Divorce Attorney Cape Town

Download Free Family Law eBooks


Bertus Preller & Associates Inc.

Bertus Preller has made a number of eBooks freely available for download by the general public on all aspects of Family Law, Divorce and Separation. eBooks that are currently available to be downloaded for free include the following:

  • Domestic Violence and Abuse
  • Spousal and Child Maintenance
  • Marital Regimes – In Community of Property, Out of Community of Property, with or without accrual
  • Finances and Divorce
  • Emotions and Divorce
  • Harassement
  • Relocation and Child Abduction
  • Divorce and Retirement Funds
  • 60 Questions on Divorce

Further topics will follow soon.

To download these books, simply click on the download Banner below:

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Brought to you by:

Maurice Phillips Wisenberg
20th Floor, 2 Long Street, Cape Town, 8000
Also consulting at:
Suite 102, 1st Floor, Big Bay Office Park, 16 Beach Estate Boulevard, Big Bay, Cape Town, 7441
Telephone: Cape Town Office: +27 21 419 7115, Big Bay Office: +27870735747
E-mail:  law(@)preller.co.za

Facebook: http://www.facebook.com/divorceattorneys
Twitter: @bertuspreller

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 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:

+27 21 419 7115

Maurice Phillips Wisenberg ey.co.za

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

Twitter: @bertuspreller

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

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

More women file for divorce than men


Although the novel Fifty Shades of Grey portrays Anastasia Steele as a submissive woman, more women are ending marriages and are filing for divorce these days, proving the point that women in general, are not as submissive as men would want them to be.

In the past the majority of Plaintiffs (the party initiating divorce) in South Africa were male, these days they are in fact women.

Recent figures released by the Department of Statistics has revealed that there were more female (49,8%) than male (35,9%) plaintiffs in divorces instituted during 2010.

According to the statistics there were significant differences among population groups. Among the white population group 55,8% of the wives filed for divorce compared to 41,3% of wives among the African population group.

Even though a high proportion of the plaintiffs did not indicate the type of occupation they were engaged in at the time of divorce, the highest percentage of wives (18,9%) were in clerical and sales occupations whereas husbands (15,3%) were in managerial and administrative occupations.

Adultery has become more common with the introduction of infidelity websites such as Ashley Madison.com with their slogan “Life is short have an affair”. Years ago it was more likely men who committed adultery, but research into the behaviour of 4,000 cases of infidelity in the UK claimed that women in general are more promiscuous, having an average of 2.3 secret lovers compared to a mere 1.8 for men. The survey found that while unfaithful men have their first affair until almost six years of married life the average female cheater strays just five years after exchanging wedding vows.

Catherine Hakim, a British social scientist and bestselling author argues that a “sour and rigid English view” of infidelity is condemning millions of people to live frustrated “celibate” lives with their spouses. According to her sex is no more a moral issue than eating a good meal. This view may be a bit skew especially since her view propagates the moral decline of our society.

She attacks the traditional morality and also accuses relationship counsellors and therapists of trying to “pedal a secret agenda of enforced exclusive monogamy”. Her argument is that the rise of the internet, has brought about a change in sexual behaviour on a par with the invention of the contraceptive Pill. Adultery is now, she says, simply the “21st-century approach to marriage”.

It is a fact that children living in families with greater parental supportiveness, from both mothers and fathers and less marital conflict live healthier lives. History repeats itself many times before we really learn that values matter. Families matter, moral courage matters, honour and integrity matter. Not only for individual happiness and prosperity, but more importantly for the good and strengthening of our society. The most important cause of our lifetime must be our family.  Devoting ourselves to this cause will improve every other aspect of our lives.

Source: http://voices.news24.com/bertus-preller/2012/09/beware-men-more-women-are-suing-for-divorce-these-days/

Bertus Preller

Family Law Attorney

Abrahams and Gross Inc.

Twitter: bertuspreller

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

Tel:  021 422 1323

Can a wife claim maintenance from her husband when she lives with another man?


The Supreme court of appeal recently gave an interesting judgement in the matter of Harlech-Jones v Harlech-Jones [2012] ZASCA 19. The question raised in this matter was inter alia whether it would be against public policy for a man to pay maintenance to his wife while she is living with another man.

The appellant appealed against an order obliging him to pay R2 000 per month to his wife of almost 29 years, upon dissolution of their marriage. His principal objection against the order lied in the fact that for some eight years prior to the divorce his wife had been cohabiting with another man. This, the husband contended, disentitled her from receiving maintenance from him.

The parties were married out of community of property in December 1972. Two sons, both majors and self-supporting, were born from their marriage. After 28 years of marriage, the husband left the matrimonial home in Port Elizabeth as he had formed a relationship with another woman and had decided on a new life. He purchased another residence in the city, but his new relationship also failed and within six months he had formed an intimate relationship with another man with whom he had cohabitated.

The wife was friendly with a married couple, whom she had come to know some years previously when their sons attended the same school. Shortly after the husband had moved out of the common home, the friend’s wife passed away. When her husband was already cohabiting with his male partner a relationship began to blossom between the wife and her new partner. With the passage of time the relationship became more intimate and the wife moved into the home and bedroom of her new partner, and they thereafter cohabited as man and wife. During the first two years that they had lived together the wife’s youngest son, lived with them as well.

Although the evidence established that when the wife initially moved in with her partner it was regarded as a temporary arrangement, the relationship between them matured over the almost eight years that they had lived together before the trial. By then they both regarded their relationship as permanent and neither had any intention of terminating it. The wife’s partner supported her unconditionally and was prepared to continue to do so indefinitely. By the same token, not only was the wife being maintained by him but she, reciprocally, assisted him in his business, for which he paid her a small gratuity.

Relying upon judgments such as Dodo v Dodo 1990 (2) SA 77 (W) at 89G; Carstens v Carstens 1985 (2) SA 351 (SE) at 353F; SP v HP 2009 (5) SA 223 (O) para10 it was argued, both in the high court and in the appellant’s heads of argument, that it would be against public policy for a woman to be supported by two men at the same time. The court was of the opinion that while there are no doubt members of society who would endorse that view, it rather speaks of values from times past and the court was of the opinion that  in the modern, more liberal (‘enlightened’) age in which we live, public policy demands that a person who cohabits with another should for that reason alone be barred from claiming maintenance from his or her spouse. Each case must be determined by its own facts,and counsel for the husband did not persuade the court to accept that the mere fact that the wife was living with her new partner operated as an automatic bar to her recovering maintenance from the husband.

Under the common law, the reciprocal duty of support existing between spouses, of which the provision of maintenance is an integral part, terminates upon divorce. This might well cause great hardship and inequity particularly where one spouse, during the subsistence of the marriage, has been unable to build up an estate and has reached an age where he or she is unable to realistically earn an adequate income ─ the classical case being that of a woman who has spent what would otherwise have been her active economic years caring for children and running the joint household. This potentially iniquitous situation is alleviated by s 7 of the Divorce Act 70 of 1979. Section 7(1) which provides for a court on granting a decree of divorce to make a written agreement between the parties in regard to the payment of maintenance by one party to another an order of court ─ while in other cases s 7(2) provides:

‘In the absence of an order made in terms of subsection (1) with regard to the payment of maintenance by the one party to the other, the court may, having regard to the existing or prospective means of each of the parties, their respective earning capacities, financial needs and obligations, the age of each of the parties, the duration of the marriage, the standard of living of the parties prior to the divorce, their conduct in so far as it may be relevant to the break-down of the marriage, an order in terms of subsection (3) and any other factor which in the opinion of the court should be taken into account, make an order which the court finds just in respect of the payment of maintenance by the one party to the other for any period until the death or remarriage of the party in whose favour the order is given, whichever event may first occur.’

It is trite that the person claiming maintenance must establish a need to be supported. If no such need is established, it would not be ‘just’ as required by this section for a maintenance order to be issued. It is on this issue that the wife’s claim failed. Both she and the husband had moved on with their respective lives and had formed intimate and lasting relationships with others.

The wife was therefore being fully maintained by her new partner in life, and had no need for that maintenance to be supplemented in any way. Accordingly, the respondent’s claimed failed at the first hurdle as she failed to show that she actually required maintenance from the husband.

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 Maurice Phillips Wisenberg in Cape Town, a law firm that has been in existence since 1994 and has more than 30 years experience in most sectors of the law. 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: +27 21 419 7115

Facebook ‘Friend’ Offer Exposes Man’s Other Wife


Facebook’s automatic function to connect its users through “friends” they might know recently led two women in the United States to find out they were in fact married to one and the same man, at the same time.

This led to the man being charged with bigamy.

The man married a woman in 2001, separated in 2009, then changed his name and remarried without divorcing his first wife. The first wife first noticed this to her shock when Facebook suggested the friendship connection to wife number 2 under the “People You May Know” feature.

Neither the man nor his first wife had filed for divorce. The man allegedly told wife No. 1 not to tell anybody about his dual marriages and that he would fix it. But wife No. 1 alerted the authorities.

Facebook over the years has played a role in both creating relationships and destroying them. It’s just the latest vessel by which people can stray if they want to.

Bigamy is the act of entering into a marriage with one person while still legally married to another. Bigamy is a criminal offense in most western countries, and when it occurs in this context often neither the first nor second spouse is aware of the other. The legal status of the parties is as if they never concluded a marriage, the second marriage is thus void and has no legal consequences and its effect is absolute. It is also unnecessary to obtain a court order, although this may be done for sake of legal certainty.

A void marriage, like in the case where Bigamy was committed means that legally no marriage has come into existence.

Save for in a case of Bigamy a marriage will also be void where the parties have not adhered to some formal or material requirements. Examples of formal requirements that will render a marriage null and void include the following:

  • The marriage was not conducted by a competent marriage officer
  • No witnesses were present at the marriage ceremony
  • A boy under 18 years or a girl under 15 years of age married and did not obtain the consent of the Minister of Home Affairs
  • The parties are related to each other within the prohibited degrees of relationship
  • One or both of the parties were mentally incapable when they concluded the marriage

Social Networks and Divorce


It used to be lipstick on the collar,  then there were the give-away text messages that spelled the death for many marriages, but these days it is said that one in five divorces involve  social networking sites.

There was a recent article on the internet where a Pastor in New Jersey USA said that 20 couples in his congregation of about 1,100 members have all experienced marital trouble as a result of Facebook. As a result he urged his congregants to delete their Facebook profiles, calling Facebook a “portal to infidelity”.

The Pastor’s statement also seemed to have been a matter of the pot calling the kettle black and he himself was later forced to take a leave of absence after his own non-Facebook transgressions were revealed when he admitted that he took part in three-way sexual trysts in the past.

Although the Pastor’s view of Facebook is extreme, it does lead to the question: Whether new technologies are bringing people closer together, or does it tempt people to stray from those who matter to them?

In a survey by the American Academy of Matrimonial Lawyers it was found that 81% of divorce attorneys have seen an increase in the amount of cases where evidence was used that was obtained from social networking websites. It is also becoming more common for divorce attorneys in South Africa to use information from Facebook and Twitter in divorce proceedings.

In the United States various Attorney and Advocate Associations are conducting workshops on how to find evidence through social media sites. Before, private investigators would follow a spouse where infidelity was suspected but these days evidence could show up on a Facebook wall.

According to media reports celebrities as well as ordinary people have been humiliated online in connection with a separation or divorce.  For example, former NFL star Deion Sanders’s wife discovered that he announced his decision to divorce her on a social network.  When actors Katy Perry and Russell Brand separated, Perry “unfollowed” her estranged husband.

There are a number of ways in which Facebook can cause relationship stress or breakdown. Some ways would be by sharing way too many information, the photo factor, where a person is tagged in posts of an ex, getting a friend request from an ex or not deleting conversations in your inbox between you and an ex. If divorcing spouses do not sabotage themselves, their friends on Facebook or in real life, can do it for them whether intentionally or accidentally. Peter may be dating Ann, if they go out with friends, she does not tell them he is married. Ann’s friend takes pictures and posts them on Facebook, where his wife then sees them.

Experts say that opportunity is a major predictor of infidelity and opportunities for connections have never been greater than in the digital age we live in. Years ago, there were numerous barriers to getting in touch with an ex or potential partners.  These days, by Googling people one is likely to find what their email address is, where they work and their Facebook page. The lure of relationships based on social media is based on the premises that they seem so innocent at first. Research at Lehigh University in the US had found that people who communicate online fell for each other 1 to 3 times faster than those communicating face-to-face. The reason lies in the fact that when there is nonverbal communication, the likelihood of being able to disclose at a deeper level is far greater, because there’s less inhibition. Spending too much time on social networking sites can have a negative impact on any relationship. Just like sitting in front of the television.

The conduct of the parties leading to the break-down does play a role in South African divorce law. In terms of section 10 of the Divorce Act a court may have regard to a parties’ conduct when making a cost order in contested divorce proceedings. Section 7 (2) of the Act also states that when making a maintenance order, a spouses’ conduct insofar as it may be relevant to the break-down of the marriage, should be taken into account.

When a Facebook affair results in adultery (extramarital sex with a third party that willfully and maliciously interferes with marriage relations which renders the irretrievable breakdown of the marriage relationship) a court may award damages against such a third party.  According to South African law adultery conflicts directly with the undertaking of spouses towards one another and towards the outside world to have sexual intercourse only within the marriage. As such our law regards it as a violation of a collection of personality rights each spouse has arising out of the marriage. The convictions of the community are that the exclusive sexual relations of marriage have to be respected and that it is unlawful to interfere with them. In terms of legal policy it is necessary to protect the exclusivity of sexual relations to which spouses have bound themselves from interference by third parties. A court will consider the spouse’s financial and social situation, their moral reputation and the state of the relationship before the adultery was committed. When an innocent spouse’s behaviour was partly responsible for driving his or her spouse into another person’s arms, the damages awarded can be considerably lower.

Source: http://voices.news24.com/bertus-preller/2012/02/social-media-and-divorce/

Bertus Preller

Divorce and Family Law Attorney

info@divorceattorney.co.za

Tel: 021 422 2461

Twitter: @bertuspreller

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

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