Divorce Attorney Cape Town

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

Hacking a mobile phone until death do us part


You hacked my mobile phone until death do us part

Mobile phone Hacking is a global issue

I suppose privacy is one of an individual’s most sacred rights, but for all practical purposes, the concept of privacy in our digital age is just about gone. In the traditional spy stories, intelligence agencies such as MI5 bug the mobile phone of one or two people. In the last ten years however systems for mass surveillance have become the norm.

According to Wikileaks, intelligence companies such as VASTech (based in South African) are alleged to secretly sell equipment to permanently record the phone calls of entire nations. Other companies record the location of every mobile phone in a city, down to about 50 meters. Systems to infect every Facebook user or smart-phone owner of an entire population group are on the intelligence market, a scary thought.

Paul McCartney, Scarlett Johannsen, Sienna Miller, Jude Law, Mila Kunis, Christina Aguilera, Miley Cyrus and Hugh Grant are just a few high-profile celebrities who’ve had their mobile phones hacked. A host of celebrities have been giving evidence to the Leveson inquiry in the UK about the fact that the media hacked into their private lives. Sir Paul McCartney, the former Beatle believed that journalists from several different newspapers have listened into his phone calls and messages.

The recent hacking scandal at News International dragged down one of the UK’s oldest news outlets, affecting the great and the good, the attention hungry and the deeply private. Yesterday, the former Labour cabinet minister Tessa Jowell accepted a £200,000 settlement from Rupert Murdoch’s News International over the hacking of her phone.

Last week Julian Assange the founder of Wikileaks asked attendees of a press conference in London “Who here has an iPhone?” “Who here has a Blackberry? Who here uses Gmail? Well you are all screwed.

The reality is intelligence contractors are selling right now to countries across the world mass surveillance systems for all of those products.” On an interactive map he showed how 160 security companies across 25 countries developed “spying systems”, and the information is being sold. The companies are said to be peddling these invasive devices, either ignoring or bypassing regulation and “turning a blind eye to dictatorial regimes that abuse human rights.” According to Wikileaks, the industry is worth $5 billion a year.

South Africa

But it is not only some newspapers who allegedly hacked into the communication methods of third parties. Mobile phone hacking software is readily and cheaply available on the internet to members of the public to download for as little as R 1000.00. It is often used, illegally, in divorce cases where a spouse suspects that the other spouse is having an affair.

In what appears to be the first mobile phone hacking probe in a divorce matter in South Africa a South African businessman and former Natal rugby player Dr Graham Hefer, is now at the centre of a criminal investigation over his alleged illegal interception of his estranged wife’s private e-mails, SMSes and BlackBerry messages, or BBMs. According to Hefer’s estranged wife, Hefer allegedly installed Flexispy® software on the phone, according to a report in the Sunday Times during the end of last year.

The hacking was first suspected when his estranged wife filed divorce proceedings against him. Court documents in that case seemed to show that Hefer had access to more than 50 BBMs, over a dozen SMSes and at least five e-mails between his wife and others this year. The case has revealed that the BBM facility, one of the preferred “secure” methods of communication can be hacked with relative ease.

In an affidavit, his estranged wife said she first became suspicious when her husband beat her to filing for divorce in May this year.

She confidentially instructed her attorney to issue summons to begin divorce proceedings. She was shocked when Hefer’s attorney, without having been informed who her legal representative was, faxed a copy of the summons one working day before we issued summons. What astonished her was how his attorney knew who her attorney was. What followed was a systematic pattern of hacking incidents. In the Hefer matter it is alleged that Hefer listened to all the conversations his estranged wife had with her attorney. Conduct such as this is a serious infringement of attorney and client privilege.

In order to hack a mobile phone a hacker must have the phone in his possession to install the software on the phone. Once the software is on the phone every bit of information is known to the hacker. The scary part is that the software is completely undetectable on the phone and mobile banking pin numbers, Facebook and Twitter accounts can all be accessed totally unbeknown to a user. Just think of a scenario where you take your phone to a cell phone repair shop or when you purchase the latest BlackBerry or iPhone from a cellphone shop. Without you knowing about it, the technician or salesperson loads hacking software on your phone and then hacks your bank accounts and personal data. This seems a bit far fetched but not impossible.

What the software can do

The software available can record the key strokes on a Blackberry, iPhone or any other mobile phone and can hold everything a person types, while other technology claims to be able take a picture of an owner sitting at their macbook. Once a mobile phone is hacked, there is absolutely no privacy to its owner and the hacker is able to clone the phone.

Mobile phone hacking software such as Flexispy® and CellSpy® offers call interception and spy call features and all phones can be hacked, whether you have an iPhone or BlackBerry. Call interception lets a hacker specify a series of phone numbers that he wish to listen to. As soon as an incoming or outgoing call from these numbers occurs, a hacker will be notified and are then able to listen to the conversation in real time.

Another feature is the ability to let a hacker listen into the Blackberry surroundings from anywhere in the world by making a phone call to the target Blackberry, it will be silently answered with no indication on the target device. One can eavesdrop in to the phone surroundings from anywhere in the world. The software can also send GPS locations to a secure web account, where you can view and examine locations on a map.

The software also captures all sms, call records and email activity and send it to the hacker’s private web account, and forward it to his email. Through the software you have full control to remotely stop and start the software. You can view all contacts, photos, calendars, reminders, remotely and monitor the phone even if the sim is changed or enable the phones camera to view the phones surroundings. The software is also undetectable on the phone.

The Law

Mobile phone hacking is in contravention of the Regulation of Interseption of Communications and Provision of Communication-Related Information Act No 70 of 2002 (RICA) in South Africa. Section 2 of the RICA Act states that subject to this Act, no person may intentionally intercept or attempt to intercept, or authorise or procure any other person to intercept or attempt to intercept at any place in the Republic, any communication in the course of its occurrence and transmission.

According to section 49(1) any person who intentionally intercepts or attempt to intercept, or authorises or procures any other person to intercept or attempt to intercept at any place in the Republic, any communication in the course of its occurrence or transmission, is guilty of an offence.  In terms of section 51(1) any person who is convicted of an offence referred to in section 49(1) or 54, is liable of a fine not exceeding R2 000 000.00 or imprisonment for a period not exceeding 10 years.

Section 54(1) of RICA states that any person who, intentionally or unlawfully, in any manner modifies, tempers with, alters, reconfigure or interferes with, any telecommunication equipment, including a cellular phone and a sim card, or any part thereof reverse engineer or decompile, disassemble or interferes with the software installed on any telecommunication equipment, including a cellular phone or sim card by the manufacturer or allows any other person to perform any of the acts referred to in that paragraph will also be guilty of an offence.

If you own an iPhone or a Blackberry or for that matter any mobile phone or use Gmail, Yahoo or whatever you are screwed it seems, not to mention those lovely pictures or videos that a hacker can take while controlling your phone from a distance….

Source: http://voices.news24.com/bertus-preller/2011/12/mobile-phone-hacking-in-divorce-cases-in-south-africa/

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 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 and magazines 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.

When billionaires divorce


When dealing with high net worth and multimillionaires divorce matters a divorce attorney must make sure to employ the best possible experts as part of the legal team, this is especially so if the assets at stake run into millions. I was involved as the divorce attorney of a client in a recent matter where two British citizens divorced in South Africa with assets across the globe that ran into millions of rands. In matters such as these various expert witnesses may be employed to lead evidence on behalf of a party to the divorce proceedings, consisting of forensic auditors, valuers, art experts, industrial psychologists, child psychologists, immigration experts etc.

In this matter I was fortunate to work with one of Britton’s top leading Family Law Barristers Richard Todd QC who rendered an opinion on the division of the matrimonial assets in this divorce case as far as it relates to UK law. Richard is an Oxford scholar who won the Hugh Bellott Prize (Highest Placed in the Oxford University Public International Law Finals) and who obtained the highest awards available to a practising Silk: The Chambers & Partners “Family Law Silk of the Year “ and The Lawyer’s “Hottest Family Law QC”. Richard have given expert evidence of English law to the courts of Australia, Belgium, the Cayman Islands, the Channel Islands, Cyprus, France, Germany, Gibraltar, Hong Kong, India, Italy, New Zealand, South Africa, Spain and the USA and appeared in over 4000 matrimonial cases with a long list of report cases, needless to say the identity of former clients is confidential. However former clients include twelve Billionaires (Sterling) and two Oscar winning actors (plus another three who have been nominated).

In this matter the parties were married in England and subsequently immigrated to South Africa. In such a case the matrimonial property regime of England would apply to their marriage and English law would always apply to their marriage. In a case such as this and where the divorce is contested a South African court could divorce them but, the court would have to apply English Law. It is interesting to note that if a South African couple is on holiday in England and decides to get married, they would automatically marry in community of property and not according to English law.

The test is the husband’s domicile as at the date of the marriage, i.e. what country the husband considered to be his permanent home plus his mental intention to remain there indefinitely. Domicile is defined as the principal place of residence of an individual. This is determined primarily by intent.

Thus, if the husband regarded his place of domicile to be Cape Town at the time of the marriage, the parties would be married according to the laws of South Africa and not England and their type of marriage (matrimonial property regime) would be one in community of property. For the marriage to have been out of community of property, the parties would have had to enter into an antenuptial contract in South Africa before leaving for holiday. If they failed to do so, they would have to apply to court to register an antenuptial contract, postnuptially.

About the author:

Bertus Preller is a Divorce Attorney in Cape Town and has more than 20 years experience in most sectors of the law and 13 years as a practicing attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. in Cape Town. Bertus is also the Family Law expert on Health24.com and on the expert panel of Law24.com and is frequently quoted on Family Law issues in newspapers such as the Sunday Times and Business Times and magazines such as Noseweek, You and Huisgenoot, and also appeared on SABC television on the 3 Talk TV show. His clients include artists, celebrities, sports people and high networth individuals. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Parenting Plans, Parental Responsibilities and Rights, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters, international divorce law, digital rights, media law and criminal law.

Email: bertus(@)divorceattorney.co.za

Hacking your husband or wife’s mobile phone is a criminal offence


Hacking your spouse’s mobile phone is a criminal offence

I acted in a divorce matter where the husband hacked into his wife’s cell phone, email and facebook accounts in an endeavour to obtain information to strengthen his case. Although it is a criminal offense this happens frequently. Actions such as these amount to a criminal offense and is illegal.  Whether you use BBM, Whatsup or Mxit, all data can be hacked.

Cell phone hacking does occur in divorce matters, but not as frequently as computer hacking. Hacking is the intent to load viruses or spyware, obtain passwords or personal information, or cause general electronic mayhem. While smartphones can have a computer-like operating system, the majority have different operating systems like Andriod or Symbian. Hackers attempt to find flaws in an operating system, which makes a cell phone or computer vulnerable to attack. Because there are a large number of cell phone operating systems, a flaw in one system may not be the same flaw in another.

Recent figures by the GSM Association group of mobile operators found 18 different spyware applications sold openly on the internet, at prices ranging from $29.99 to $847.

Most of these require the snooper to get hold of the target’s phone to install the necessary software and then intercept and monitor communications. Getting the spy software installed on a phone without physically handling it is almost impossible, so if you think you can hack a phone over the internet you can’t, because any program that is installed on the phone must be done manually. So if your spouse had your phone in his possession then chances are good that he/she could have installed software on the phone to hack it.

What can be downloaded off the cell phone?

  • GPS. Since many cell phones have a GPS chip embedded within the phone, a hacker can determine your location. This in turn lets them find out places you go, like home or work.
  • Contact List. A hacker can obtain and download all your contacts. In 2005, Paris Hilton’s phone was hacked and all her contacts stolen. People on her contact list received prank calls for months afterwards.
  • Getting general personal information. Text messages, pictures, video: they are all vulnerable to getting stolen if cell phone hacking happens. This is akin to spyware stealing your passwords on your computer or a hacker seeking out all your private stuff in those folders you thought you had hidden away well.
  • Speakerphone or Spycam. A truly inventive hacker may hijack your phone in order to use the camera to spy visually and audibly.
  • Call Interception. Listen to the actual calls live on the target cell phone
  • Environment Listening. Make a spy call to the target cell phone running and listen in to the phone’s surroundings.
  • SMS Logging. Records both incoming & outgoing SMS and MMS
  • SIM Change Notification. Get instant notification via SMS when the target cell phone changes its SIM
  • Remote Control. Send secret SMS to the target phone to control all its functions

The hacker can download all the data from a web based programme to a computer, from any location in the world.

Hacking has been entrenched in our law in section 86 (1) of the Electronic Communications Act (ECT), which makes any unlawful access and interception of data a criminal offence. The section also make any attempt to gain unauthorised access a crime Section 86(3) and 86 (4) introduce a new form of crime known as the anti-cracking and hacking law. In terms of this law, the provision and/or selling and/or designing and/or producing of anti-security circumventing technology will be a punishable offence liable to a fine or imprisonment of up to 12 months.

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 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. 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.

Parental Alienation, are you guilty?


There are thousands of divorces every year in South Africa…

A sad statistic and topic that is all by itself. But these numbers don’t even come close to reflecting the pain and heartache that divorce brings with it. Most of the time, both spouses feel hurt, anger and possibly even betrayal. If not by their spouse, then by the hopes, dreams and commitment that they once shared.

If you have ever “survived” a divorce you know exactly what I mean. If you haven’t experienced one then you are most fortunate. The emotions, demands and the decisions that need to be addressed while going through and after a divorce are staggering in scope and importance. It’s a wonder any of us survive.

My heart goes out to anyone that has ever had to rebuild a shattered life and dreams because of divorce. The difficult scenario that I’ve just shared describes a husband and wife navigating through this life changing event. I think we would all agree, when children are introduced into the equation the stakes go up considerably for everyone involved. That’s where the potential for “Parental Alienation” rears its ugly head.

In fact, Parental Alienation is so ugly that very few that very few people even want to admit its existence. They would much rather debate whether it should be classified as a “syndrome” or not. Or assign self-serving motives to anyone who dares to shed light on its deadly impact on children.

No matter what you “label” Parental Alienation, it comes down to this. Any parent that deliberately and maliciously attacks their child’s other parent, and does everything they can to destroy the relationship their children have with that parent is abusing that child.

Now I’m not talking about occasionally venting about your ex-spouse (although even that is not healthy for your children), I’m talking about a wilful desire to use your children to “hurt, control or attack” your ex-spouse by turning the children against him or her.

Most of the time these attacks are hidden behind the guise of “protecting” the children from their “father or mother. In reality there are very few situations (although there are some) where the children are in need of protection at all.

What about the children? Do they deserve to be caught up in a deadly game of hate and manipulation just to make one of their parents feel better about themselves or meet their needs? What about our God-given (or at the very least our humane) responsibility for their welfare?

The sad fact is that the same parents that would probably fight to the death to shelter their children from harm end up being a perpetrator that inflicts some of the deepest wounds their child will ever receive. It boggles the mind and daunts the spirit to even consider such a thing! Doesn’t it?

The statistics are bleak concerning children of divorce to begin with. The incidence of depression, fear, anger and feelings of pain directly related to divorce and a “broken” family are significant by anyone’s standards. The statistics for children that have successfully been alienated from a loving parent is even more staggering and alarming!

Can you imagine how horrible it must be for a child to be torn from the loving arms of a parent that has loved, protected and provided for that child since the day they were born? Someone that comforted them, spent time with them and nurtured them for as long as they can remember. Now for reasons they can’t comprehend, that parent is suddenly “the enemy”.

What must it be like to be told (or at the very least strongly encouraged) that they must “hate mommy or daddy” to keep the alienating parent’s love and acceptance. What must go through their fragile little minds when they are taught to call the parent they once looked up to and respected by their first name, essentially taking them out of the role of parent in that child’s life?

How does a child feel when every reference made about one of their parents by the alienating parent to others, is demeaning and cruel. I would speculate that it makes them embarrassed by and resentful of the targeted parent. It makes them hate a part of themselves…

It is trite in family law that the ‘best interests’ of each child is paramount in determining the contact and care of and access arrangements to such child. Such interests have been described as ‘an elusive concept’.

In determining what is in the best interests of the child, the Court must decide which of the parents is better able to promote and ensure his physical, moral, emotional and spiritual welfare. This can be assessed by reference to certain factors or criteria which are set out hereunder, not in order of importance, and also bearing in mind that there is a measure of unavoidable overlapping and that some of the listed criteria may differ only as to nuance. The criteria are the following:

  • the love, affection and other emotional ties which exist between parent and child and the parent’s compatibility with the child;
  • the capabilities, character and temperament of the parent and the impact thereof on the child’s needs and desires;
  • the ability of the parent to communicate with the child and the parent’s insight into, understanding of and sensitivity to the child’s feelings;
  • the capacity and disposition of the parent to give the child the guidance which he requires;
  • the ability of the parent to provide for the basic physical needs of the child, the so-called ‘creature comforts’, such as food, clothing, housing and the other material needs – generally speaking, the provision of economic security;
  • the ability of the parent to provide for the educational well-being and security of the child, both religious and secular;
  • the ability of the parent to provide for the child’s emotional, psychological, cultural and environmental development;
  • the mental and physical health and moral fitness of the parent;
  • the stability or otherwise of the child’s existing environment, having regard to the desirability of maintaining the status quo;
  • the desirability or otherwise of keeping siblings together;
  • the child’s preference, if the Court is satisfied that in the particular circumstances the child’s preference should be taken into consideration;
  • the desirability or otherwise of applying the doctrine of same sex matching;
  • any other factor which is relevant to the particular case with which the Court is concerned.

Source partly from: http://www.keepingfamiliesconnected.org

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.

Grandparents Access to the grandchildren


Grandparents and Contact –The right to see your grandchildren.

In so far as grandparents’ rights and responsibilities are concerned, ss 23 and 24 of the Children’s Act, which govern non-parental rights to care and guardianship respectively, came into operation on 1 April 2010. Before that date grandparents had no inherent rights or responsibilities and it was only a high court, as upper guardian of a child, which could confer access, custody or guardianship on a grandparent. This would be done only if it were in the best interests of a child – an assessment that must be made having regard to the rights of the biological parents.

Grandparents very often receive the fallout from their chidren’s divorces – limited, restricted or no access at all to their often beloved grandchildren. This has all changed with the New Children’s Act whose main objectives are, amongst others  to:

  • make provision for structures, services and means for promoting and monitoring the sound physical, psychological, intellectual, emotional and social development of children;
  • strengthen and develop community structures which can assist in providing care and protection for children;
  • promote the preservation and strengthening of families;

And calls for

  • the prioritisation of the best interest of the child,
  • the right to the child being able to participate in any matter concerning that child,
  • a child’s right of access to court.

One of the issues covered by the new Children’s Act, is giving the right of contact and care to an interested person, in this instance the grandparent, by order of court, Children’s or High Court,

It also makes provision for any person having an interest in the care, well-being and development of a child to apply to the High Court for an order granting guardianship .

The Court In making its order, will consider and take into account:

  • the best interests of the child;
  • the relationship between the applicant and the child
  • the degree of commitment that the applicant has shown towards the child
  • the extent to which the applicant has contributed towards expenses in connection with the birth and maintenance of the child; and
  • any other fact that should, in the opinion of the court, be taken into account

Compiled by Bertus Preller, Family and Divorce Law Attorney Bertus Preller & Associates

No maintenance for a sacked lover


Not so long ago I wrote an article about the fact that in South African law there is in fact no such thing as a common law marriage and that partners that cohabitates or live together in a domestic partnership will in fact have no right to claim maintenance from one another. In fact, this was exactly what the Supreme Court of Appeal ruled this week in the matter of McDonald v Young (292/10) [2011] ZASCA 31 on 24 March 2011.

The facts of this case were as follows.

The parties were involved in a relationship and had cohabited, as man and wife, for approximately seven years from June 1999 until May 2006. After the relationship broke down, the appellant instituted an action against the respondent in the Western Cape High Court (Cape Town) for an order declaring that a joint venture agreement existed between the parties in respect of immovable property (the property) situate at Port Island, Port St Francis, in the Eastern Cape, alternatively, for an order that the respondent pay maintenance to the appellant. The high court (Veldhuizen J) found that the appellant had failed to prove the existence of a joint venture agreement and, in respect of the maintenance claim, that there was no duty on the respondent to support the appellant. The appellant appealed to the Supreme Court with the leave of the high court.

The issues on appeal, as in the high court, wer whether the appellant has established the existence of a joint venture agreement between the parties, alternatively, whether the respondent is under a duty (by operation of law, or alternatively, by virtue of a tacit contract) to support the appellant subsequent to their cohabitation.

Shortly after the parties were introduced to each other the appellant took up residence with the respondent at her farm in Knysna. The appellant’s main business interest was the promotion and marketing of surfing and surfboard products. During 1999, the appellant and his Durban-based brother had been in the process of establishing a new business, Inter Surf Africa Exporters (ISAE), which was involved in the manufacture and export of surfboards. The appellant did not possess any meaningful assets and had very limited income. The respondent, on the other hand, was a woman of considerable means. She had an annual cash income in excess of R1,3m and possessed substantial assets. When the appellant and the respondent met, they were 59 and 54 years of age, respectively. It was common cause that the appellant had not been in receipt of a regular income and had, for a time, during the course of the relationship, received a monthly allowance from the respondent.

The appellant’s claim to a half-share in the property was based on an express oral joint venture agreement concluded by the parties. The appellant testified that the terms of the agreement were that the respondent would contribute financially to the acquisition, completion and refurbishment of the property while the appellant would contribute his time and expertise to oversee the development of the property. According to the appellant, it was agreed that they would each share jointly in the property. The appellant testified that the primary objective of the agreement was to ensure that he gained financial independence. Despite the fact that the property was to have been registered in both their names, it was subsequently agreed, according to him, that the property would be registered in the respondent’s name for tax purposes. It was common cause that the initial written agreement had reflected both their names as purchasers of the property.

It was contended, on behalf of the appellant, that the high court had erred in failing to accept and rely on the appellant’s evidence regarding the agreement, having particular regard to the fact that his evidence was unchallenged. It was further contended that the respondent’s failure to testify was fatal to her case and that this court was obliged to accept his unchallenged evidence in respect of both the agreement and the claim for maintenance.

In our law it is settled that uncontradicted evidence is not necessarily acceptable or sufficient to discharge an onus. In Kentz (Pty) Ltd v Power, Cloete J undertook a careful review of relevant cases where this principle was endorsed and applied. The learned judge pointed out that the most succinct statement of the law in this regard is to be found in Siffman v Kriel, where Innes CJ said:

‘It does not follow, because evidence is uncontradicted, that therefore it is true . . . The story told by the person on whom the onus rests may be so improbable as not to discharge it.’

It was thus necessary to consider the appellant’s evidence in detail. It was clear from the judgment of the high court that it was mindful that the appellant’s evidence, in order to be reliable, had to be credible. The high court, on the evidence, reached the conclusion that the respondent had ‘initially intended that the contract should reflect the [appellant] as one of the purchasers’. However, it did not accept his evidence in its entirety and went on to find that the appellant had failed to prove the existence of a joint venture agreement.

In the Judge’s view, there were a number of unsatisfactory aspects in the appellant’s evidence. It was significant noted by the court how the appellant’s claim against the respondent has developed over time. During May 2006 and shortly after the parties parted ways, they met, in the presence of their respective attorneys, with a view to settle the disputes between them. The appellant’s evidence regarding the claim he had advanced at that meeting, was as follows:

‘So the idea was to try and settle the split between yourself and Mrs Young? — I accept ─ I looked at it like that because it did look like we weren’t going to get together again, so I assumed that that was the reason.

And what were your claims that day? — My claims that day with regards to my share of Port St Francis, with regards to my contribution I had made over the seven years and discussion on my contract with the bakkie.’

This was in stark contrast to his testimony in the magistrate’s court to the effect that he had, at the time of the meeting, been under the impression that he did not have a claim against the respondent and that the claim had ‘materialised some time afterwards when I . . . approached some attorneys for advice’. The appellant’s explanation for the contradiction, that he had meant to convey that he had not yet ‘implemented’ his claim, is, in my view, unsatisfactory. The very purpose of the meeting was an attempt to resolve the dispute between himself and the respondent without the need to resort to litigation.

On 17 July 2006, and following upon the May 2006 meeting, the appellant’s attorney wrote a letter to the respondent’s attorney, which was intended to ‘motivate and substantiate’ the appellant’s claim against the respondent ‘as comprehensively as possible’. (The Court’s emphasis.) It was recorded in the letter that the appellant believed that a universal partnership had existed between the parties and that he was entitled to ‘some form of compensation’ (The Court’s emphasis.) for his contribution to the partnership. It is instructive that no mention was made of the appellant’s half-share in the property, despite the fact that the appellant testified that he had given his attorney instructions in this regard and that he (the appellant) had had sight of the letter prior to it being dispatched. The development of the appellant’s claim over time is not without significance.

During the period that the parties were cohabiting, the appellant drafted numerous agreements and proposals, the purpose of which was to define the financial relationship between him and the respondent. On 24 July 2003, the respondent executed a sole agency mandate in terms of which she appointed the appellant as agent to sell the property and undertook to pay a commission of ten per cent to him. It was the appellant’s testimony that the commission he would have earned was to have provided him with financial security. The appellant agreed that he had, during October 2004, drafted an agreement, aimed at resolving the constant disputes he and the respondent had had regarding his financial security. The salient terms of this agreement were that (i) he was appointed as sole agent to sell two properties, including the property which is the subject of this dispute; (ii) he would be paid a commission of ten per cent for securing the sale of the properties; and (iii) the respondent would purchase government retail bonds to the value of R500 000 on behalf of the appellant. It was also his evidence that the relationship between him and the respondent had been particularly volatile at that time and his intention, in drafting this agreement, was to achieve clarification regarding his financial position.

It was surprising that the appellant failed to mention his half-share in the property in the October 2004 proposal. This was even more surprising when regard is had to his evidence that he was at that time concerned, as there was uncertainty regarding his financial future. The wording of this proposal, as well as the agency agreement, excludes the possibility that he had acquired a share in the property. It was in the court’s view extremely improbable that had the parties agreed in 1999 when the property was purchased that they would be joint owners thereof, the appellant would not, in 2004, have recorded his right to, or even a claim for, a half-share in a proposal aimed at settling outstanding matters between him and the respondent.

Counsel for the appellant attached great importance to the fact that the initial agreement had recorded both parties’ names as purchasers. The appellant assumed that both names were inserted on the instructions of the respondent. There was no evidence to support this assumption. Even if such instructions did emanate from the respondent, it does not necessarily follow, as was found by the high court, that this meant that there was an agreement between the parties as alleged by the appellant. The recording of both parties’ names is nothing more than an indicator pointing towards the conclusion of an agreement and it is a factor to be considered in conjunction with the probabilities.

There were a number of factors that support the respondent’s denial of the existence of a joint venture agreement between the parties. These included: the claim as articulated at the meeting with their legal representatives shortly after the break-up, the letter written after that meeting, various agreements drafted by the appellant, and the unsatisfactory and often contradictory evidence given by the appellant. The court mentioned that the appellant contradicted himself on one of the essential terms of the agreement, namely, whether it was agreed that he would be entitled to half of the proceeds of the sale of the property only or the property together with its contents.

The appellant bore the onus of proving the agreement upon which he relied as well as the terms thereof. Having regard to the deficiencies in the appellant’s evidence and the probabilities, it cannot be said that it measures up to the standard required for acceptability in respect of the existence of the joint venture agreement. In Da Mata v Otto NO, Van Blerk JA, dealing with the approach to be adopted when deciding probabilities, said:

‘In regard to the appellant’s sworn statements alleging the oral agreement, it does not follow that because these allegations were not contradicted ─ the only witness who could have disputed them had died ─ they should be taken as proof of the facts involved. Wigmore on Evidence, 3rd ed., vol. VII, p. 260, states that the mere assertion of any witness does not of itself need to be believed, even though he is unimpeached in any manner, because to require such belief would be to give a quantative and impersonal measure to testimony. The learned author in this connection at p. 262 cites the following passage from a decision quoted:

“It is not infrequently supposed that a sworn statement is necessarily proof, and that, if uncontradicted, it established the fact involved. Such is by no means the law. Testimony, regardless of the amount of it, which is contrary to all reasonable probabilities or conceded facts ─ testimony which no sensible man can believe ─ goes for nothing; while the evidence of a single witness to a fact, there being nothing to throw discredit thereon, cannot be disregarded.”’

The appellant’s testimony was contrary to all reasonable probabilities and, despite the fact that it was unchallenged, counts for ‘nothing’. In assessing the probabilities, the conclusion seems to be inescapable that the appellant has not discharged the onus resting on him. It follows that the appellant was not entitled to the relief sought in respect of the main claim.

The court considered the alternative claim for maintenance and dealt first with the argument that such a duty existed by operation of law. In South African law, certain family relationships, such as parent and child and husband and wife, create a duty of support. The common law has been extended in line with the Constitution to protect contractual rights of support in the same way as the common law duty of support. In Amod v Multilateral Motor Vehicle Accidents Fund (Commission for Gender Equality Intervening), this High Court of Appeal recognised a contractual right to support arising out of a marriage in terms of Islamic law for purposes of a dependant’s action. In Du Plessis v Road Accident Fund, the common law action by a spouse, for loss of support against the wrongdoer who unlawfully kills the other spouse, was extended to partners in a same-sex permanent life relationship similar in other respects to marriage, who had tacitly undertaken reciprocal duties of support. The Constitutional Court in Satchwell v President of the Republic of South Africa & another, found that the common law duty of support, could, in certain circumstances, be extended to persons in a same-sex relationship. Madala J, writing for the court, commented as follows:

‘The law attaches a duty of support to various family relationships, for example, husband and wife, and parent and child. In a society where the range of family formations has widened, such a duty of support may be inferred as a matter of fact in certain cases of persons involved in permanent, same-sex life partnerships. Whether such a duty of support exists or not will depend on the circumstances of each case.’

Counsel for the appellant relied on Kahn, Amod and Du Plessis in support of his contention that a legal duty of support rests on the respondent. This contention was misplaced. In both Amod and Khan, the parties in respect of whom a duty of support had been alleged had been married to each other in terms of Islamic law. The ratio of the court, in both cases, was that the marriage between the parties had given rise to reciprocal contractual duties of support on the part of the parties to that marriage. In Du Plessis, Cloete JA, having had regard to the facts of that matter, concluded that the plaintiff had proved that the deceased had undertaken to support him and that the deceased had owed the plaintiff a contractual duty of support. The learned judge of appeal said:

‘In the present case the case for drawing an inference that the plaintiff and the deceased undertook reciprocal duties of support is even stronger. The plaintiff and the deceased would have married one another if they could have done so. As this course was not open to them, they went through a “marriage” ceremony which was as close as possible to a heterosexual marriage ceremony. The fact that the plaintiff and the deceased went through such a “marriage” ceremony and did so before numerous witnesses gives rise to the inference that they intended to do the best they could to publicise to the world that they intended their relationship to be, and to be regarded as, similar in all respects to that of a heterosexual married couple, ie one in which the parties would have a reciprocal duty of support. That having been their intention, it must be accepted as a probability that they tacitly undertook a reciprocal duty of support to one another.

Further support for this finding is the fact that the plaintiff and the deceased thereafter lived together as if they were legally married in a stable and permanent relationship until the deceased was killed some 11 years later; they were accepted by their family and friends as partners in such a relationship; they pooled their income and shared their family responsibilities; each of them made a will in which the other partner was appointed his sole heir; and when the plaintiff was medically boarded, the deceased expressly stated that he would support the plaintiff financially and in fact did so until he died.’

Amod, Khan and Du Plessis were decided on the basis of contracts entered into by the respective parties, and are not authority for the contention that there is a duty of support, by operation of law, on the respondent to maintain the appellant.

The question whether the relationship between the parties, a heterosexual couple who choose to live together, free from the bonds of matrimony, gives rise to a legal duty of support, could in the Judge’s view, be answered with reference to Volks NO v Robinson & others. In that matter the Constitutional Court was concerned with the interpretation and constitutionality of s 2(1), read with s 1, of the Maintenance of Surviving Spouses Act 27 of 1990, which confers on surviving spouses the right to claim maintenance from the estates of their deceased spouses if they are not able to support themselves. The court had to determine whether the exclusion of survivors of permanent life partnerships from the protection of the Act constituted unfair discrimination. Skweyiya J, writing for the majority, referred with approval to the comments made by O’Regan J in Dawood & another v Minister of Home Affairs & others; Shalabi & another v Minister of Home Affairs & others; Thomas & another v Minister of Home Affairs & others that:

‘Marriage and the family are social institutions of vital importance. Entering into and sustaining a marriage is a matter of intense private significance to the parties to that marriage for they make a promise to one another to establish and maintain an intimate relationship for the rest of their lives which they acknowledge obliges them to support one another, to live together and to be faithful to one another.

The institutions of marriage and the family are important social institutions that provide for the security, support and companionship of members of our society and bear an important role in the rearing of children. The celebration of a marriage gives rise to moral and legal obligations, particularly the reciprocal duty of support placed upon spouses and their joint responsibility for supporting and raising children born of the marriage. These legal obligations perform an important social function.’

The Constitutional Court was of the view that the law may distinguish between married people and unmarried people and may, in appropriate circumstances, accord benefits to married people which it does not accord to unmarried people. The learned justice reasoned as follows in para 55:

‘There are a wide range of legal privileges and obligations that are triggered by the contract of marriage. In a marriage the spouses’ rights are largely fixed by law and not by agreement, unlike in the case of parties who cohabit without being married.’

The court found that whilst there was a reciprocal duty of support between married persons, ‘no duty of support arises by operation of law in the case of unmarried cohabitants’. This was an unequivocal statement of the law by the Constitutional Court. Skweyiya J went on to state that to the extent that any obligations arise between cohabitants during the subsistence of their relationship, these arise by agreement and only to the extent of that agreement.

The court also considered whether a contractual duty of support towards the appellant existed. The argument, presented as a second alternative to the claim based on a joint venture, was that the court should find that the parties had entered into a tacit agreement in terms of which the respondent had agreed to support the appellant even after the end of their relationship.

The facts upon which the appellant relies in support of his claim that the respondent had assumed a duty of support towards him are the following:

(i) He and the respondent had lived together as if they were legally married in a stable and permanent relationship;

(ii) The respondent had supported him during the seven-year period that they had resided together and the appellant had been dependent on such support. She had given him an allowance, provided transport for him and paid for entertainment and overseas holidays;

(iii) The respondent had, in a series of wills, made extensive provision for financial support of the appellant in the event of her death;

(iv) The respondent was a wealthy woman while he had no assets and very limited income;

(v) He had contributed to the maintenance of and increase in value of the respondent’s estate, often at the expense of his own business interests; (vi) The appellant was reliant on an income from employment and could not, due to his advanced age, guarantee for how much longer he would be able to earn a living; and

(vii) The respondent had advised the appellant that she had sufficient funds to support both of them.

The argument that the parties had entered into a tacit agreement regarding maintenance cannot be sustained for a number of reasons. First, the reliance on a tacit contract is inconsistent with the appellant’s evidence. The appellant believed and gave evidence to the effect that he and the respondent had concluded an express agreement in respect of the property, the aim of which was to ensure that he was financially independent. Implicit in this is the intention that he would not have to rely on the respondent, or any other person, for financial support. In the circumstances, the appellant could not have formed the intention to contract tacitly with the respondent. Having regard to his evidence that the purpose of the joint venture agreement was to render him financially independent, the appellant could not at the same time have contemplated, that the respondent would continue to support him for the rest of his life. A tacit contract must not extend to more than the parties contemplated. In Rand Trading Co Ltd v Lewkewitsch the parties had erroneously assumed that there was a contract in existence between them. The court did not accept the argument that the company’s conduct in recognising the existence of the lease, paying the rent and otherwise performing in terms of the contract had created a binding contract. Solomon J said:

‘But I think the answer to that argument is a very clear one, and it is this ─ that all these facts are explained on the simple ground that both parties erroneously assumed that there was a contract in existence between them . . . And the mere fact . . . that both parties erroneously assumed that there was a contract in existence at that date altogether precludes us from now inferring a new contract.’

The appellant’s stated belief, that there was an express contract between him and the respondent in respect of the property, precludes this court from drawing an inference to the effect that the parties had entered into a tacit agreement the terms of which were inconsistent with the express agreement to which he testified. It was not open for the appellant to contend that if the court disbelieved his evidence that a joint venture agreement had been concluded, the court should infer from the proved facts that a tacit contract had come into existence, because such an inference cannot be drawn where it would conflict with what he said was the actual position. A litigant can plead, but not testify, in the alternative.

Secondly, the appellant’s evidence was that the respondent’s attitude had always been that in the event that their relationship ended, he would receive no financial benefit from her. This conduct, on the part of the respondent, is inconsistent with a tacit agreement to support the appellant. The appellant’s explanation for drafting the various proposals regarding the financial relationship between him and the respondent was as follows:

‘Well, the motivation behind it at that particular time, we were going through quite a patchy period; we were arguing and not agreeing on a lot of things. And it appeared to me that all of a sudden my situation could alter and I’d be left standing high and dry. And I discussed it with Lesley [the respondent] and I felt that if we had something in writing, and if that did occur at least I had something to fall back on . . . ’. (Emphasis added.)

It is trite that a tacit contract is established by conduct. In order to establish a tacit contract, the conduct of the parties must be such that it justifies an inference that there was consensus between them. There must be evidence of conduct which justifies an inference that the parties intended to, and did, contract on the terms alleged. It is clear from the appellant’s evidence that there was no consensus between the parties. The appellant, on his own testimony, was uncertain about his financial future. He realised that he would only be entitled to what had been agreed between the parties, hence his desire to have a written contract ‘to fall back on’. The respondent’s attitude, as testified to by the appellant, that he would leave the relationship without any financial benefit, is an indicator that she had not, tacitly or otherwise, agreed to support the appellant. I am not satisfied that this court can conclude, from all the relevant proven facts and circumstances, that a tacit contract, in terms of which the respondent undertook to financially maintain the appellant, for as long as he needed such maintenance, came into existence.

For those reasons, the appellant’s maintenance claim which is premised on a legal, alternatively, a contractual duty, failed.

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. 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.

Children Custody Matters, what we can learn from Charlie Sheen


As an attorney I often advise clients regarding what they should and should not do during a contested divorce where care and contact of the children or custody as we know it is at stake. Here are some important lessons learned from the hours of Charlie Sheen interviews attracting media attention the past few weeks.

Call me old fashioned, but a judge typically do not let 2-year-old twins return to a house where the dad is having a 2 ½ -some.

If you are going to partake in “extracurricular activities” during a custody dispute, at least find a hotel, there are lots of these in South Africa. It is much easier explaining to a judge this charge on a credit card, as opposed to justifying why this behaviour is appropriate in the home.

When determining child custody issues, South African courts have accepted through the years the “Best Interest of the Child” standard. This means that courts are free to consider whatever facts they believe to be relevant when making a child custody determination. This standard is based upon the legal theory “in loco parentis,” which basically means that the court stands “in the place of the parent” when asked to determine a child custody matter. Accordingly, the court takes the place of both the parents when determining what is best for the children in the circumstances.

In the Sheen matter, the analysis will be slightly more complicated. Sheen and Brooke Mueller recently signed a custody agreement or as we know it in South Africa a parenting plan. By signing this document, both the parents essentially stated that they believed the terms of the agreement will be in the best interest of the children. Mueller has asked the court to set aside the recent custody agreement because of a change of circumstances (e.g. Sheen’s recent strange and disturbing behaviour), and because the change would be in the best interest of the children. Because of all the interviews that Sheen has given, there is no shortage of proof that Sheen has new or exasperated issues (whether it be manic episodes, bipolar symptoms, drug use or just poor parenting decisions), and that the agreement granting Sheen unsupervised visitation rights should be re-examined.

At the very least, Sheen’s decision to expose the two-year-old twins to his two so-called “goddesses” will be seen as an important change of circumstances to cause the court to make a thorough analysis of what future care and contact arrangements is in the best interest of the children.

A Porn star is not a qualification to be a nanny.

If you are wealthy and fighting custody battles rather hire someone akin to Mary Poppins. She would be a great witness at trial and people may even love the accent.

Admitting taking substantial amounts of cocaine in the past months, when you claim that your wife has a sobriety problem; it’s almost like the pot calling the kettle “Charlie Sheen.”

Courts appreciate when a parent admits that there is a problem and attempts to get help for that problem and Judges will recognize that people are fallible. If a parent, such as in Sheen’s case goes on national television to proclaim that he is not fallible and in fact has tiger blood, he has not helped his case.

If you have already shot your fiancé and threatened your second wife, been arrested on a violent charge, you probably shouldn’t threaten to kill your current wife during a custody case.

Violence against the other parent will be considered when determining custody and visitation arrangements. This is because courts do recognize that a child’s psyche is significantly affected when watching or learning that there have been acts of domestic violence between his or her parents. If a parent threatens (or is violent against) the other parent, courts may surmise that this parent may threaten (or become violent against) the child in the future.

If we have learned nothing else from Napoleon, you probably shouldn’t fight a two-front war at the same time.

If you have your hands full with a custody battle with wife number three, maybe now is not the time to make threatening and derogatory statements against wife number two. I know it is a recession, but your divorce attorneys may not be that hard up for work.

So what should Sheen do now? The answer is clear….do what is in the best interest of the children.

Bertus Preller is a Divorce and Family Law Attorney in Cape Town who deals with divorce matters all over South Africa 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. 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.

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

%d bloggers like this: