Divorce Attorney Cape Town

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.”

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Adultery and the emergence of the Alpha Woman…


Adultery and the emergence of the Alpha Woman

New research reveals that it’s not just powerful men who become sexual predators, but women too…

Sipping her glass of chilled Chablis, Erica Waddington’s eyes wandered slowly around the bar. It didn’t take her long to find what she was looking for. In the opposite corner, blond hair falling foppishly onto the collar of his Paul Smith shirt as he idly scrolled through his BlackBerry, was a stranger. And he was alone, like her.

As Erica’s eyes locked with his just an instant too long, she felt a surge of excitement. Crossing her legs suggestively, she knew all she had to do was wait. Sure enough, two minutes later, the stranger was standing casually at the bar beside her. For Erica, the thrill of the chase had begun.

‘Two hours later we were making passionate love in my hotel bedroom,’ Erica, 50, recalls with a smile. ‘After a long day at work, the release was exactly what I needed — my little treat to myself.’

Whether her husband and three children would agree with her is doubtful. But then, Erica’s not alone. In fact, she’s just one among a growing band of women who’ve been dubbed the Alpha Adulteresses.

These high-earning, successful women are every bit as willing as men to use their power to attract younger lovers for quick flings.

Newspapers are crammed with sex scandals involving powerful men. This past week alone, Dominique Strauss-Kahn — of late the world’s most powerful banker — has been accused of rape, megastar Arnold Schwarzenegger has admitted having a love-child with his housekeeper and the scandal surrounding MP Chris Huhne’s past indiscretions continues to rumble on.

However, a new academic study suggests women are inherently no more virtuous than men. It’s just that, in the past, they have lacked the confidence or opportunity to stray.

Like men, women are finding that power is a potent aphrodisiac. And just like men, they are giving in to the thrill of illicit lunchtime assignations and the sheer excitement that accompanies their transgression.

Nor do they feel any more guilty or ashamed about it than a man would — if anything, less so.

Professor Joris Lammers, of Tilburg University in the Netherlands, who conducted an anonymous survey of more than 1,500 readers of a business magazine, has found being powerful makes women more prone to be unfaithful.

He questioned people, from top executives to ordinary employees, about whether they’d had affairs. They were asked how powerful they thought they were and quizzed on other factors including their feelings of confidence, and what they thought their risk of being caught was.
The results revealed a strong link between power and infidelity, regardless of gender.
‘The strongest predictors are not religion or moral belief, but power and opportunity,’ says Professor Lammers. ‘Power can undermine your morality and increase your risk-taking, and the effect of power on women is just as strong as on men.’

Certainly, women like Erica are happy to admit they feel no shame in going all out to get what they want — not just in the boardroom but in the bedroom.

For Erica — for obvious reasons names in this article have been changed — treating herself to a night of illicit sex is on a moral par with her regular shopping trips to Paris, her facials and her gym membership. For her, and many other alpha females, sex is simply another trapping of success, a reward for hard work.

A millionaire businesswoman who runs her own chain of travel agencies, she lives in Cheshire with her husband, Thomas, 52, who works for her, and their three children aged from 11 to 17.

She says, ‘I love walking into a boardroom, wearing a beautiful tailored suit, knowing that every man’s eyes are on me. The success of my business — we had a turnover of £2million last year — gives me such a feeling of power and confidence, and that has translated into my attitude towards relationships.

‘I don’t feel guilty: my family have a lovely life, in a five-bedroom detached house with a swimming pool, thanks to my hard work, and my children are privately educated.

‘I suspect there are a lot more alpha women like me who but who simply aren’t prepared to admit they are using their power and money to have affairs.

‘I have had the best sex of my life in the past decade. None of these affairs, or flings, have meant anything to me, they are simply exciting and flattering.

‘My “shenanigans”, as I call them, are my way of de-stressing after my long working day. Inevitably they take place in hotels when I am away from home, and I have discovered that I can completely divorce my emotions from my sex life. I can be on the phone to my daughter talking about her homework one minute, and then gazing into the eyes of a handsome young man in a dimly-lit bar half an hour later.

‘I know men approach me because I am rich and successful, and I often end up paying the bar bill and for the meal. But that doesn’t bother me. In fact, it gives me a sense of achievement that I am totally in control of the situation.’

Lucy Kellaway, a columnist on the Financial Times, wrote her novel In Office Hours after observing the increasingly similar traits of male and female executives. Her main character, Stella, is a highly successful economist in her mid-40s who has an affair with her twentysomething trainee.

Kellaway says her character is typical of a new breed. ‘Climbing the career ladder can do weird things to people and it can corrupt both men and women,’ she says. ‘I think it’s very plausible that it makes women more sexually promiscuous.’

This is borne out by the volume of traffic on Illicit Encounters. The internet site which caters for married professionals looking for adulterous affairs has nearly 600,000 members, and women looking for extra-marital sex outnumber men by 3½ to 1. Most are married with children, aged between their early 30s and mid-40s, and pursuing a well-paid career.

‘Alpha women look for a partner and conduct their encounters in a very business-like fashion. They will often grill prospective partners as though they were conducting a job interview,’ says the website’s Rosie Freeman-Jones.

‘I was naïve when I joined this business. I thought women would be looking for a Brief Encounter-style romantic love affair. But it really is all about sex.’

Wealthy businesswoman Sarah Pattinson holds her hands up to that. She’s embroiled in an affair with a man eight years her junior. He give her the high-octane, high-risk sex she craves; she gives him expensive gifts and treats him to lovely holidays.

‘We met through friends and I fancied him instantly,’ admits Sarah, 49. ‘I think he was very impressed by my status and success.

‘He likes all my “toys” — the Range Rover Sport and my disposable income. I love to buy him clothes, and I recently paid for him to fly to India with a friend. In a way, he is my kept man. I have a phone that I use only to communicate with him which I keep hidden from my husband.

‘At work, I am the boss. I make tough decisions, I hire and fire, and I have to maintain this air of control. I get a buzz from the power and the adrenaline, and that has translated into my sex life.’

Sarah, a mother of two teenagers, runs her own head-hunting business in London and lives in Islington with her husband Robert, 52.

Like most Alpha Males, she regards her affair as a healthy distraction. And, like most Alpha Males, her success has given her an intoxicating sense of invincibility; she simply can’t imagine being caught out.

‘Before I ran this company, I don’t think I would have contemplated being unfaithful. But you do start to think no one can touch you and you are invincible,’ she admits.
‘On the surface, Robert and I have the perfect marriage — he works in the City in insurance, we have a beautiful five-bedroom home in Islington, our children are at a high-achieving private day school and our social life revolves around like-minded wealthy couples.

‘But sex is unfulfilling. If we didn’t have the children, I might have considered leaving Robert for my lover, but our lives are just too complicated to  un-pick. Besides, we do get on reasonably well and we have a fabulous lifestyle, including a villa with a swimming pool in Portugal.

‘We have a live-in nanny who also acts as our housekeeper so my domestic duties are quite light. I work thirteen or fourteen hour days, and I have evening meetings too. This gives me the freedom to meet my lover, who also works in the City.

‘Sometimes I take risks. Once my lover Nick rang me at home and Robert could have picked up. I’ll make excuses to walk down the garden and phone Nick at the weekends, and often I ring his phone just to hear his voice.

‘The sex is incredible, and I think the “edge” of ours being an illicit affair makes it even more enticing.

‘Nick makes me feel beautiful and alive, and he keeps me young. I need to feel vibrant to stay on top of the game, especially during this recession, and that adulterous sex gives me that kick, that energy, to keep me motivated at work. Sex with Nick is my reward for my success and exhausting hard work. I would die, though, if Robert or the children ever found out.’

So why do women, who have worked so hard to achieve professional success, risk losing everything for the sake of adulterous sex, however electric?

According to Rosie Freeman-Jones, risk is a key element. ‘Both men and women at the top are addicted to risk. It is part of the DNA of successful people that they are more prone to take risks and more prone to cheat,’ she says.

But you have only to look at golfer Tiger Woods to see how quickly an affair can destroy not just a marriage but a career and reputation.

Even if he is found not guilty of rape, will former International Monetary fund head Dominique Strauss-Kahn ever be able to rebuild his reputation? Meanwhile, Schwarzenegger has shelved plans for a career comeback in order to deal with the fallout from his affair.

And Lucy Kellaway warns that Alpha Adultresses are risking even more than their male counterparts.

‘There is a double standard,’ she says. ‘A man having an affair might be seen as a bit of a lad, whereas a woman like Stella in my book is likely to be seen as pathetic, or a bitch and a slapper.

‘Because there are so few women executives, the ones that do succeed are put on a pedestal — and they have a lot farther to fall. The message of my book is that affairs end badly for everyone.’

And, while the figures demonstrate very clearly that increasing numbers of successful women are being tempted to stray, can women really divorce sex from commitment in the same way as a man?
Article Source:  http://www.dailymail.co.uk/femail/article-1389812/Adultery-Alpha-Woman-Its-just-powerful-men-sexual-predators.html#ixzz1NMzBRiE9

Compiled by: www.divorceattorney.co.za

How not to tell your spouse you want a divorce


The cruellest way you can tell your spouse you want out of the marriage is to never mention that you are unhappy and then, one day quite out of the blue say, “I’m not happy. I want a divorce.” I call this a “hit and run” way to tell your spouse you want out of the marriage and, in my professional opinion, it is the most hurtful, hateful and heinous way to exit your nuptials.

Those on the receiving end of this proclamation would surely agree with me. A hundred per cent of the people who come to see me after their spouse has dropped this two ton bomb on them have been nothing short of devastated, bleary eyed and incapacitated–often for a long time. What, when and how you tell your spouse you want a divorce will depend greatly on whether the two of you have had any previous conversations about divorce.

Couples who have been mutually unhappy or have had conversations using the “D” word will obviously be less thrown off than those who didn’t see it coming. One woman described the day she was told this way: “My biggest concern that morning as we went to work was what we would be having for dinner that night.” She had no idea that her husband was even unhappy, let alone that he was thinking of leaving. It makes me wonder why so many people take this strategy. What could they be thinking? Or not thinking? Feeling? Or not feeling? While there are always exceptions to any rule, I have seen five main reasons why “hit and runs” are so prevalent. I’ve also included rebuttals to these reasons that demonstrate how the leaver actually ends up getting the opposite result intended.

1) Fear: If I tell him I’m unhappy, he will go to pieces and I’ll feel guilty Where’s the logic here? Do you not see that if you LEAVE suddenly he will be more likely to go to pieces and you will feel more guilty?

2) Selfishness: I don’t care about her feelings. “I just want out!” Treating someone with this level of disrespect and disregard actually keeps you in longer and stronger because the person you are leaving is in shock and often can’t/won’t accept the fact that you really mean what you are saying and that you want out.

3) Impatience: I just want to get this over with! Again, the chances of exiting quickly or gracefully diminish drastically when you give your spouse no warning of your departure. Your spouse, who may be just starting the grief process, will delay the process interminably by having to have their emotions “catch up” to yours.

4) Lack of Courage: I’m a “rip the band-aid off quickly” kind of person because I can’t stand to hurt someone If this person had courage, they would have told their spouse way back when that they were not happy. They would have had the courage to do the work it takes on themselves and on the marriage; the courage to face their problems.

5) Sneakiness: Maybe I can live a double life and he’ll never find out It is often people who have been having an affair who take this tack in leaving their marriage. They have set themselves up with a new life and they are ready to move on. I’m sure there are other justifications people can come up with as to why they leave this way, but it only serves to make the process take longer, make the separation more difficult, make your spouse more emotional and perhaps even irrational and it is not the way you treat someone you exchanged vows with.

By Susan Pease Gadoua Author, Contemplating Divorce, A Step-by-Step Guide to Deciding Whether to Stay or Go Original article at: http://www.huffingtonpost.com/susan-pease-gadoua/how-not-to-tell-your-spou_b_820042.html

Compiled by Bertus Preller Divorce Attorney – Abrahams and Gross Inc. http://www.divorceattorney.co.za

Is adultery in South African Law still a basis for a claim against the mistress?


From a personal, moral, ethical and religious perspective adultery is a sin and an act contrary to the basis of trust between married spouses and so is the behaviour of that infamous third party that broke up the marriage seen as immoral.  The purpose of this article is to revisit the law in respect of an aggrieved parties’ right to institute a claim for damages against the third party that was privy in the break-up of a marriage, i.e a claim against the mistress for monetary relief, to make good the hardship caused by the affair and the enticement of the spouse to leave the communal home in search of the greener pastures. The article is purely focussed on the law and not the public view or for that matter the religious viewpoint.

Our law has recognised in the past a claim for damages that can be instituted by an aggrieved spouse against a mistress. But what does our law say on the subject and is the law evolving away from the public view and religious views.

It is argued that the South African common law on which a Plaintiff’s claim is predicated for damages against a spouse who committed adultery in a marriage must be developed to promote the spirit, purport and objective of the Bill of Rights contained in Chapter 2 of the Constitution of South Africa, 1996 (“the Constitution”) and the interests of justice (under Section 39 (2) and section 173 of the Constitution).

According to the view expressed above it is argued that the time has come to develop the common law so as to remove or curtail claims for damages by a married person, utilising the actio iniuriarum, against a person involved in an intimate relationship with the married person’s spouse. The actio iniuriarum is used to claim for the impairment of one’s personality.  The purpose of this action is to compensate for the intentional injury to one’s mental integrity.

The argument against such a claim is that it breaches the right to human dignity (of the adulterer and mistress) under Section 10 of the Constitution, in that:

(a)               The relationship and love between the adulterer and mistress is treated as morally reprehensible or without opprobrium;

(b)               The mistress is held wholly responsible for damage caused to an aggrieved spouse by the other spouse’s marital infidelity; and

(c)                The mistress is treated as an instrument, in that her human relationship with the adulterer is used as a means to express condemnation for the adulterer’s marital infidelity, and/or to generate sympathy for the aggrieved spouse.

It is further argued that such a claim breach the adulterer and mistress’s rights to equality and freedom from discrimination under Section 9 of the Constitution on basis of marital status, conscience and belief in that:

(a)               No similar claim for damages is possible against a person who begins an intimate relationship with a man or a woman involved in a long-term homosexual or heterosexual relationship, customary law marriage or religious union;

(b)               The emotional consequences and loss for the aggrieved partner (i.e the person who learns of the infidelity of his or her partner with a third person) in all of the above relationships may be no more or less serious than a spouse in a marital relationship;

(c)                The law accordingly differentiates between a person who enters a relationship with a married person; and a person who enters a relationship with a person in other types of committed, long-term relationships;

(d)               The differentiation amounts to unfair discrimination on the basis of marital status and on the basis that it impairs, or has the potential to impair, the fundamental human dignity of an adulterer and a mistress.

It can further be argued that an adulterer and mistress’ right to privacy under Section 14 of the Constitution is violated in that it causes a public inquiry into the details of their relationship, how it formed and its strength.

Furthermore it seems that an adulterer and mistress’ rights to freedom of conscience, thought, belief and opinion under Section 15 of the Constitution, expression under Section 16 (1) of the Constitution and freedom of association under Section 18 of the Constitution also come into play for the following reasons:

(a)               Burdening people such as the mistress with damages will have a detrimental effect on her ability to honestly and openly express her emotions and love for another person;

(b)               The expression of emotions and love between the adulterer and mistress will be treated as morally reprehensible or tainted with moral opprobrium.

Therefore it seems that the common law must be developed in the interests of justice taking in to account the recognition that both parties contribute to the breakdown of the marriage relationship, which is inherent in the ground for divorce introduced in Section 4 of the Divorce Act 70 of 1979, namely “the irretrievable breakdown of the marriage”.

It is so that many foreign jurisdictions don’t tolerate such claims anymore and that there seems to be developments in South African case law to that effect. The historic view in our law that damages are awarded on the basis of the insult caused to the innocent party and of the loss of consortium seems to be outdated and time will tell on how our courts will develop the common law.

Bertus Preller

Family Law Attorney

Abrahams and Gross Inc

Adultery in South Africa, can I claim against a third party in a divorce


adultery

From a moral, ethical and religious perspective adultery is a sin and an act contrary to the basis of trust between married spouses and so is the behaviour of that infamous third party that broke up the marriage seen as immoral.  The purpose of this article is to revisit the law in respect of an aggrieved parties’ right to institute a claim for damages against the third party that was privy in the break-up of a marriage, i.e a claim against the mistress for monetary relief, to make good the hardship caused by the affair and the enticement of the spouse to leave the communal home in search of the greener pastures. The article is purely focussed on the law and not the public view or for that matter the religious viewpoint.

Our law has recognised in the past a claim for damages that can be instituted by an aggrieved spouse against a mistress. But what does our law say on the subject and is the law evolving away from the public view and religious views.

It is argued that the South African common law on which a Plaintiff’s claim is predicated for damages against a spouse who committed adultery in a marriage must be developed to promote the spirit, purport and objective of the Bill of Rights contained in Chapter 2 of the Constitution of South Africa, 1996 (“the Constitution”) and the interests of justice (under Section 39 (2) and section 173 of the Constitution).

According to the view expressed above it is argued that the time has come to develop the common law so as to remove or curtail claims for damages by a married person, utilising the actio iniuriarum, against a person involved in an intimate relationship with the married person’s spouse. The actio iniuriarum is used to claim for the impairment of one’s personality.  The purpose of this action is to compensate for the intentional injury to one’s mental integrity.

The argument against such a claim is that it breaches the right to human dignity (of the adulterer and mistress) under Section 10 of the Constitution, in that:

  1. The relationship and love between the adulterer and mistress is treated as morally reprehensible or without opprobrium.
  2. The mistress is held wholly responsible for damage caused to an aggrieved spouse by the other spouse’s marital infidelity; and
  3. The mistress is treated as an instrument, in that her human relationship with the adulterer is used as a means to express condemnation for the adulterer’s marital infidelity, and/or to generate sympathy for the aggrieved spouse.

It is further argued that such a claim breach the adulterer and mistress’s rights to equality and freedom from discrimination under Section 9 of the Constitution on basis of marital status, conscience and belief in that:

  1. No similar claim for damages is possible against a person who begins an intimate relationship with a man or a woman   involved in a long-term homosexual or heterosexual relationship, customary law marriage or religious union;
  2. The emotional consequences and loss for the aggrieved partner (i.e the person who learns of the infidelity of his or her partner with a third person) in all of the above relationships may be no more or less serious than a spouse in a marital relationship;
  3. The law accordingly differentiates between a person who enters a relationship with a married person; and a person who enters a relationship with a person in other types of committed, long-term relationships;
  4. The differentiation amounts to unfair discrimination on the basis of marital status and on the basis that it impairs, or has the potential to impair, the fundamental human dignity of an adulterer and a mistress.

It can further be argued that an adulterer and mistress’ right to privacy under Section 14 of the Constitution is violated in that it causes a public inquiry into the details of their relationship, how it formed and its strength.

Furthermore it seems that an adulterer and mistress’ rights to freedom of conscience, thought, belief and opinion under Section 15 of the Constitution, expression under Section 16 (1) of the Constitution and freedom of association under Section 18 of the Constitution also come into play for the following reasons:

  1. Burdening people such as the mistress with damages will have a detrimental effect on her ability to honestly and openly express her emotions and love for another person;
  2. The expression of emotions and love between the adulterer and mistress will be treated as morally reprehensible or tainted with moral opprobrium.

Therefore it seems that the common law must be developed in the interests of justice taking in to account the recognition that both parties contribute to the breakdown of the marriage relationship, which is inherent in the ground for divorce introduced in Section 4 of the Divorce Act 70 of 1979, namely “the irretrievable breakdown of the marriage”.

It is so that many foreign jurisdictions don’t tolerate such claims anymore and that there seems to be developments in South African case law to that effect. The historic view in our law that damages are awarded on the basis of the insult caused to the innocent party and of the loss of consortium seems to be outdated and time will tell on how our courts will develop the common law.

Bertus Preller

Family Law Attorney

Abrahams and Gross Inc.

www.divorceattorney.co.za

info@divorceattorney.co.za

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