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

Maintenance of Children After Divorce


Child Maintenance and Support

The Divorce Act in South Africa makes provision for the maintenance of dependent and minor children of divorcing husbands and wives. A court granting a decree of divorce can make any order which it considers appropriate in regard to the maintenance of a child of the marriage. This particular power of the court does not substitute or change a parent’s common law and statutory responsibility to maintain a child.

It does not follow that simply because there is a responsibility to maintain there should be an award against the non-custodian parent. In view of the absence of an enabling statutory provision in the Divorce Act or the Children’s Act, a parent of an adult child lacks the necessary locus standi in divorce proceedings to claim an order on behalf of such adult child, that the other parent pay certain allowances directly to the child or certain expenses on his or her behalf. Only if the children on their own have the standing to obtain such claim against the other parents. Nevertheless, in terms of section 7(2) of the Divorce Act, a court, when determining a spousal maintenance claim, need to take into account, amongst other factors, the parties’ respective financial needs and obligations, as well as their standard of living during the marriage.

Where the parties have separated and the adult child of the marriage has carried on to live with one parent who has had to use his or her household budget to run the family home and provide groceries for the household, such parent’s responsibility to provide the child with a home, with all that this entails, constitutes an ‘obligation’ within the meaning of section 7(2) of the Divorce Act which can be taken into account in determining the quantum of his or her interim maintenance claim.

If a parent has to pay maintenance for a child in terms of a court order, the fact that the child is visiting him temporarily does not entitle him to suspend or reduce the payment during that period, unless the order contains a specific provision to that effect.

In the assessment of maintenance for children their needs and the parents’ ability to pay are the primary factors but the criterion of the “best interests of the child” must also be considered.

The Maintenance Act provides that a court that convicts a person of an offence in terms of section 31(1) of the Maintenance Act, shall make an order directing any person, obliged under a contract to pay any money to the offender, to make such periodical payments from that money as may be required by the maintenance order. The use of the word “shall” showed that upon conviction a court is obliged to make the order provided that the contractual relationship exists, and the evidence shows that the order will not be impracticable. Such an order is enforceable against a state pension fund.

Compiled by Divorce and Family Law Attorney – Bertus Preller

To reade more on Family Law, Divorce and Separation read at: http://www.divorcelaws.co.za South Africa’s Premier Website on Family Law.

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

 

https://plus.google.com/113403548456513232014

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

Victory for Unmarried Parents in High Court Ruling over Interim Maintenance


child support

A ruling by the Eastern Cape High Court granting unmarried parents who have been in “a life partnership” equal rights to married parents was an “important victory” in child maintenance cases.

The Applicant (mother) approached the Eastern Cape High Court in East London by way of urgency for an order, inter alia, that the Family Advocate institute an enquiry and furnish a report regarding the parental rights and responsibilities of the mother and father and that pending such a report the mother remained the primary carer of the child. Pending the report by the Family Advocate the father was entitled to reasonable contact with the child at all reasonable times every alternate weekend from a Saturday morning at 09h00 until 17h00 and from 09h00 until 17h00 on the Sunday, reasonable telephonic contact, special occasions such as Mother’s Day, Father’s Day etc.

The interesting part of the application was the fact that the mother also asked the court for an order that the father contribute to the child’s maintenance, by the payment of the sum of R3 300.00 per month pending finalisation of the investigation by the Family Advocate into the parental issues and/or until the court made a proper maintenance order.

Facts of the case

The Applicant was the mother of a minor child of approximately 3 years old and the father of the child was the Respondent in the case.  At the time of the child’s birth the child’s parents were in a permanent life-partnership relationship (not married) and thus acquired full and equal parental responsibilities and rights in respect of the child.

The parties separated and the mother brought an application in the High Court,  the purpose of the application was to confirm and to grant certain rights to both parents so that in the best interest of their minor child, there was certainty in respect of his primary care contact with the child by both parents as well as maintenance to support his basic needs.

In her papers the mother averred that the minor child and she had been subjected to harm at the instance of the father who has threatened to remove the minor child from the care of the applicant.  The parties were no longer staying together and the child was living in the mother’s care.

The court granted leave to the mother to move the court application as a matter of urgency only on the basis that the father wanted to remove the child from her care. The Respondent’s counsel argued that is that the matter was not urgent and therefore the Court could deal with the mother’s maintenance claim in the High Court.

The court emphasized the fact that the High Court has always been regarded as the upper guardian of all minors in all matters concerning children.  Section 28(1) of the Constitution provides, inter alia, that every child has the right to family care or parental care when removed from the family environment.  To basic nutrition, shelter, basic health care services and social services.  To be protected from maltreatment neglect, abuse or degradation.  It is also important to mention that a child’s best interests are of paramount importance in every matter concerning the child.

It is a common practice for some practitioners who appear in the High Court to apply for the dismissal of an application on the only ground that it is not urgent.  In this matter the court found that the application was urgent due to the threat that the father made to remove the child.

A co-holder of parental responsibilities has the right to apply to the High Court, divorce Court or to the Children’s Court for an order suspending for a period or terminating any or all the parental responsibilities and rights which a specific person has in respect of a child.  Or extending or circumscribing the exercise by that person of the parental responsibilities and rights that person has in respect of a child.  Such application may be combined with an application in terms of section 23 of the Children’s Act for the assignment of contact and care in respect of the child to the applicant in terms of that section.  In other words the parental rights and responsibilities as well as guardianship of a minor child can be brought before the High Court.

The parties in this application lived in a permanent life partnership as though they were a married couple.  In the event that they had been married, which they were not, they would have been able to make use of Rule 43 proceedings, a mechanism, inter alia, for speedy and effective resolution of maintenance for minor children pending finalisation of the divorce.  In this case there was no pending matrimonial action and therefore, in the court’s view, the facts of the case were distinguishable from a situation where the provisions of Rule 43 find application.

Notwithstanding the aforesaid the court found that there was nothing preventing the Court from dealing with a maintenance issue even if it is a provisional order of maintenance pending the finalization of the maintenance court enquiry.  The court’s view was that in all maintenance matters involving children the court should endeavour to see to it that they are dealt with as expeditious as is practically possible and found that it was not be in the best interests of a child if the maintenance issue had to be referred back to the maintenance court especially when there was already an indication that it will only be dealt with sometime in a few months because of the busy court roll at the maintenance court.

It is therefore possible for an unmarried mother to obtain urgent interim relief for maintenance of a child pending an investigation by  the Family Advocate’s Office into the care and contact issues of a child.

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

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

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.

Father, please give me my daily bread – child maintenance


According to the Institute of Race Relations 9 million children in South Africa grow up with absent fathers. One may assume that the majority of these fathers don’t pay any child maintenance and then an alarming number of fathers in South Africa default on their child maintenance payments. It is a novel idea when people and celebrities alike engage in projects such as “Save the Rhino” but don’t we miss the point? Has the time not come to throw our weight behind projects to save the many thousands of children in South Africa who must suffer the consequences of an absent father who don’t pay child maintenance?  With the increase in divorce and the number of children born outside marriage, more and more women find themselves bearing the sole responsibility of caring for their children.

It is generally accepted that children with fathers who default on their maintenance payments grow up with a strong sense of resentment and rejection. When a parent fails to pay maintenance for their child, the child ends up feeling depressed, disadvantaged and unloved. The non-payment of maintenance, results in degeneration of the family unit and the children are sometimes driven to a life of crime.

In 2005 the government launched Operation Isondlo a maintenance defaulter programme with its aims to decrease the backlog of maintenance cases. This was indeed a noble initiative for which government must be applauded but in reality the effectiveness of the programme is doubtful having regard to the many women complaining about the ineffectiveness and inability to bring defaulters to book.

In 2011 the Western Cape Department of Justice and Constitutional Development released a list of 7 084 fathers across the Western Cape who were in arrears with their maintenance payments. The fathers collectively owed close to R16 million to their children in maintenance, with one father owing more than R200 000. Some women don’t even bother to approach the maintenance court because they feel that it is a pointless exercise. But the reality is that it is not only fathers who default in paying their child maintenance and the second biggest maintenance defaulter captured last year in Cape Town was a woman who owed her child R112 000. It was also found that there are mothers who did not collect their child maintenance and in 2011 about R 1 million in maintenance had been allocated for mothers who simply failed to collect it.

Much sterner measures need to be put into place to compel fathers to pay maintenance. In reality many of these father’s also shift the responsibility to the mother’s new husband or partner which is an extra burden in the harsh economic climate that we live in.

Some of the problems in our maintenance system include inadequately trained court staff and insufficient facilities and resources. The problems in our maintenance system cannot be resolved through the process of legislation alone, but by also creating a culture of maintenance payment amongst all those that are legally liable to maintain those in need of maintenance. If there is no respect for the law, the maintenance system will fail. A well functioning and effective maintenance system is critical not only for the children in South Africa.

We need to find measures to expedite maintenance application procedures, application processing, payments and punitive measures for defaulting parents. The possibility of Saturday courts for maintenance and other matters related to family law need to be investigated and the possibility to introducing mediation services in maintenance matters. In order to address the problem the media need to be engaged in creating awareness of the growing problems regarding child maintenance.

Legally, a duty of support exists between people who have a familial bond. A person who owes another person a duty of support may have to pay maintenance for that person, if the person has the means to provide maintenance and if the receiving person is in need of maintenance. The law requires a child to be supported or maintained by both his/her parents, whether married, living together, separated or divorced or by both his/her grandparents, in certain cases. South African law imposes a duty on both maternal and paternal grandparents to contribute towards maintenance if the child’s parents are unable to do so in part or in full. There is a duty of support between siblings, both full and half brothers and sisters where the parents and grandparents are unable to provide support, but the support does not extend to include tertiary education of a major sibling. Effectively this means that a mother in need of maintenance of her child may summons the paternal grandparents to the maintenance court if the father is unable to pay.

Source: http://voices.news24.com/bertus-preller/2012/05/child-maintenance/

Contact details

bertus@divorceattorney.co.za

O: 021 422 1323

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

Maintenance in a divorce – it is a discretion not a right


The recent case of AV v CV 2011 (6) SA 189 (KZP) is of interest in respect of whether a spouse was entitled to maintenance as of right. The court was of the opinion that awarding spousal maintenance was in the discretion of a court and not a right per se.

This was a matter where the granting of life long maintenance by the court was taken on appeal.  The trial court made an order in the following terms:

  1. ‘That the bonds of marriage subsisting between the plaintiff (present respondent) and the defendant (present appellant) be and are hereby dissolved.
  2. That the defendant be directed to pay maintenance to the plaintiff until her death or remarriage at the rate of R12 000 per month.
  3. That the defendant be directed to retain the plaintiff as a beneficiary on his current hospital plan or any equivalent replacement thereof and to pay the premiums in respect thereof timeously and in full.
  4.  That the defendant be directed to pay all amounts due in respect of the VW Polo 1.9 motor vehicle timeously and in full until the purchase price and all interest thereof has been paid in full.
  5. That the defendant be directed to pay the plaintiff’s costs of suit.’

The appellant appealed against that part of the order contained in par 2, 3, 4 and 5.

 The Facts

The parties were married to each other at Durban on 18 December 1993 in terms of an antenuptial contract, whereby the accrual system was excluded. No children were born of the marriage. This was a second marriage for both parties. The appellant had two children from his previous marriage and the respondent four children. Both parties’ children lived with the couple during the marriage.

During 1995 the marriage relationship became strained largely because of financial difficulties. This led to the parties’ separation in 1997/1998. The respondent left the appellant because she was very unhappy in the marriage. The parties reconciled after a year of separation. The respondent claimed that the parties had always battled financially until she started a new job. In May 2007 the parties were finally separated.

The Law

The court a quo exercised its discretion afforded to it in terms of s 7(2) of the Divorce Act 70 of 1979 (the Divorce Act) and made its findings and delivered its award. Therefore, a court of appeal could only interfere when the court a quo in exercising its discretion misdirected itself or its discretion was not exercised judicially.

On behalf of the appellant it was argued that the court a quo misdirected itself in granting the respondent a permanent maintenance award.

At common law a spouse has no right to maintenance upon divorce. Section 7(2) of the Divorce Act confers discretion upon a court to make a maintenance order which it finds just, having regard to the following factors:

(a)   The existing or prospective means of each of the parties;

(b)   the respective earning capacities of the parties;

(c)   the financial needs and obligations of the parties;

(d)   the age of each of the parties;

(e)   the duration of the marriage;

(f)   the standard of living of the parties prior to the divorce;

(g)   the conduct of the parties insofar as it may be relevant to the breakdown of the marriage;

(h)   any redistribution order made in terms of s 7(3) of the Divorce Act; and

(i)   any other factor which in the opinion of the court should be taken into account.

The authors Hahlo & Sinclair in their book The Reform of the South African Law of Divorce (1980) stated the following at 33:

‘(T)he idea that marriage ought to provide a woman with a ”bread – ticket” for life is on its way out.’ This passage was quoted with approval in Grasso v Grasso where the court stated further at 57H – I:

‘Middle-aged women who have for years devoted themselves full-time to the management and care of the children of the marriage, are awarded rehabilitative maintenance for a period sufficient to enable to be trained or re-trained for a job or profession. Permanent maintenance is reserved for the elderly wife who has been married to her husband for a long time and is too old to earn her own living and unlikely to re-marry.’

The court found in this case that the respondent was not entitled to maintenance as of right, but must persuade the court to exercise its discretion in her favour. In doing so, she has to provide a factual basis for a maintenance award to be made before the quantum and duration thereof are determined by the court.

In Grasso supra the court, having regard to the duration of the marriage, ie 15 years, and the fact that the plaintiff had not worked for most of the marriage and was not working at the time of the divorce, awarded maintenance to the plaintiff. The court also took into account the conduct of the defendant (husband), which was regarded as ‘gross misconduct’ and which ‘must inevitably play no small part in deciding whether or not he should be ordered to pay maintenance to the plaintiff.

In Rousalis v Rousalis, the court stated at 450G – H:

‘A wife of long standing who has assisted her husband materially in building up his separate estate would in my view in justice be entitled to far more by way of maintenance, in terms of this section, than one who did no more for a few years than share his bed and keep his house.’

In Kroon v Kroon, the court found that, having regard to the duration of the marriage, ie 20 years, during which the plaintiff (wife) did not work in the open market but fulfilled the role of housewife and mother, she should be awarded maintenance. However, the court stated at 632F – G that:

‘(T)he Courts do not today distribute maintenance with any degree of  liberality to women who can and ought to work after divorce.’

In the matter of Robert v Robert (DCLD case No 933/2002, 10 March 2003), an unreported judgment, Gyanda J declined to award maintenance to a spouse who was unemployed at the time of divorce on the basis that the marriage lasted only five years, although the plaintiff was no longer a young person to be readily employed. It was a second marriage, and the period during which she enjoyed maintenance in terms of rule 43 had been sufficient to constitute rehabilitative maintenance.

In McCarthy v McCarthy (CPD case No 5570/2003, 15 December 2004), an unreported judgment, the issue in dispute was not whether the wife was entitled to maintenance or not, but the amount and period of such maintenance. The parties were married for 25 years and two children were born into the marriage. The wife had not been employed since 1981. She, however, obtained a BA degree after ceasing employment. The court found that there was no fault to be attributed to either of them in causing the marriage relationship to disintegrate. The court ordered rehabilitative maintenance.

In the case related to this article the parties were married to each other for 15½ years. No children were born of the marriage. It was the second marriage for both the appellant and the respondent. The appellant had two children and the respondent had four, all from previous relationships. At the date of divorce the respondent was 54 years old and was employed earning a monthly net salary of R7980. Her highest level of qualification is Grade 10. She had completed an informal typing course. She was also computer-literate.

The conduct of the parties is undoubtedly a relevant factor to be considered in determining a claim for maintenance in terms of s 7(2) of the Divorce Act. The marriage was of some duration. The reasons given by the respondent for the breakdown of the relationship are trivial. The Langebaan incident and the issues that the appellant had with her children cannot be regarded as ‘gross misconduct’ on the part of the appellant. The difficulties which the appellant and the respondent experienced in accommodating children born of marriages with other parties, within their marriage, coupled with the fact that the parties battled financially, may have placed a strain on their marriage.

The court in Beaumont, referred to the clean-break principle at 993B – F and stated:

‘(O)ur Courts will always bear in mind the possibility of using their powers under the new dispensation in such a way as to achieve a complete termination of the financial dependence of the one party on the other, if the circumstances permit. The last-mentioned qualification is, of course, very important; I shall return to it in a moment. The advantages of achieving a clean break between the parties are obvious; I do not think they need be elaborated upon. The manner of achieving such a result is, of course, by making only a redistribution order in terms of ss (3) and no maintenance order in terms of ss (2). What I have said earlier with regard to the Court taking an overall view, from the outset, of the possibility of making an order or orders under either ss (2) or ss (3) or both, does not mean that the Court will not consider specifically the desirability in any case of making only a redistribution order and awarding no maintenance, having regard particularly to the feasibility of following such a course. With regard to the latter and to the qualification I stressed a moment ago (if the circumstances permit), there will no doubt be many cases in which the constraints imposed by the facts (the financial position of the parties, their respective means, obligations and needs, and other relevant factors) will not allow justice to be done between the parties by effecting a final termination of the financial dependence of the one on the other. In the end everything will depend on the facts and the Court’s assessment of what would be just.’

In the case related to this article the respondent was 54 years old and the appellant is 53 years old. They have been married for 15 ½ years. The respondent was still employed and was computer-literate. In the court’s view the parties had to be allowed to get on with their lives and the appellant had to be relieved of his obligation to maintain two households. This was not a case where the appellant is able to afford and therefore he must maintain. The parties had come to a point in their lives that there should eventually be a ‘clean break’ between them.

Regarding the uncertainty as to what the future holds and the respondent’s prospects of continuing in her employment after reaching 60 years, the court in Beaumont supra stated at 995G – I:

‘Both parties will inevitably suffer hardship because of the parting of their ways. In relation to the areas of uncertainty it is impossible to assess accurately the relative degrees of hardship which each of the parties will suffer, depending upon what assumptions are to be made. Where choices are to be made and decisions to be taken in the dark, as it were, and where the areas of uncertainty are not due to any remissness on the part of the respondent to place available information before the Court, it would be fair, because of the appellant’s misconduct, to allow the scales of justice to be tipped in favour of the respondent and against the appellant, rather than the reverse.’

Section 7(2) of the Divorce Act states that in exercising its discretion, the court has to take any other factor into consideration in making a maintenance order. This includes the misconduct of the parties.

The assets of the respondent amounted to R301 331 as compared to the appellant’s assets of R155 356. The respondent conceded that her assets were more that the applicant’s. The court was of the view that if the respondent can cut her cloth according to her size, she was able to maintain herself on her assets and means.

In awarding maintenance to the respondent, the court a quo compared the present case to Rowe v Rowe (DCLD case No 6166/01), an unreported decision, where the wife, 58 years old, had no formal qualifications and was employed as a receptionist. She had not worked during the duration of the marriage. She was awarded open-ended maintenance. The court in the matter related to this article found the two cases to be distinguishable. Unlike in Rowe the respondent was computer-literate and was employed. In relation to the uncertainty of whether she was be able to continue in her employment after reaching 60 years, ‘it was impossible to assess accurately the relative degrees of hardship which each of the parties would suffer’. To find that she cannot be rehabilitated to become self-supporting was in the court’s view, a misdirection.

The court dismissed the wife’s claim to maintenance.

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