Divorce Attorney Cape Town

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

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.

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


Child participation

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

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

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

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

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

Article 12 provides that:

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

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

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

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

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

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

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

The African Charter on the Rights and Welfare of the Child

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

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

The South African Children’s Act

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

Section 10 of the Children’s Act reads:

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

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

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

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

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

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

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

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

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

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

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

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

South African Case Law

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

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

GCH v GNB [2012] ZAGPPHC 218

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

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

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

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

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

Conclusion

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

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

About the author

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

A:Ground Level, 50 Keerom Street, Cape Town, 8000

O: +27 (0) 21 422 2461

F: 086 572 8373

C: +27 (0) 83 443 9838

Ebertus@divorceattorney.co.za

Whttp://www.divorceattorney.co.za

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

W: http://www.familylawmediators.co.za

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


relocation with children

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

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

Factors a court will rely on in cases of relocation

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

Examples of relocation court cases

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

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

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

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

Twitter: @bertuspreller

Web: http://www.divorceattorney.co.za

Specialities:

Divorce Law, Family Law, Divorce Mediation, Parenting Plans, Parental Responsibilities and Rights, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters, international divorce law and International Child Abduction cases.

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

Don’t mess up your children in a divorce or separation



Parenting
The welfare of children in a divorce or separation is the most important aspect of any divorce. Although most couples believe children’s welfare is one of the most important factors to consider in a divorce, a great percentage of parents that divorce or separate see conflict as an inevitable part of the process and are determined to fight battles in court.

From time to time one comes across an intransigent parent who is incapable of objectivity when considering what is best for the child. It may well be that you do not like your partner, but the child’s view of the parent is different. He or she will have love and trust for that person, capable of transcending even the most dreadful scenes that may have been witnessed.

Unfortunately it occurs often that one parent use the machinery of the law in a wrongful manner in an attempt to “legally abduct” or alienate a child by making false allegations against or about the other parent.  Often one would find that a parent will for example falsely accuse the other parent of sexually molesting the child or accusing the other parent of emotional abuse towards the child. In a recent matter a mother who was the custodian parent brought an application for a protection order against the father on behalf of their 8 year old daughter because according to her the father abused the child emotionally, when the father in fact only disciplined the child. The father was trying to make telephonic contact with his daughter for days but the mother frustrated the contact by not answering the phone and replying to his sms messages. When the father eventually did manage to speak to his daughter he disciplined her over the phone for not contacting him. The child burst out in tears and the mother used the incident as the basis for a protection order against the father for alleged emotional abuse of the child. The court granted an interim protection order in the father’s absence and the father was only able to see his child under supervision, previously the father had contact with his child every alternate weekend. A social worker was then appointed as well as a psychologist to investigate. Needless to say the child was dragged through court appearances at the Children’s court.

A child prevented from seeing a parent, they still love will eventually turn the resentment against the one trying to enforce the unenforceable. Parents often fail to comprehend the impact on the children of the conflict in their relationship. The adults in the child’s life, can make the divorce and separation experience for a child much less harmful by being aware of several ways to help the child:

The child must feel and experience unconditional love from each parent.

The child must feel free of fault for the divorce and separation.

The child must feel that each parent respects the rights of the other parent.

The child must feel that he/she will be okay after the divorce and separation.

The child must feel that each parent will be okay after the divorce and separation.

Children sense and feel their parent’s emotions and especially the parent’s emotions toward one another. During a divorce and separation, adults experience some very strong and difficult emotions. It is difficult for a human being to understand how he/she could have so much love and passion for another person at one point in time, and then later have so much disdain and even hatred for that same person. It is okay for parents to talk to the child about the fact that they don’t love each other any more  but the child must hear, sense, and feel that while the parents don’t love each other any more and don’t want to live in the same house, they do respect each other’s rights as a parent to the child. For example, both parents should encourage the child to spend time with the other parent, to respect to the other parent, to obey the other parent, and to love the other parent. This can be very difficult when a parent thinks the other is making poor decisions.

The goal for divorced or separated parents should always be to maintain the best co-parenting relationships possible by moving past previous relationship issues and focusing on children’s well-beings. Conflict within a relationship or marriage where there are children involved or after a divorce or separation is the most harmful thing parents can do for their children’s development. If children go through their parents’ divorce, they have lost some access to both their parents to an extent. If the parental combat continues, the children have not only lost that access, they are still involved in that conflict and it harms children. Focusing on the children instead of the relationship problems can help divorced couples to be better parents, not messed up parents.

Source: http://voices.news24.com/bertus-preller/2013/03/if-you-do-mess-up-your-marriage-or-relationship-please-dont-mess-up-your-children-in-the-process/

Bertus Preller

Family Law Attorney

Abrahams and Gross Inc. – Cape Town

Twitter: bertuspreller

Web: http://www.divorceattorney.co.za

Act like an adult when you divorce, not like a child!


It is well understood that the single most damaging thing for children of divorce is exposure to on-going conflict between the parents. It makes every transition fraught and difficult, and forces the child to take sides on things he/she should not have to take sides on. It pushes the child into painful loyalty conflicts, and often causes chronic anxiety states in children. Exposure to on-going conflict is also commonly associated with problems in the child’s own relationships when he/she grows up.

It’s a common assumption that children are negatively affected by their parents’ divorce, but a new divorce study shows that parental conflict and a lack of co-parenting are actually the true culprits when it comes to harming a child’s mental health.

According to psychologists at the University of Basque Country, divorce in itself isn’t the issue when it comes to a child’s long- and short-term problems associated with parents breaking up. The real issue when it comes to children and divorce are the presence of fighting parents, family instability, and family conflict.

The study followed over 400 families through the various stages of divorce. Throughout marital issues, separation and divorce, children were observed for signs of depression, anxiety, behavioral issues, and other common issues associated with divorce. Surprisingly, the study found that these problems only surfaced in cases where divorce was accompanied by other issues in the household, including parental conflict, changes in daily routine, and issues with co-parenting.

Separation and divorce is a traumatic event for children, regardless of their age.  When they’re told of the decision they have fears, worries and questions.  They wonder, Where will I live? Who will I live with? Do I have to leave? What about my friends? Will we still go on holidays? Will I get to see Dad? What about the dog? How much time will I spend with people? Can I still have lessons, hockey, rugby… The questions speak volumes on children’s interests’ and their wellbeing.

Conflict between parents can have a devastating effect on children during the divorce process, particularly during the time immediately before and after the divorce. Witnessing conflict can be confusing to the children because they love both parents and are generally torn in their loyalties to each of them.

While it is often difficult, to shield children from all parental conflict, it is of utmost importance to do so. Parents must always agree to put their children first by keeping them out of parental disagreements.

It is not uncommon to find that a custodial parent use the child as a weapon in the matrimonial combat and is sabotaging the contact and interaction of the non-custodial parent.  This is predominantly evident in high-conflict divorce cases where a parent might even go so far as to abduct the children to an overseas country, thereby alienating the relationship the other parent has with his/her children.

Of great concern, however, are the allegations one often hear of some lawyers making a practice of escalating the acrimony between divorcing / separating parents.

These practices occasionally include encouraging clients to make false claims of abuse, encouraging women to invoke violence as a way to ensure an advantage in parenting and financial disputes.  For instance, some unethical lawyers are encouraging clients to apply for protection orders under the Domestic Violence Act 116 of 1998 in order to frustrate the attempts by the non-custodial parent to see his or her children.

Untruthful allegations also enter divorce proceedings by way of lawyers who place allegations of criminal behaviour in affidavits, without substantiation from child welfare practitioners or police authorities and without consequence to the accusing parent or lawyer involved. It may be that lawyers acting in such a way are pretty few and far between, but they certainly are there.

Children are often surprised by their parents’ decision to divorce and some knew things were tense before their parents separated but they never expected them to divorce.  Children sometimes feel they have no say in the decision to get divorced, and they are left unsure about what to expect in the future.

Most families experience a significant drop in income after a divorce. Money that was once applied to one household now have to support two, and often a single mother earn less than a single father. It is often impossible to have the same lifestyle that the family enjoyed before the divorce. This is a common risk in divorced families because maintaining economic stability is clearly a protective factor for children.

Source: http://voices.news24.com/bertus-preller/2012/07/if-you-do-divorce-act-like-an-adult-for-the-sake-of-your-children

Bertus Preller

Famly Law Attorney

Abrahams and Gross Inc.

Twitter: bertuspreller

Tel:  021 422 1323

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

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