Divorce Attorney Cape Town

Divorce Settlement Agreements – can they be varied without a formal court application?


It happens frequently that the circumstances change years after a divorce Settlement Agreement was concluded. For example, as in the case of GF v SH and Others 2011 (3) SA 25 (GNP). In this case, the ex  husband and ex wife agreed amongst themselves with the intervention of a mediator that their children would spend more time at the ex husband’s house and adopted a shared parenting approach. Necessarily the new arrangement had a bearing on the maintenance that the ex husband paid to his ex wife for the children as the children spent more time in the ex husband’s care. The mediated agreement was never signed between the parties, or the original Settlement Agreement varied, but the ex husband paid the reduced maintenance. After some time the wife, probably acting out of scorn issued a warrant of execution for the non payment of maintenance as per the original court order. The facts appear below.

In terms of the settlement agreement custody of the minor children was awarded to the wife, subject to the applicant’s reasonable rights of access. In addition the settlement agreement provided that the applicant was to pay maintenance at the rate of R5000 per month per child, escalating annually at the consumer price index rate. In addition the applicant was to pay for all the educational and medical expenses incurred in respect of the minor children.

Following the divorce, the parties appeared to have had ongoing problems and disputes that related to the payment of maintenance, timeousness and the adequacy of such payments, as well as issues relevant to the parenting of the children, including decisions related to their upbringing and well being.

On 15 April 2010 the wife caused a warrant of execution in the sum of R303 154,62, plus interest and costs, to be issued at court for arrear maintenance and non-compliance with their divorce order. Following the issuing of the warrant the wife attached certain goods from the home of the ex husband and belonging to him.

The ex husband’s case was based on the fact that changes were made by himself and the wife to the residency arrangements in respect of the minor children, which changes became operative from March 2008 until about June 2009 and as such his liability to pay the maintenance provided for in the court order of 27 August 2002 had been varied by agreement between himself and the wife. He further contended that, in terms of the change of residency arrangements reached in March 2008, the parties agreed to have the minor children with them for alternate weeks. In addition there was a further mediated agreement with regard to a new payment regime, insofar as it related to the payment of maintenance, in terms of which regime the applicant would not be required to pay any maintenance directly to the wife, but instead would cover all expenses incurred in respect of the maintenance of the minor children and make such payments directly to third parties or, in appropriate instances, to service providers and the children. In this regard it appeared that the parties were assisted by one Charles Cohen, a mediator with expertise in the area of family law.

The wife’s contention was that even though there may have been changes to the residency arrangements insofar as these related to the minor children, it did not absolve the husband from complying with the express provisions of the court order and settlement agreement of 27 August 2002 relating to maintenance payments. In this regard it was the wife’s stance that since the written agreement of settlement provided that ‘save for the above, the provisions of this agreement shall not be capable of being varied (save by a court of competent jurisdiction), amended, added to, supplemented, novated or cancelled unless this is contained in writing and signed by both parties’, any oral or informal arrangement was of no force or effect and not binding on the parties. Alternatively the wife contended that even if there was a variation, it only applied in respect of a trial period from August 2008 to November 2008, and that at best her ex husband would be absolved from paying maintenance for three months (August 2008 to October 2008), and the warrant of execution, if incorrectly issued, was incorrect to that extent, and that extent only.

The agreement was never signed by the parties and the question that the court had to pronounce was whether a Settlement Agreement in a divorce action could be varied by mutual agreement, without resorting to court to vary the Agreement formally.

The principle of non-variation of a written agreement in the context of a non-variation-except-in-writing clause was firmly established in the matter of Shifren and Others v SA Sentrale Ko-op Graanmaatskappy Bpk 1964 (2) SA 343 (O). The stance, which essentially proceeds from the premise that any attempt to agree informally to vary a contract containing a non-variation clause, except in writing, must fail, was affirmed by the Supreme Court of Appeal in Brisley v Drostky 2002 (4) SA 1 (SCA) (2002 (12) BCLR 1229; [2002] 3 All SA 363). The court however found that there must be instances where public policy may justify a departure from the Shifren principle in the area of family law. Without suggesting that such departure should be easily justified or readily countenanced, there must be due regard to the context within which parenting takes place, and within which decisions that may on the face of it vary an express obligation, are arrived at to attain some other socially desirable objective — the best interests of the child. In all the circumstances the demands and the consideration of public policy, in the context of ensuring the development of family law, that are consistent with the values of the Constitution, including the values of equality and non-discrimination, as well as ensuring the advancement of the best interests of the child, would in the court’s view, in appropriate instances and where a proper case is made out, certainly justify a departure from what has become known as the Shifren principle.

The court further noted that if indeed the Shifren principle were entrenched and did not apply in the context of family law, it may well have the effect of achieving all kinds of unintended consequences that may well militate against the development of a public policy consistent with the norms and values of our Constitution. In particular, a strict adherence to those principles may well mean that parents become saddled with a disproportionate share of their responsibility in respect of the maintenance and upbringing of a minor child. It may well have the effect of restricting the ability of parents to do that which the best interests of the child demand, as opposed to that which they are obliged to do in terms of an agreement of settlement, which terms and provisions may well not have kept in touch with the changing times and developments relevant to the context.

From the above it is clear that a Settlement Agreement in a divorce, that was not varied by a formal application to court, may be varied by agreement between the parties, without formally applying to the court to vary such order. It is however of utmost importance that agreements that vary an existing Settlement Agreement be reduced to writing and signed by both parties.

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.

Divorce Questions: Interview with Bertus Preller Family and Divorce Law Attorney Cape Town


Divorce Questions: Interview with Bertus Preller Family Law Attorney

Most couples going through the end of their marriage ask the same divorce questions. Regardless of how long people were married, they still need to find a Family Law Attorney and sort through issues regarding property, finances, children, and emotional trauma. Having accurate information is a crucial part of the divorce and healing process.

Family and Divorce Law Attorney Bertus Preller is a Family Law Specialist. A graduate of the Free State and University of Johannesburg, he represents celebrities and other high-net worth individuals in their divorce proceedings in South Africa.

How does one choose a good divorce lawyer?

Everyone differs in what type of attorneys suits them. For instance, do they want an attorney who will parent them or an attorney who will partner with them? Naturally, there are other variables to consider as well, like reputation, credentials, experience, and background. Getting references from contacts a person knows and trusts, especially from one’s accountant, business attorney, estate planning attorney or therapist, is the best way to find a good divorce attorney.

Does the end of a marriage have to turn into a battle?

“No, it does not,” Bertus Preller said. However, there often is some battle over one issue or another-like the division of property or who gets custody of the children. It is normally the battles over control in one area or another that precipitated the divorce in the first place. If a couple could not get along during the marriage, often the divorce is simply an amplification of those problems. “I tend to try to follow a more collaborative approach in dealing with divorce matters, and consider a number of ways to settle issues, whether through mediation or negotiating the best possible outcome for the client. We tend to see a number of ill experienced mediators offering services such as divorce mediation, offering a quick break with less emotional trauma and less costs. This may be a good option, but the reality is that mediation can be more expensive than an uncontested divorce; the other problem is that some mediators have absolutely no understanding of the legal consequences of the patrimonial issues of the divorce. You simply can’t mediate a divorce with a degree in psychology when there are legal issues involved and it frequently happens that one party is in fact at the end of the day in a much worse position”.

How can parents minimise the affect of divorce on their children?

“They can and should leave the children out of their immediate battles at all times,” Bertus Preller said. “Whether during the divorce process itself or long after it has ended. Spouses have no right bringing children into the differences that they have with each other. They should also give the children support and understanding throughout the divorce trauma and always show the utmost respect to the other spouse no matter how hard that may seem.”

How do courts determine the distribution of assets if one spouse is a stay at home parent or earns substantially less than the other?

In a marriage in community of property, it is important to establish the net value of the communal estate at the date of divorce. Then one can establish what each party is entitled to. Often, spouses can’t agree on a division on the joint estate and a Receiver or Liquidator needs to be appointed to divide the assets. When a marriage in community of property dissolves through divorce, each spouse is entitled to 50% of the joint estate, which includes the parties’ pension benefits.

In a marriage out of community with accrual, an auditor often needs to be appointed to determine the accrual. Preller said however he’s been involved in a number of divorce matters where extremely wealthy people were married in community of property. They may not have received the proper legal advice, “or became so focussed on the wedding ceremony that they forget about the consequences of a failed marriage.

We’re getting divorced because my spouse cheated on me. How do I make him/her “pay” for this mistake?

“Seeking vengeance is never the answer,” Bertus Preller said. “There is an old Spanish proverb: ‘Living well is the best revenge,’ is what the injured party should focus on and strive for. There is no win in trying to make someone pay for any betrayal in a marriage. However, in terms of South African law an aggrieved spouse is able to claim compensation against a third party who was the cause of the divorce.

I’m trying to be reasonable, but my spouse and I just can’t agree on major issues like who gets custody of the kids or who should keep the house. What should I do?

“Seek the advice of your attorney,” Bertus Preller said. “A mediation session might help with a respected attorney. This is what you pay your attorney to do: resolve major issues and help you come to reasonable solutions. If all else fails you may have to take your case to court and have the judge decide, but this is not always the best possible way, settlement soon in the proceedings is always the best outcome for everyone”

Bertus Preller is a Divorce and Family Law Attorney in Cape Town and has more than 20 years experience in law and 13 years as a practising attorney. He specializes in Family law and Divorce Law at Bertus Preller & Associates Inc. in Cape Town. Bertus is also the Family Law expert on Health24.com and on the expert panel of Law24.com. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Custody (care and contact) of children, same sex marriages, unmarried father’s rights, domestic violence matters and international divorce law.

Divorce, Business Times Interview With Bertus Preller Top Divorce Attorney at Bertus Preller & Associates Inc.


Divorce and the obstacles facing matrimony in South Africa

Social networking sites should not be underestimated as contributors to divorce statistics. The impact of social network sites should not be underestimated in current divorce statistics as “virtual adultery” connects people outside of marriages.

The popularity of social networking websites  like Facebook and Mxit have brought the possibility to make new friends, and reconnect with old  friends from school or the more recent past, said Bertus Preller, a divorce and family law attorney at Abrahams & Gross in Cape Town. “It creates a platform for ‘virtual adultery'”. “As a divorce attorney I have seen a huge increase in the recent years in people producing print outs of emails, MXIT messages, Facebook wall screen-shots and sms messages to back up claims of their partner’s infidelity,” said Preller.

SA divorce statistics are high. Estimates suggest that 50% of all marriages end in divorce, or as much as two in three marriages end up in the divorce courts. A large proportion of those filing for divorce cite finances and money as the leading cause of separation – along with divorce or infidelity/ adultery, physical, emotional or verbal abuse, in-law problems, life transitions, addictions, childhood baggage, different life agendas, life overload, mid life crisis and controlling behaviour.

Money is a dominant theme. Many women stay in a marriage out of fear of being left with nothing. Preller said men generally want to keep their financial independence and tend to want to give away as little as possible. For many women, a divorce will be the biggest business deal of their lives.  “They need to know the financial ramifications of the decisions that they are making in the divorce and for their future. I see often that many women do not have the slightest idea of the assets of their husband,” he said.

When a couple splits, a woman’s standard of living generally drops with about 25% in the first year after a divorce. Spousal maintenance is not a right any longer, though rehabilitative maintenance i.e temporary maintenance to tie the woman over until she finds employment or until her financial position improves may be awarded to the wife depending on the circumstances of each particular case. A wife can also apply that her husband pays interim maintenance or pays a contribution towards her legal expenses pending the divorce action through rule 43 of the high court rules or she can apply for emergency monetary relief through the mechanisms of the domestic violence act if the husband abuses her financially.

Divorce is a business decision, said Preller. It is of utmost importance to obtain as much financial information as possible to establish the net worth of each party and their ability to make future payments such as child and spousal maintenance after divorce, he said.  In larger divorce matters, a divorce attorney will appoint a forensic auditor to determine the exact assets and liabilities of the parties to arrive at a fair split of the assets. Any divorce attorney should work towards what will be in the best interests of the children, if children are involved.

When an estate has very few if any assets, it may be better to use an online divorce service and it does not make sense to litigate in a divorce court because of the expense. In SA law, the patrimonial consequences of a marriage are governed by the law of the place where the husband was domiciled at the time of the marriage. If for example the husband was domiciled in England at the time of the marriage and no Antenuptial contract was entered into, 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.

In a marriage in community of property, it is important to establish the net value of the communal estate at the date of divorce. Then one can establish what each party is entitled to. Often, spouses can’t agree on a division on the joint estate and a Receiver or Liquidator needs to be appointed to divide the assets. When a marriage in community of property dissolves through divorce, each spouse is entitled to 50% of the joint estate, which includes the parties’ pension benefits.

In a marriage out of community with accrual, an auditor often needs to be appointed to determine the accrual. Preller said however he’s been involved in a number of divorce matters where extremely wealthy people were married in community of property. They may not have received the proper legal advice, “or became so focussed on the wedding ceremony that they forget about the consequences of a failed marriage.

Where there has been a shift towards shared responsibility is with children. “When there are children involved, women generally focus more on their wellbeing than men would do. However through the years I have seen a definite shift regarding the parental responsibilities over the children”.  More and more, shared parenting arrangements between spouses over the children.

Source Sunday Times – Business Times Interview by Adele Shevel

Bertus Preller is a Divorce and Family Law Attorney in Cape Town and has more than 20 years experience in law and 13 years as a practising attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. in Cape Town. Bertus is also the Family Law expert on Health24.com and on the expert panel of Law24.com. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Custody (care and contact) of children, same sex marriages, unmarried father’s rights, domestic violence matters and international divorce law.

Contact Bertus at info@divorceattorney.co.za

http://www.divorceattorney.co.za

Divorce, can my spouse evict me from the matrimonial home?


The provision of accommodation and household assets forms part of the duty to support and therefore the occupation of the matrimonial home and the use of the household assets are closely related to the duty of support.

During the subsistence of the marriage both spouses are entitled to live in the matrimonial home and to make use of the household assets such as appliances and furniture, irrespective of whether they were married in or out of community of property and irrespective of which spouse owns or rents the matrimonial home or household assets. The latter is a unique and invariable consequence of a marriage.

As a general rule the spouse who rents or owns the property may therefore not eject the other spouse from the matrimonial home without providing him or her with a suitable alternative of accommodation, nor may the other spouse eject the spouse that rents or owns the property from the matrimonial home. The interests of the children as well as matrimonial guilt play an important role. The Constitution of the Republic of South Africa also plays a role in that Section 28 (2) requires that a child’s best interests must be paramount in all matters relating to children. Therefore even the “innocent” spouse can be ejected from the matrimonial home if that will be in the best interests of the child.

A spouse who is subject to ejectment from the matrimonial home or who is barred from using the household assets can approach the court for an interdict to stop the other spouse from doing so. If the right has already been violated and for example where the other spouse has changed the locks or has denied the other spouse access, the aggrieved spouse can approach the court to invoke what is called in law the mandament van spolie.

I recently handled a matter where one spouse was ejected from the family home without an offer of alternative accommodation. We applied under the Domestic Violence Act, 116 of 1998 for emergency monetary relief pending the institution of a Rule 43 Application and were successful in obtaining monetary relief for the deposit on a new house and the monthly rental instalments.

Written by:

Bertus Preller

Family Law Attorney

Abrahams and Gross Inc.

http://www.divorceattorney.co.za

info@divorceattorney.co.za

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