Divorce Attorney Cape Town

Latest Divorce Trends South Africa

divorce statistics

Divorce Trends in South Africa

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

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

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

Reasons for Divorce

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

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

Characteristics of plaintiffs

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

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

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

Population Groups

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

Occupation of Plaintiffs

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


Most plaintiffs were:

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

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

Number of times married

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

Age at the time of divorce

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

Duration of marriage of divorcing couples

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

Divorces involving couples with minor children

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

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


Don’t mess up your children in a divorce or separation

The welfare of children in a divorce or separation is the most important aspect of any divorce. Although most couples believe children’s welfare is one of the most important factors to consider in a divorce, a great percentage of parents that divorce or separate see conflict as an inevitable part of the process and are determined to fight battles in court.

From time to time one comes across an intransigent parent who is incapable of objectivity when considering what is best for the child. It may well be that you do not like your partner, but the child’s view of the parent is different. He or she will have love and trust for that person, capable of transcending even the most dreadful scenes that may have been witnessed.

Unfortunately it occurs often that one parent use the machinery of the law in a wrongful manner in an attempt to “legally abduct” or alienate a child by making false allegations against or about the other parent.  Often one would find that a parent will for example falsely accuse the other parent of sexually molesting the child or accusing the other parent of emotional abuse towards the child. In a recent matter a mother who was the custodian parent brought an application for a protection order against the father on behalf of their 8 year old daughter because according to her the father abused the child emotionally, when the father in fact only disciplined the child. The father was trying to make telephonic contact with his daughter for days but the mother frustrated the contact by not answering the phone and replying to his sms messages. When the father eventually did manage to speak to his daughter he disciplined her over the phone for not contacting him. The child burst out in tears and the mother used the incident as the basis for a protection order against the father for alleged emotional abuse of the child. The court granted an interim protection order in the father’s absence and the father was only able to see his child under supervision, previously the father had contact with his child every alternate weekend. A social worker was then appointed as well as a psychologist to investigate. Needless to say the child was dragged through court appearances at the Children’s court.

A child prevented from seeing a parent, they still love will eventually turn the resentment against the one trying to enforce the unenforceable. Parents often fail to comprehend the impact on the children of the conflict in their relationship. The adults in the child’s life, can make the divorce and separation experience for a child much less harmful by being aware of several ways to help the child:

The child must feel and experience unconditional love from each parent.

The child must feel free of fault for the divorce and separation.

The child must feel that each parent respects the rights of the other parent.

The child must feel that he/she will be okay after the divorce and separation.

The child must feel that each parent will be okay after the divorce and separation.

Children sense and feel their parent’s emotions and especially the parent’s emotions toward one another. During a divorce and separation, adults experience some very strong and difficult emotions. It is difficult for a human being to understand how he/she could have so much love and passion for another person at one point in time, and then later have so much disdain and even hatred for that same person. It is okay for parents to talk to the child about the fact that they don’t love each other any more  but the child must hear, sense, and feel that while the parents don’t love each other any more and don’t want to live in the same house, they do respect each other’s rights as a parent to the child. For example, both parents should encourage the child to spend time with the other parent, to respect to the other parent, to obey the other parent, and to love the other parent. This can be very difficult when a parent thinks the other is making poor decisions.

The goal for divorced or separated parents should always be to maintain the best co-parenting relationships possible by moving past previous relationship issues and focusing on children’s well-beings. Conflict within a relationship or marriage where there are children involved or after a divorce or separation is the most harmful thing parents can do for their children’s development. If children go through their parents’ divorce, they have lost some access to both their parents to an extent. If the parental combat continues, the children have not only lost that access, they are still involved in that conflict and it harms children. Focusing on the children instead of the relationship problems can help divorced couples to be better parents, not messed up parents.

Source: http://voices.news24.com/bertus-preller/2013/03/if-you-do-mess-up-your-marriage-or-relationship-please-dont-mess-up-your-children-in-the-process/

Bertus Preller

Family Law Attorney

Abrahams and Gross Inc. – Cape Town

Twitter: bertuspreller

Web: http://www.divorceattorney.co.za

International Child Abduction South Africa

South Africa is a party state of the Hague Convention on Civil Aspects of International child abduction. South Africa ratified the convention in 1996 and it came in operation on 1 October 1997. Emphasis is placed on securing the prompt return of any child wrongfully removed to or retained in a contracting state.

The Hague Convention is a treaty designed to expedite the return of children back to their country of habitual residence, in cases where they have been wrongfully removed. Habitual residence sometimes differs from citizenship and nationality. The Hague convention aims to curb the international abductions of children by providing additional remedies to those seeking the return of the child were a child has been wrongfully removed or retained. It provides a simplified procedure for seeking the return of the child to his/her country of habitual residence.

The purpose for of the speedy return is to place the child in the jurisdiction of a court that is best appraised to deal with the merits of the parental dispute. A child removed from one parent and taken to a country different from that in which the child was habitually resident is then likely to be subject to the concentrated influence of the custodial parents.  Unless firm steps are taken to ensure the prompt implementation of the Convention procedures, in a prolonged separation from a parent his or her influence on the child would have a tendency to wane.  Time would favour the abductor. The parent remaining in the place of the child’s habitual residence, from which the child is taken, would ordinarily be at a considerable disadvantage in litigating a contested claim for custody and access (or equivalent orders) in the courts of another country rather than those of the place of habitual residence.

Few persons can readily afford litigation in their own jurisdiction, still less contemplate the prospect of participating in courts (or administrative authorities) far away, where the legal system may be different, laws and even language unfamiliar, costs substantial and facilities for legal assistance difficult to obtain or non-existent.

The removal or the retention of a child is to be considered wrongful where

a)      it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention, and

b)      at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

The rights of custody mentioned in (a) above, may arise in particular by operation of law or by reason of judicial or administrative, or by reason of an agreement having legal affect under the law of that State. The Convention shall apply to any child who was habitually resident in a contracting State immediately before any breach of custody or access rights.

Where a child has been wrongfully retained and, at the date of the commencement of the proceedings before the judicial or administrative authority of the contracting State where the child is, a period of less than one (1) year has elapsed from the date of the wrongful removal of retention, the authority concerned shall order the return of the child forthwith.

In practice, applications are generally heard on an urgent basis or semi-urgent basis by way of notice of motion proceedings. Inevitably, the overriding principle that our courts have regard to is the best interest of the child principle. In South African law the right to consent or refuse the removal of the child from South Africa is entrenched in the concept of guardianship. In terms of section 18 (2)(c) of the Children’s Act, 38 of 2005), a person who has parental responsibilities and rights in respect of a child has the right to act as guardian of the child. In terms of section 18 (3)(c)(iii) of the Act a guardian must consent to the child’s departure or removal from South Africa and where more than one person on has guardianship over a child all of them must consent before the child can be removed.

The role of the Central Authority

A contracting state is bound to set up an administrative body known as a “Central Authority”, which has the duty to trace the child and to take steps to secure a child’s return. In South Africa the Chief Family Advocate is designated as Central Authority.

The Central Authority assists in both “outgoing” cases (when a child has been wrongfully taken from South Africa to a foreign country or retained in a foreign country, as well as “incoming” cases (when a child has been wrongfully brought to, or retained in South Africa). A party may submit an application for the return of a child, or access to a child to the Central Authority.

What does habitual residence mean?

This concept is not defined by the Convention itself. It has been interpreted according to “the ordinary and natural meaning of the two words it contains, as a question of fact, to be decided by reference to all the circumstances of any particular case” The intention thereby is to avoid the development of restrictive rules as to the meaning of habitual residence, so that the facts and circumstances of each can be assessed free of presuppositions and presumptions. However, the fact that there is no “objective temporal baseline” on which to base a definition of habitual residence requires that close attention be paid to the subjective intent when evaluating an individual’s habitual residence. When a child is removed from its habitual environment, the implication is that it is being removed from the family and social environment in which its life has developed, The word “habitual’ implies a stable territorial link, which may be achieved through length of stay, or through evidence of a particularly close tie between the person and the place. A number of reported foreign judgements have established that the possible prerequisite for “habitual residence” is some “degree of settled purpose” or “intention”. A settled intention or settled purpose is clearly one which will not be temporary.

What can South African parents do when a former spouse or partner has abducted a child and taken them abroad?

Establish the details of the departure and destination of the abducting parent and/or the child. The left behind parent has an option of approaching the office of the designated Central Authority for the Republic of South Africa, which is the office of the Chief Family Advocate or the Central Authority of the country where the child has been abducted to. The abducted child must be below 16 years of age. In order to facilitate the processing of the application in the office of the Chief Family Advocate, the left behind parent furnish the following documents:

• Original or certified copies of setting out care and contact (custody) and/or guardianship rights. Examples of these are marriage certificate, court orders granting the alleged rights, unabridged birth certificates, parenting plan or parental rights and responsibilities agreement etc;

• Recent photographs of the abductor as well as the child;

• A detailed sworn statement setting out the exact facts and circumstances that led to the alleged abduction;

• Copies of all pleadings filed in pending litigation in South African courts, where applicable.

If the parent who has taken a child overseas feel that the left behind parent in South Africa is abusive, a danger to the child or cannot provide adequate care for the child, can the parent defend his/her actions, in terms the Hague Convention and SA Children’s Act?

The Hague Convention makes provision for the abducting parent to oppose the application for return of the child. When there is a grave risk that the return of the child will expose the child to physical, psychological harm, or would place the child in intolerable situation, then the court hearing the application is not bound to order the return of the child. Mere allegations of grave risk will not persuade a court to refuse the return; it must be shown that the risk is a serious or that the envisaged harm is of significant proportion.

What countries are subscribed to the Hague Convention?

Most European and Commonwealth countries and the USA are members. On the African continent, only South Africa, Mauritius and Zimbabwe subscribed to the convention. When a child is removed to another country that is not a party state to the convention, the South African High Court, as the upper Guardian of the minor children, will have jurisdiction and the application should be made to such a court for the return of the child.

What are the steps to be taken in recovering an abducted child, in terms of the Hague Convention and SA Children’s Act?  

The South African Central Authority (CA) must immediately after receipt of the necessary documents consider the legal aspects of the request as well as the Convention status of the country to which the child has been taken.

If the child has been taken to a contracting country and all legalities have been satisfied, the CA will compile a bundle and forward the application to the foreign CA, requesting prompt return of the child. The procedure does not apply where a child has been taken to a non-Convention country. All CA’s are required by the Convention to take steps to obtain a voluntary return of the child. This is done through cross-border mediation. Litigation is resorted to in the event that the mediation fails. This approach is also consistent with the general principles set out in the Children’s Act, namely, that in any matter concerning a child ‘an approach which is conducive to conciliation and problem-solving should be followed’.

It is however, important that the left-behind parent alert the Central Authority to the possibility of further movement/possible harm to the child, should the abducting parent know of the application for return. In such cases the CA will take steps to obtain an urgent court order to prevent further movement of, or possible harm to the child.

How does the Hague Convention on the Civil Aspects of International Child Abduction relate to care and contact (custody) rulings made in South African civil courts?

An order granting care and contact can be used as proof of the existence of parental rights by the parent seeking return of the abducted child. Where an abductor seeks an order in the South African court, which will have an effect of ratifying the wrongfulness of the removal or retention of the child in South Africa the CA will invoke article 16 of the Convention to stop or suspend the proceedings until a decision has been made on the return of the child to his/her country of habitual residence. The judicial authorities/courts of a contracting state to which a child has been taken or retained are required by the Convention not decide on the merits of custody rights until a determination has been made that the child will not be returned.

There are limitations to the treaty’s application, in that the Convention applies only between countries that have adopted it as “Contracting States.” What are the procedures for recovering a child from a non-Contracting State?

From a South African perspective, it is advisable that the left behind parent obtain an order through the normal civil procedures, which declare the removal/retention of the child unlawful and a breach of their parental rights. Once such an order has been obtained, the left behind parent must obtain a mirror order or an order for enforcement in the foreign jurisdiction which also orders return of the child. This route is very expensive as it involves the instruction of lawyers in foreign countries. For this reason, the Hague Conference on Private International Law is taking steps to encourage other countries to consider contracting under this Convention.

Are there time frames that apply under the Hague Convention on the Civil Aspects of International Child Abduction?

Among the most popular defences that have been raised in return applications is that the child objects to the return. In such instances, an assessment must be made, usually through the assistance of a Family Counsellor or psychologist, whether the child possesses sufficient maturity to form a viewpoint that the court may consider. The child’s reasons for the objection will also be examined in order to exclude possible influence by the abducting parent.

Some of the defences available are that the removal was not wrongful, that the left behind parent was not exercising his/her parental rights at the time of removal or retention, or that the left behind parent had agreed or subsequently acquiesced to the removal/retention:

Where available evidence indicates that the child has become settled in the new environment the court may not necessarily order a return. In cases where a child’s return would be contrary to the South Africa’s fundamental principles relating to protection of human rights and fundamental freedoms, our courts are also under no obligation to order the return of the child.

A court may withhold permission to return the child for the following reasons:

  • that the child is above the age of 16 years and therefore not covered by the Convention.
  • If a child has been wrongfully removed for less than one year, the child’s removal is to be ordered forthwith under the Convention. The Convention makes it mandatory for the judicial authority to order return.
  • If a child has been wrongfully removed for more than one year, the child should still be returned but an exception is allowed -a court may choose not to return the child if there is evidence that the child is settled in his/her new environment. The court has discretion to order/refuse the return.
  • Courts and administrative authorities should act quickly in such cases but if one has not reached a decision within six weeks from the date proceedings commenced, an applicant or the Central Authority of the requested State may officially request a reason for the delay.
  • The Convention only applies to wrongful removals/retentions occurring after the treaty became effective between the involved countries.
  • The Convention requires that countries act without delay in child abduction cases that fall within its parameters. It is one of the objectives of the Convention to protect children internationally from the harmful effects of wrongful removal or retention and to establish procedures of ensuring prompt return of children to their country of habitual residence. The aim is to ensure that a competent court in the country of habitual residence decide on the merits of custody, access and even permanent removal to another country. This is based on the premise that court in the country of habitual residence is better apprised to obtain all relevant evidence regarding the merits of custody, care and contact and in a better position to grant an order that will be in the best interests of and/or least detrimental to the welfare of the child. For this reason, the Hague Convention is deemed to be consistent with our applicable laws and the Constitution, through affording the best interests of the child paramount importance.

Compiled by:

Bertus Preller
Family Law Attorney

Abrahams and Gross Inc. Cape Town

Consent from both Parents needed regarding a change of schools

The case of Nel v Nel [2011] ZAWCHC 113 dealt with the fact that both parents need to consult each other when a child’s school is being changed. In this matter the mother decided to put the children in a new school without consulting the father.

The Applicant and the Respondent was embroiled in divorce proceedings. The parties had 2 children ages 3 and 8 years of age. In terms of a Court Order issued by Desai J, in the Cape High Court on 23 June 2009, the children were primarily resident with the Respondent subject to reasonable contact being afforded to the Applicant as set out in the order.

The eldest child was a learner at Kenridge Primary school in Bellville, after he attended the pre-school at the same school in 2007, Grade R in 2008 and or 2009 and 2010 he attended Grades 1 and Grade 2 respectively. The eldest child was happy at the school and did not have any problems.

The youngest child attended Pixie Daycare in the same area, and would have attended Fledglings Pre-Primary School, adjacent to Kenridge Primary School in 2011.

When the new school year commenced, it came to the notice of the Applicant that the Respondent had without informing or consulting the Applicant, removed the eldest child from Kenridge Primary School and did not enroll the youngest child as agreed with the Applicant at Fledglings Pre-Primary School in Kenridge, Bellville. This was common cause between the parties.

Section 31(1)(a), read with Section 31(b) (iv) of the Children’s Act 38 of 2005 states:

“Major decisions involving child – (1)(a) Before a person holding parental responsibilities and rights in respect of a child takes any decision contemplated in paragraph (b) involving the child, that person must give due consideration to any views and wishes expressed by the child, bearing in mind the child’s age, maturity and stage of development.

(b)    a decision referred to in paragraph (a) is any decision –

(i)    …………………………

(ii)   …………………………

(iii)    ……………………………….

(iv) which is likely to significantly change, or to have an adverse effect on, the child’s living conditions, education, health, personal relations with a parent or family member or, generally, the child’s well-being.”

The Respondent enrolled the children at Islamia College in Rondebosch East. It was also common cause that the Respondent did not advance any reason why she did not inform the Applicant thereof, at that time when this happened.

In later correspondence from her attorneys it emerged that to ease her travelling burden, she took this step. In her Answering Affidavit, she only stated that the children were granted bursaries to attend the new school.

The crisp question was whether, notwithstanding the parental rights of the Applicant, whether the fact that they were removed from one schooling environment to another, was in the best interests of the children.

The Respondent in her papers averred that by moving the children back to their previous schools would not be in their best interests.

It was clear that the actions and conduct of the Respondent was in contravention of the law, and a court will not lightly condone such conduct on the part of a parent, where it is clearly not justified, under the guise that it is in the best interests of the children.

Apart from stating boldly, that by moving the children back to their previous school environment, would not be in their best interest, the Respondent did not give substantial reasons why she believed that it was in their best interests to remove them from Kenridge Primary School or to have the younger child enrolled at Fledgings Pre-Primary School as agreed to with the Applicant.

Both children were at a young age, the older child had been in that school environment since 2007 and the younger child since 2009.

There was clear evidence from the Applicant and the school that the children were happy and content with this environment. The Respondent disturbed the status quo, the onus was on her to show why it would be in the best interests of the children to disturb this and she clearly did not.

There was no objective evidence to suggest that the removal of the children from the one schooling environment to the one the Respondent chose was in their best interests so as to disregard the rights of the Applicant to have been properly informed or consulted about the fact that the Respondent had removed the children from one schooling environment to another.

The court had to deal with the question whether it would have been in the best interests to move the children back to their previous schooling environment.

The court was of the view that having regard to the short time the children had spent at Islamia College and also it being a whole new environment compared to the longer time they had spent at Kenridge which was a known and stable environment to them, there would be a greater harm if they were not moved back to their previous schooling environment.

The court was of the view, that it was dealing with young vulnerable children, and the fact that the school year had basically reached one month, the harm would have been greater to the children had this application not been heard on an urgent basis

The Applicant therefore made out a case why the application should have been heard in terms of Rule 6(12) of the Uniform Rules of Court.

After consideration of the papers and after hearing Counsel for both parties, the following order was made:

The Respondent was ordered to immediately return to and/or re-enroll the minor children B N, born on 7 June 2002 and S N, born on 5 September 2006 at Kenridge Primary School and Fledgings, the pre-school facility at Kenridge respectively by no later than Friday the 18th  of February 2011.

The Family Advocate was directed to urgently investigate what school and aftercare arrangements would be in the best interests of the children, pending the finalization of the parties’ divorce.

Is a husband obliged to pay maintenance when his wife lives with another man?


A recent judgment concerned the issue whether a husband is obliged to pay maintenance to his former wife, who is involved in a relationship with another man, after divorce. The plaintiff issued summons against the defendant, her husband, during 2003, for a decree of divorce, maintenance for herself and their son and ancillary relief.

The parties had not lived together as man and wife for a continuous period of at least two years prior to the date of the institution of the divorce action. In terms of the provision of s 4(2)(a) of the Divorce Act 70 of 1979 (the Divorce Act), this is proof of the irretrievable break-down of the marriage. The remaining issues were whether the plaintiff is entitled to maintenance, and if so, what such maintenance should be. The defendant’s case in respect of the plaintiff’s entitlement to maintenance was that it is against public policy that a woman should be supported by two men.

The maintenance post-divorce Section 7(1) and (2) of the Act sets out when a court may order the payment of maintenance and the factors that should be taken into account when making such determination.

It provides as follows:

‘7(1) A Court granting a decree of divorce may in accordance with a written agreement between the parties make an order with regard to the division of the assets of the parties or the payment of maintenance by the one party to the other.

(2) In the absence of an order made in terms of subsection (1) with regard to the payment of maintenance by the one party to the other, the Court may, having regard to the existing or prospective means of each of the parties, their respective earning capacities, financial needs and obligations, the age of each of the parties, the duration of the marriage, the standard of living of the parties prior to the divorce, their conduct insofar as it may be relevant to the break-down of the marriage, an order in terms of subsection (3) and any other factor which in the opinion of the court should be taken into account, make an order which the court finds just in respect of the payment of maintenance by the one party to the other for any period until the death or remarriage of the party in whose favour the order is given, whichever event may first occur.’

Through a long line of cases dealing exclusively with maintenance pendente lite, it has become customary not to award maintenance to a spouse who is living in a permanent relationship with another.

In Drummond v Drummond the Appellate Division agreed with the definition of the phrase ‘living as husband and wife’ as stated by the full bench. The parties agreed that the husband would pay maintenance towards the wife and that maintenance would ‘cease should the plaintiff prove that the defendant was living as man and wife with a third person on a permanent basis’. The said phrase has the following meaning: ‘. . . the main components of a modus vivendi akin to that of husband and wife are, firstly, living under the same roof, secondly, establishing, maintaining and contributing to a joint household, and thirdly maintaining an intimate relationship.’ The plaintiff and S clearly live together as husband and wife according to the said definition.

In Cohen v Cohen the parties determined in a deed of settlement that the maintenance payable by the plaintiff (the husband) would cease if the defendant lived with another man as husband and wife for a certain specified period. This order was varied by a maintenance court in respect of the amounts the husband had to pay towards maintenance. In the maintenance court’s order the condition in respect of the cohabitation was left out. In a subsequent action it was decided that, where the magistrate had left out the said clause, the condition was no longer enforceable as it had been substituted by the maintenance court.

In Carstens v Carstens the wife claimed maintenance pendente lite in a rule 43 application while she lived with another man as husband and wife. Mullins J found: ‘It is in my view against public policy that a woman should be entitled to claim maintenance pendente lite from her husband when she is flagrantly and deliberately living as man and wife with another man. Not only is applicant in the present case living in adultery, but she and her lover are maintaining a joint household complete with the addition of an adulterine child. She has by her conduct accepted the support of Clarkson in lieu of that of her husband. The fact that Clarkson is unable to support her to the extent that she may have been accustomed in her matrimonial home with respondent does not appear to me to affect the position.’

In SP v HP (another rule 43 application) it was found, on the strength of Carstens, that ‘(t)he objection is not so much about the moral turpitude attaching to the illicit cohabitation, but more about the notion of a woman being supported by two men at the same time’.

In the unreported judgment of Qonqo v Qonqo dealing with a rule 43 application for maintenance pendente lite, the court, in spite of the fact that the applicant cohabited with her lover, ordered the respondent to pay maintenance pendente lite. The reason for ordering the payment of maintenance was that there was no proof that the lover supported the applicant in that instance.

It is also clear from the wording of s 7(2) of the Divorce Act that the legislature did not determine that maintenance should cease when the person receiving the maintenance is in a relationship akin to a marriage but only on remarriage. It is usually by way of an agreement between the parties that the additional condition relating to the cessation of payment of maintenance on the cohabitation with a third party is added.

Marriage entails that the parties 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’. One of the effects of marriage is the reciprocal duty of support. This duty of support does not exist, in circumstances such as these, if there is no marriage.

In Volks NO v Robinson and Others the proceedings had been initiated by Mrs Robinson who had been a partner in a permanent life partnership with Mr Shandling for a period of 16 years until his death in 2001. The couple had not been married, although there was no legal obstacle to their marriage. Following the death of Shandling, Robinson submitted a claim for maintenance against his deceased estate. The executor of the estate, Volks, rejected her claim because she was not ‘a survivor’ as contemplated by the Act. Skweyiya J said at paras 55 – 56: ‘Mrs Robinson never married the late Mr Shandling. There is a fundamental difference between her position and spouses or survivors who are predeceased by their husbands. Her relationship with Mr Shandling is one in which each was free to continue or not, and from which each was free to withdraw at will, without obligation and without legal or other formalities. There are a wide range of legal privileges and obligations that are triggered by the contract of marriage. In a marriage the spouse’s rights are largely fixed by law and not by agreement, unlike in the case of parties who cohabit without being married. The distinction between married and unmarried people cannot be said to be unfair when considered in the larger context of the rights and obligations uniquely attached to marriage. Whilst there is a reciprocal duty of support between married persons, no duty of support arises by operation of law in the case of unmarried cohabitants. The maintenance benefit in section 2(1) of the Act falls within the scope of the maintenance support obligation attached to marriage. The Act applies to persons in respect of whom the deceased person (spouse) would have remained legally liable for maintenance, by operation of law, had he or she not died.’

If regard is had to the decision of Cohen, that it cannot be read into s 7(2) of the Act that the maintenance will cease when the recipient of the maintenance lives as husband and wife with another, as an express agreement to that effect can be amended by the maintenance court. Having regard to the factors that should be taken into account when determining whether the defendant ought to pay maintenance for the plaintiff, in terms of s 7(2) of the Act, the factors mentioned are not exclusive.

When taking into consideration the factors mentioned in s 7(2) of the Act to determine whether the defendant is liable to pay maintenance the following emerge:

(a) The existing and prospective means of each of the parties and the parties’ respective earning capacities.

(b) The financial needs and obligations of the parties. It is clear that neither of the parties can live lavishly, but they are not destitute.

(c) The age of the parties.

(d) The duration of the marriage.

(e) The standard of living of the parties prior to the divorce.

(f) The conduct of the defendant insofar as it may be relevant to the breakdown of the marriage.

The facts of this matter differed materially from Carstens; SP v HP; and Qonqo. It is immaterial whether the defendant was unable to support the plaintiff and their son, or whether he was merely unwilling to do so. Other legislation also makes it clear that the legislature envisaged that a man can be supported by two women. In terms of the provisions s 8(4) of the Recognition of Customary Marriages Act 120 of 1998, a court dissolving a customary marriage has the powers contemplated in ss 7, 8, 9 and 10 of the Act. This has the effect that with polygamous customary marriages a husband will have the right to be supported by more than one wife, post-divorce, if circumstances demand it. Although it might have been a concept that was unacceptable in a previous dispensation, the concept is not unacceptable today. The court was of of the opinion that in the circumstances of this case it could not be said that it is against public policy that the defendant should be liable to pay maintenance to the plaintiff; there is no legislative prohibition and the court found that there was no general public policy to that effect or moral prohibition.

International Divorce – can I divorce my spouse living overseas?

If you are living in South Africa and your spouse overseas, you are able to institute divorce proceedings against your spouse through a South African. The same applies when you are a South African citizen that lives overseas and one spouse resides in South Africa.  Also foreigners living in South Africa may approach a South African court to institute divorce proceedings. A South African court has jurisdiction where the parties or either of the parties are domiciled in the area of the court’s jurisdiction on the date on which the action is instituted or ordinarily resident in the area of jurisdiction of the court on the date on which the action is instituted or has been ordinarily resident in the Republic for a period of not less than one year immediately prior to that date. Domicile is a matter of choice and although a person might work overseas a South African court may still have jurisdiction to entertain the matter.

The person instituting the divorce proceedings are called the Plaintiff. Where the parties reached a settlement, only the Plaintiff appears in Court. So, if a Plaintiff  works or lives overseas he/she will have to appear in a South African court once the matter is placed on the Court roll. The same applies if the Plaintiff resides in South Africa. It is not necessary for the Defendant to appear in court where the parties have reached a settlement and the divorce is uncontested.

Where a Defendant (the person against whom the divorce is instituted) lives in another country, a Plaintiff must first approach the court by way of what is known in law as an Edictal Citation application, a Defendant may direct in an appropriate way acceptance of the Summons at an address in South Africa. This affords permission to a Plaintiff to serve the divorce documents on a spouse living in a  foreign country by way of local service.

The proprietary consequences of a marriage are governed by the lex domicilii matrimonii, that is the laws of the place where the husband was domiciled when the marriage was concluded. The law of the husband’s domicile at the time of the marriage governs the matrimonial property regime of the spouses even if the husband subsequently acquires a new domicile.

If for example the husband was domiciled in England at the time of the marriage and no Antenuptial contract was entered into in South Africa, the marriage will be out of community and in terms of English law. Should the parties later emigrate to SA, the marriage would remain out of community of property. Thus in a contested divorce where the husband was domiciled in England at the time of the marriage, a South African court is obliged to apply English law in respect of the patrimonial consequences of the divorce, i.e the division of the estate. Maintenance however and the aspects surrounding the children, like maintenance, care and contact will be dealt with in terms of South African law.

We have been dealing with numerous international divorce matters in South Africa matters concerning South African citizens and has acted in matters for South Africans living in countries such as Australia, United Kingdom, USA, Indonesia, The United Emirates, Germany, New Zeeland, Namibia to mention but a few and have been able to finalise some of these matter in as little as three weeks.

For further information email: info@divorceattorney.co.za

What Divorced Parents Can Learn From Their Children

As a divorce and family law attorney I am mostly involved in the relationships of my clients, whether during the divorce process or thereafter, when the spousal role evolve into a pure parental role. Although the spousal role comes to an end, the parental role of parents last for as long as the children are there. A recent article in the Huffington Post, written by Linda Lipshutz that was quite interesting, the story is below.

“Greg” knew he was in for it when he saw Susan standing at the front door, glaring at him. It was wishful thinking to believe he would come home to peace and quiet. The disagreements between Susan and his daughter, Lindsey had become quite ugly. The two hadn’t liked each other from the start. However, he and Susan had thought that once they were officially married, things would settle down. Sadly, the situation had deteriorated. Lindsey had made it clear she wasn’t interested in meeting her stepmother, even halfway. Susan was hurt and frustrated that her efforts to reach out to Lindsey had not been successful.

Ironically, our children are often more realistic about the challenges facing the remarriage than we are.

Young people may have no qualms about letting us know their objections. In many cases, they’re not happy about all the life changes they’ve endured and have no interest in making things work.

From the young people’s point of view, they didn’t have any say when their parents ended the marriage, and they certainly don’t feel any obligation to happily endorse a parent’s new romance and eventual nuptials. They may believe their feelings have not been sufficiently considered, and are understandably resentful.

Remarrying couples are often so eager for their children to embrace their new lives they become impatient and annoyed when their families don’t jump onboard with enthusiasm. They may push way too hard, further compounding the conflicts. There are many steps, however, that can be taken to ease the adjustment and head off irreparable damage.

The stepfamily is a new entity, which must incorporate the memories and experiences of the prior family constellations. Children, still reeling from the loss of comfort, familiarity and sense of security they may have felt in the original family, will often magnify the upheaval when they enter the new blended family unit.

After a divorce, grieving single parents often reach out to their children in a unique and powerful way. A child might bask in getting his parent’s undivided attention and may develop an elevated sense of importance and control. He may not want to relinquish this exalted position or give the new stepparent any clout.

The children often struggle to sort out a host of conflicting emotions — jealousy that their parent has feelings for this stranger, worry that the original family closeness might be compromised, and concern that accepting the stepparent would be disloyal. And, of course, accepting the new stepparent would require them to relinquish any remaining fantasies of reconciliation.

Now, more than ever, is the time for the adults to remind themselves that they are the adults, and that it will be important for them to take the high road, approaching the situation with empathy and a sense of humor. It is critically important to send a clear, but sensitive message to the young people that they are not being forced to like the new family members. They still remain in control of their feelings but, hopefully, will come to enjoy these relationships in time.

It should be clearly emphasized that the new family must be treated with respect and consideration. If the children sense their parents’ insecurities, they might be tempted to use this discomfort to their advantage. Consciously, or unconsciously, they may try to put a wedge in the new couple’s relationship. It must be crystal clear that they don’t have the power to sabotage the adult relationship.

Although challenging, it’s possible for parents to take the upper hand in rocky situations. First, they must pay attention to their moods and attitudes. Defensiveness and resentment could exacerbate an already tense environment. It takes maturity and inner strength to not take sarcasm and slights personally. Avoiding an edge at stressful times, and steering clear of power struggles can head off misunderstandings. That’s not to say that any form of abuse should be tolerated. Excessive, ugly behavior must be addressed immediately and firmly.

The smart parent will look for opportunities for the children to have relaxed, one-on-one time with the new family members, so they can form relationships, on their own, at their own pace.

It’s not uncommon for a parent to feel guilty that openly relating to the new spouse in a close, loving way will be construed as a betrayal. The self-esteem of the parents and their sense of security with each other will markedly affect their ability to face the challenges. If the new stepparents trust they truly have their partner’s unwavering love and support, it may provide the strength to withstand the hurts, and the motivation to persevere.

Most of us have room in our hearts to simultaneously love different people, in different ways. It is important to remember, though, that the scars are often deep. It can take months and years for the hurts to soften. When adults respond with sensitivity and emotional support, they have taken critical steps to help young people process their losses and become receptive to the changes around them.

Compiled by:

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. 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.

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