman who devoted all her time, effort and energy in promoting the interests of both parties by maintaining their common home in raising their children was entitled to 30 % of her partner’s net asset value at the date their relationship ended. In another case an award of more than R 6 million was granted to an unmarried woman who actively helped her partner in building his estate.

In the recent case of Cloete versus Maritz case number 6222/2010 and 16433/2012, in the Western Cape High court a judge has made a farmer (Mr Maritz) pay more than R 6 million for leaving his fiancée (Miss Cloete) of 10 years after he downplayed the role she played in building up his businesses and suggested she had illegally occupied his house in Cape Town.

After 10 years together, the court heard, how the man deserted his fiancée in March 2009, and by December that same year he married somebody else. Judge Robert Henney of the Cape Town High Court ordered the man to compensate his fiancée just over R6 million within 30 days, failing which his house could be attached.

The facts of the case were briefly as follows:

Having been in a relationship with each other, the parties on or about 10 March 1998 agreed to marry each other within a reasonable time after such date. As a result of this, the parties became engaged to one another during February 1999. Cloete alleged that on 24 April and 7 May 2009 Maritz repudiated the agreement by refusing to marry her. It was alleged that he did so by informing her that he did not want to see her again and that he had somebody new in his life. She alleged that the rejection was wrongful an unlawful and she issued summons against him whereby she claimed a 50% share of the value of the assets of Maritz based on a universal partnership, repayment of the sum of R 26,000 which was donated by her to Maritz and R 25,000 for damages for breach of promise to marry her. Throughout their relationship, Maritz and Cloete started various business ventures, both in South Africa and also in Namibia. According to Cloete, she invested considerable time in the businesses, including a farm in Namibia, since Maritz had a permanent job.

In 2001, they also bought a house in Cape Town as an investment, and they discussed changing it into a guest-house with the goal of ultimately retiring there. The house was registered in Maritz’s name. In March 2009 Maritz broke the news that he had someone new in his life, Cloete then moved into the house in Cape Town since according to her, she had nowhere else to go. Cloete testified that she later wrote a letter in which she told Maritz she had nothing to her name, even though she had worked hard to build up their businesses. Maritz filed a counter-claim that Cloete was unlawfully occupying the property and requested the court to evict her and also that she be ordered to pay damages to him equal to reasonable market related monthly rental of R 20,000 for 21 months unlawful occupation. Maritz disputed that there was a legally enforceable engagement, or that a universal partnership existed. He maintained that the decision to end the relationship was mutual. He also argued that he and Cloete signed an antenuptial contract prior to their intended marriage, and said this was an indication that they never intended to form a universal partnership.

The court’s finding

Judge Henney said in his judgement that Cloete came across as an honest and genuine person, who did not contribute to and assist Maritz purely to gain financially, but because of her deep love, affection, admiration and loyalty she had for him. It was clear it was never her intention, when she entered into the relationship with Maritz, to gain financially from it. The impression created was that she was the submissive and the caring partner who at all times acted in (his) best interests,” the judge said. Maritz, on the other hand, tried to downplay Cloete’s involvement, and diminish her contribution to that of an ordinary worker.

The Judge felt that Cloete’s role in the partnership was not limited to that of a housewife who tended to the maintenance of the home. He found that Cloete assisted Maritz in executing the commercial undertaking of the partnership. This contribution she made was in addition to the indispensable contribution she made to the businesses where she contributed her skills, energy, time, capital and income to promote the interests of the universal partnership. The judge found further that she contributed her admin skills and know-how for the promotion of the businesses she further contributed to the financial growth of the businesses and as a result of this, they acquired a number of assets during the relationship. Given the relationship they were involved in and businesses, the only conclusion that the court could come to was that a universal partnership came into existence.

Judge Henney said in light of the relationship and Cloete’s “inextricable” involvement in the businesses, the only conclusion was that a universal partnership had existed. He ordered Maritz to pay Cloete R 6.166 million, which constitutes a 50 % share in the universal partnership, as well as R 25 000 for breach of promise. Maritz was also ordered to pay costs.

Judge Henney mainly relied on the case of Butters v Mncora (181/11) [2012] ZASCA 29, discussed below.

The Law

A question that needs to be considered is whether there was a universal partnership that existed between the parties. The legal principles applicable to a universal partnership was summarised by the Supreme Court of Appeal in Butters v Mncora (181/11) [2012] ZASCA 29. The Appellate Division held that while cohabitation does not give rise to special legal consequences, a cohabitee can invoke remedies in private law which in this case was based on the law of partnership.

In this case, the parties were involved in a 19 year relationship, most, but not all, of which was spent living together. They had been engaged for nearly 10 years, but never married. During the course of the relationship, Butters had accumulated a sizeable estate from his business interests, which included a security company. Mncora had initially worked briefly as a secretary but, at the persistence of Butters, had stopped working to stay at home and care for the couple’s children and Butters’ child from another relationship. Butters had provided for all the financial needs of the family. The relationship terminated abruptly and a dispute soon ensued as to whether Mncora was entitled to any of Butters’ assets, even though she had never been married to Butters.

In the trial court, the plaintiff accepted that she had had virtually nothing to do with the defendant’s business and, in fact, had never entered the business premises. She conceded that her contribution to the partnership was limited to caring for the family and running the family home. The legal premise for the majority’s judgement started by recording that “the general rule of our law is that cohabitation does not give rise to special legal consequences”. However, the cohabitee has a remedy derived from the law of partnership and has the onus of establishing the partnership essentials. The path breaking aspect of the judgement is the finding that the partnership enterprise need not be confined to a commercial undertaking and that therefore “once it is accepted that the partnership enterprise may extend beyond commercial undertakings, logic dictates, in my view that the contribution of both parties need not be confined to a profit-making entity… It can be accepted that the plaintiff’s contribution to the commercial undertaking contacted by the defendant was insignificant. Yet, she spent all her time, effort and energy in promoting the interests of both parties in the communal enterprise by maintaining their common home in raising their children. On the premise that the partnership enterprise between them could notionally include both the commercial undertaking and the non-profit making part of their family life, for which the plaintiff took responsibility, her contribution to that notional partnership enterprise can hardly be denied”.

In light of the Butters case it appears that if a cohabitees evidence is accepted that “everything was for both of us… we were sharing everything”, this may well be sufficient to prove a universal partnership, even in circumstances where the plaintiff’s contribution were limited to running the joint household and raising the children.

The appeal court considered the essential elements of partnerships. Firstly, each of the parties must contribute something into the partnership or bind themselves to bring something into the partnership, whether it be money or labour or skill. The second element is that the partnership business should be carried on for the joint benefit of both parties. The third is that the object should be to make a profit.

There are two kinds of universal partnerships; firstly, ones where the parties agreed to put in common all their property present and future; and secondly, those where parties agreed that all they may acquire during the existence of the partnership from every kind of commercial undertaking, will be partnership property. A universal partnership does not require an express agreement. Like any other contract it can come into existence by tacit (unspoken) agreement, that is by an agreement derived from the conduct of the parties. Where the conduct of the parties is capable of more than one interpretation, the test for when a tacit universal partnership can be held to exist is whether it is more probable than not that a tacit agreement had been reached.

The Trends

It is clear that the Butters case broadened the application of a universal partnership, certainly in the case of cohabitees. This has very important practical consequences given the rising trend of people living in domestic partnerships in South Africa. In America for example, 40% of all couples living together are unmarried. In Sweden, 9/10 couples marrying for the first time already lived together and in Denmark, more than one third of women in the early 20’s are living in extra marital intimate relationships. A report recently published in the UK using the latest data from the Office for National Statistics revealed a generational shift away from the institution of marriage, with youths far less likely ever to wed than their parents and grandparents. The research by the Marriage Foundation showed that, for a variety of reasons, 47% of women and 48% of men aged 20 will never marry. In South Africa an increasing number of couples are cohabiting and delaying their walk down the aisle.

 

Given the latest developments in the law of universal partnerships, couples who do not wish to be married would be well advised to consider entering into a written cohabitation agreement to regulate their cohabitation relationship, otherwise separation may just have devastating consequences.

Compiled by Bertus Preller

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

Twitter: bertuspreller

Websites: http://www.divorcelaws.co.za

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

Source:http://voices.news24.com/bertus-preller/2014/07/careful-cohabitation-may-cost-half-assets-breakup/ 

 

Book review on Everyone’s Guide to Divorce and Separation


Deur Jaco Barnard-Naudé is professor in regsfilosofie aan die Universiteit van Kaapstad.

Book

Ons leef vandag in ‘n wêreld van toenemende vloeibaarheid en pluraliteit op die vlak van persoonlike verhoudings. Die een dag besluit jy en jou beste vriend nog om lewenskoste te beperk deur ‘n woonstel te deel en die volgende dag word die platoniese vriendskap iets meer en julle woon voortaan saam as man en vrou. Of man en man. ‘n Paar jaar later besluit julle om te trou. As julle ‘n eendersgeslagtelike verhouding bedryf, moet julle deur die hekke van die Wet op Burgerlike Verbintenisse, 2006, toegang verkry tot die twyfelagtige groener gras van die huwelik. Heteroseksuele saamwoners het ‘n addisionele (en meer konvensionele) wet beskikbaar waarvolgens hulle in die huwelik kan tree – die Huwelikswet van die Jaar van Onse Heer 1961. As julle byvoorbeeld in Tamboerskloof saamwoon en besluit die huwelik is nie wat julle en ander eende van julle dam wil hê nie, hoef julle nie te trou om die verbintenis regtens erken te kry nie: die 2006-Wet maak voorsiening vir ‘n burgerlike vennootskap wat presies dieselfde gevolge as ‘n huwelik het.

Ek het al hierdie dinge geweet voordat ek hierdie uiters leesbare en akkurate boek onder die oë gehad het, omdat ek vir ‘n regsfakulteit werk en self betrokke was by die totstandkoming van die 2006-Wet. Vir diegene wat tans in ‘n saamwonery van een of ander aard verkeer, dit oorweeg om een of ander Groot Stap (insluitend skeiding van tafel en bed) te doen en nié in die regsberoep werk of betroubare vriende daarin (skaars spesie) het nie, kan ekEveryone’s Guide to Divorce and Separation aanbeveel.

Die titel is ondeurdag. Hoewel die regstema van geregtelike skeiding prominent daarin bespreek word, soos die titel aandui, handel groot gedeeltes daarvan oor die regsgevolge van die totstandkoming van ‘n huwelik of ander permanente saamwoonverhouding. Selfs die gevolge van die totstandkoming van die ouwêreldse “verlowing” (en wat die lô sê oor die verloofring wanneer jy dit in sy gesig terugsmyt) word met erns bespreek. En as lobola deel was van jou huweliksonderhandelinge en jy is getroud ingevolge die Wet op Erkenning van Gewoonteregtelike Huwelike, sal jy interessante dinge lees oor hoe om te verhoed dat jou man se aanhoudende trouery jou nie finansieel benadeel nie.

‘n Groot gedeelte van die boek handel oor die onwillekeurige partye tot ‘n saamwoonverhouding: die kinders. Daar is ‘n omvattende bespreking van wat die verantwoordelikhede teenoor kinders in ‘n gesin is – veral wanneer die ouers se saamwoonverhouding tot ‘n einde kom en ook in gevalle waar Ma en Pa eens saamgewoon, of ten minste saam verkeer, het, maar by geboorte van die kind reeds aanbeweeg het. Die boek stel dit in hierdie konteks direk en duidelik: die kind(ers) sit met die gebakte pere van julle mislukte verhouding sonder dat hulle daarvoor gevra het. Die allerminste wat julle kan doen, is alles in julle vermoë ten einde te verseker dat hulle so onbeskadig as moontlik uit die puin van julle verhouding tree.

Bostaande is maar een rede waarom die skrywer (‘n prokureur) daarvoor pleit dat egskeidings nie in litigasie behoort te eindig nie. Daar is merendeels slegs verloorders in ‘n bestrede egskeiding, en té dikwels, waar kinders betrokke is, is dit húlle wat as pionne in die vuilspel gebruik word en die meeste verloor.

Benewens ‘n omvattende verduideliking van die egskeidingsproses bevat die boek ook heelwat praktiese wenke vir mense wat deur so ‘n proses moet gaan (waartydens gesinsgeweld nie uitgesluit word nie, daarom die hoofstuk oor laasgenoemde). Dit het my lank geneem om die bul by die horings te pak en hierdie boek te lees, want egskeiding is nooit ‘n aangename onderwerp om oor te dink of te lees nie – ons dink veel eerder aan die feeste van die huweliksdag. Maar as jy jou in ‘n skeidingsituasie bevind (en nie in die regsberoep werk of daarin bevriend is nie), moet jy jou, soos vir enige stryd, hoe gemoedelik ook al, bewapen. En Preller se boek is ‘n sterk wapen. Kry dit.

divorce and separation

 

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Original article at: http://www.litnet.co.za/Article/2013-everyones-guide-to-divorce-and-separation-bertus-preller

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 Abrahams and Gross 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:

+27 21 422 1323
+27 83 443 9838

Abrahams and Gross Inc.
1st Floor, 56 Shortmarket Street
Cape Town, 8000

info@divorceattorney.co.za

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

Twitter: @bertuspreller

Cape Town Attorney Bertus Preller writes South Africa’s first book on Divorce and Separation for the general public


Everyone's Guide to Divorce and Separation - Kindle Version
Everyone’s Guide to Divorce and Separation – Kindle Version

Everyone’s Guide to Divorce and Separation

WHAT YOU SHOULD KNOW ABOUT DIVORCE AND SEPARATION …With one in three marriages now ending in divorce, it is imperative to be informed of the pitfalls, challenges and legal aspects involved in divorce and separation. Other rules and laws may apply to the many couples who prefer to cohabit rather than get married, but they, too, need to be informed of their rights when the relationship breaks down.

Everyone’s Guide to Divorce and Separation will help with the following crucial aspects:  your rights when you get divorced, and the monetary aspects relating to divorce (including the consequences relating to assets and the divisions thereof); maintenance issues;  all factors regarding the children, including how to implement a parenting plan, how much child maintenance will likely be required, and how to file for maintenance and child support;  the procedures to obtain a protection order when there is domestic violence or abuse; an unmarried father’s rights and how to acquire parental rights; and the law on cohabitation, same-sex marriages, and how to draft a proper cohabitation agreement. 

Everyone’s Guide to Divorce and Separation will prove to be an indispensable and comprehensive guide at a time when everyone needs expert guidance the most.

In the Foreword of the book, Judge Denis Davis says the following:

“Bertus Preller has filled a very significant gap with this timely book, in that in plain language, he provides a comprehensive guide to the broader community through the thicket of law that now characterises this legal landscape. Having said that, many lawyers, particularly those who do not specialise in the field, will also find great assistance in this work.

From engagement, through the legal nature of the ceremony, to the legal consequences of marriage or civil union and on to divorce with all its complex consequences, the reader will find clear explanations for any or all issues which may vex him/her during this journey.

Early on in the text, Mr Preller makes a vital point – litigation is truly the option of last resort in the event of a matrimonial dispute. The adversarial process which is the manner in which law operates is not at all conducive to a settlement of issues, particularly custody of minor children, which have a long-lasting and vital impact on the lives, not only of the antagonists but also the children who have not, in any way, caused the problem giving rise to the forensic battle.

Often in my experience on the Bench, I have wondered how such vicious and counter productive litigation can be allowed to continue. Lawyers will point to clients, whose disappointment in the breakdown of the marriage now powers such adverse feelings to their erstwhile partner, as the core reason for the ‘legal fight to the finish’. I would hope that, in all such or potential cases, the parties consult this work, which may add some rationality to the process or, in the occasional case, will enable the parties to reassess the legal advice they have been given, thereby allowing a non-litigious settlement of proceedings.

Whatever the context, however, it is important that arcane and often incomprehensible legal jargon be made accessible to those affected by the law. In this way, ordinary citizens can ensure that their rights work for them and at the same time they are assisted to grasp fully the implications of the obligations that the law imposes upon them.

In providing such a gateway to those who are or may be affected by this area of law, which given its nature is the vast majority of the country, Mr Preller has made a significant contribution to ensuring that, in this area, access to justice will become a reality.

– Judge Dennis Davis”

The book will be on the shelves of all major book stores on 1 May 2013 and may be pre-ordered on Amazon.com

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

Cohabitation: Can pension benefits be shared?


Partners that live together in relationships outside the current legislative framework (Cohabitees) relating to marriage or civil unions are presently afforded minimal legal protection. Cohabitees are advised to draft a cohabitation agreement to regulate the terms of their cohabitation. Such and agreement will determine the division of their property on termination of the relationship, as well as the division of the assets jointly acquired by the parties during the cohabitation.

If a relationship between partners in a cohabitation agreement terminates, and in the absence of agreement between the parties as to the financial and proprietary consequences, each party would walk away with the assets he/she brought into the relationship and with what he/she acquired in his own name, regardless of whether or not the assistance of the other party enabled him to acquire an asset or increase the value of it. The courts have often come to the aid of a disgruntled partner who was left with nothing and in some instances recognised that a universal partnership can come into being between cohabitees. This provides a mechanism whereby assets can be shared. But it is extremely difficult to prove.

A universal partnership will exist if the following essentials are present:

  • Each of the partners brings something into the partnership.
  • The business is carried on for the joint benefit of the parties.
  • The object of the partnership should be to make a profit.
  • The contract should be a legitimate one.

It is a question of fact whether a universal partnership can be said to exist in a given set of circumstances. In a recent judgment the Supreme Court of Appeal confirmed the principles relating to universal partnerships in the context of two people cohabiting. In that case the cohabitees lived together for years. The court held that a universal partnership did exist between them as each party brought something into the partnership, the partnership was carried on for their joint benefit and the object was to make a profit. The activities engaged in by the parties were for their joint benefit and they increased their assets thereby.

Other cases held that the evidence did not support the existence of a joint venture formed in the context of a cohabitation relationship.

The contrast between these cases illustrates the importance of the factual matrix in proving the existence of a universal partnership.

The formation of a universal partnership creates a community of property and profit and loss in respect of partnership. On dissolution of this partnership, the partners can share in the partnership assets that are jointly owned, but not necessarily in equal shares. Partnership assets are those assets that were brought into the partnership at inception and also those that were acquired during the existence of the partnership. In the absence of a partnership agreement, evidence must be led as to what the parties’ intention was regarding the assets each was contributing to the partnership.

Should no agreement be reached between the parties on termination of their partnership as to the division of assets of the partnership, a liquidator must be appointed to liquidate the partnership assets.

A cohabitee’s membership of a retirement fund creates unique difficulties within the framework of the dissolution of universal partnerships. Can this fund become a partnership asset available for division on dissolution of the universal partnership, as it does on the dissolution of a marriage?

A universal partnership is not a marriage and accordingly cannot be dissolved by divorce. Therefore the Divorce Act does not apply to its dissolution.

There is no law that deems a member’s pension assets to be transferred into a partnership and be available as a partnership asset to be divided on the dissolution of a universal partnership. A cohabitation agreement would be of no force and affect either as it would not be enforceable against the pension fund.

Cohabitees, even those who are able to prove the existence of a universal partnership and a joint estate between them, cannot share in the pension assets of their partners on termination of the relationship as is the case with people who have registered their unions in terms of the Marriage Act or the Civil Union Act. It still needs to be decided by our courts whether or not this amounts to discrimination on the basis of marital status, it is submitted that it does, especially as cohabitees are able to be awarded these assets on the death of their partners.

 

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