Divorce Attorney Cape Town

Latest Divorce Trends South Africa


divorce statistics

Divorce Trends in South Africa

According to the latest statistics issued by Stats SA there is a consistent decline in the number of people getting married in South Africa.

There has also been a decline in customary marriages, indicating a decrease of 12,5% from the previous year. Civil unions (Gay and Lesbian) registered in South Africa increased by 15,2%. These figures are indicative of the fact that less and less people are opting for marriage.

According to the latest data the crude divorce rate was 0,5 divorces per 1 000 estimated resident population. The number indicates an increase of 3,4% divorces from the previous year.

Reasons for Divorce

According to a survey on the Divorce Laws Website South Africans had stated that the following reasons were the main reasons for divorce:

  1. Lack of Communication 23.47%
  2. Adultery / Cheating 21.6%
  3. Abuse 11.99%
  4. Lack of Intimacy / Sex 10.86%
  5. Falling out of love 7.24%
  6. Finances 5.74%
  7. Addiction 4.87%
  8. Involvement of parents 3.37%
  9. Religious Differences 2.25%

Characteristics of plaintiffs

The website www.divorcelaws.co.za, South Africa’s premier resource on Divorce and Family Law attracted 465 420 unique visitors in South Africa during the period 1 August 2015 to 30 August 2016. It is interesting to note that over 60% of those visitors were female in comparison to 40% being male. Of these visitors 59.56% were from Gauteng, 21.70% were from the Western Cape, 11.29% were from KwaZulu-Natal, 3.15% were from the Eastern Cape, 1.17% were from the Free State, 1.12% were from North West, 0.98% were from Limpopo, 0.73% were from Mpumalanga and 0.25% were from the Northern Cape. Sandton, 20.59% seems to be the area from where most people requested information on divorce, maintenance, parental rights, custody, domestic violence and general family law, followed by Cape Town 20.56%, Pretoria 15.23%, Johannesburg 8.92%, Durban 6.91%, Centurion 3.01%, Roodepoort 2.84%, Port Elizabeth 1.85%, Krugersdorp 1.66% and Randburg 1.48%.

More wives 51,7% than husbands 34,4% initiated the divorce according to the latest data. With the exception of women from the black African population who had a lower proportion of plaintiffs 44,1%, the proportion of women plaintiffs from the other population groups was above 50,0%.

White population group 57,8%, coloured population group 56,9% and Indian/Asian population group 54,6% were women. However, it should also be noted that the black African population group had a much higher proportion of divorces with unspecified sex of the plaintiff 17,3%.

Population Groups

Couples from the white population group dominated the number of divorces until 2007 thereafter, the black African couples had the highest number of divorces up until 2014. In 2003, 40,0% of the divorcees were from the white population group whereas 24,3% came were from the black African population group. By 2014, 37,1% of the divorcees were from the black African population group and 28,2% from the white population group. The proportions of the divorcees from the coloured and the Indian/Asian population groups were quite constant during the twelve-year period. However, there was a prominent increase in the proportions of divorcees from the coloured population group (from 16,3% in 2013 to 20,2% in 2014) which may have affected the result. Generally, there was an increase in the proportion of divorces for black Africans and decline for white population group from 2003 to 2014.

Occupation of Plaintiffs

It is noted that a high proportion of the plaintiffs 28,2% of the men and 30,9% of the women did not indicate the type of occupation they were engaged in at the time of divorce. In addition, 15,2% and 22,1% of the men and women respectively were not economically active at the time of divorce.

 

Most plaintiffs were:

  • professional, semi-professionals and technical occupations 12,0%;
  • managers and administrators 9,3%; and
  • 9,2% in clerical and sales occupations.

Some differences were observed regarding the type of occupation of men and women. The men who initiated the divorce were largely managers and administrators 14,5% while the women were mainly in professional, semi-professionals and technical occupations 14,3%.

Number of times married

Results presented that divorce cases for both men and women were mainly from individuals who had married once. About 80,0% of divorces for men and women were from first-time marriages compared to 12,4% of men and 10,9% of women from second-time marriages. Around 2,0% of men and women were getting divorced for at least the third time.

Age at the time of divorce

The median ages at divorce were 43 years for men and 40 years for women, indicating that generally, men were older than women, with a difference of about three years. The pattern of median ages in 2014 by population group shows that black African and white men had the highest median age of 44 years while women from the other population group had the lowest median age 33 years. The difference in the median ages at the time of divorce for men and women was higher among the other population group (ten years) than among black African, coloured, Indian/Asian and white population groups. Although there were differences in the ages at which most men and women from the various population groups divorced, the age patterns were quite similar. The data revealed that there were fewer divorces among the younger less than 25 years old and the older (65 years and older) divorcees. For men, the peak age group at divorce was 40 to 44 for all population groups. In the case of women, the peak age group for coloured and white population groups was 40 to 44 and the black African and Indian/Asian was 35 to 39.

Duration of marriage of divorcing couples

Statistics from the annual divorce data do not give a comprehensive picture of the number of marriages ending in divorce. The largest number 27,3% of the divorces were for marriages that lasted between five and nine years. This group is followed by marriages that lasted between ten and fourteen years 18,7% and marriages that lasted for less than five years 18,4%. Thus 45,7% of the 24 689 divorces in 2014 were marriages that lasted for less than 10 years. According to results irrespective of the population group, the highest proportion of divorces occurred to couples who had been married for five to nine years. Thus 32,6% of divorces from the black African; 25,6% from both coloured and white; 24,4% from the Indian/Asian population groups were marriages that lasted between five and nine years. For the white population an equally high proportion 23,7% of divorces occurred in the first five years. Furthermore, for all population groups, after nine years of marriage, the proportion of divorces declined as the duration of marriage increased.

Divorces involving couples with minor children

In 2014, 13 676 55,4% of the 24 689 divorces had children younger than 18 years. The coloured and the white population groups had the highest 64,9 and the lowest 46,2% percentages respectively. The distribution of the number of children affected by divorce shows that 39,1% were from the black African population group; 24,9% from the coloured population group; 23,3% from the white population group and 5,6% from the Indian/Asian population group.

Source: http://voices.news24.com/bertus-preller/2016/09/latest-divorce-trends-south-africa/

 

How do you tell your children that you are going to divorce?


Child divorce

Breaking the news to children

One of the hardest parts of any divorce is telling the children. It is important that you tell them together about the divorce. It sends a clear message to your children that you are both capable of working together for their benefit. In addition, you have to tell all of the children at once so that each child hears the news directly from Mom and Dad and not from a sibling who heard it first. Let them understand that it was an adult decision; children need lots of reassurance that the divorce is not their fault. Reassure them that you are available and that you will always be there for them. Collectively and individually convey your unconditional love through words and actions. Make it clear to them that parents don’t divorce children. If your children are of different ages, do follow-ups with the older children in separate conversations.

The manner in which you break the news will affect the degree of their anxiety. Don’t let the meeting become a screaming match; the news will be difficult enough for them to handle so don’t cloud things further. Avoid the tendency to assign blame and try to incorporate the word ‘we’ when you’re explaining the decisions that have been made.
Let your children express their feelings. It is a fact that most parents only spend one and a half minutes per day actively listening to their children. Most of the time is spent giving instructions: ‘keep quiet’, ‘brush your teeth’, ‘comb your hair’, ‘get into bed’ and so on. Become active listeners and allow your children the time and freedom to express their own feelings.

Never try to win or lobby support from your children. Your children may try to be your friend out of fear of rejection, but in the end it will only confuse them. Children need to know that they can turn to you for support, not the other way around.

It is not important that you provide specific details about why you are planning a divorce, but your children may want to know why. Older children will know that this is a huge life change, and they may weigh that change against the reasons you give them. So be prepared to give some type of general explanation.

Your children will want to know where they will be living in future and with which parent, and what about their lives is going to change, so be honest about what you know and what you don’t know. The more detail you give to your children about where the departing parent will be living and when they will be seeing him/her, the better. They need to know that they will be able to maintain a quality relationship with both parents.

Parenting after divorce

You can divorce your spouse, but not your family. There are rules parents can follow that will make their lives easier post-divorce. It is extremely important for both parents to create what is called a ‘healthy post-divorce family’.

Realise that you may be completely out of sync with the each other. It may take months if not years for one of you to adjust to the reality of the divorce. It is not unusual for the parent who was considering divorce for a long time to be ready to move on quicker than the parent who may have been taken by surprise and is grieving the loss of the relationship. For the sake of your children, be respectful of these differences.

Don’t rush introducing a new partner. It’s vital that you keep new partners out of the picture for a while. The children must adapt first to the loss they have experienced.

Treat each other like business partners and give each other the respect that the position of parent demands. Many divorced couples treat their employees with more respect than they treat their exes. Yet, the job that has been entrusted to that person is far more important than any other in your life.

Share requests and communicate openly with each other. Let the children see that you communicate openly.

Listen attentively to your children when they speak to you. Encourage them to speak about their own concerns.

Don’t criticise each other. Children don’t need to be privy to adult conversations, and they don’t want to hear personal details about your relationship with their father/mother.

Don’t tell your children all of the unpleasant details of your divorce. Even if your ex was unfaithful. In the end, you may come to understand that you also contributed to the disintegration or your relationship. Feeding your children only one side of the story is misleading and immensely destructive. It is unfair to place your children in a position of having to side with one parent or the other.

Provide your children with routine, consistency and dependability.

Limit familial conflict at all costs. It is one of the most damaging things you can do to your children. Never criticise each other in front of your children. Children see themselves as extensions of their parents, and so they will feel like you are criticising them.

From the book “Everyone’s Guide to Divorce and Separation” – publisher by Random House, by Bertus Preller

Religion and Divorce – Can parents dictate a child’s religion?


Katie Holmes (Cruise) filed for divorce in a New York court last week after being married to Tom for five years, and they are expected to clash about how 6 year old Suri their minor child is brought up, with the 49-year-old actor adamant she remains part of the Scientology religion he is part of. We all know that Tom Cruise is incredibly passionate about Scientology and that this isn’t just some hobby for him. According to reports he truly believes in the church and its teachings and truly believes that it is imperative that his children are raised as Scientologists. Tom believes Scientology changes people’s lives for the better and, obviously, he wants what is best for his children.

The media frenzy about the divorce between Tom Cruise and Katy Holmes prompted two interesting questions in South Africa law, namely what if parents can’t agree on the spiritual upbringing of their child? and what if a child disagree with their parents religion or traditional socio-cultural beliefs?

There has been a dramatic shift during the twentieth century in the law regarding the relationship between parents and their children, both internationally and in South Africa. In the past there was an emphasis on the rights and powers of parents (termed parental authority), but this emphasis moved towards a more child-centred approach with the best interest of children at the forefront. Today parental authority is concerned more with parental responsibilities and duties, which should be exercised in the best interest of children, rather than with parental rights and powers. The Constitution of the Republic of South Africa specifically protects the rights of children in that it recognises that children, as a vulnerable group within society, have specific and unique interests different from those of adults, and that these interests deserve special and separate protection.

The question regarding religion within the family relationship has been dealt with in 2001 in the case of Allsop v McCann. In this matter the custodian parent applied for an interdict to restrict the minor children in certain religious practices whilst in the non-custodian parent’s care. The custodian parent was from the Anglican denomination and the non-custodian parent from the Roman Catholic denomination. The custodian parent sought an interdict from preventing the children from attending the Catholic Church. The court held that the custodian parent (the parent who has primary care of the children) is entitled and required to direct the daily lives of the children and that educational, religious and secular activities fall within that duty. However the court ruled that neither parent may dictate what religion, if any, their children eventually adopt, but each parent is entitled to provide religious instruction. The application was accordingly dismissed.

In 2003 in the case of Kotze v Kotze the court refused to incorporate into a settlement agreement a provision which stated that both parties undertook to educate the child in the Apostolic Faith Church. The court, being the upper guardian in matters involving the best interests of a child, has extremely wide powers in establishing what such interests are. It was held that the clause was not in the best interest of the child as it did not afford him the freedom of religion that he was entitled to.

Recognising that children are the holders of fundamental rights may conflict with the rights of other holders of human rights especially within the family context, where different fundamental rights can come into conflict with one another, for instance between the parents’ right to religious freedom and their children’s rights to life and human dignity. This requires a weighing or balancing act to determine which right must take preference. This balancing of interests often creates tension, which can have serious negative implications for those involved within the family context.

In a ground-breaking case not so long ago the Western Cape High Court was requested for the first time to use its discretion to interfere in the parent-child relationship, due to the “traditional socio-cultural beliefs” of the parents. In what has been described as “every parent’s nightmare; the fancy of many teenagers”, a 16 year-old schoolgirl from the Western Cape asked to be “freed” from her parents to live semi-independently from them because of her unhappiness with the conservative manner in which her parents treated her. According to reports her parents came from a very conservative sector of South African society and kept her under constant supervision, barred her from talking to boys, communicating with friends on her mobile phone, reading what she likes (her parents found Harry Potter inappropriate) or even going out with friends after school.

The court granted her request to live semi-independently with a school friend and her family (referred to by the judge the host family) until she reaches the age of 18 (her majority). It was further ordered that the parents could have contact with her for two to three hours a week at a neutral venue and could phone her between 8:00 and 8:30 pm on a Tuesday and Friday. Holidays were shared between the host family and her parents. Despite the fact that the child no longer resided with her parents, the parents retained their responsibility to contribute to the maintenance of their child.

When parents are acting within the law, even though they are seen to be conservative, and their actions don’t reflect any form of abuse or neglect, their responsibilities and rights must take preference above the rights of their children, for without this kind of recognition the value of the traditional family unit as the natural and fundamental unit of our society will not be recognised. A child’s mere dislike or disapproval and personal preferences in their upbringing cannot alone tip the scales of justice in a child’s favour.

The relationship between parents and their children is very personal in nature. This domain forms part of the world of morality and not even the state should interfere unless the parents’ conduct towards the child is harmful or amounts to unlawfulness. When the conduct is not in the best interests of the child or contravenes constitutional rights, such conduct is inconsistent with the principles of the Constitution and thus invalid.

Source: http://voices.news24.com/bertus-preller/2012/07/divorce-can-parents-dictate-what-religion-a-child-should-adopt/

Bertus Preller

Family Law Attorney

021 422 2461

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

Children are not pawns in the deadly game of divorce


Parental alienation involves the systematic brainwashing, poisoning and manipulation of children with the sole purpose of destroying a loving and warm relationship they once shared with a parent.  As everyone knows, divorces can often be acrimonious. Add children to the mix, and the animosity heightens even more, as both parents strive to do what they feel is in the best interests of the children. At times these efforts evolve into accusations that the other parent is “bad” causing the child to side with one parent over his/her dislike for the other. 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.

So often you hear about a mother complaining that a father sexually abused a child, with no evidence to substantiate the claim, simply in an attempt to isolate the father from having a relationship with the child or a mother obtaining a restraining order against a father simply to restrain the father from having a relationship with a child. 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 attorneys are sometimes also to blame and fuel the battles on behalf of a client losing sight of what the best interest of a 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.

“Parental Alienation Syndrome” (PAS), is a term first used by the late child psychiatrist Richard A. Gardner in 1985. Dr. Gardner studied the behaviour of parents involved in child custody disputes. He noted that sometimes the children align themselves with one parent. While this is natural to a degree, Dr. Gardner noticed that in some cases it could be extreme to the point it borders on a physiological disorder. He described the so-called disorder or syndrome as follows:

“Its primary manifestation is the child’s campaign of denigration against the parent, a campaign that has no justification. The disorder results from the combination of [either deliberate or unconscious] indoctrinations by the alienating parent and the child’s own contributions to the vilification of the alienated parent”.

The American Psychiatric Association is contemplating adding PAS to the new edition of the Diagnostic and Statistical Manual of Mental Disorders, scheduled to be published in May 2013. William Bernet, a professor of psychiatry at the Vanderbilt University School of Medicine and an advocate for its inclusion in the Diagnostic and Statistical Manual of Mental Disorders, describes it as “a mental condition in which a child, usually one whose parents are engaged in a high conflict divorce, allies himself or herself strongly with one parent, and rejects a relationship with the other parent, without legitimate justification.”

The form of PAS most experienced is that of negative words by one parent about the other, leading the child’s thoughts and attitudes in the same direction. The alienating parent might also cause the child, through manipulation and access blocking, to unjustifiably fear and/or hate the target parent. The parent with primary residence may engage in direct and indirect methods designed to alienate the child from his or her non-residential parent. As a result the child becomes preoccupied with unjustified criticism and hatred of the non-residential parent. This sometimes lead to brainwashing which result in conscious acts of programming the child against the other parent”. Examples include accusing the father of being an “adulterer” and “deserter.” The father is unjustifiably accused of providing too little maintenance, sometimes to the point that the mother misleads the children to believe that terrible things will happen to them. When a father leaves the home, the mother may make statements such as, “your father has abandoned us,” to teach the child that the rejection extends not only to the mother but to the c. children as well. Minor negative attributes one the father’s side are exaggerated greatly. For example, the father who occasionally has a drink after dinner is described as an alcoholic.

Section 35 of the South African children’s act criminalizes the refusal to allow someone access or who holds parental responsibilities and rights in terms of a court order or a parental responsibilities and rights agreements that has taken effect, to exercise such access or parental responsibilities and rights. It also criminalizes prevention of the exercise of such access or parental responsibilities and rights. Punishment for any of these offences is a fine or imprisonment for up to one year. The section further obliges a person who co-holds parental rights and responsibilities with another person in terms of an agreement or court order to notify the other party in writing immediately of any change in his/her residential address. Failure to notify such party will result in an offence.

http://voices.news24.com/bertus-preller/2012/04/children-are-not-pawns-in-the-game-called-divorce/

Relocation of a Child – A court is not bound by the recommendations of the Family Advocate


Relocation of parents with children after divorce

Celimene v Scholtz [2011] 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 [2] 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 (W) and Ford v Ford [2004] 2 Al l SA 396 (W).  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 [10] 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 (W) 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.

Divorce – Don’t play chess by using your children as pawns


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.

 

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