Divorce Attorney Cape Town

Think before you get married


Political Marriage

The short-lived “marriage” between the DA’s Helen Zille and Agang SA’s Mamphela Ramphele might be old news for some but a marriage without the existence of an Antenuptial contract or “ANC” can have devastated consequences for the parties involved not only during the course of the marriage but also in the unlikely event of a divorce. Therefore if you do get married make sure your paperwork is in order before the big day otherwise the damage may be substantial. Unfortunately, as in the case in question parties focus so much on the marriage ceremony itself that they completely forget the implications of neglecting to make an informed decision regarding the marriage regime, in the unlikely event that they do divorce.

In accordance with the Matrimonial Property Act 88 of 1984, which came into operation on 1 November 1984, there are three forms of matrimonial property regimes in South Africa, namely:

Marriages in community of property
Marriages out of community of property without accrual
Marriages out of community of property with accrual

Marriages in community of property

Marriage in community of property is undoubtedly the cheapest and most popular form of all the matrimonial regimes, although deeply flawed. No ANC is required, so if you marry without an antenuptial contract, you will by default be married in community of property. In this form of marriage, the spouses’ estates (what they own/assets and any debt/liabilities) are joined together and each has the right of disposal over the assets; they are equal concurrent managers of the joint estate. Each has an undivided or indivisible half share of the joint or communal estate.

Advantages of marriage in community of property

You don’t have to enter into a special contract before being able to get married.
When you are the financially weaker spouse, you get to share in the assets of your spouse.

Disadvantages of marriage in community of property

When you are the economically stronger spouse, you have to share your assets with your spouse.
You are jointly liable for each other’s debts. This is particularly problematic on insolvency.
The joint administration of the estate is rather complicated.
When a marriage starts to fail, it can become difficult to obtain joint consent.

One of the most devastating consequences of a marriage in community of property is that when one spouse becomes insolvent (cannot pay his/her debts), both spouses will be declared insolvent, because there is one communal estate. If there is a court order against either one of the spouses, the communal estate can be lost.

The consequences of divorce when married in community of property

Upon divorce, the assets of the joint estate as at the date of divorce will be divided equally between the parties, unless a spouse claims forfeiture and the court grants such a forfeiture order.

Marriages out of community of property

This matrimonial property regime involves an ANC (i.e. an agreement entered into before the marriage) where community of property and profit and loss are excluded. There is no joining of the spouses’ estates into one joint estate. Each spouse has his/her own separate estate, consisting of his/her premarital assets and debts, and all the assets and debts he/she acquires during the marriage. They each administer their own separate estates and have full and exclusive control over their own property. By marrying out of community of property, the spouses choose to keep their estates separate and whatever assets and liabilities they individually had before the date of marriage will remain part of their separate estates. The spouses can, however, agree to include the accrual between them so that both spouses will share equally in the growth during the marriage of each other’s separate estates.

Antenuptial contracts (ANC)

A marriage out of community of property is achieved by drawing up an ANC. The ANC will be the most important contract that a married couple will sign in their lifetime. Entered into before marriage, the purpose of the contract is to change some or all of the automatic financial consequences of marriage.

The ANC allows the husband and wife to tailor-make their very own matrimonial property regime. They can include any provisions they like in their ANC, as long as the provisions are not against the law, good morals or the nature of marriage. ANC’s are problematic to change as they dictate the financial and proprietary consequences of the couple’s future and can affect the rights of the couple’s creditors.

Couples may enter into one of two types of ANC:

an ANC that excludes community of property, community of profit and loss, and the accrual system; or
an ANC that excludes community of property and community of profit and loss, but includes the accrual system.

The ‘accrual’ is the extent to which the husband and wife have become richer by the end of the marriage, in other words, the amount by which the spouses’ joint wealth has increased over the period of the marriage. When married according to the accrual system, each spouse acquires a certain right to the other’s property on divorce. Neither system is superior to the other. The marital property regime chosen (i.e. with or without accrual) must suit the couple’s relationship dynamic and specific needs. Note that the ANC is a normal contract, so all the rules as to fraud, duress and mistake apply.

The consequences of divorce when married out of community of property without the accrual after 1 November 1984

In a marriage out of community of property without the accrual contracted after 1 November 1984, there can be no claim for a transfer of assets. The argument is that there are now three matrimonial property regimes to choose from, and if the parties willingly decided to marry out of community of property and without the accrual system, one of the parties cannot later request a redistribution of assets. In such a regime, upon divorce, each party will retain their separate estates, i.e. what they had upon marriage and including all growth to the separate estate that occurred during the marriage, minus any losses that may have been sustained. For example, if the husband came into the marriage with R10 000, he would leave with R10 000 + profits ˗ losses.

A spouse who contributed to the other spouse’s estate, whether in cash or otherwise, will have a difficult time proving that he/she is entitled to anything from their ex’s estate on divorce as contributions play no role if the parties are married without the accrual. If, for example, the wife stays home to raise the children and does not contribute financially towards the marriage and the other spouse works and accumulates assets, the wife may find herself with nothing and no claim to her husband’s assets.

Advantages of marriage out of community of property without the accrual

Each spouse keeps his/her own assets and is free to deal with his/her own estate as he/she likes.
Spouses are generally not liable for each other’s debts. Thus, if one spouse becomes insolvent, creditors cannot touch the assets of the other spouse.
The financially stronger spouse does not have to share his/her estate with the weaker spouse. This is subject to judicial discretion and forfeiture of benefits.

Disadvantages of marriage out of community of property without the accrual

The economically weaker spouse, traditionally the woman, does not get to share in the estate of the stronger spouse, even though she may have indirectly contributed to the estate by running the household and looking after the children. This is subject to judicial discretion and forfeiture of benefits.
An ANC has to be entered into in order to marry out of community of property. This costs money, and the parties must pay the fees of a notary and costs of registration.

Marriages out of community of property with the accrual

After 1984, anyone entering into an ANC that excludes community of property and community of profit and loss is automatically married under the accrual system. Spouses may, however, exclude the accrual system in their ANC, but if they do not do so expressly, the accrual applies. When the accrual is included, a spouse will be entitled to share in the growth of the two estates at divorce.

This is surely the most appropriate and ideal way to marry. All the assets that each party owns prior to the marriage can either be excluded or included in the accrual. If no assets are excluded in the ANC, the value of each party’s estate at the commencement of the marriage is deemed to be nil.

The consequences of divorce when married out of community of property with the accrual

Accrual is a way to ensure that both spouses in a marriage gain a fair share of the estate once the marriage comes to an end. The accrual system does not apply automatically to all marriages out of community of property. For the accrual system to apply, the ANC must be drafted in a certain way. The accrual system incorporates a calculation that is applied when the marriage is dissolved by divorce. The spouses will share the assets during the course of their marriage based on a particular calculation when the marriage is terminated.

The term ‘accrual’ is used to denote the net increase in value of a spouse’s estate since the date of marriage. In other words, what was yours before the marriage remains yours, and what you have earned during the marriage belongs to both of you. Because the right to share in accrual is exercisable only upon dissolution of the marriage, such a right is not transferable and cannot be attached by creditors during the subsistence of the marriage.

The following assets are not taken into account when determining the accrual (are not included in the net value of the estate):

Any asset excluded from the accrual system under the ANC, as well as any other asset that the spouse acquired by virtue of his/her possession or former possession of such asset.
Any inheritance, legacy, trust or donation received by a spouse during the marriage from any third party, as well as any other asset that the spouse has acquired by virtue of his/her possession or former possession of the inheritance, legacy, trust or donation, unless the spouses have agreed otherwise in their ANC or the testator/trix or donor has stipulated otherwise.
Any donation between the spouses.
Any amount that accrued to a spouse by way of damages (e.g. slander), other than damages for patrimonial loss or the proceeds of an insurance policy in respect of a dread disease.

Commencement values and accruals

Where parties wish to enter into an ANC with the accrual system, they must make sure that the commencement values of their respective estates (i.e. how much their estates are worth at the time of marriage) have been verified and accepted by both parties. It often happens in divorce matters that one party will allege that the other’s commencement value was inflated or completely inaccurate.

Upon the dissolution of the marriage by divorce, the net estate value (assets less liabilities less excluded assets and/or commencement values) of each estate is determined separately. The larger estate must then transfer half of the difference to the smaller estate. Putting it another way, the smaller estate must claim for an amount equal to half of the difference between the accruals of the respective estates. The right to share in the accrual only commences upon dissolution of the marriage by divorce.

The commencement value to be subtracted from the current value of the estate must be adjusted with the consumer price index (CPI) to make provision for any change in the value of money. To calculate the adjustment, go to http://www.statssa.gov.za and click on ‘Historical CPI’ and then on ‘Key indicators’. The factor by which the commencement value must be multiplied to get to the adapted value is calculated by dividing the value for the month of the dissolution of the marriage by the value for the month in which the parties were married.

Advantages of marriage out of community of property with the accrual

The spouses share the increase in their assets accumulated during the marriage and the economically weaker spouse benefits.
The spouses do not share their assets acquired before their marriage (but only if excluded in the ANC or included in the commencement values of the parties’ estates). The accrual system appeals to people who are already wealthy at the time of marriage.
During the course of the marriage, each spouse manages his/her estate at will. There is no complex joint or equal administration.
The spouses are not liable for each other’s debts. All that they share is their net assets. Thus, if one spouse becomes insolvent, the other spouse is protected against creditors.

Disadvantages of marriage out of community of property with the accrual

The economically stronger spouse has to share the profits that he/she made during the marriage.
One has to enter into an ANC in order for the accrual system to apply.
The calculation of accrual at the end of the marriage can be a bit complex.

Compiled by Bertus Preller

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

Twitter: bertuspreller

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

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

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

Media interview with Divorce Law and Family Law Specialist Bertus Preller


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

Bertus Preller, was recently interviewed in connection with his book “Everyone’s Guide to Divorce and Separation” published by Random House Struik (Zebra Press – 2013). So that you can get to know Bertus better, we have included excerpts from that interview.

How long have you been involved in law?

I was admitted as an attorney in 1989 and have almost 25 years’ experience of the law.

What are some examples of the types of cases that you handle?

I represent people in divorce, both in local and international divorce cases, care and contact (custody) disputes, access (visitation) / parental disputes, parenting plans, unmarried father’s rights, paternity cases, grandparents’ rights,  step-parent and non-parent care and contact cases, international child abduction (Hague Convention) cases, relocation disputes, division of property, spousal maintenance and child maintenance matters, domestic violence and protection orders, child abuse cases, enforcement actions (where a person is seeking to enforce a court order), same-sex cases, cohabitation agreements, antenuptial agreements,  family law mediation and collaborative divorce law,  and other family law related matters. It also includes Mediation. In addition to being a litigator, I have also acted as a Mediator for many years.

Did you always want to be an attorney?

Ever since I can remember, I have always loved the idea of fighting for people who need help and helping the underdog. It was my goal, since being at high school in Grey College, to become an attorney.

How stressful is your work?

Being a family law attorney can be stressful. Our entire legal system is based on adversity and on two sides negotiating, or fighting in court, to achieve a resolution to their disputes. These negotiations, court appearances, and dealing with clients, judges and other attorneys are not exactly pleasant all the time. These relations require one to be tough, emotionally detached and sometimes even heartless. It is not fun, not glamorous and sometimes it does get ugly. The stress has a lot to do with the fact that almost everything you do is urgent and can have serious financial implications  if you mess up in court, there are going to be major implications for your client. Having said this, I love to make a difference in people’s lives, especially where children are involved.

How do you spend your day/week?

My job duties include appearing in court on behalf of clients, drafting legal documents, communicating by letter and email, conducting consultations, performing legal research, reviewing financial documents, interviewing clients, talking to attorneys, and working with psychologists, and other experts. My day is varied, with no two days being exactly alike. The largest percentage of my work-week consists of writing letters and emails, talking on the telephone, reviewing emails and correspondence, consulting with clients, drafting pleadings, reviewing financial records, and preparing for court hearings – not the kind of stuff you see on TV shows or in the movies.

Do you have celebrity clients?

Due to the nature of my work I am not able to disclose the identities of my clients, but yes, I have clients who appeared on Survivor Africa, Master Chef South Africa, actors, actresses, politicians, television personalities and some high net worth individuals.

 Do you have a “profile” of the ideal family law attorney?

In my opinion, there is no such thing as an “ideal” family law attorney. Each person has his/her own unique strengths. In appointing an attorney, I would look for someone with honesty and integrity, someone with a good work ethic, who is persuasive and communicates well, both verbally and in writing, someone who is empathetic, with excellent people-skills and a passion for helping others and practicing family law.

What is your approach to handling cases?

I believe that it is the duty of an attorney to work with his/her client as part of a team approach. Too many attorneys have a “give me the ball and I’ll run with it” philosophy, and they fail to communicate with the client during the course of the case. I take a completely different approach. After all, it is the client’s case. My job, is to communicate with my client, help determine the proper objectives, formulate a game-plan, and work hard to make sure that the client’s needs are effectively met. I understand that my client is going through what is probably the most difficult and stressful time in her/his life and need someone who will look for logical, peaceful solutions but will also be willing to aggressively fight for his/her rights if that becomes at all necessary.

Does dealing with other people’s failed relationships make you feel cynical about love at all?

I believe in marriage. It would be naive to think that dealing with divorce and separation (and all the trauma and distress that goes with it) on a daily basis, will not make one sceptical about marriage to a certain extent. I think the problem does not lie in the institution of marriage or that relationships that end in divorce were never meant to be. It is my view that the reason for many problems that we experience in relationships stems from the fact that people are fickle and that our circumstances and life experiences change and shape us every day. A healthy relationship is an evolving relationship and each partner should learn and grow through the relationship, and often through the conflicts. Marriage can be described as a series of peaks and troughs and as long as the peaks outweigh the troughs then you will be okay.

What have bad divorces taught you about what goes into a happy marriage?

There is not one universal key that unlocks the door to a happy and healthy marriage or relationship. There is a saying that a relationship is not a place where you go to take, it is a place where you go to give. Marriage for many of us will undoubtedly be the biggest financial and personal transaction of your entire life. You need to look at your partner and realize that you are not going to change him or her. Ask yourself this: “Does my partner have the basic qualities that matter to me, characteristics that are not going to change over time?” Remember that it is not all about the wedding cake, the wedding ceremony, the wedding gifts or the wedding dress. It takes a lot of work and effort to make it work. Lack of communication tops the list of the reasons for divorce. There is the cliché that women want men to know what they want and what they are thinking without ever having to tell them, but the reality is that couples need to talk and express their feelings and fears to their spouse. It is when spouses only start thinking about their own wants and needs and no longer function as a “team”, that things start to fall apart. Unfortunately in many instances our ability to learn about relationships shuts down at the point when the marriage begins to get tough and just because couples develop disagreements, I am sure that many marriages could have been saved if the couples persevered just a little more. Conflict should be seen as an inevitable part of relationships. One of the secrets to a good marriage is to find your equal partner, not a partner who is going to dominate or control you or who you can dominate or control. Any relationship  for it to work must be based on mutual respect, common purpose and of course trust. When a couple start to lose one of those ingredients, the wheels come off.

Is it possible to recover after a divorce?

Most individuals blame their ex-spouses. I think that if you can step back and say, “This is what I have done wrong and this is what I will change”, you have something powerful to teach others who go through the same issues. In many divorces, the problems that caused the divorce have existed in the relationship long before the marriage and were either not acknowledged or were ignored in the hope that marriage might heal the problems. But that is not what happens in life. Nobody can make you feel better about yourself. Someone wise once said that it takes two wholes to make a marriage, not two halves.

To find out more about Bertus Preller, visit his webpage at http://www.divorceattorney.co.za or follow him on Twitter @bertuspreller or on Facebook at http://www.facebook.com/divorceattorneys.

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

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Ebertus@divorceattorney.co.za

Whttp://www.divorceattorney.co.za

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

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Divorce Mediation – a better option


divorce mediation

Frustrated in seeing how families are being torn apart, and their finances depleted by the expensive and adversarial divorce litigation process, Bertus Preller and Associates Inc., attorneys in Cape Town recently launched Family Law Mediation Specialists (FMS) as an extension to the firm’s Family Law Department to eliminate the expense, time, and adversarial nature of divorce with a new website: http://www.familylawmediators.co.za.

The purpose of FMS is to afford couples an innovative, low-stress, low-cost and speedy solution through Mediation. Divorce Mediation puts control of the divorce process in the couple’s hands rather than engaging in an expensive court process thereby enabling the couple to outline the terms of their divorce and so they save time, money and stress.

“I have been working in a number of cases with client’s whose divorces should have been uncomplicated and relatively simple,” Bertus Preller Family Law Attorney at Abrahams and Gross Inc., said. “Unfortunately, because traditional divorce litigation is an adversarial process in nature, it tends to stage one divorce attorney against the other in a win – lose  situation for a fight to the finish which just drives up the expense, the time involved and causes a great deal of emotional stress and pain within the family unit.”

Divorce litigation is often very destructive especially where there are children involved and in many cases, particularly if the parties have children, the divorcing spouses will be in each other’s lives for a long time to come. For this reason it is better for them, as well as their children to keep the lines of communication open between them, Mediation, enables this.

Contested divorce (where the parties are not able to agree on the terms of the divorce) requires both spouses to hire separate attorneys, who then “contest” against each other to gain as much for they can for their client at the expense of the other. The lawyer’s objective is to “win” at all costs. Tin many instances the attorneys have absolutely no motivation whatsoever to be concerned with their opponent’s well-being or how the family will communicate when the dust clears and the attorneys’ bills have been paid. This process is adversarial in nature and does not encourage open communication between spouses which can be devastating for their children.

Divorce Mediation is a very different approach to ending your marriage than the common approach of Divorce Litigation. Divorce Mediation is a cooperative process that enables the spouses to work together and resolve the practical matters involved in their separation.

The cost of these comprehensive mediation services are usually a small part of the cost of other forms of divorce, particularly litigation.

Compiled by:

Bertus Preller

Family Law Attorney

Twitter: @bertuspreller

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

The hostility that lawyers create in divorce cases.


Attorney Fight

It is commonly known in psychological circles that the stress of divorce often reach 9 out of 10 on the Subjective Units of Disturbance scale, the scale for measuring the subjective intensity of disturbance or distress experienced by an individual. Divorce is painful and whenever there are children involved, the family still exists after the relationship ends. The manner in which spouses end a relationship and the way they and their lawyers conduct themselves during this process determines whether the family will be functional or dysfunctional from that day forward.

In an article in the Economist recently it was stated that all around the world, lawyers generate more hostility than the members of any other profession—with the possible exception of journalism. This hostility is even more evident in divorce law, especially when regard is had to how certain divorce lawyers in big divorce cases love to litigate in the media. Family and Divorce Law attorneys may stress that they have a calling, rooted in a deep sense of ethics and commitment to the best interests of their clients. But what they hardly ever mention is the fact that being a lawyer is also a business with at least one eye on profit levels. Without a good business head, very few attorneys will survive today’s economic challenges. So the longer you can stretch the finalisation of a divorce, the more money you will make.

Nowhere is this tension between ethics and business as pronounced as it is with divorce. For some lawyers, a new divorce case is just another client, another day at the office; for the client – vulnerable, distressed and angry – this is usually the worst thing that they have ever experienced and this collision does not always produce a happy result.

South African divorce law is based on the adversarial system where two lawyers represent their clients’ positions before a judge or magistrate, in contested divorce cases, who then attempt to determine the truth of the case. Some writers trace the process to the medieval age old mode of trial by combat, a system that pushes the parties into a mind-set of winners and losers. Let’s face it, we live in an adversarial society, one that approves the idea that every time there is a conflict sides have to be taken. That means one side ending up on top, the other side ending up on the bottom, a looser and a winner. The adversarial system is a poor way to resolve divorce.  This is particularly true where children are involved, the adversarial system is slow and many people are denied justice for too long because the system tends to lengthen the trial process. “Justice delayed is justice denied”. This system is also expensive and requires litigants to have legal representation. The high cost of legal advice and legal representation hinder those who cannot afford it. This may mean that vital evidence which needs to be drawn out by questioning may not be revealed in the trial and as such, the truth may not always emerge.

In the Foreword of the book “Everyone’s Guide to Divorce and Separation”, published by Random House Struik, Judge Denis Davis states as follows: “The adversarial process which is the manner in which the 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”.

Divorce attorneys have been taught that the best way to protect their client is to fight for them. When most of them look at a divorce situation all they can see is the conflict that is involved between the spouses. To most divorce attorneys the obvious conclusion is that a fight has to be engaged in, in order to protect their client. If they could step back and take another look at the situation they might be able to see that the conflict and animosity is most of the time of their own creation. Most divorce warfare is created by the attorney’s adversarial nature and the clients play a role in it because it is what they expect and demand from them.

Because our courts operate in an adversarial model, the business of resolving divorce-related issues becomes a contest between starkly opposing extremes. The contest is orchestrated by gladiatorial attorneys whose job it is, in trial-based dispute resolution, to trim down the divorcing couple’s complex emotional, financial, and material issues into readily understood black and white terms. Two people go through a divorce. No matter whose choice it was there is always pain and anger involved on both sides. If you employ an attorney that is going to become aggressive and go on the attack, guess who will get the blame. You will, not your attorney who enjoys being adversarial. He/she may be the person to take the negative action but you will be the one to suffer the consequences of his or her actions.

Like it or not, you are responsible for your attorney’s actions. You did the hiring and you will be paying the legal fees. It is usually in everyone’s best interest that an attorney knows that his/her job is to promote relationships instead of destroying them. It is his/her job to find solutions that mean everyone walks away satisfied and no one is left on the bottom of the pile wondering what the hell happened. Your attorney works for you, you do not work for him/her and if there is not a willingness to work with you in the way you feel most comfortable then find an attorney who is willing to.

It is outrageous to see how much money and effort is spent in contested divorces by preparing for the “main event”: the trial; and while divorce attorneys know that settlement is the likeliest outcome for most cases they handle, it is a common saying among divorce lawyers that the best way to prepare for settlement is to prepare well for trial. The irony is that the marital regime governs the patrimonial consequences of divorce (the manner in which the assets are divided). For example if one is married in community the estate must split 50/50 unless a forfeiture is claimed or when parties are married out of community of property with the inclusion of the accrual an accrual claim will exist, yet many lawyers will advise clients to litigate, spending thousands of rands on legal costs that the parties could have spent on the children for example. Since a judge will never award a party all the relief that he/she requests, divorce lawyers will ask for the moon and the stars.

When two unreasoning spouses create a “divorce of attrition”, the only winners are usually the bank accounts of lawyers. One thing is certain though: the less emotional people are during a divorce, the more likely they are to keep their costs down. Only 3% to 5% of divorce cases actually do go to trial. It should come as no surprise, given the costly and emotional process that family law attorneys go through on the road to settlement, that they worry about negligence suits and frequently find themselves in fee disputes with clients. Unhappy clients are commonplace in family law practice, where disputes above the horizon about rands and hours with children often are the weapons with which clients fight hidden battles that are really about who is aggressor, who is victim, who is good and who is bad. The fees and costs incurred in family law litigation can devastate the savings of all but the wealthiest litigants. Little wonder that family law is a field in which even the most successful practitioners experience high levels of stress and frustration.

The time has come for lawyers specialising in family law to become more collaborative in their approach to solving divorce and family law disputes. In addition we need to re-engineer our family law system. We need problem-solving courts for family matters and the default process for resolving family law matters must be changed from litigation to consensual dispute resolution. After all who has the right to declare parents to be enemies? In family law matters, litigation feeds more than just paranoia. It feeds the lawyers’ bellies and bank accounts. It feeds egos. It breeds contempt (the parties for each other and the parties towards a broken system.) Is there really a place for the courtroom in family law? maybe, but it needs to be tempered with like-minded attorneys, who are more collaborative than adversarial. Litigation has a way of taking two people, who at one time or another cared about each other enough to marry and maybe even have children, and rip their lives to shreds beyond recognition. It turns dislike into pure hatred. It turns tolerance into intolerance.

Mutual respect and renewed confidence leads to solutions. In Germany for example they no longer have adversarial trials when it comes to issues pertaining to children. Judges in Germany no longer tolerate lawyers who try to delay hearings and resolution of issues. The time of uncertainty is itself stressful and leads to destructive behaviour. The role of attorneys in Germany is now de-escalating conflict and the results seem far superior then when they used to escalate conflict. I think the time has come that the public wants psychologically-minded lawyers in family law disputes.

Collaborative Divorce

So just when you thought that mediation was the ultimate dispute resolution process, along came “collaborative lawyering.” Collaborative divorce is a progressive approach to conflict resolution in family law, it facilitates an inexpensive divorce process outside of court. Unlike litigation, collaborative divorce requires cooperation between both attorneys as they help their clients reach a fair solution. The process’ non-adversarial format provides a venue for open dialogue and idea exchange among clients, lawyers and mediators, as well as forensic accountants and other neutral participants. It is a method of dispute resolution whereby the parties and their lawyers contract to settle a matter without involving the court. It is a method of practising law where the parties and the lawyers representing them sign a contract in which they agree to work towards settlement. If the parties are unable to settle and adversarial proceedings are to be filed, the lawyers are required to withdraw. New lawyers must be obtained for trial. In this method, the attorneys must focus on settlement and are free to use their creative problem solving skills. Communication is respectful and the process is future-focused. It works best if several lawyers in the community are trained in collaborative law so there are options for the clients and lawyers to work together. Collaborative practice originated in the United States of America in 1990. It is also practised widely in Canada and has spread to the United Kingdom, Australia, Italy, France, Austria, Switzerland and New Zealand.

What we need is a mind shift among divorce and family law attorneys, a new breed, we need lawyers who lean more towards a therapeutic kind of jurisprudence. Parents also need to understand that what they do and say toward each other has long-term consequences for all parties involved. The things people do with or without the help of their attorneys, have dire consequences that will last for generations to come. Unfortunately divorce is a fact of life and all we can do is to make it a less destructive process. According to research 80 – 85% of family law matters can be resolved without litigation.  When you start a court case, you are starting a war.

Has the time not arrived that law schools start to train lawyers who are able to effectively meet the public’s needs, more psychologically-minded lawyers in the area of divorce and family law?

Source: http://voices.news24.com/bertus-preller/2013/06/the-hostility-lawyers-generate-in-a-divorce/

If you want a collaborative divorce contact:

Bertus Preller

Family Law Attorney

Abrahams and Gross Inc., Cape Town

Twitter: @bertuspreller

Web: http://www.divorceattorney.co.za

 

More women file for divorce than men


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

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

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

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

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

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

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

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

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

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

Bertus Preller

Family Law Attorney

Abrahams and Gross Inc.

Twitter: bertuspreller

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

Tel:  021 422 1323

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