Divorce Attorney Cape Town

Domestic Violence and Abuse in South Africa


“When you’re in a broken family and your role model is a violent male, boys grow up believing that’s the way they’re supposed to act. And girls think that’s an accepted way men will treat them.” –Rep. Jim Costa

On 25 November 2012 the 16 days of activism for no violence against women and children commenced and will end on 10 December 2012. It is an international campaign and takes place every year from 25 November (International Day for the Elimination of Violence Against Women) to 10 December (International Human Rights Day). During this time, the South African Government runs a 16 Days of Activism Campaign to make people aware of the negative impact of violence on women and children and to act against abuse. It is estimated that one in every four women is assaulted by an intimate partner every week, that one adult woman out of every six is assaulted by her partner, and that in at least 46% of these cases, the men involved also abuse the woman’s children.

It is extremely important to increase awareness of abuse and build support for victims and survivors of abuse. South Africa has one of the highest incidences of domestic violence in the world. And, sadly, domestic violence is the most common and widespread human rights abuse in South Africa. Every day, women are murdered, physically and sexually assaulted, threatened, and humiliated by their partners, within their own homes. Organisations estimate that one out of every six women in South Africa is regularly assaulted by her partner. More than 56 000 rapes and sexual offences were reported in South Africa in the 2010 financial year. This equates to 154 reported sexual offences each day. It is conservatively estimated that only one in ten sexual offences are reported, due to a lack of faith in the system. In 2010, most incidents of assault 35,7%, occurred at home. 29,8% of sexual offences took place at home and 18,5% of sexual offences took place at someone else’s home. The available data also indicates that incidents of domestic violence, in which especially women are victims, are increasing. A recent survey conducted in Gauteng found that half the women living in Gauteng 51.3% have experienced abuse or violence, and 75.5% of men admitted to perpetrating abuse or violence against women. The same study found that one in four women had experienced sexual violence, and 37.4% of men disclosed perpetrating sexual violence

According to Independent Complaints Directorate (ICD) statistics last year, up to 65% of police stations were not compliant with the Domestic Violence Act, which means that they were not providing the necessary support to victims of domestic violence and 53% of domestic violence victims were incorrectly told they were not allowed to lay a charge after being abused and 96% of domestic violence victims were not given information on their rights, such as having the right to apply for a Protection Order when they go to their local police station. It is inconceivable that a woman who has had to endure the trauma of being abused by a family member or partner is subjected to the indignity of having their case poorly managed by the police.

Although the exact percentages are in dispute, there is a large amount of cross-cultural evidence that women are subjected to domestic violence significantly more often than men. In addition, there is consensus that women are more often subjected to severe forms of abuse and are more likely to be injured by an abusive partner. Determining how many instances of domestic violence actually involve male victims is difficult. Some studies have shown that women who assaulted their male partners were more likely to avoid arrest even when the male victim contacts the police. Another study concluded that female perpetrators are viewed by law enforcement as victims rather than the actual offenders of violence against men. Other studies have also demonstrated a high degree of acceptance of aggression against men by women. Domestic violence also occurs in same-sex relationships. Gay and lesbian relationships have been identified as a risk factor for abuse in certain populations. Historically, domestic violence has been seen as a family issue and little interest has been directed at violence in same-sex relationships.

Domestic violence is a pattern of abusive behaviour that transgresses the right of citizens to be free from violence. When one partner in a relationship harms the other to obtain or maintain power and control over them, regardless of whether they are married or unmarried, living together or apart, that is domestic violence. The ‘harm’ can take a variety of forms, whether it be from verbal abuse like shouting, emotional abuse like manipulation, control and/or humiliation, physical abuse like hitting and/or punching, and/or sexual abuse like rape and/or inappropriate touching of either the woman or her children.

The majority of adult victims are women. The victims and survivors are not more likely to belong to any particular racial, cultural or language groups. The majority of perpetrators are male and usually live with the victim at the time of the abuse. There is an important association between the propensity to domestic violence and drug and alcohol use.

What can you do if you are abused?

Domestic violence is regulated by the Domestic Violence Act 116 of 1998. The Act was introduced in 1998 with the purpose of affording women protection from domestic violence by creating obligations on law enforcement bodies, such as the South African Police Services, to protect victims as far as possible. The Act attempts to provide victims of domestic violence with an accessible legal instrument with which to prevent further abuses taking place within their domestic relationships. The Act recognises that domestic violence is a serious crime against our society, and extends the definition of domestic violence to include not only married women and their children, but also unmarried women who are involved in relationships or living with their partners, people in same-sex relationships, mothers and their sons, and other people who share a living space.

A protection order, also called a restraining order or domestic violence interdict is a court order which tells an abuser to stop the abuse and sets certain conditions preventing the abuser from harassing or abusing you again. It may also help ensure that the abuser continue to pay rent or a bond or interim maintenance.  The protection order may also prevent the person from getting help from any other person to commit such acts. Victims may also file a criminal charge in addition to obtaining a protection order and get a court order to have the perpetrator’s gun removed, if applicable. Other remedies may also be available, depending on the exact nature of the abuse.

A restraining order can be applied for at your local magistrate’s court.

Important Numbers:

Women Abuse Helpline:  0800 150 150

Childline:    0800 055 555

SAPS Crime Stop:   08600 10111

Bertus Preller

Family Law Attorney

Twitter: @bertuspreller

Email: bertus@divorceattorney.co.za

Tel:  021 422 1323

Source: http://voices.news24.com/bertus-preller/2012/11/abuse-and-domestic-violence-south-africa/ 

Divorce – What every woman should know


Divorce - What women should know
Divorce – What women should know

Making the decision to divorce is a tough one, and the chances are it’s followed by an even more traumatic lead-up to the divorce, it is like a roller-coaster on an emotional track.

Women are mostly in the dark when it comes to the financial affairs of her husband and women are encouraged to gather as much financial information about their husband’s financial affairs before the divorce proceedings commence, to establish the magnitude of the estate.

It is extremely important for any woman to know what’s going on in her husband’s financial affairs. It’s difficult when you don’t have access to his share portfolio or balance sheet, but one must reasonably expect to get an idea of financial affairs.

An attorney cannot negotiate on behalf of a spouse without knowing in advance what the estate is worth.

In many divorce settlements, the wife ends up seeing what the estate is worth only late in the divorce process.

16 Important points to consider in divorce:

  1. Make copies of your husband’s bank statements, credit card statements and get hold of the short-term insurance policies as well as copies of pension funds and retirement funds. This will provide input on the extent of assets available and the value of the estate.
  2. If you are married in community of property or out of community of property with the accrual you have to ask your attorney to build a clause into the settlement agreement to say if any assets that come to light after the divorce settlement, you will be entitled to 50% of those assets and the husband will have to pay the legal fees involved in the recovery process of those assets when they do come to light.
  3. A more accurate sense of assets will come to light if the divorce is contested as parties are required to disclose any information to do with financial affairs. In terms of the court rules the husband can be required to make full disclosure of his assets and liabilities and you will be able to obtain all financial information spanning over a period of 3 years or more, including bank statements, credit card statements, investments etc.
  4. Women are advised not to leave the matrimonial home if there are minor children involved, because it provides a sense of stability for the kids. It’s better for the husband to leave if the husband is not the primary caregiver. If a husband makes himself guilty of abuse, the wife can get a restraining order to evict him from the property under certain circumstances or restrain him to enter certain areas of the house.
  5. Where the parties are married in community of property the wife is entitled to half the pension or retirement annuity fund. In a marriage out of community with the accrual, the pension fund will be regarded as part of the husband’s assets for purposes of calculating the accrual that the wife will be entitled to.
  6. In terms of the Divorce Act, the wife (if married in community of property) can choose to ask for the pension fund money to be paid in cash, or transferred to a pension fund of her choice.  Normally pension funds pay out the wife’s portion in 3 to 6 months after the divorce.
  7. Make a list of your monthly income and expenses, as if you’re going to live on your own with your children. It’s important because you get situations where the wife is not working or earns much less than the husband and doesn’t have the money to fight a divorce battle.  She can bring an application pending a divorce, for interim maintenance, which means contributing maintenance before the divorce is finalised. She can also apply for contribution to her legal expenses. If interim-maintenance is granted and the husband does not comply with the court order, he is in contempt of court.
  8. In some instances the wife can apply for emergency monetary relief in the magistrate’s court pending the institution of an application for interim maintenance by utilizing the provisions of the domestic violence act because the husband has blocked the use of credit.
  9. Interim maintenance falls away once the divorce order is granted. There have been situations where the wife has been granted very favourable interim maintenance terms, so sometimes a divorce is stalled  in order to continue getting a hearty amount of money each month.
  10. The granting of interim maintenance in a Rule 43 application cannot be appealed. The only way the husband can minimize this is if he goes back to court and explains and proves that his financial situation has changed so much that he’s entitled to a reduction. But this does not happen easily.
  11. Many battles in a divorce surround the children. Normally the wife is the parent of primary residence and the husband the parent of alternate residence. Increasingly, there’s a shared parenting approach with children staying with the mother for a week and then the father for a week and each party takes care of the children during that period.  I see a lot of children used as a pawn. It is important to get a parenting plan in place as soon as possible, and register that with the family advocate and stipulate that if issues arise with parenting and the children the parties need to go to a psychologist or a social worker to facilitate contact.
  12. In matters where money is not fought over, it may make financial sense to go to one lawyer who can work for both parties. But a divorce that is acrimonious requires that each party needs a lawyer to assist.
  13. A few mediation organizations exist where people can see a mediator to resolve disputes, to settle with both parties. The mediator doesn’t have the authority to issue and award for damages but he can facilitate the settlement process. If an abusive husband is involved, mediation is unlikely to work.  But it can work if the divorce is not acrimonious. Normally the spouses have to pay the costs of a mediator 50/50. Sometimes this route can be more expensive than an uncontested divorce, depending on the amount of sessions that the parties have to attend.
  14. Where a couple owns a property together, they need to decide whether both parties want to keep the interest in the property, sell the property and split the proceeds, or whether one wants to buy out the other. The decision has financial implications because of transfer duties and tax.
  15. It’s important to consider instances where the husband has no real assets. An insurance policy should be taken out in the event that the husband passes away and there is no money to help cover maintenance, in case of his death.
  16. The decision to divorce is always a business decision. You need to look at what happens until the children turn 21 or becomes self supporting, that there’s maintenance, medical cover for them, a school education and whether it’s government or private school and tertiary education.

About the Author:

Bertus Preller is a Divorce Attorney at Maurice Phillips Wisenberg in Cape Town, a law firm that has been in existence since 1994 and has more than 30 years experience in most sectors of the law. He specializes in Family Law and Divorce Law in and handles divorce and family law matters across South Africa. Bertus is also the Family Law expert on Health24.com, he blogs regularly on news24.com and nuus24.com and has been quoted on Family Law issues in various newspapers such as the Sunday Times and Business Times and magazines such as Noseweek, Keur, Living and Loving, Longevity, You and Huisgenoot, and also appears frequently on the SABC television show 3 Talk. His clients include artists, celebrities, sports people and high net worth individuals. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Parenting Plans, Parental Responsibilities and Rights, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters, international divorce law, digital rights, media law and criminal law.

Contact details

bertus@divorceattorney.co.za

O: +27 21 419 7115

Nasty or Nice. What Kind of Divorce Attorney Do You Need?


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Nasty or Nice. What Kind of Divorce Attorney Do You Need?

The answer is … A smart attorney. Smart and nice to you is even better. You want someone who specializes in family law and divorce law. Someone that you feel comfortable telling your life story to. You need someone who listens and respects you and who gives you honest and realistic answers and advice.

Divorce is a traumatic experience. You don’t deserve to be bullied and besides, given the challenges of divorcing, it just might send you over the edge.

Often you hear: “I’m not sure if I have the right attorney because s/he is, well, too nice … and my spouse can be very nasty. I need someone I know will fight hard for me.” There seems to be a misconception, especially in high conflict situations, that it takes a really nasty personality to outsmart the other side and get the job done.

Fact is, the “nasty” approach is what drives up legal bills (on both sides) and it creates so much adversity that co-parenting becomes nearly impossible in future. Furthermore, your attorney’s job is negotiating, for you, with “the other side.” If your attorney can’t even treat you well, chances are s/he doesn’t have the skills and talent a negotiator needs to succeed. Such an attorney is probably more comfortable in an adversarial courtroom setting and that means huge legal bills for you. Keep in mind, the more money you spend fighting the less you will have left to create a new life.

So instead of a surly, imposing human, it’s best to hire a smart, strategic-thinking attorney who can creatively apply the rules of law, and facts of your situation, to help you negotiate a fair settlement. Also keep in mind that attorneys, like doctors, also specialize.

For example, some attorneys like the challenge of a contentious, high conflict divorce whereas others won’t take a case likely to end up in court. There are attorneys known by their peers for expertise in custody matters, or dividing complicated estates, or international law as it affects a foreign born spouse and children. Some attorneys don’t value mediation, so if you plan to mediate be sure to select an attorney whose reputation is pro-mediation.

Family law is complicated therefore it is wise to do your homework before you hire someone. Learn about the legal process, know your finances and figure out what type of attorney expertise you need. Then interview several attorneys with a good reputation for handling your situation and trust your instincts. If you don’t connect with a particular attorney, move on and find someone that’s a better fit.

Fortunately, today many judges and family law attorneys believe going to court should be a last resort. Currently only 5% of all divorce cases end up in court. It’s seen as a very expensive, demoralizing, and risky route to take only after all other options have been exhausted. So the skills that make a good divorce attorney today have changed from the traditional bully to a smart negotiator.

That being said, there still are attorneys who prefer the old-style, adversarial theatrics of court. It brings in big bucks for their law firm sweetening the deal for them, but not you. So buyer beware.

As you move through the tasks of divorcing remind yourself you need and deserve a good return on your legal investment. Sadly, that important fact often gets trampled by the painful emotions and egos that drive divorcing. The style of attorney you (and your spouse) choose sets the tone for your divorce and often the cost. Unfortunately, if one of you chooses an inept or litigious attorney it affects both of you.

Tell yourself, and your soon-to-be ex, that this difficult transition is a small blimp on the road of life. It too shall pass and you each deserve the best start possible to build a new life for yourself and any children you may have. You have more control than you realize.

Article appeared in the Huffington Post

About:

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 Maurice Phillips Wisenberg 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.

Beware the love tweet


Social networking tools such as Facebook, Twitter and MXit are becoming the easiest way to prove marriages have irretrievably broken down in contested divorces.

NIVASHNI NAIR | 10 October, 2011 00:44 – Times Live

A wealthy Durban doctor created a fake Facebook profile as a “hot young thing” to gather evidence against her husband in their divorce battle.

A Johannesburg businessman installed cameras in the study where his wife logged on to social networking sites so he could capture her “wild affairs”.

Cape Town divorce lawyer Bertus Preller said it would be wise for unhappy couples to watch what they post because it could come back to haunt them.

“Posting status updates and uploading photos of otherwise fun-filled events on social networks have led to an overabundance of evidence in divorce cases,” he said.

“According to the American Academy of Matrimonial Lawyers, 81% of its members have used or faced evidence plucked from Facebook, MySpace, Twitter and other social networking sites, including YouTube and LinkedIn, over the past five years. In South Africa, the situation is the same.”

Preller said almost one-third of his caseload involved contested divorces in which evidence from Facebook, MXit and Twitter was used to prove that the marriages were over.

“Although adultery is grounds for divorce, one must show that there has been an irretrievable breakdown of the marriage. But in contested divorces, one party will want to show otherwise, therefore evidence needs to be brought in to show that the marriage is over,” he said.

“These days, the first thing that clients do is go to Facebook or Twitter to get evidence. Often people do not log off their profiles or delete their inbox messages, making it easier for their spouses to gather evidence.

“So if you forgot to de-friend your wife on Facebook while posting vacation shots of your mistress, her divorce attorney may just be thrilled about you doing that.”

He said betrayed spouses went to great lengths to source evidence.

“Some have downloaded technology surveillance software to obtain information that will otherwise not be obtainable.”

A Durban doctor and mother of two, who spoke on condition of anonymity, wanted to catch her husband “in the act” to show the court that their marriage was “definitely over”.

“I created a profile and became his friend. We exchanged inbox messages three times and, on all three occasions, as he tried to convince me to go out to supper with him, he repeatedly said he was not married.

“He even said he didn’t believe in marriage and was not ready to settle down,” she said.

Although her divorce has not yet been finalised, the woman is confident that her “investigative skills will nail him”.

“I don’t think any judge would want me to stay with a man who said he doesn’t believe in marriage and is not ready to settle down.

“It hurt me at first because we have been married for 18 years, and have teenage sons, but I got over it when I saw the look on his face when I produced evidence.”

The divorce rate amongst celebrities


Nearly 50% of Americans divorce at some point of time in their lives, but somehow we always hope the happily-ever after continues from the reel life to real life for our celebrities too. But by celebrity standards, year 2011 already seems to have a reached a nadir.

The break-ups number more than a dozen this year. Long time sweet-hearts Chalize Theron and Stuart Townsend split after nine-years of togetherness.

Sandra Bullock got bit by the Oscar curse and divorced husband Jesse James. The ball kept on rolling with Kate Winslet separating from husband Sam Mendes.

The list so far includes the divorces of Jennifer Lopez and Marc Anthony, Daniel Baldwin and Joanne Clare Baldwin, Maria Shriver and Arnold Schwarzenegger, Brad Womack and Emily Maynard, Elizabeth Hurley and Arun Nayar, Cheryl and Ashley Cole, Tiger Woods and Elle Nordegren, Courtney Cox and David Arquette, Al Gore and Tipper, Halle Berry and Gabriel Aubry, George Lopez and wife Ann, Jim Carrey and Jenny McCarthy, Kelsey Grammar and wife, and Christina Aguilera and Jordan Bratman.

The US has the world’s highest marriage rate of 9.8 per 1000 as well as the world’s highest divorce rate of 4.95 per 1000.

In a recent study done on Golden Globe award winners revealed that of the celebrities who had been married, the average number of marriages was 1.4, while the average number of divorces was 0.65. The probability of a famous union surviving is only 35 percent, so the odds are 1.9 to 1 against the marriage.

Celebrity marriages are remarkable for their instability. The much-touted 50 percent failure rate for American marriages soars as one’s star rises. The divorce rate among celebrities may be as high as 80 percent, according to Raul Felder a celebrity divorce lawyer in the United States who has represented Rudy Giuliani, Robin Givens, Carol Channing, David Merrick, Riddick Bowe, the former Mrs. Carl Sagan, the former Mrs. Tom Clancy, the former Mrs. Patrick Ewing, and the former Mrs. Martin Scorsese.

An article based on interviews of divorce lawyers in the United States reveals that the most common factors for celebrity divorces are that one of the couple moves up or trades up in movie biz parlance, addiction of some kind, waning of stardom, public infidelity and narcissism.

The most expensive celebrity split was that of Rupert Murdoch, who we will remember as the owner of the now infamous News of the World Newspaper when he divorce from wife Anna where he paid up $1.7 billion to her. Guy Ritchie and Madonna divorce cost $76 million, Tiger Woods- Elle Nordegren have reportedly settled for an estimated $750 million.

If somebody adds up all the expenses on marriages and divorces of celebrities the world over, it surely might even exceed the gross national income of a fairly mid-sized nation like South Africa.

International abduction of minor children a South African Law Perspective


International abduction of minors a South African Perspective

Article 3(b) of the Hague Convention on the Civil Aspects of International Child Abduction (1980), which is incorporated into South African law by the Hague Convention on the Civil Aspects of International Child Abduction Act 72 of 1996 (the Act), provides that the removal or retention of a child is to be considered wrongful if, among others, at the time of the removal or retention, the rights of custody were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

In terms of article 13(b), the authority of the requested state is not bound to order the return of the child if the person, institution or other body in the other state that opposes the return or retention establishes that there is a grave risk that his return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. In Central Authority of the Republic of South Africa and Another v LG 2011 (2) SA 386 (GNP) the second applicant, the father, and the respondent, the mother, were married and living together with their minor child in the United Kingdom (UK). After several heated arguments the parties agreed to divorce and that the respondent would return to her native South Africa with the child. Alleging that the respondent agreed to return with the minor child to the UK after attending a wedding in South Africa and as she failed to do so she had unlawfully retained the child in this country, the second applicant (with the help of the first applicant, the Central Authority of South Africa) applied for a court order for the return of the child to the UK. The application was dismissed with costs.

Molopa-Sethosa J said the fact that the second applicant was prepared to stay away from the minor child, who was only 17-months-old at the time, for at least six months when the child was in South Africa with the respondent (who was during that time considering whether reconciliation with the second applicant was possible) was not indicative of a close bond between the second applicant and the child. Furthermore, the child would be exposed to the risk of psychological harm if he were to be returned to the second applicant who did not have the best interests of the child at heart. The fact that since the child had been in South Africa his health improved tremendously was of the utmost importance and could not be ignored.

Best interests and views of a child in international abduction matters:

In Central Authority v MR (LS Intervening) 2011 (2) SA 428 (GNP) the court dealt with the best interests of a minor child and her views in an international child abduction matter. After the death of her mother the minor child of some nine years lived with her biological father in Belgium. Subsequently the two relocated to Los Angeles, in the United States of America (USA), because of the father’s professional commitments.

There the two lived with the father’s new wife. After the child visited her maternal grandmother in Hoedspruit, Limpopo, the grandmother prevented the minor child returning to the father in Los Angeles and instituted an ex parte application to keep the child in this country. She sought, pending the final outcome of the family advocate’s investigation, full parental rights and responsibilities in respect of the minor. Meanwhile, the father sought the return of the child to the USA. The court dismissed the father’s application, but ordered the grandmother to pay costs because of the unacceptable way she instituted ex parte proceedings and for not being candid with the court.

Top South African Divorce Attorney shares information on Antenuptial Agreements or Prenup Agreements


Top South African Divorce Attorney shares information on Antenuptial or Prenup Agreements

We tapped the brain of Bertus Preller one of Cape Town’s best divorce and family law attorneys on Antenuptial or Prenup Agreements. Bertus Preller is based in Cape Town and has more than 20 years experience in most sectors of the law. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. in Cape Town and litigates in divorce matters across the country. He 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. His clients include celebrities, actors and actresses, sportsmen and sportswomen, television presenters and various high net worth individuals as well as ordinary people. He has a deep passion for matters involving children. His areas of expertise are Divorce Law, Family Law, International Divorce Law, Divorce Mediation, Parenting Plans, Parental Responsibilities and Rights, Custody (care and contact) of children, same sex marriages, unmarried father’s rights, domestic violence matters.

What is an Antenuptial agreement?

It is a contract entered into by two people, prior to their marriage, in which they stipulate the terms and conditions for the exclusion of the community of property between them. It ensures that one spouse’s creditors cannot hold the other person liable for repayment of debt, unlike when people marry without entering into an Antenuptial Contract, i.e. ‘in community of property’.

An Antenuptial Contract can also include any terms and conditions as long as they are not contrary to public policy. Most of these terms and conditions relate to the division of assets should the marriage be dissolved due to either death or divorce. During the marriage each spouse will retain his/her separate property and would have complete freedom to deal with that property as he/she chooses. This would not be the case if the parties were married ‘in community of property’.

Who needs an Antenuptial agreement?

While antenuptial agreements (“prenups”) are recommended to anyone for whom they make good economic and personal sense.

People who may benefit from prenups include those who:

  • Have assets, even if they are not considered wealthy
  • Owned a business prior to getting married
  • Have children from a previous marriage
  • Will marry someone with a poor financial track record, high-risk business investments
  • Want to avoid the emotional and financial stress associated with a contested divorce
  • Want a quick and inexpensive method of ending their marriage, if it should fail eventually
  • Want to protect their assets in the event of divorce or death

What types of issues can be included in an Antenuptial agreement?

Antenuptial agreements or prenups can include provisions relating to:

  • The rights and obligations of each of the parties regarding property owned or acquired by either, at any time and wherever located
  • The exclusion of property or business
  • Donations made to a spouse
  • The allocation, division and distribution of the parties’ assets and debts upon divorce or death
  • Any other matter that isn’t illegal or in violation of public policy

Should an Antenuptial agreement be considered cast in stone or can it be varied during the course of the marriage?

It is possible to change your Antenuptial agreement on application to the High Court.

What is meant by a Marriage out of Community of Property?

Each spouse retains his or her own assets and liabilities whether acquired before or during marriage. There is no sharing of profits and losses. Both spouses have full and independent contractual capacity. Upon death or divorce, each spouse keeps control over their own assets. This clearly gives parties absolute independence of contractual capacity and protects the estates of each party against claims by the other party’s creditors. There is no provision for any sharing whatsoever. A party who contributed to the other party’s estate whether in cash or otherwise would have a heavy onus to prove that he or she was entitled to anything from that party’s estate on dissolution of the marriage. Where one party stays at home to raise children and does not contribute financially towards the marriage and the other spouse works and accumulates assets, the former may find herself with nothing and no claim to the assets of the latter. The marriage is governed by a contract known as an ante nuptial contract which is concluded by the parties before the marriage. If the marriage occurred after 1 November 1984, the contract had to specifically exclude the system of accrual. In the absence of this exclusion the rules of accrual will automatically apply.

What is meant by a Marriage out of Community of Property with Inclusion of the Accrual System?

The Matrimonial Property Act 88 of 1984 brought with it the “accrual” system which permits a form of sharing, consistent with a primary objective of marriage, but permitting retention of each party’s independence of contract and ability to retain their own unique separate estates. “Accrual” means increase. The accrual system is a form of sharing of the assets that are built up during the marriage. The underlying philosophy in respect of the accrual system is that each party is entitled to take out the asset value that he or she brought into the marriage, and then they share what they have built up together. One spouse’s property cannot be sold to pay the other’s creditors if the other becomes insolvent – in contrast to the case where the parties are married in community of property. It is of utmost importance that a party wishing to enter into an Ante Nuptial Contract must fully understand what it is they are signing. It is for this reason that a standard form contract cannot be used, that consultations cannot be held over the phone or by means of email and that, unfortunately. The important features of an accrual marriage are in essence the following: Each party retains his or her own estate. Each party may accumulate assets and incur liabilities without interference from or assistance of the other spouse. The estate of each party is determinable separately. The monetary value of the smaller estate is subtracted from the monetary value of the larger estate, the difference is split, and the party having the larger estate pays half of the difference between the two estates to the party with the smaller estate. At dissolution of the marriage, the estate of each party is calculated by listing all assets, listing all liabilities, subtracting liabilities from assets and arriving at a net asset value. In practical terms this amounts to a similar division to a marriage in community of property. However there are certain crucial factors of an accrual marriage which add complexity and much more freedom of choice. When drafting the Ante Nuptial Contract, the parties can each decide to exclude certain assets. The effect of excluding an asset will be that it does not feature on the asset statement at dissolution of the marriage and is completely excluded from the calculation. Assets which are not properly described can cause huge problems when the executor or the divorce attorney tries to decide what to do with it in calculating the net accrual value. To exclude either a specific asset, or a commencement value, or both (which must be separate and not derived from the same asset), can effectively ensure that couples share only what they choose to share and keep separate any item or items, or values, which they do not believe it fair to share (for example something acquired before the relationship commenced). Parties not wishing to exclude specific assets may exclude a certain sum of money which is the agreed equivalent of assets which they do not wish to share, and which is termed a “commencement value”. Excluded from the Accrual Certain property belonging to either the husband or the wife may not be taken into account when the accruals are worked out: Any damages awarded to either spouse for defamation or for pain and suffering; Any inheritances, legacies or gifts that either spouse has received during the marriage, unless the parties have agreed in their antenuptial contract to include these or the donor has stipulated their inclusion; A donation made by one spouse to the other. This is not taken into account as part of either the giver’s or the receiver’s estate, with the result that the giver cannot recover part of what he or she gave and the receiver need not return any of it.

SAMPLE OF AN ANTENUPTUAL AGREEMENT WITH ACCRUAL

This agreement is a sample and is of a general nature. Certain additions and ammendments may be required to suit your specific needs.

It is hereby certified that a R10.00 stamp is affixed to the original contained in my protocol register. PROTOCOL NO : _________________________

ANTENUPTIAL CONTRACT

with the

APPLICATION OF THE ACCRUAL SYSTEM

in terms of the

MATRIMONIAL PROPERTY ACT, 1984

BE IT HEREBY MADE KNOWN THAT on this _________________day of ________________________ 2011 before me

(INSERT NAME OF NOTARY PUBLIC) Notary Public, practising at Pretoria in the Province of _______

appeared

FULL NAME: _______________________ IDENTITY NUMBER: ________________ UNMARRIED

-and-

FULL NAME: ________________________ IDENTITY NUMBER: _________________ UNMARRIED

And the appears declared that whereas a marriage has been agreed upon, and is intended to be solemnised between them, they have agreed and now contract with each other as follows :

1. That there shall be no community of property between them.

2. That there shall be no community of profit or loss between them.

3. That the marriage shall be subject to the accrual system in terms of the provisions of Chapter 1 of the Matrimonial Act, 1984 (Act No. 88 of 1984).

4. That for the purposes of proof of the nett value of their respective estates to be as follows: that of (INSERT FULL NAME) to be R 000.00 consisting of :_______ (INSERT DETAILS) that of (INSERT FULL NAME) to be ZERO

5. That the assets of the parties or either of them, which are listed hereunder, having the values shown, and all liabilities presently therewith, or any other asset acquired by such party by virtue of his possession of former possession of such asset, shall not be taken into account as part of such party’s estate at either the commencement or the dissolution of the marriage.

The assets of (INSERT FULL NAME) so to be excluded are R000.00 consisting of : (INSERT DETAILS)

The assets of (INSERT FULL NAME) so to be excluded are NONE

THUS DONE AND EXECUTED at _________________________aforesaid on the day, month and year first aforewritten in the presence of the undersigned witnesses.

AS WITNESSES:

1.

2.                                                      ………………………………………………………

THUS DONE AND EXECUTED at _________________________aforesaid on the day, month and year first aforewritten in the presence of the undersigned witnesses.

AS WITNESSES:

1.

2.                                                      ………………………………………………………

QUOD ATTESTOR NOTARY

Financial Tips for Women Facing Divorce


Financial Tips for Women Facing Divorce

Financial Tips for Women Facing Divorce

While neither gender has an exclusive lock on money management skills, the financial deck is stacked against women. Women earn about three-quarters of what men earn. In a divorce, they get less of the assets and more of the children. They live longer, and one in eight elderly women lives in poverty, compared to one in 12 men, according to  figures from the U.S. Department of Health and Human Services, the same may apply in South Africa. Unfortunately, many women view money and money-related tasks as necessary evils, not opportunities to even the odds.

The divorce rate is beginning to tick upward for couples who have been married for several years, decades or longer.

Recent media reports tell the tale, and it’s easy to point to the divorces of long-time couples like Arnold Schwarzenegger and Maria Shriver, Al and Tipper Gore and others for evidence of what many now consider a growing trend across the world.

Older women who have been in long-term marriages must nowadays confront unique financial issues when they’re facing divorce. Just as younger brides have their own set of concerns to mull over; older women have to pay special attention to a number of financial matters specific to their age and the often sizeable assets that have accumulated over the course of a lengthy marriage.

For example, women who have been married for some time and facing divorce must be particularly vigilant about protecting their:

1.         Business

Even though it may seem incredibly unfair, a divorce can ruin your business –unless you have taken the appropriate steps to “divorce-proof” it (ideally while you were still single).

How can a divorce ruin your business? Consider this:

If you nurtured a business, and it increased in value while you were married, the amount of increased value must usually be included as part of the marital assets that will be divided between you and your husband, unless of course if you got married out of community of property without the accrual. It doesn’t matter who operated the business or how it’s titled.

2.         Retirement funds

Divorce requires the careful scrutiny of all retirement annuities and pension funds. It’s essential for your divorce settlement agreement to clearly spell out how these assets will be split and how those funds will be transferred.

Many women often make the mistake of assuming that a divorce order will fully protect their rights to their portion of their husband’s retirement annuity or pension fund. This is usually not the case, and the settlement agreement need to be drafted in a particular way to include these assets.

3.         Insurance

Most women pay careful attention to their health insurance needs. But, don’t forget: In your new role as a single woman, you’ll need to consider life, property/casualty and disability insurance, as well. What’s more, if you will be receiving child maintenance you will want an insurance policy that protects you financially in the event something happens to your ex-husband.

4.         Short-term and long-term financial stability

Following your divorce, you’ll need financial stability in the short-term, and you’ll have to take the right steps to plan for financial security into your retirement years.  For starters, you must create a budget that will allow you to maintain your lifestyle, pay off debt and increase your savings.

But, what happens if the divorce settlement doesn’t provide enough income to pay your expenses? In that case, you will need to start immediately liquidating assets to maintain your lifestyle.

5.         Assets that he concealed

What happens when you find out 2 years after the divorce of certain assets that your husband did not disclose and which would have had an impact on your initial divorce settlement? A good divorce attorney will know how to deal with issues such as these in a divorce settlement agreement, to allow a claw back to claim any assets that your ex might have hide.

The following steps may be recommended for women in a divorce:

  1. Set a financial goal — be as diligent about money as you are about fitness or your career or about anything else.
  2. Train yourself to be financially independent — don’t allow yourself to become reliant upon your partner’s decisions, and become involved in long-term financial planning.
  3. Buy your own home — don’t wait for Prince Charming to come along and do it for you.
  4. Fund your retirement annuity — an important step for everyone, not just young women.
  5. Opt for long-term planning over crisis management — get serious about money now; don’t wait for trouble to strike.
  6. Start investing — do it now, and don’t be afraid to make mistakes.
  7. Don’t fear risk — women are especially prone to conservative investments; be willing to seek aggressive growth when appropriate.
  8. Don’t go it alone — work with a financial planner to educate yourself and to feel more secure in your decisions.
  9. Know that it’s never too late — remember that you can start late and finish rich.

About the author:

Bertus Preller is a Divorce and Family Law 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. 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.

Grounds for Divorce in South Africa


GROUNDS FOR DIVORCE IN SOUTH AFRICA

Dissolution of marriage and grounds of divorce

A marriage may be dissolved by a court by a decree of divorce and the only grounds on which such a decree may be granted in terms of the South African Divorce Act are

  • the irretrievable break-down of the marriage as contemplated in section 4;
  • the mental illness or the continuous unconsciousness, as contemplated in section 5, of a party to the marriage.

Irretrievable break-down of marriage as ground of divorce

A court may grant a decree of divorce on the ground of the irretrievable break-down of a marriage if it is satisfied that the marriage relationship between the parties to the marriage has reached such a state of disintegration that there is no reasonable prospect of the restoration of a normal marriage relationship between them.

Section 4 (2) of the Divorce Act lays down three circumstances which a Court may accept as evidence of irretrievable breakdown of a marriage and these are that:-

  • the parties have not lived together as husband and wife for a continuous period of at least one year immediately prior to the date of the institution of the divorce action.
  • the Defendant has committed adultery and that the Plaintiff finds it irreconcilable with a continued marriage relationship
  • the Defendant has in terms of a sentence of a Court been declared a habitual criminal and is undergoing imprisonment as a result of such sentence.

This does not mean however that:- the man and wife have to live in separate buildings but in the past our Courts have been unwilling to (even on a undisputed basis), hear the case if the parties are still living in the same house on the date of the application. There must be a reasonable explanation, but even then some judges have refused to grant a decree of divorce.

If the Plaintiff is a party to an adulterous relationship it may be proof of a real break-down of the marriage. If irretrievable breakdown has been proved, the court still has discretion to refuse the divorce.

In terms of section 4(3) of the Divorce Act the Court still has discretion not to grant a divorce order but postpone the proceedings sine die or even dismiss the claim if it appears to the Court that there is a reasonable possibility that the parties may become reconciled through marriage counselling, treatment or reflection. The Summons also usually contains the averment that further marriage counselling and/or treatment will not lead to any reconciliation. This evidence must also be tendered to the Court even on an unopposed basis.

The Court must therefore be satisfied that the marriage has really irretrievably broken down and that there is no possibility of the continuation of a normal marriage, before a final divorce order will be granted.

The court may postpone the proceedings in order that the parties may attempt reconciliation if it appears to the court that there is a reasonable possibility that the parties may become reconciled through marriage counselling, treatment or reflection.

Where the parties live together again after the issue of Summons, it does not necessarily end the underlying cause of the action. If the reconciliation after a few months is seemingly unsuccessful, they can proceed on the same Summons.  Where a divorce action which is not defended is postponed in order to afford the parties an opportunity to attempt reconciliation, the court may direct that the action be tried de novo, on the date of resumption thereof, by any other magistrate/ judge of the court concerned in terms of section 4(4) of the Divorce Act.

A customary marriage may be dissolved only on account of an irretrievable breakdown in the marriage and only if the High, Family or Divorce Court is satisfied that the marriage relationship between the parties has reached such a state of disintegration that there is no reasonable prospect of the restoration of a normal marriage relationship between them.

Mental illness or continuous unconsciousness as grounds of divorce:

A court may grant a decree of divorce on the ground of the mental illness of the defendant if it is satisfied that the defendant, in terms of the Mental

Health Act 18 of 1973; has been admitted as a patient to an institution in terms of a reception order; is being detained as a State patient at an institution or other place specified by the Minister of Correctional Services; or is being detained as a mentally ill convicted prisoner at an institution.

A divorce order may also be granted if such defendant has also for a continuous period of at least two years immediately prior to the institution of the divorce action, not been discharged unconditionally as such a patient,

State patient or mentally ill prisoner; and the court has heard evidence of at least two psychiatrists, of whom one shall have been appointed by the court, that the defendant is mentally ill and that there is no reasonable prospect that he will be cured of his mental illness.

A court may grant a decree of divorce on the ground that the defendant is by reason of a physical disorder in a state of continuous unconsciousness, if it is satisfied that the defendant’s unconsciousness has lasted for a continuous period of at least six months immediately prior to the institution of the divorce action; and after having heard the evidence of at least two medical practitioners, of whom one shall be a neurologist or a neurosurgeon appointed by the court, that there is no reasonable prospect that the defendant will regain consciousness.

The court may appoint a legal practitioner to represent the defendant at proceedings under this section and order the plaintiff to pay the costs of such representation.

The court may make any order it may deem fit with regard to the furnishing of security by the plaintiff in respect of any patrimonial benefits to which the defendant may be entitled by reason of the dissolution of the marriage.

For the purposes of this section the expressions ‘institution’, ‘mental illness’, ‘patient’, ‘State patient’ and ‘reception order’ shall bear the meaning assigned to them in the Mental Health Act, 1973.

The circumstances under which a court may grant a divorce order on the basis of mental illness or continuous unconsciousness is as follows:-

  •  In the case of mental illness the Defendant must have been admitted, in terms of the Mental Health Act, 1973 (Act No 18 of 1973), as a patient to an institution in terms of a reception order, for a period of at least two years and in any case two psychiatrists (one appointed by the Court) must satisfy the Court that there is no reasonable prospect that he will be cured of his mental illness.
  • In the case of unconsciousness the Court will only grant the order if the Defendant was unconscious for a continuous period of at least six months immediately prior to the institution of the action and also after hearing the evidence of two medical practitioners of whom one shall be a neurologist or a neuro-surgeon appointed by the Court who must declare that there is no reasonable prospect that the Defendant will regain consciousness.

In such cases a curator ad litem must be appointed to protect the interests of the Defendant (patient) and to assist the Court.

Bertus Preller is a Divorce and Family Law 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. 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.

Paternity Fraud


Paternity Fraud

by Bertus Preller, Family Law Attorney, Abrahams and Gross Inc Cape Town.

Paternity fraud refers to a paternal discrepancy, in which a mother names a man to be the biological father of a child, particularly for self-interest, when she knows or suspects that he is indeed not the biological father.

Fathers’ rights activists’ state that in cases of paternity fraud, there are many potential victims: the non-biological father who pays erroneously maintenance, the child deprived of a relationship with his/her biological father, and the biological father who is deprived of his relationship with his child. Other victims include the child’s and the non-biological father’s families. In particular, financial hardship may have resulted for the non-biological father’s due to the maintenance and child support that he has to pay and his other children and spouse in cases in which the man was forced to make maintenance payments for another man’s child.

Foreign Jurisdictions

In Australia, mothers are being forced to pay back thousands of dollars to men they wrongly claimed fathered their children following a contentious reform of child support laws. The Australian face of paternity fraud is a Melbourne man named Liam Magill. In 2002, Magill’s ex-wife Meredith was ordered to pay him $70,000 for general damages and the economic loss he suffered as a consequence of her false declaration that he was, as one newspaper report put it, the biological father of “her lover’s children”.

In the UK, single mothers are deliberately naming the wrong man as the father of their children when making maintenance claims. Child Support Agency figures show that nearly one in five of the contested paternity claims it handled last year cleared the man originally named as the father. These are the actual figures. Its figures for 2007-2008, obtained under freedom of information rules, show that out of 3,474 DNA paternity tests ordered, 661 – 19 per cent – named the wrong man. It is the highest proportion since the agency started collating figures nationally. Government-approved DNA testing kits, deemed 99.99 per cent accurate, have exposed 4,854 false paternity claims since records began in 1998-99.

In the United States it is estimated that almost 30% of DNA paternity tests, excluded the man as the father of the child in question. Of the 353,387 cases in 2003, 99,174 (28.06%) were reported as exclusions.

South Africa 

Issues regarding paternity have been dealt with in a number of cases in the South African Courts.

Presumption of Paternity

The South African Children’s Act confirms in Section 36 a presumption in respect of a child born out of wedlock (parties who were not married to each other). The presumption is that the person whom had sexual intercourse with the mother at any time when that child could have been conceived will be presumed to be the biological father of the child in the absence of evidence to the contrary which raises reasonable doubt.

In the case of S v L 1992 (3) SA 713 (E) it was held that the phrase “in the absence of evidence to the contrary which raises reasonable doubt” means that whenever there is evidence to the contrary, the presumption does not operate or ceases to operate.

This is also in line with the court’s decision in R v Epstein 1951 (1) SA 278 (O), where it was held that a presumption operating “in the absence of evidence to the contrary” only requires evidence, not proof, to counteract the presumption. The Children’s Act does not define the word “evidence”, thus any acceptable evidence suffices, regardless of whether it is direct or circumstantial, however, it must raise reasonable doubt.

Compelling a person to undergo a paternity test

Most recently in YM v LB 2010 ZASCA 106 the Supreme Court of Appeal had been given an opportunity to provide judicial clarity on the law relating to court-ordered blood testing of potential parents refusing to voluntary submit themselves (and/or the minor child) to such testing, but the Court most unfortunately elected to side-step the issue based on the facts of the matter. It is not suggested that the court was necessarily wrong in its final decision, but it was hoped that it would provide guidelines as to this issue of compelling adults and children to undergo blood tests to determine paternity. In this case the court of first instance ordered the parents and child to undergo paternity testing, the decision of the court was then taken on appeal.

The issue had been unclear for about 30 years and certainty regarding the obligation and power of the court to order such tests against the wishes of one of the parties would have been valuable. It was indeed a missed opportunity to clarify the law once and for all.

The true biological paternity of a child is of the utmost importance in South Africa as it determines the parental responsibilities and rights of parties, including contact, care and the duty to maintain the child until the child becomes self-supporting. The

South African law remains rooted in biology. Unfortunately, it is not unknown for a woman to lie about whom she had intercourse with, resulting in two legal consequences:

(a)   the husband is legally regarded as the father of the child with the accompanying rights and obligations; and

(b)  the biological father is denied his parental rights and responsibilities that he may have had or have obtained automatically vis-à-vis his biological child.

The first principle has its roots in Roman law. I can’t imagine that it was ever the aim of the Roman law principles to force the husband of a wife to support another man’s child without his knowledge. The common law principle of stuprum after all made provision for the annulment of a marriage where a husband discovers that his wife was pregnant with the child of another man at the time of the marriage.

With DNA testing becoming more common and now being done for a variety of reasons, including medical testing for potential illnesses, this has resulted in a spate of paternity fraud cases making headline news worldwide. In these cases the husband and the child discover years later that the paternity was based on a lie and that the husband had supported the child for years as a result of this fraud (see inter alia the facts of Johncom Media Investments v M 2009 4 SA 7 (CC) (South Africa); Magill v Magill [2005] VSCA 51 (17 March 2005) (Australia), supra and the allegations of the horror film director Andrew Douglas against his ex-wife Ameena Meer (USA). This trend is unlikely to end.

In YM v LB, supra, the Supreme Court of Appeal (SCA) found that where the paternity of the child has been shown on a balance of probabilities, as was the case in casu, scientific tests on a child should not be ordered. In this matter paternity was not really in dispute as both parties (at various times before the attorneys joined the show) believed that the man in question was the father of the child. The mother’s maternity was obviously never in doubt.

The court made the following observations:

(a)          that as paternity is determined on a balance of probabilities, the man is not entitled to demand scientific proof;

(b)          that in relevant instances, the court has the inherent power as upper guardian of all minor children to order such tests if it is in the best interests of the child;

(c)          the SCA referred to the observations of the court a quo regarding truth as a primary value in the administration of justice, but by implication disagree with the statement.

The SCA did note that the rights of privacy and bodily integrity may be infringed if it is in the best interests of the child. However, it confirmed the statement made by Judge Didcott in an earlier case that it may not be in an individual’s best interest to know the truth. The court noted that in some cases it may be justified to order tests, but that the discovery of the truth should not be generalized. With these comments, the appeal was upheld.

The basis of a paternity matter is that the applicant will have to show that such a test would be in the best interest of the child. This in itself is extremely difficult as there seems to be no research done in South Africa as to the impact on a child that learns, at a much later stage, that his/her presumed father was not the biological father. One may argue that paternity testing may have a negative short-term impact on the family as it may reveal relationships that were previously unknown. After all, it has been acknowledged that from a broader family perspective, family genes are considered to be a valued possession passed down in a family through succeeding generations. Personally I am yet to be convinced by our courts that it would be better not to know the truth or to keep the truth from a child at any age and I ponder whether this is indeed in the interests of a child. In disputed paternity claims the emotional trauma of uncertainty definitely taints the relationships between the parents and sometimes also the relationships between the probable father and the child. Trauma such as this can be easily be resolved through testing. For the SCA to note that the man is not entitled to scientific proof when the reality is that it can readily be done seems to unnecessarily muddle such an important issue with legalities.

In O v O, Friedman JP stated that there is no statutory or common-law power enabling the court to order an adult to allow a blood sample to be taken for the purpose of establishing paternity. Although there is still no such power it is submitted that Section 37 of the Children’s Act does not bring certainty. The section states that if a person in proceedings in which paternity of a child is challenged refuses to submit him/herself, or the child, to take blood samples in order to carry out a scientific test to prove the paternity of the child, then a presumption in our law exists in which the failure of such a party to agree to such a test may be used as evidence to prove the contrary. The effect of this section is that it compels a court to warn the person who has refused to have his/her or the child’s blood sample taken ‘of the effect’ which such refusal might have on his/her credibility. The problem is that the section does not go far enough and does not resolve the main issue, namely the truth about the paternity of the child.

Although the SCA overturned the initial decision of the High Court, namely to force the parents and the child to undergo DNA testing, it is submitted that certain statements of the original decision remains quite valid. The court of first instance confirmed that judicial notice may be taken of the existence of these tests and that it is unnecessary for medical evidence to be adduced regarding the nature and accuracy of these tests before and that this does not exclude any challenge to the reliability of any particular test in litigation once the test had been performed. There is however no guidance as to the most important question: whether or not it will be in the best interests of the minor child to determine paternity with certainty.

A number of questions still remain, most importantly what weight our courts in future will place on the argument that concealing the truth from a child might have the supposed advantage of not ‘bastardising’ the child or cutting it off from an established source of maintenance? It surely creates an inherent and inescapable injustice in compelling a person to assume obligations not rightfully his.

The father in the YM v LB matter did agree to a marriage, but not to raise another man’s child. What is also important is that a child of the age of 18 has the right to the medical information of his genetic parents in instances of artificial fertilisation and surrogacy which is recognised by section 41(1) of the Children’s Act. One may argue that by refusing the compelling of blood tests for paternity disputes in instances of natural conception would result in denying these children of their right to information of their genetic parents.

It is my respectful view that the court of first instance was correct when it concluded that it will be in the best interests of the child that paternity be scientifically determined and it is unfortunate that the SCA did not provide the legal fraternity with their wisdom.

Another recent decision, this time by the High Court in the Western Cape in the matter of N v J Case Number A653/2009 are of importance. This case concerned an appeal from the Magistrates Court. The Appellant (the Defendant in the court a quo) and the Respondent (the Plaintiff a quo) were married to each other on 25 February 1989.  Their union bore a daughter, who was born in June 1990.  For the sake of convenience I shall refer to the parties as in the court a quo. On 3 February 1995 the parties were divorced and pursuant thereto the Plaintiff was directed to maintain the child by effecting payment of the sum of R350,00 per month and to retain her on his medical aid fund.

It was common cause that during the period February 1995 to June 2006 the Plaintiff paid to the Defendant the sum of R50050,00 in respect of maintenance for  the child.  The said sum included payment of an amount of R1000,00 to a Primary School in January 2000. In June 2006 the child underwent a paternity test which showed conclusively that the Plaintiff was not her natural father. On 30 July 2007, pursuant to an application brought by the Plaintiff an order was granted declaring that the Plaintiff was not the natural father of The child and, inter alia, varying the divorce order in terms of Section 8 of the Divorce Act, 70 of 1979, by the deletion of the Plaintiff’s maintenance obligations towards The child. At the same time the Plaintiff instituted action in the Magistrate’s Court for recovery of the sum of R50050,00 that he paid in maintenance. His claim was upheld and the Defendant appealed against the order of the magistrate.

It was common cause that the parties were married on 25 February 1989 and that the child was born on 12 June 1990.  Assuming a normal pregnancy of nine months, this would mean that the Defendant committed an act of adultery around September/October 1989 during which the child would have been conceived.

The Plaintiff testified that he had always believed that he was the natural father of the girl and that he raised her as such with the Defendant until they were divorced in February 1995. The Plaintiff further testified that he did not oppose his wife’s claims at divorce because he regarded the marriage as irretrievably broken down and because he believed that he was obliged to maintain the child whom he regarded as his daughter. After the divorce the Plaintiff maintained the child for more than ten years.  He testified that he later became resentful about the Defendant’s persistent claims for maintenance increases and eventually decided to ask for a paternity test.  The Plaintiff also testified that he was urged by certain family members to go for such tests.  They evidently had reason to suspect that the Plaintiff was not the father and eventually he succumbed to their entreaties.

The Plaintiff stated that the Defendant never confessed her adultery to him and that his impression was that she never had any idea of who the real father of the child was. Under cross-examination the Plaintiff accepted that he had defaulted on his maintenance obligations over the years but said that he had then paid up in full from time to time. He confirmed that he had paid the maintenance because he was obliged to do so in terms of the divorce order. Unfortunately the Defendant did not testify and so one does not know the circumstances surrounding her pregnancy.  Importantly, there was no evidence to suggest that she knew that her adultery had resulted in the birth of the child and that she intentionally withheld that information from the Plaintiff.  Had that been the case her claim in the divorce action for maintenance for the child would have been fraudulent and would have afforded the Plaintiff a different cause of action.

The Plaintiff’s legal obligation to pay the maintenance in respect of the child arises directly from an order of Court and was accordingly an obligation he could not avoid.  The basis therefore was his assumption that a child born during the subsistence of the marriage was fathered by him.  This is in accordance with the rebuttable common law presumption: pater est quem nuptiae demonstrant.

While it cannot be contended that the Plaintiff laboured under a mistake of law, the divorce order was underpinned by an erroneous factual assumption, (paternity) either by the parties jointly or, at least, by the Plaintiff.  The Judge demonstrated that the SCA has disregarded any notional distinction between mistakes of law and fact:  the focus is essentially on whether the payment was made indebitum i.e. without legal ground. While the parties were still married the Plaintiff maintained the child as a member of the household, believing that she was his child and that he was duty bound to do so.  When the Defendant issued the divorce summons and claimed payment of maintenance for the child, the Plaintiff still believed that the child was his daughter.  As stated, by not contesting the divorce action, he effectively consented to the Defendant’s claims, which included claims in compliance with the provisions of Section 6 of the Divorce Act which preclude the granting of a decree of divorce until the Court is satisfied that adequate provision has been made for the care and maintenance of any child born of the marriage.

Given the findings which the Judge made, it was not necessary to come to a final decision on this aspect of the case, save to state the father’s claim to re-claim the maintenance that he paid over the years did not succeed.  Our courts may in the future be wary of recognising claims in circumstances such as the present which necessitate an enquiry into paternity and which may have the tendency to destroy an otherwise loving and caring parental relationship with a child whose rights to family and parental care are protected under section 28 of the Constitution.

Conclusion

What is disturbing is the fact that it is impossible to accurately estimate just how widespread paternity fraud is. One may assume that there are a plethora of men in South Africa who are currently raising another man’s child; blissfully unaware of the devastating truth. For each of these men, the truth will only be revealed if the woman who duped them decides to confess, or for some reason, a paternity test is taken. A real problem however is to compel someone to undergo such a test in legal terms as evidenced by the cases dealt with above. It remains to be seen how our courts will deal with this issue in future. Fact is that naming the wrong father, could result in criminal prosecution, if proven that the mother concealed the truth deliberately.

About the Author:

Bertus Preller is a Divorce and Family Law Attorney in Cape Town and has more than 20 years experience in law and 13 years as a practising attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. in Cape Town and deals with Family Law cases on a national basis. Bertus is also the Family Law expert on Health24.com and on the expert panel of Law24.com. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters and international divorce law.

Contact: 021 422 1323

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