Divorce Attorney Cape Town

Divorce Statistics – South Africa


Trends

The 2011 data was published in December 2012 by Statistics South Africa. 20 980 divorces from civil marriages were processed. This indicates a decrease of 1 956 (8,5%) divorces from the 22 936 cases processed in 2010, which may largely be explained by some 2011 divorce forms that did not reach Statistics South Africa before the publication. The total number of divorces generally fluctuated over the period 2002–2011, with the highest number observed in 2005 (32 484) and the lowest in 2011 (20 980).

Population groups

Couples from the white population group dominated the number of divorces between 2002 and 2007, after which the black African couples had the highest number of divorces up to 2011. In 2002, 45,2% of the divorcees were from the white population group whereas 22,5% came from the black African group. By 2011, 35,8% of the divorcees were from the black African population group and 32,1% from the white population group. The proportions of the divorcees from the coloured and the Indian/Asian population groups were quite invariable during the ten-year period. However, there was a notable increase in the proportions of divorcees from the coloured population group (from 13,9% in 2010 to 16,6% in 2011).  The data show that there were more females 10 408 (49,6%) than males 7 212 (34,4%) who instituted divorce (plaintiffs). With the exception of females from the black African population who had a lower proportion of plaintiffs (39,7%), the proportion of female plaintiffs from other population groups was above 50,0%. That is, 56,8%, 56,2% and 52,4% of plaintiffs from the white, coloured and Indian/Asian population groups, respectively, were females.

Occupations that divorce

A high proportion of the plaintiffs (13,5% of the males and 19,4% of the females) did not indicate the type of occupation they were engaged in at the time of divorce. In addition, 27,3% and 30,6% of the males and females respectively were not economically active at the time of divorce. For specified occupations, most of those who divorced in 2011 were in clerical and sales occupations (11,5%) and managers and administrators (10,2%), with some differences observed by sex of the plaintiff. Husbands who divorced were largely managers and administrators (14,7%) while females who divorces were mainly in clerical and sales occupations (18,2%). Less than a quarter of males (23,6%) and females (20,2%) were in the professional and managerial occupations. Very few plaintiffs were in farming and related occupations.

Number of times married

The 2011 divorce cases for both males and females were mainly from individuals who had married once. About 80,0% of divorces for males and females were from first-time marriages compared to approximately 10,0% from second-time marriages. About 2,0% of males and females were getting divorced for at least the third time.

Age at the time of divorce

The median ages at divorce in 2011 were 42 years for males and 38 years for females, indicating that males generally divorced at older ages than females, with a difference of about four years. The median age for males was up from 41 years in 2010 while it remained the same for females for 2010 and 2011. The pattern of median ages in 2011 by population group shows that black African males had the highest median age (43 years) at the time of divorce while females from the mixed group had the lowest median age (34 years). The age difference at the time of divorce was highest for black African couples (five years) and was between two and three years for other couples. Although there are differences in the ages at which most males and females from the various population groups divorced, the age patterns are quite similar. The data reveal that there were fewer divorces among the younger (less than 25 years old) and the older (55 years and older) divorcees. For male divorcees, the peak age group at divorce was 35–39 for Indian/Asian and coloured population groups while the peak for the black African and white population groups was 40–44. In the case of females, the peak age group was generally at age group 35–39 for all population groups.

Duration of marriage of divorcing couples

The largest number [5 535 (26,4%)] of the divorces were for marriages that lasted between five and nine years. This group is followed by marriages that lasted less than five years [4 489 (21,4%)]. Thus, almost half (47,8%) of the 20 980 divorces in 2011 were marriages that lasted for less than 10 years. Divorces for the black African, coloured and Indian/Asian population groups occurred mostly to couples who had married for five to nine years whereas for the white population group those that divorced did so mostly during their first five years of marriage. Furthermore, the number of divorces for the white population consistently declined as the duration of marriage increased and this pattern is observed for marriages lasting for five to nine years for the other population groups.

Divorces involving couples with children

In 2011, 11 475 (54,7%) of the 20 980 divorces had children younger than 18 years. The proportions of divorces with children were quite high among the coloured population group (64,4%), Indians/Asians (57,8%) and the black Africans (57,1%). The distribution of the number of children affected by divorce shows that 37,4% were from the black African population group; 27,1% from the white population group and 20,2% from the coloured population group. There were 18 571 children (younger than 18 years old) involved in divorce indicating that, on average, there was between one and two children per divorce.

Source: http://voices.news24.com/bertus-preller/2013/02/latest-south-african-divorce-statistics  

Compiled by:

Bertus Preller

Family Law Attorney

Abrahams and Gross Inc.

A:1st Floor, 56 Shortmarket Street, Cape Town, 8000

O: +27 (0) 21 422 1323

Twitter: @bertuspreller

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


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

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

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

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

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

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

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

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

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

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

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

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

Article appeared in the Huffington Post

About:

Bertus Preller is a Divorce Attorney in Cape Town and has more than 20 years experience in most sectors of the law and 13 years as a practicing attorney. He specializes in Family law and Divorce Law at 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.

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.

Spousal Maintenance in a Divorce


Maintenance of spouses in divorce

There are basically two options regarding spousal maintenance:

  • Where there is an agreement between the parties
  • Where there is no agreement but where the court makes an order for spousal maintenance

Where the parties agree on the maintenance

Parties in a divorce may enter into a settlement agreement regarding the maintenance that the once spouse will pay to the other. Where the parties only reach an informal agreement without making their agreement an order of court, the agreement remains unenforceable.

Maintenance order in the absence of an agreement

In terms of section 7(2) of the Divorce Act, a court may make a maintenance order in the absence of a written agreement between the parties. Such an order can apply until death or remarriage. The basic principal that will apply is that the party who applies for maintenance must show a need for it and the party against whom the order is made must be able to provide for it.

The court will consider a wide range of factors when it decides on giving the other party maintenance and in section 7(2) of the Divorce Act various factors should be taken into account, these are:

  • The existing and prospective means of the parties
  • The respective earning capacities of the parties
  • The financial needs and obligations of the parties
  • The age of each party
  • The duration of the marriage
  • The standard of living of the parties prior to the divorce
  • The conduct of each of the parties in relation to the breakdown of the marriage
  • Any order in terms of section 7(3) of the Divorce Act (a redistribution order)
  • Any other factor that the court may take into consideration

There are basically three types of maintenance orders:

  • Rehabilitative Maintenance – Where a maintenance order applies for a specific period of time, it is called a rehabilitative maintenance order. This is normally awarded to younger or middle-aged women who have for years devoted themselves to the upbringing of the children and who were full time involved in the household. The purpose of this kind of maintenance is to tie them over to be trained or retrained to find suitable employment.
  • Permanent Maintenance – The court may award lifelong maintenance to a woman that is too old to find a job.
  • Token Maintenance – Token maintenance is an order for a minimal amount. The court will make such an order if there is no reason to grant maintenance at the time of the divorce, but foresees that the spouse may in future need maintenance. The court would then be able to increase the amount in future should the need arise.

It is clear from the wording of section 7 (2) of the Divorce Act that a maintenance order can be made against a husband or a wife. It is also important to note that a court may not consider all the factors listed above before it makes a maintenance order and that a party is not as of right entitled to maintenance.  The factors are not exhausted and one does not have preference over the other. Therefore each case must be considered on its own merits in light of the circumstances and facts peculiar to it and with regard to those factors set out in the Divorce Act.

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. 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.

Relocation of parents with children, you need the consent of the other parent


Relocation of parents to another province, town or country

Relocation disputes between parents are frequent in our courts. Relocation can involve relocation to another town, province or country.  Where both parents have guardianship it necessarily follows that consent from both parents will be needed when one parent decide to relocate with a minor child. It is important to note that there is no section in the Children’s Act that deals specifically with relocation.  The closest that the Children’s Act gets to relocation is section 45 that deals with the jurisdiction of the court in matters where a child is removed from the Republic of South Africa.

Typically a relocation dispute will arise where one parent, normally the parent of primary residence and with whom the child usually resides decides to leave the country or the province to live elsewhere. It then usually follows that the parent who is left behind refuses or disagrees to give consent that the child leaves with the other parent. Once the other parent disagrees or refuses to give consent, the primary caregiver can approach the High Court for an order dispensing with the other parent’s consent and remove the child to another country or province. It must be noted that it is not a given that the court will automatically give its consent.  The reason therefore is that the Children’s Act does not set criteria and our courts have to consider various facts and case law before it will grant an order to the other parent to move the child.

If one has regards to previous case law it is clear that our courts will only grant permission based on the best interests of the child. An important factor that the court will take into consideration is whether the decision by the parent to relocate is reasonable and bona fide and this will be part of the valuation whether the move will be in the child’s best interests. If the court does find that the plan is reasonable then obviously the court will allow the parent to move the child.  It is evident to note that our courts have taken a pragmatic approach and although the move may be to the detriment of the other parent who will have less contact with the child, life must go on.  Another issue that comes into play is the fact that our courts have to respect the freedom of movement of family life of relocating parents.

The following passage from the case F v F 2006 (3) SA 42 (CA) is of importance:

It is an unfortunate reality of marital breakdown that the former spouses must go their separate ways and reconstruct their lives in a manner that each chooses alone

 A court must however also consider the impact that the relocation will have on the other parent who will be left behind. In looking at what is in the best interests of the child, a court should also look at whether relocation will be compatible with the child’s welfare. In F v F as sited above the court stressed the importance that it had to evaluate, weigh and balance a myriad of competing factors, including the child’s wishes in appropriate cases. In this matter the court rejected the mother’s application to relocate with her daughter despite finding that the decision to leave was bona fide. What the court found was that the practicalities of her decision to move were ill-researched and were outweighed by the child’s need not to be separated from either parent.

In the case of MK v RK case number 17189/08 in the South Gauteng High Court, the court followed a similar approach as in F v F. In this matter the child was living with the father. Here the court found that the father was thwarting attempts by the mother to rebuild her relationship with her daughter. The issues between the parties were acrimonious and the father alleged that the mother sexually abused the daughter years ago, based on these and various other factors, the court awarded custody to the father at the time the parties divorced and the child lived for several years with her father. The father then sought to relocate to Israel, although the mother initially gave her consent because she believed that she would be allowed contact with her child. She did however later withdraw her consent when she realised that this will never materialise. The court refused the relocation based on the fact that the father could not provide sufficient information when and where he would be employed, where the child would be going to school and how she would be assisted to learn Hebrew. The court also placed emphasis on the fact that it was important for the child to re-establish her relationship with her mother. What was also interesting in this case was that the court criticized the experts (psychologists) who recommended the relocation based on the fact that they did not considered all the facts and moreover that they did not considered all the evidence in making such far-reaching recommendations.

Another interesting case was that of HG v CG 2010 (3) SA 352 (ECP). This matter concerned four children whose parents were divorced. The eldest was then aged eleven and his siblings, a set of eight year old triplets, comprising two boys and a girl. In terms of the settlement agreement the parents were awarded joint custody. The intention being that the children would spend an equal amount of time with each parent and the children were spending alternate weeks with each parent.

Three years after the divorce the wife approached the High Court by way of an urgent application for variation of the custody order. In the application she sought an order declaring her the primary care provider of the children as well as the authority to permanently remove them from South Africa to Dubai to live with a new man whom she planned to marry.

Experts commissioned by the applicant, being a social worker and clinical psychologist, recommended that the applicant be the primary care provider and that she relocate with the children to Dubai as proposed. Experts not commissioned by her held a different view, finding that relocation would not be in the best interest of the children as they would miss their father, school friends and the city of Port Elizabeth to which they were accustomed. The mother’s application was dismissed and the court did not consent to the relocation as it found that it was not in the best interests of the children.

About the author:

Bertus Preller is a Divorce and Family Law Attorney in Cape Town and has more than 20 years experience in most sectors of the law and 13 years as a practicing attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. in Cape Town. Bertus is also the Family Law expert on Health24.com and on the expert panel of Law24.com and is frequently quoted on Family Law issues in newspapers such as the Sunday Times and Business Times. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Parenting Plans, Parental Responsibilities and Rights, Custody (care and contact) of children, same sex marriages, unmarried father’s rights, domestic violence matters, international divorce law, digital rights, media law and criminal law.

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.

Financial Tips for Women Facing Divorce


Financial Tips for Women Facing Divorce

Financial Tips for Women Facing Divorce

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

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

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

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

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

1.         Business

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

How can a divorce ruin your business? Consider this:

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

2.         Retirement funds

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

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

3.         Insurance

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

4.         Short-term and long-term financial stability

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

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

5.         Assets that he concealed

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

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

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

About the author:

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

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