Morning Live Interview with Cape Town Divorce Law Attorney Bertus Preller on his book Everyone’s Guide To Divorce and Separation.
Some time ago I wrote an article about an application argued in the Cape Town High Court in the matter of CM v NG. Judgement in this matter was reserved and handed down by Gangen A J on 26 April 2012. Family Law experts, Adv Julia Anderssen and Adv Retha Maas two Cape Town Advocates argued this matter. The case can be regarded as a watershed case for same sex couples with children and will be a reported judgement.
This was an application in terms of Sections 23 and 24 of the Children’s Act 39 of 2005 (“the Act”) and concerned parties that was involved in a same sex relationship for several years. The parties did not register a marriage. During the relationship, a child was conceived by artificial insemination.
The relationship between the parties started in May 2005 and ended in November 2010. The applicant (not the biological mother) lodged an application to court and requested an order granting her full parental rights and responsibilities in respect of the minor child.
When the parties ended their relationship the Applicant still had contact with the minor child until approximately April 2011. During April 2011 the Respondent (biological mother) advised the Applicant that she wanted to stop her contact with the minor child. Her reason was that it was not in the minor child’s best interests. The child was in the biological mother’s care at the time. The applicant then lodged an application to court in April 2011 compelling the biological mother to co-operate with the Family Advocate and an expert identified by the applicant.
The South African Children’s Act is clear on the point that someone does not have automatic parental rights in terms of Sections 19 and 22 of the Act if there is no biological link to a child and such a person. Furthermore an Applicant does not acquire automatic rights and responsibilities in terms of Section 40 of the Act which deals with children conceived by artificial insemination. Without a parental agreement an Applicant could therefore only apply to the court in terms of Sections 23(2) and 24(2) of the Act. Common to both these Sections is the “best interests” of the child.
The court found that the Applicant did indeed have parental responsibilities and rights as set out in Section 18 as it would be in the best interests of the child to have a relationship with both parents. The court concluded that both parties be co-holders of parental rights and responsibilities in respect of the minor child as contemplated in sections 18(2) (3) (4) and (5) of the 2005 Children’s Act and that both parties shall be co-guardians of the child.
About the Author:
Bertus Preller is a Divorce Attorney at Bertus Preller & Associates in Cape Town. He specializes in Family Law and Divorce Law in and handles divorce and family law matters across South Africa. Bertus is also the Family Law expert on Health24.com, he blogs regularly on news24.com and nuus24.com and has been quoted on Family Law issues in various newspapers such as the Sunday Times and Business Times and magazines such as Noseweek, Keur, Living and Loving, Longevity, You and Huisgenoot, and also appears frequently on the SABC television show 3 Talk. His clients include artists, celebrities, sports people and high net worth individuals. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Parenting Plans, Parental Responsibilities and Rights, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters, international divorce law, digital rights, media law and criminal law.
O: 021 422 2461
It is said that divorce is more emotionally devastating than losing employment, about equal to experiencing a major illness, and somewhat less devastating than the other spouse’s death. Reasons perceived by both men and women as the causes of divorce include loss of love and incompatibility, poor communication, addiction, basic unhappiness, infidelity, emotional problems, conflict over roles, and spouses’ personality traits. The common conclusion to all studies on prevention of relationship breakdown and the causes of divorce is that a constellation of factors, not one, is normally responsible for the breakdown of a marriage relationship. Men, women and especially children benefit from a secure, stable and nurturing marital partnership and family environment. Since relationships are dynamic and family circumstances alter through the course of the marriage (birth of a child, dealing with teenagers, a change in employment, illness of a family member), spouses can only benefit more from ongoing counselling options across the different stages of marriage and family life.
The reasons below were the most commonly cited drawn from the records of 500 divorce actions instituted in South Africa during 2011.
10. Difference in priorities
The difference in priorities amongst married couples, which a lot of men and women discuss and anticipate prior to their marriage do become major issues for many marriages at a later stage. If one spouse wants to start a family and the other does not, it may create immense conflict between the spouses. It happens often that one spouse starts spending less time with their family and focus on other priorities. This often creates a struggle for any marriage to survive. No matter how much the spouses try to harmonize their priorities, they still remain complete unique, distinct and complete different individuals.
9. Religious Differences
Couples of a different religion, culture or ethnicity sometimes disregard the expectations of their partner’s religion and this often cause resentment amongst them. These differences are mainly due to the several taboos posed by a specific culture. Besides this, most parents prefer that the children’s religion should be the same as themselves.
8. Parental Responsibilities
It often happens that spouses aren’t able to constructively co-parent their children during their marriage. Children are reflections of our own selves, and sometimes parents are not being able to let go of their own egos and put their children in the backburner. Differences in ideas on how to raise children properly cause rifts in marriages, contributing to the list of reasons for divorce. It often happen that one parent creates a rift between the other parent and the children by siding with the children and thereby forming two camps within the marriage. This often causes the other parent to feel rejected within the marriage. Differences between parents on how to discipline children also create tension in the marriage, to the extent that the other parent feels rejected, especially where a parent reprimands the other parent in front of the children.
In the face of tough times, some marriages spiral downwards. Money or anything related to it is a cause of disagreement between spouses. Married couples, whether happy or not, may have disagreements over little financial issues. Money is not always the sole or primary cause of divorce in married couples and is usually combined with other top reasons for divorce causing distress.
6. Sexual incompatibility
Men and women are different emotionally, mentally, sexually. Things can change as the marriage progress, i.e children, health challenges, career changes etc. In most cases sexual dissatisfaction in a partner usually results in divorce. The issue of sexual incompatibility varies significantly from case to case. If a spouse is not being emotionally and physically fulfilled, he/she will look elsewhere.
Marriage, family and addiction certainly don’t mix well at all. Before the internet, strip clubs, videos and DVDs were the catalyst to pornographic addiction. These days more and more people spend countless hours viewing pornography online, buying into a fantasy. Addiction not only has a degrading effect on the person and his/her spouse, but most often it leaves disastrous emotional scars on children, close relatives and friends. Spouse who spend countless hours on social networks to the exclusion of valuable family interaction, create a permanent disconnect that cannot be repaired, and divorce follows. Addiction is like a black hole, sucks everything in its path of destruction throwing a relationship out of balance and the more it continues the stronger it gets.
4. Social Networks – Facebook, Twitter and Mxit
Facebook flirting and comments contribute to an increasing number of divorces and social media is affecting privacy and family interaction. Social media blurs the line between public and private. The nature of Facebook, Twitter, Mxit, Google+ and other social media outlets encourages free-spirited commenting, posting and sharing of information. What’s posted on social networking sites is not as private as you think. Facebook has made it really easy for people to look if the grass is greener on the other side especially when there are so many profiles that are just a click away.
3. Marriage Infidelity
Infidelity, Adultery or more commonly known as “cheating” is on top of the list of reasons for divorce in South Africa. Most people know exactly what infidelity or cheating is but in more formal terms infidelity goes to the root of the basis of any relationship, namely trust and it is a violation of mutually agreed rules or boundaries that a couple assume in their relationship. Adultery may be defined as extramarital sex that wilfully and maliciously interferes with marriage relations which renders the irretrievable breakdown of the marriage relationship.
2. Physical, psychological, financial or emotional abuse
Abusers can be either a husband or a wife and it is a big area of concern for many couples. Domestic violence and abuse occur among heterosexual couples, same-sex couples, as well as any people living together in the same household. While women and children are the most victimized, men are also abused, especially verbally and emotionally, although sometimes physically too. Domestic violence occurs in all age ranges, ethnic groups, and class levels. Abuse varies from family to family, however in a short list they include things like telling a spouse that they are unwanted, name-calling, ignoring, restricting person to a room, monitoring phone calls, forcing spouse in doing something which they are not comfortable with, withholding of finances etc. Abuse is one of the top reasons for divorce.
1. Lack of communication
Josh Billings once said that “Silence is one of the hardest arguments to refute”. The lack of communication is the single biggest cause for divorce and account for almost 70% of all breakdowns in a marriage relationship. Without communication properly no relationship can ever be effective. Communication in a marriage does not mean agreeing with each other. Couples who have communication problems, which usually lead to divorce and breakdown are not able to find the middle way and are not able to compromise. Many couples lack communication when it comes to making decisions about finances. The lack of communication cause financial problems and endless arguments. Many couples also have a complete lack of communication when they have to make decisions about their children for instance. The lack of communication in all areas of marriage cause major damage to the marriage relationship.
About the Author
Bertus Preller is a Divorce and Family Law Attorney in Cape Town and has more than 22 years experience in most sectors of the law and 14 years as a practicing attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. in Cape Town. Bertus is also the Family Law expert on Health24.com and is frequently quoted on Family Law issues in newspapers such as the Sunday Times and Business Times and magazines such as Noseweek, You and Huisgenoot, and also appeared on SABC television on the 3 Talk TV show. His clients include artists, celebrities, sports people and high networth individuals. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Parenting Plans, Parental Responsibilities and Rights, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters, international divorce law, digital rights, media law and criminal law.
Relocation of parents with children after divorce
Celimene v Scholtz  ZAGPJHC 170
In a recent matter before the South Gauteng High Court, the mother of a child approached the High court to grant its consent for her to leave the Republic of South Africa after her former spouse and the father of the child refused to grant his consent to remove the child from the Republic of South Africa and to reside permanently in France with the mother and her new husband. The report and recommendations of the Family Advocate and those made by a family counsellor that it would not be in the best interest of the minor child should the court grant the removal was found not to be valid and was disregarded by the court. From this case it is evident that a court is not bound by the recommendations of the Family Advocate.
Parents sometimes consider that it will be in the best interests of themselves, and no doubt the children, that they should live separate lives, thereby anticipating that their lives might take them on different paths. A parent can not be expected to tailor his/her life so as to ensure that the children and their father or mother as the case may be have ready access to one another. That would be quite unrealistic. A parent, after separation must fend for himself/herself in the world and must perforce have the freedom to make such choices as he/she considers best for him/her and his/her family. Most parents are undoubtedly fully aware of the value to be placed on close contact between the children and their father/mother.
The mother maintained contrary to a report of the Family Advocate that it was in the best interest of the minor child that he should be allowed to relocate to France with her and the rest of the family and that the father’s refusal to grant his consent was unreasonable. The mother conceded that the father has always been considered to be a good father to the child. She has never felt any need to reduce the child’s contact with the father.
Her reason for relocating to France was firstly that her new husband’s contract in South Africa has come to an end and that her husband wanted to remain in the employment of his company where he had a bright future.
In his opposition to the application the father relied mainly on the report of the Clinical Psychologist and maintained that it would not have been in the best interest of the child that he should be allowed to relocate to France.
His main contentions were that the minor child will be removed from his present stable and secure environment and most importantly would lose the benefit of his close and meaningful relationship with him and the extended family.
The legal principles applicable in relocation cases was eloquently set out by the Supreme Court of Appeal in the matter of Jackson v Jackson 2001 (2) SA 303 (SCA) para  at 318E-I where His Lordship Scott JA said the following:
It is trite that in matters of this kind the interests of the children are the first and paramount consideration. It is no doubt true that, generally speaking, where, following a divorce, the custodian parent wishes to emigrate, a Court will not lightly refuse leave for the children to be taken out of the country if the decision of the custodian parent is shown to be bona fide and reasonable. But this is not because of the so-called rights of the custodian parent; it is because, in most cases, even if the access by the non-custodian parent would be materially affected, it would not be in the best interests of the children that the custodian parent be thwarted in his or her endeavour to emigrate in pursuance of a decision reasonably and genuinely taken. Indeed, one can well imagine that in many situations such a refusal would inevitably result in bitterness and frustration which would adversely affect the children. But what must be stressed is that each case must be decided on its own particular facts. No two cases are precisely the same and, while past decisions based on other facts may provide useful guidelines, they do no more than that. By the same token care should be taken not to elevate to rules of law the dicta of Judges made in the context of the peculiar facts and circumstances with which they were concerned.
The parties as well as in the reports of the Clinical Psychologist, the Family Advocate and a Family Counsellor all agreed that the child had a close relationship with both his parents. The child is also bonded closely with his stepmother and his stepbrother. According to the Clinical Psychologist the child did not have the same relationship with his stepfather with whom he had to relocate permanently to France.
The only dispute between the parties was what would be in the best interest of the minor child. The mother took the view that it was in the child’s best interests that he be allowed to leave the Republic of South Africa with her whilst on the other hand it is the father’s view that it was not in his interests to leave the country.
The court noted that a dispute of fact does not exist in matters relating to the question what will be in the best interests of the child and that cases like these give rise to anxious considerations and pose the knottiest and most disturbing problems. See in this matter Godbeer v Godbeer 2000 (3) SA 976 and Ford v Ford  2 Al l SA 396. In the as yet unreported case of Maryke Cunningham v Daniel Johannes Jacobus Pretorius Case No. 31187/08 Gauteng North High Court His Lordship Murphy J expressed himself on para  thereof as follows:
The letter and spirit of the new framework giving supremacy to the best interest of the minor child, sets a standard which is not proof on a balance of probability. What is required is that the Court acquires an overall impression and brings a fair mind to the facts set up by the parties. The relevant facts, opinions and circumstances must be assessed in a balanced fashion and the Court must render a finding of mixed fact and opinion, in the final analysis a structured value judgment, about what it considers will be in the best interests of the minor child.
Section 7 of the Children’s Act sets out factors to be taken into consideration in determining what is in the best interests of the minor child. Not all these factors are always relevant, but what was key in this application was what is set out in section 7(1)(d), (e) and (f) which must be read in conjunction with the opinion expressed by the Clinical Psychologist and the Family Advocate. I quote hereunder in full section 7(1)(d), (e) and (f):
Section 7(1): Whenever a provision of this Act requires the best interest of the child’s standard to be applied, the following factors must be taken into consideration where relevant namely:-
d) the likely effect of any change in the child’s circumstances, including the likely effect on the child of any separation from –
(i) both or either of the parents or
(ii) any brother or sister or other child, or any other care-giver or person with whom the child has been living;
e) the practical difficulty and expense of a child having contact with the parents or any specific parent, and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with the parents or any specific parent on a regular basis;
f) the need for the child –
(i) to remain in the care of his or her parent, family and extended family and to maintain a connection with his or her family, extended family, culture or tradition.
A Clinical Psychologist was instructed to assess the minor child, his mother and his father the with a view to recommending what would be in his best interest with regard to the mother’s desire to relocate to Paris in France.
In carrying out the mandate the Clinical Psychologist obtained information through interviews, clinical observations as well as various psycho-diagnostic tests in which the child and his parents participated.
The psycho-diagnostic tests employed were the following:
The Draw-A-Person Test
This projective test is used to obtain necessary information regarding self-image, personality functioning and developmental information with children.
Kinetic Family Drawing Test
This test is designed to assess the child’s perception of the relationships and dynamics in his/her nucleur family.
Bere Anthony Family Relations Questionnaire
This assessment tool is extremely effective in measuring a child’s emotional response to his/her family, the words for which may be difficult to express.
The Tree Test
The tree is a projective test. It is based on the assumption that the tree form with its symmetrical construction around a central axis can be used to interpret the projection of psychic content. As a non-threatening test and easy for children, it adds to the battery that is designed to describe the personality.
The Personality Assessment Inventory
It is a self-administered objective inventory of personality designed to provide information on critical clinical variables.
The Minnesota Multiphasic Personality Inventory-2
It is a broadband test designed to assess a number of the major patterns of personality and emotional disorders. It is a self-administered objective inventory designed to provide objective scores and profiles determined from well-documented norms.
The Clinical Multiaxal Inventory-III
It is a self-administered inventory designed to profile the respondent along certain scales that include basic personality styles, pathological personality syndromes and symptom disorders.
The child was not questioned by the Clinical Psychologist about the proposed relocation to France. However, the following conclusions were drawn from the opinion of the psychologist based on the abovementioned tests are of importance. They were:
- How the child experiences his mother the applicant as his primary care-giver.
- The child was equally bonded to both his parents despite the difference in the nurturing responses.
- Although he has a bonded relationship with his stepmother and a dilute relationship with his stepfather when compared to other adult relationships there is nothing unhealthy in that relationship.
- He experiences all adult relationships in his life as safe and secure.
- His relationship with his younger half-brother is a positive and healthy relationship. He does not evidence any jealousy or sibling rivalry.
The child has internalised that he had two families and that he can happily reside within each.
- The mother has evidenced good parenting decisions in that she has facilitated good contact between the child and his father and has worked constructively and positively with the fact that the child has two sets of parents and two home bases.
- There is no historical evidence of malice or interference in the manner in which she has worked with the respondent as the parents of the child.
- Both the mother and the father responded to all assessments tools with a positive test taking set. They both evidenced no clinical pathology that would preclude them from performing their parental roles.
- The father’s reticence and opposition to the child’s proposed relocation is bona fide, appropriate and understandable given the nature of his relationship with his son.
- There are no negative findings on both step-parents that could preclude them from playing a meaningful role in the upbringing of the child.
In support of his opposition to the application the father said that the child had an extended family in the Republic of South Africa with whom he has and maintains a close relationship and is exposed to them on a regular basis.
The child on relocation would have to learn a new language being French. There was evidence that he had already commenced doing so whilst in South Africa. The mother enrolled him at a French school in Johannesburg. The father promoted the aspect of a new language as an obstacle to the child’s development. The court did not agree with the father’s contention.
THE BEST INTEREST OF THE MINOR CHILD
In determining what is in the best interest of the minor child a Court must decide which of the parents is better able to promote and ensure the child’s moral, physical emotional welfare whether it is in South Africa or in France.
Section 7(1)(a)(i) and (ii) of the Children’s Act refers to the personal relationships between the child and the parents or any specific parent and the child and any other care-giver or person relevant in those circumstances. The personal relationship between the child and his parents were excellent. This was confirmed by the clinical psychologist as well as in the interview report of the child by the Family Advocate when he said the following:
It appears as if the parties are the significant people in the child’s life. It appears as if he looks for comfort from both parties if he is in distress.
There was no adverse report about the personal relationship that the child had with his stepfather and his stepmother. The fact that the relationship was not on the same level was explainable by the fact that his stepmother has known the child for a longer period than the stepfather.
Section 7(b)(i) and (ii) refers to the attitude of the parents or any specific parent towards the child and the exercise of parental responsibilities and rights in respect of the child:
- As regards this standard requirement both sets of parents exhibited a good attitude towards the child. The mother has not only been the primary care-giver and provider for the minor child since his birth. The stepfather has taken special interest in the child and teached him the French language.
- In the report of the Family Advocate it was reported that the father confirmed that the child was happy at his new French school.
The court regarded Section 7(1)(d)(i) and (ii) most important and crucial for a decision in this matter. In this section an enquiry is undertaken regarding the likely effect on the child of any change in the child’s circumstances including the likely effect on the child of any separation from both or either of the parents or any brother or sister or other child or any care-giver with whom the child has been living.
Section 7(1)(f) deals with the need of the child to remain in the care of his or her parent’s family and extended family and to maintain a connection with his or her family, extended family, culture or tradition. The mother has always been the primary care-giver of the child. The father admitted and conceded this and has in no way said that the mother was incapable of carrying out her duties as the child’s primary care-giver. It therefore did not matter whether she was the primary care-giver in South Africa or in France. Her ability to at all times act in the best interest of the minor child was unquestionable. The mother said that the father and the child had a close relationship and spoke to one another telephonically. The father argued about the loss of contact with his and the mother’s extended family in South Africa if the child relocated to France. The clinical psychologist says that the child would lose the input of his extended paternal family who have become his friends (cousins) and the connection that this relationship offers. He has become used to this resource and would not immediately or necessarily over time replace this source.
Besides contact with the extended family it was not been demonstrated by the father how it will be in the best interest of the child that he should stay in South Africa in order to maintain contact with his cousins. There was no evidence that the cousins spent extended periods with each other in contrast it seems as if this is limited to weekends or holiday visits by the families. The loss of this contact was unlikely to negatively affect the child.
The welfare of any child is best served if that child has the good fortune to live with both parents in a loving and united family. In this case that was not to be. The mother and the father broke up in 2006 and they considered that to be in the best interests of themselves to live separate lives. They did not at that stage anticipate or foresee that their separate lives might take them on different paths. The move to France was bona fide.
The steps that the mother took leading up to the application had shown that there was no malice. She had taken the decision in the best interest of the child and her family and her undertaking did not to estrange the child from the father and could not be doubted in view of her past record.
The mother demonstrated that it would be in the best interest of the minor child to relocate with her rather than let him stay in South Africa with the father.
The interests of the child are paramount in all matters relating to children. It is the ultimate determinant. Section 28(2) of the Constitution of the Republic of South Africa Act 108 of 1996 reads as follows:
A child’s best interests are of paramount importance in every matter concerning the child.
In the matter of J & J 2008 (6) SA 30 (C) it was decided that a court as the upper guardian of minors are empowered and under a duty to consider and evaluate all relevant facts placed before it with a view to deciding the issue which is of paramount importance the best interest of the minor child.
In Terblanche v Terblanche 1992 (1) SA 501 at p 504C-D His Lordship Van Zyl J said the following:
From this it follows that, when a Court sits as upper-guardian in a custody matter, it has extremely wide powers in establishing what is in the best interests of minor or dependent children. It is not bound by procedural strictures or by the limitations of the evidence presented or contentions advanced by the respective parties. It may in fact have recourse to any source of information, of whatever nature, which may be able to assist it in resolving custody and related disputes.
In the matter of Maryke Cunningham (born Ferreira) v Daniel Johannes Jacobus Pretorius (unreported GNP Case No. 31187/08) Murphy J concluded as follows in respect of the loss of contract by the non-custodian parent:
Perhaps the most vexing of the issues in balancing all relevant factors is the practical difficulty and expense involved in B having contact with the respondent if he relocates and the substantial impact it is likely to have on B’s right to maintain a meaningful personal relationship with his biological father – Section 7(1)(e). In the modern world, marked by globalisation and increased mobility, when marriages break up, one parent’s interests invariably will have to yield to those of the other. When the balance of factors (in this case the age of the child, the bond, the favourable environment and opportunities available at the place of relocation and the custodian parent capacity) all favour the custodian parent, the best the court can do is to ensure that meaningful contact and access continues with the non-custodian parent albeit in a less satisfactory manner and will not be thwarted by the non-custodian parent.
The Clinical Psychologist notwithstanding the fact that she had done extensive tests and consultation with all the stakeholders in this matter concluded that a firm recommendation was extremely difficult as this is indeed a difficult matter and left the decision to the Court. On the other hand the Family Advocate and the Family Counsellor reached a conclusion that the child should remain with the father in South Africa if the applicant relocates to Paris.
The recommendation by the Family Advocate and Counsellor was rejected as it was wanting and unconvincing. A Court must and has decided the issue of the best interest of the child itself and is free to reject any contrary opinion on that question expressed by any expert.
It is so that the removal will undoubtedly cause some disruption to the relationship between the child and his father. As a result of the relocation his rights of contact will be drastically curtailed and the child will be deprived of the advantage of being in close contact with his father during his early boyhood stage leading up to adolescence.
No court can predict the future with certainty. The Honourable Nugent J as he then was expressed the following in the matter of Godbeer v Godbeer 2000 (3) SA 976 at p 981J:
The respondent and the applicant considered that it was in the best interests of themselves, and no doubt the children, that they should live separate lives, thereby anticipating that their lives might take them on different paths. I do not think the applicant can be expected to tailor her life so as to ensure that the children and their father have ready access to one another. That would be quite unrealistic. The applicant must now fend for herself in the world and must perforce have the freedom to make such choices as she considers best for her and her family. She is undoubtedly fully aware of the value to be placed on close contact between the children and their father and I think that is borne out by the nature of the access arrangements which have existed until now and the ease with which they have been exercised.
The passage referred to above was in the court’s mind appropriate in many respects with the facts. The application succeeded.
When dealing with high net worth and multimillionaires divorce matters a divorce attorney must make sure to employ the best possible experts as part of the legal team, this is especially so if the assets at stake run into millions. I was involved as the divorce attorney of a client in a recent matter where two British citizens divorced in South Africa with assets across the globe that ran into millions of rands. In matters such as these various expert witnesses may be employed to lead evidence on behalf of a party to the divorce proceedings, consisting of forensic auditors, valuers, art experts, industrial psychologists, child psychologists, immigration experts etc.
In this matter I was fortunate to work with one of Britton’s top leading Family Law Barristers Richard Todd QC who rendered an opinion on the division of the matrimonial assets in this divorce case as far as it relates to UK law. Richard is an Oxford scholar who won the Hugh Bellott Prize (Highest Placed in the Oxford University Public International Law Finals) and who obtained the highest awards available to a practising Silk: The Chambers & Partners “Family Law Silk of the Year “ and The Lawyer’s “Hottest Family Law QC”. Richard have given expert evidence of English law to the courts of Australia, Belgium, the Cayman Islands, the Channel Islands, Cyprus, France, Germany, Gibraltar, Hong Kong, India, Italy, New Zealand, South Africa, Spain and the USA and appeared in over 4000 matrimonial cases with a long list of report cases, needless to say the identity of former clients is confidential. However former clients include twelve Billionaires (Sterling) and two Oscar winning actors (plus another three who have been nominated).
In this matter the parties were married in England and subsequently immigrated to South Africa. In such a case the matrimonial property regime of England would apply to their marriage and English law would always apply to their marriage. In a case such as this and where the divorce is contested a South African court could divorce them but, the court would have to apply English Law. It is interesting to note that if a South African couple is on holiday in England and decides to get married, they would automatically marry in community of property and not according to English law.
The test is the husband’s domicile as at the date of the marriage, i.e. what country the husband considered to be his permanent home plus his mental intention to remain there indefinitely. Domicile is defined as the principal place of residence of an individual. This is determined primarily by intent.
Thus, if the husband regarded his place of domicile to be Cape Town at the time of the marriage, the parties would be married according to the laws of South Africa and not England and their type of marriage (matrimonial property regime) would be one in community of property. For the marriage to have been out of community of property, the parties would have had to enter into an antenuptial contract in South Africa before leaving for holiday. If they failed to do so, they would have to apply to court to register an antenuptial contract, postnuptially.
About the author:
Bertus Preller is a Divorce Attorney in Cape Town and has more than 20 years experience in most sectors of the law and 13 years as a practicing attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. in Cape Town. Bertus is also the Family Law expert on Health24.com and on the expert panel of Law24.com and is frequently quoted on Family Law issues in newspapers such as the Sunday Times and Business Times and magazines such as Noseweek, You and Huisgenoot, and also appeared on SABC television on the 3 Talk TV show. His clients include artists, celebrities, sports people and high networth individuals. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Parenting Plans, Parental Responsibilities and Rights, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters, international divorce law, digital rights, media law and criminal law.
DIVORCE – Don’t play chess by using your children as pawns
This world is rife of parents using their children as pawns in the dirty game of divorce or where children are born out of wedlock. We have all heard of the old saying “no maintenance no kids” or “you left me so you won’t see your kids”. Parents don’t realise the damage they are doing in using their children as a means to get back at the other parent.
By isolating or alienating the children from the other parent is damaging not only to the other parent but even more damaging to the children. As a family law attorney I have seen cases where one parent will go to immeasurable lengths to isolate the other parent from building a parental relationship with his/her children, thereby depriving the children in the process of the only stability they may have left.
So often you hear about the mother that lays sexual molesting charges, with no substance against the father simply in an attempt to isolate the father from having a relationship with the children or a mother obtaining a Domestic Violence interdict against a father simply to interdict the father from having a relationship with his children. Although it seems to be mostly women that play this deadly game, there are also fathers who use their children as pawns against the mother. Unfortunately in battles of this sort there are also attorneys who fuel the battles on behalf of their clients and who somehow lose sight of what the best interests of the child really means. Depriving the other parent of a relationship with his/her children is possibly one of the most devious methods to ruin a solid society.
In terms of section 33 (2) of the Children’s Act parents who experience difficulties in exercising their parental responsibilities and rights in respect of a child must, before seeking the intervention of a court, first seek to agree on a parenting plan. The section discourages co-holders of parental responsibilities and rights from approaching the court as a first resort when they experience difficulties in exercising those rights and responsibilities. This section does not compel parents to enter into a parenting plan, it simply instructs them to attempt to agree on one. Looking at this section closely it seems that where one parent refuse to engage in such discussions the court may be approached for then an attempt to agree on a plan was made, even if it was doomed from the start. Section 33(5) instructs a person to seek the assistance of a family advocate, social worker or psychologist, or mediation through a social worker or suitably qualified person in preparing a parenting plan. It is therefore clear that before approaching the court, a person must first seek such assistance. If the other party is not amenable to engage then obviously a court may be approached.
Section 35 of the Act criminalises the refusal to allow someone who has access or holds parental responsibilities and rights in terms of a court order or a parental responsibilities and rights agreement that has taken effect to exercise such access. It also criminalises prevention of the exercise such access. Punishment is either a fine or imprisonment of up to one year.
About the Author:
Bertus Preller is a Divorce Attorney in Cape Town and has more than 20 years experience in most sectors of the law and 13 years as a practicing attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. in Cape Town. Bertus is also the Family Law expert on Health24.com and on the expert panel of Law24.com and is frequently quoted on Family Law issues in newspapers such as the Sunday Times and Business Times and magazines such as Noseweek, You and Huisgenoot, and also appeared on SABC television on the 3 Talk TV show. His clients include artists, celebrities, sports people and high networth individuals.
Dit is belangrik om die implikasies van die wyse waarop jy getroud is te verstaan, en as jy dit nie verstaan nie, vind dan uit by iemand wat aan jou kan verduidelik sodat jy dit behoorlik kan verstaan. Is jy getroud binne of buite gemeenskap van goedere? As jy is getroud binne gemeenskap van goedere, sal jy geregtig wees op 50% van die gemeenskaplike boedel en as jy is getroud buite gemeenskap van goedere met die aanwasbedeling, is jy geregtig op die helfte van die verskil van jou en jou gade se aanwas. As jy getroud is buite gemeenskap van goedere sonder die aanwasbedeling voor 1 November 1984, sal jy geregtig wees om te vra vir ‘n herverdeling van die bates, wat behels dat jy dalk in staat sal wees om 50% van die gesamentlike bates te eis, maar as jy getroud buite gemeenskap van goedere sonder die aanwasbedeling na 1 November 1984 sal jy net ‘n eis vir onderhoud kan instel onder sekere omstandighede.
- Jy kan onder sekere omstandighede eis vir rehabiliterende onderhoud. Rehabiliterende onderhoud is waar een gade die ander vir ‘n vasgestelde tydperk maandeliks betaal, bv vir twee jaar of langer.
- Onthou dat jy kan ‘n aansoek loods hangende die egskeiding om onderhoud, terwyl die egskeiding nog nie afgehandel is nie, in so ‘n aansoek kan jy ook eis dat jou gade ‘n bydrae maak tot jou regskoste.
- Kry soveel finansiële inligting oor jou eggenoot moontlik, maak afskrifte van alle bankstate, kredietkaart state en maak ‘n lys van al die bates en laste, bronne van inkomste, ens.
- Stel ‘n volledige begroting op van jou huidige maandelikse uitgawes en inkomste van jou en jou kinders. Dit kan die moeite werd wees om voorsiening te maak vir toekomstige uitgawes.
- Jy kan ook aandring op die sessie van ‘n lewenspolis van jou gade om die betaling van maandelikse onderhoud te verseker.
- Probeer om aan te bly in die gesamentlike woning vir solank as jy kan huis (as dit naby aan jou kinders se skool of werk is). Daar is ‘n gesegde in ons reg, dat besit 9 / 10 van die reg is. Om in die gesamentlike woning aan te bly, sal ook die situasie van die kinders stabiliseer, aangesien ‘n trek na ‘n nuwe bestemming ‘n baie traumatiese ervaring vir die kinders kan wees.
- Onthou dat jy nie noodwendig die oordragkoste hoef te betaal vir ‘n eiendom wat aan jou oorgedra word in jou egskeiding nie. Daar is verskeie opsies met betrekking tot eiendom wat aan beide van julle behoort, byvoorbeeld deur dit te behou of te verkoop of die netto wins verdeel.
- Sien toe dat die Skikkingsooreenkoms so opgestel word dat jy kan aandring op ‘n aftrekking van jou gade se salaris indien hy nie betaal nie.
- Sorg dat jou egskeiding Skikkingsooreenkoms sou opgestel word om ‘n deel van enige bates wat jou eggenoot wegsteek en waarvan jy nie bewus is op datum van die egskeiding nie te bekom wanneer jy later daarvan uitvind.
- Moet nie minder tevrede wees nie, baie vroue loop eenvoudig as gevolg van die emosionele druk met minder as waarop hulle geregtig is. Onthou dat egskeiding altyd ‘n sake-besluit is en die besluite wat jy maak nou ‘n definitiewe impak sal hê later in jou lewe.
- Egskeiding kan ‘n langdurige proses wees en dit kan baie frustrerend en emosioneel dreinerend wees, dit neem tyd en strategiese beplanning.
- Moenie verander prokureurs in die proses bloot as gevolg van jou eie frustrasie nie, soos hulle sê, die spel van ‘n egskeiding is soos’ n skaakspel.
- Onthou dat jou eggenoot se bates sluit ook in aandeelhoudings in maatskappye, aftreefondse, pensioenfondse en selfs belasting terugbetalings.
- Dink met jou kop en nie met jou hart.
- Onthou om jou testament te verander.