Divorce Attorney Cape Town

Facebook ‘Friend’ Offer Exposes Man’s Other Wife

Facebook’s automatic function to connect its users through “friends” they might know recently led two women in the United States to find out they were in fact married to one and the same man, at the same time.

This led to the man being charged with bigamy.

The man married a woman in 2001, separated in 2009, then changed his name and remarried without divorcing his first wife. The first wife first noticed this to her shock when Facebook suggested the friendship connection to wife number 2 under the “People You May Know” feature.

Neither the man nor his first wife had filed for divorce. The man allegedly told wife No. 1 not to tell anybody about his dual marriages and that he would fix it. But wife No. 1 alerted the authorities.

Facebook over the years has played a role in both creating relationships and destroying them. It’s just the latest vessel by which people can stray if they want to.

Bigamy is the act of entering into a marriage with one person while still legally married to another. Bigamy is a criminal offense in most western countries, and when it occurs in this context often neither the first nor second spouse is aware of the other. The legal status of the parties is as if they never concluded a marriage, the second marriage is thus void and has no legal consequences and its effect is absolute. It is also unnecessary to obtain a court order, although this may be done for sake of legal certainty.

A void marriage, like in the case where Bigamy was committed means that legally no marriage has come into existence.

Save for in a case of Bigamy a marriage will also be void where the parties have not adhered to some formal or material requirements. Examples of formal requirements that will render a marriage null and void include the following:

  • The marriage was not conducted by a competent marriage officer
  • No witnesses were present at the marriage ceremony
  • A boy under 18 years or a girl under 15 years of age married and did not obtain the consent of the Minister of Home Affairs
  • The parties are related to each other within the prohibited degrees of relationship
  • One or both of the parties were mentally incapable when they concluded the marriage

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.

Parental Alienation, are you guilty?

There are thousands of divorces every year in South Africa…

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

International abduction of minor children a South African Law Perspective

International abduction of minors a South African Perspective

Article 3(b) of the Hague Convention on the Civil Aspects of International Child Abduction (1980), which is incorporated into South African law by the Hague Convention on the Civil Aspects of International Child Abduction Act 72 of 1996 (the Act), provides that the removal or retention of a child is to be considered wrongful if, among others, at the time of the removal or retention, the rights of custody were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

In terms of article 13(b), the authority of the requested state is not bound to order the return of the child if the person, institution or other body in the other state that opposes the return or retention establishes that there is a grave risk that his return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. In Central Authority of the Republic of South Africa and Another v LG 2011 (2) SA 386 (GNP) the second applicant, the father, and the respondent, the mother, were married and living together with their minor child in the United Kingdom (UK). After several heated arguments the parties agreed to divorce and that the respondent would return to her native South Africa with the child. Alleging that the respondent agreed to return with the minor child to the UK after attending a wedding in South Africa and as she failed to do so she had unlawfully retained the child in this country, the second applicant (with the help of the first applicant, the Central Authority of South Africa) applied for a court order for the return of the child to the UK. The application was dismissed with costs.

Molopa-Sethosa J said the fact that the second applicant was prepared to stay away from the minor child, who was only 17-months-old at the time, for at least six months when the child was in South Africa with the respondent (who was during that time considering whether reconciliation with the second applicant was possible) was not indicative of a close bond between the second applicant and the child. Furthermore, the child would be exposed to the risk of psychological harm if he were to be returned to the second applicant who did not have the best interests of the child at heart. The fact that since the child had been in South Africa his health improved tremendously was of the utmost importance and could not be ignored.

Best interests and views of a child in international abduction matters:

In Central Authority v MR (LS Intervening) 2011 (2) SA 428 (GNP) the court dealt with the best interests of a minor child and her views in an international child abduction matter. After the death of her mother the minor child of some nine years lived with her biological father in Belgium. Subsequently the two relocated to Los Angeles, in the United States of America (USA), because of the father’s professional commitments.

There the two lived with the father’s new wife. After the child visited her maternal grandmother in Hoedspruit, Limpopo, the grandmother prevented the minor child returning to the father in Los Angeles and instituted an ex parte application to keep the child in this country. She sought, pending the final outcome of the family advocate’s investigation, full parental rights and responsibilities in respect of the minor. Meanwhile, the father sought the return of the child to the USA. The court dismissed the father’s application, but ordered the grandmother to pay costs because of the unacceptable way she instituted ex parte proceedings and for not being candid with the court.

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.

Grounds for Divorce in South Africa


Dissolution of marriage and grounds of divorce

A marriage may be dissolved by a court by a decree of divorce and the only grounds on which such a decree may be granted in terms of the South African Divorce Act are

  • the irretrievable break-down of the marriage as contemplated in section 4;
  • the mental illness or the continuous unconsciousness, as contemplated in section 5, of a party to the marriage.

Irretrievable break-down of marriage as ground of divorce

A court may grant a decree of divorce on the ground of the irretrievable break-down of a marriage if it is satisfied that the marriage relationship between the parties to the marriage has reached such a state of disintegration that there is no reasonable prospect of the restoration of a normal marriage relationship between them.

Section 4 (2) of the Divorce Act lays down three circumstances which a Court may accept as evidence of irretrievable breakdown of a marriage and these are that:-

  • the parties have not lived together as husband and wife for a continuous period of at least one year immediately prior to the date of the institution of the divorce action.
  • the Defendant has committed adultery and that the Plaintiff finds it irreconcilable with a continued marriage relationship
  • the Defendant has in terms of a sentence of a Court been declared a habitual criminal and is undergoing imprisonment as a result of such sentence.

This does not mean however that:- the man and wife have to live in separate buildings but in the past our Courts have been unwilling to (even on a undisputed basis), hear the case if the parties are still living in the same house on the date of the application. There must be a reasonable explanation, but even then some judges have refused to grant a decree of divorce.

If the Plaintiff is a party to an adulterous relationship it may be proof of a real break-down of the marriage. If irretrievable breakdown has been proved, the court still has discretion to refuse the divorce.

In terms of section 4(3) of the Divorce Act the Court still has discretion not to grant a divorce order but postpone the proceedings sine die or even dismiss the claim if it appears to the Court that there is a reasonable possibility that the parties may become reconciled through marriage counselling, treatment or reflection. The Summons also usually contains the averment that further marriage counselling and/or treatment will not lead to any reconciliation. This evidence must also be tendered to the Court even on an unopposed basis.

The Court must therefore be satisfied that the marriage has really irretrievably broken down and that there is no possibility of the continuation of a normal marriage, before a final divorce order will be granted.

The court may postpone the proceedings in order that the parties may attempt reconciliation if it appears to the court that there is a reasonable possibility that the parties may become reconciled through marriage counselling, treatment or reflection.

Where the parties live together again after the issue of Summons, it does not necessarily end the underlying cause of the action. If the reconciliation after a few months is seemingly unsuccessful, they can proceed on the same Summons.  Where a divorce action which is not defended is postponed in order to afford the parties an opportunity to attempt reconciliation, the court may direct that the action be tried de novo, on the date of resumption thereof, by any other magistrate/ judge of the court concerned in terms of section 4(4) of the Divorce Act.

A customary marriage may be dissolved only on account of an irretrievable breakdown in the marriage and only if the High, Family or Divorce Court is satisfied that the marriage relationship between the parties has reached such a state of disintegration that there is no reasonable prospect of the restoration of a normal marriage relationship between them.

Mental illness or continuous unconsciousness as grounds of divorce:

A court may grant a decree of divorce on the ground of the mental illness of the defendant if it is satisfied that the defendant, in terms of the Mental

Health Act 18 of 1973; has been admitted as a patient to an institution in terms of a reception order; is being detained as a State patient at an institution or other place specified by the Minister of Correctional Services; or is being detained as a mentally ill convicted prisoner at an institution.

A divorce order may also be granted if such defendant has also for a continuous period of at least two years immediately prior to the institution of the divorce action, not been discharged unconditionally as such a patient,

State patient or mentally ill prisoner; and the court has heard evidence of at least two psychiatrists, of whom one shall have been appointed by the court, that the defendant is mentally ill and that there is no reasonable prospect that he will be cured of his mental illness.

A court may grant a decree of divorce on the ground that the defendant is by reason of a physical disorder in a state of continuous unconsciousness, if it is satisfied that the defendant’s unconsciousness has lasted for a continuous period of at least six months immediately prior to the institution of the divorce action; and after having heard the evidence of at least two medical practitioners, of whom one shall be a neurologist or a neurosurgeon appointed by the court, that there is no reasonable prospect that the defendant will regain consciousness.

The court may appoint a legal practitioner to represent the defendant at proceedings under this section and order the plaintiff to pay the costs of such representation.

The court may make any order it may deem fit with regard to the furnishing of security by the plaintiff in respect of any patrimonial benefits to which the defendant may be entitled by reason of the dissolution of the marriage.

For the purposes of this section the expressions ‘institution’, ‘mental illness’, ‘patient’, ‘State patient’ and ‘reception order’ shall bear the meaning assigned to them in the Mental Health Act, 1973.

The circumstances under which a court may grant a divorce order on the basis of mental illness or continuous unconsciousness is as follows:-

  •  In the case of mental illness the Defendant must have been admitted, in terms of the Mental Health Act, 1973 (Act No 18 of 1973), as a patient to an institution in terms of a reception order, for a period of at least two years and in any case two psychiatrists (one appointed by the Court) must satisfy the Court that there is no reasonable prospect that he will be cured of his mental illness.
  • In the case of unconsciousness the Court will only grant the order if the Defendant was unconscious for a continuous period of at least six months immediately prior to the institution of the action and also after hearing the evidence of two medical practitioners of whom one shall be a neurologist or a neuro-surgeon appointed by the Court who must declare that there is no reasonable prospect that the Defendant will regain consciousness.

In such cases a curator ad litem must be appointed to protect the interests of the Defendant (patient) and to assist the Court.

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 and the impact of the recession – Sunday Times Article

While financial matters are one of the biggest strains on a marriage and a primary cause of divorce, the divorce rate has declined during the recession.

This, say some experts, is because getting divorced is costly, especially so when times are tough. Moreover, most lawyers require a deposit before they will consider a case.

People would rather hold back on divorce proceedings because of the cost involved. In many cases when there is a strain on the marriage, the main breadwinner will not disclose some sources of income or other financial details, which makes it very difficult for the other spouse to file for divorce. By default, this results in the couple staying married.

Couples have been choosing to separate or to stay together in an unhappy relationship. Most of the complaints, especially by women, are that they cannot afford to get divorced and are unsure whether they will be financially secure after divorce.

The economic climate is not that good, and people still have a lot of debt. Some people can’t afford to get divorced because of that.

Bertus Preller, an attorney at Bertus Preller & Associates, says couples are being coerced into staying together for pragmatic financial reasons.

Maintaining two separate households while relying on the income once used to support a single household can be very difficult when times are tough, he says.

“I also think that our challenging financial climate may have prompted individuals to reconsider the role of marriage by thinking more of it as a quest for financial stability than a quest for finding a soulmate.”

In a US survey in which 1197 married couples were asked how their relationship had changed during the recession, a third said their marriage was at a high risk of divorce through added financial stress, while 38% of couples who had been considering divorce delayed their plans because of the costs, including legal fees and setting up separate households.

About 30% said the struggle of surviving the recession had brought them closer to their partner as they weathered the storm together.

More than half of the 1600 attorneys who are members of the American Academy of Matrimonial Lawyers reported a 40% downturn in their business in 2009, a phenomenon the New York Daily News described as “sleeping with the enemy”.

Those same lawyers are now being inundated with new clients as financial stability returns. The Financial Times reported that, in a signal of economic recovery, the US divorce rate was growing.

A stronger economy, lower unemployment and a housing market that is stabilizing are contributing to a rise in divorce filings.

“There is a definite increase in divorce instructions this year in comparison to 2010,” says Preller.

“From this, one may assume that the economy is slowly starting to pick up and, unfortunately, the divorce rate is too.”

Article by: Adele Shevel – Sunday Times: http://www.timeslive.co.za/sundaytimes/article1064919.ece/Recession-puts-brakes-on-divorce

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 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 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.

Living together, make sure you have a cohabitation agreement, otherwise you leave with nothing!

Personal finance: If you don’t say ‘I do”, get it in writing – Interview with Bertus Preller – Family Law Attorney

Gone are the days of “single” or “married”. You only have to look at Facebook’s relationship declaration options to know that today’s partnerships come in all shapes and sizes.

But what are the financial risks of being involved in a long-term relationship that is not formally recognised as a marriage?

We quizzed some experts to find out the best ways to protect yourself if you don’t fancy walking down the aisle with your life partner.

Family law attorney Bertus Preller said patterns of marriage, divorce and cohabiting without marriage had been changing for years.

“The incidences of domestic partnerships are growing throughout the world.”

Preller said that, according to the 1996 census, 1.3million people described themselves as living with a partner. When the 2001 census came around, this figure had almost doubled to nearly 2.4million.

Many people believe that, if they live together for some time, the relationship will be recognised by the state, and there will be legal rights, duties and protection.

But Preller said there was no such thing as common-law marriage – because the concept has been abolished worldwide.

“The time a couple spend living together does not translate into a default marriage. The consequence is that, at the dissolution of the relationship, the assets or any obligations are determined or distributed on a basis of the arrangement that parties used during their relationship,” he said.

Domestic partnerships were never prohibited in South African law – but neither did they enjoy any noteworthy recognition or protection, Preller said.

“In SA, marriage laws traditionally provided parties with a variety of legal protections. These laws governed what happened to the property of the parties during the marriage and on dissolution, either by divorce or death, and also meant that certain benefits were automatically acquired, such as membership of medical aid funds, pension funds, etc.

“Married spouses also had a reciprocal duty of support under the common law.”

Preller said South African courts had occasionally helped couples by deciding that an express or implied universal partnership existed, but this was usually difficult to prove.

“The only way to be protected in our law is to enter into a cohabitation agreement. Such an agreement clarifies the expectations of the partners and also serves as an early warning of future problems.

“A cohabitation agreement will determine what would happen to the property and assets of the couple if they should decide to separate. The agreement is, however, not enforceable in so far as third parties are concerned.”

However, in terms of the 2005 Children’s Act, the parents of children born out of wedlock had a duty to maintain their offspring, “irrespective of the living arrangements”, Preller said.

“Basically a cohabitation agreement regulates rights and duties between the partners.

“It could almost be compared to an antenuptial contract entered into prior to the conclusion of a civil marriage.

“The agreement can provide for the division and distribution of assets upon dissolution: for instance, the formal agreement may set out the rights and obligations towards each other; the respective financial contributions to the joint home; clarify arrangements regarding ownership of property that they may purchase jointly and the division of their jointly owned assets should they separate,” said Preller.

“An agreement such as this will be legally binding as long as it contains no provisions that are immoral or illegal.

“If there is no agreement on the dissolution of a domestic partnership agreement, a party would only be entitled to retain those assets which he or she has purchased and owns and further would be entitled to share in the assets proportionately in terms of the contribution which they have made to the partnership.”

Preller said, however, that problems arose if a partner tried to enforce a domestic partnership agreement if the partner being sued was married to someone else.

“It has been argued that in such cases domestic partnership agreements violate public policy to the extent that they impair the community of property rights (where applicable) of the lawful married spouse.”

He said the Domestic Partnerships Bill was still being formulated, and it wasn’t clear how it would be implemented.

“In the current constitutional dispensation it is unlikely that a partner will be left in despair, taking into account the Domestic Partnerships Bill,” Preller said.

Fiona Renton, head of the legal services department at financial and risk services provider Alexander Forbes, said: “My advice would be for cohabiting couples to enter into a contract – a written partnership agreement that states exactly what will happen in the event of death or a split, protecting their rights and outlining their obligations.

“For example, when it comes to the ownership of property, the contract should state what happens to ownership of the property (such as one spouse buying out the other) or payments in the event of death or a split.

“Putting any relationship into writing is always helpful, even if it’s just adding someone on your medical aid as a dependant.

“Having said that, in the event of death, having a will is always the best idea.

“Out of the bounds of a legally recognised marriage there is no intestate succession – meaning there is no automatic participation in the estate to make sure the other partner is looked after.”

Joint accounts never a good idea

Money is one of the most important matters a couple needs to resolve when contemplating living together or marriage, according to Sugendhree Reddy, director of banking products at Standard Bank.

“One issue that often comes up in these kinds of discussions is whether to have a joint bank account. In many ways, this can seem like an appealing option.

“However, most financial experts don’t recommend having a joint account at all. We never encourage a joint account because whether you are married or living together, you both need to grow your assets and get a good credit rating. Having a joint account invariably makes it difficult for one of the partners to do so. Besides, a joint bank account puts one partner at great risk in the event of a break-up, death or financial difficulties.”

Reddy said there was no joint bank account with two equal account holders. “A ‘joint’ account is actually an account in one person’s name, to which the other person is a signatory. This causes a number of complications for that signatory. The most important of these is that without a bank account in your name, you will have no credit record at the bank – which makes it difficult to get credit at shops, open a cellphone account or apply for a loan.”

In the event of a break-up, Reddy said, the joint account could be emptied by one partner or the person in whose name the bank account is held could remove the second signatory.

If one partner dies, “banks tend to freeze the account until the estate is resolved – leaving the signatory partner with no access to the funds for an extended time”, said Reddy.

Reddy advises couples to split responsibility for monthly expenses, or open an account for the household into which both pay a portion of their salaries for general expenses.

Who gets your pension?

There are typically two types of benefits payable to “spouses”, says Fiona Renton, head of legal services at Alexander Forbes.

“Firstly pensions, which are payable to those who qualify as spouses – and that would depend on how each fund defines an ‘eligible spouse’: people must check the fund rules to see if their partner/spouse would qualify.

“Fund rules may stipulate that you must be married to the same person at date of retirement and date of death for them to qualify for a spouse’s pension. This prevents so-called ‘death-bed marriages’ where a pensioner marries someone much younger than them after they have already retired – and on their death the fund realises that there is a much younger spouse to whom they have a liability to pay a pension for many years.”

The second benefit type is the typical fund benefit (fund credit or share of fund) plus an insured multiple of a salary (three times annual salary, for example).

“This is allocated by the trustees, to your dependants and nominees.

“A dependant includes a spouse; the Pension Funds Act defines a spouse as ‘a person who is the permanent life partner or spouse or civil union partner of a member in accordance with the Marriage Act, Recognition of Customary Marriages Act, Civil Union Act or the tenets of a religion. A very wide definition.”

To ensure that no partner is overlooked, the pension fund member should always nominate a beneficiary in the relevant form to help the trustees – although trustees are not absolutely bound to follow that nomination, said Renton.

“Unfortunately, when it comes to death and money such decisions by fund trustees are often contested.”

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 Maurice Phillips Wisenberg 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 now less costly and easier through the Magistrate’s Courts

The Department of Justice and Constitutional Development has amended the Magistrate’s Courts Act of 1944 giving powers to Regional Courts to now deal with divorce cases as well. President Jacob Zuma announced the commencement of the Jurisdiction of Regional Courts Amendment Act which came into effect on 9th August 2010, the National Woman’s Day. The Regional Courts were established in 1952 to deal with divorces, serious criminal offences and mete out harsher penalties. The amendments increase access to justice to members of the public, in particular, women and children who go to courts daily for the resolution of family related disputes relating to divorce; maintenance; adoption; and matters relating to custody of minor children.

These amendments are good news for people utilising the eDivorce process, a DIY online divorce service at http://www.edivorce.co.za for the mere reason that it offers parties in a divorce action the opportunity to conclude their divorce in their area of residence, faster and with wider access to the courts. Previously divorces in South Africa were handled by just a few Family Courts and the High Court and through the implementation of the new system; it will be not only more cost effective but also quicker as a result of the spread in the workload.


Reduced time of finalisation of cases:

  • There are now 62 more Regional courts to deal with same workload that the 3 former divorce courts.
  • This will assist in reducing case backlogs both at the High Courts and Magistrates Courts.

Reduced Costs:

  • Proceedings in the High Courts are complex to the extent that attorneys and advocates are usually instructed resulting in high litigation costs.
  • Regional courts have a reduced scale of costs in relation to the High Court, and simplified proceedings which include the use of mediation in resolving civil disputes.
  • Registrars and assistant registrars appointed at each regional court to provide assistance to member of the public.

The Courts are located in the diagram below:

Province New seat of civilRegional Court Areas in respect of which the civil Regional Court has jurisdiction


East London East London, Komgha and Mdantsane
Grahamstown Albany, Adelaide, Alexandria, Bathurst, Bedford and Somerset East.
Graaff-Reinet Graaff-Reinet, Aberdeen, Cradock, Hofmeyr, Jansenville, Middelburg, Pearston and Willowmore.
King William’sTown King William’s Town, Cathcart, Fort Beaufort, Keiskammahoek, Middledrift, Peddie, Stutterheim, Victoria East andZwelitsha.
Mthatha Umtata, Bizana, Butterworth (Gcuwa), Elliot, Elliotdale (Xhora), Engcobo, Flagstaff (Siphaqeni) , Idutywa, Kentani (Centane), Libode, Lusikisiki, Maclear, Matatiele, Mount Ayliff (Maxesibeni), Mount Fletcher, Mount Frere (Kwabacha) , Mqanduli, Nqamakwe, Ngqeleni, Port St Johns (Umzimvubu), Qumbu, Tabankulu, Tsolo, Tsomo and Willowvale (Gatyana)
Port Elizabeth Port Elizabeth, Kirkwood, Motherwell and Uitenhage.
Queenstown Queenstown, Albert, Aliwal North, Barkley East, Glen Grey (Cacadu) (Lady Frere), Herschel, Hewu, Indwe, Lady Grey, Mo;teno, Mpofu (Seymor) (Stockentrom), Ntabethemba, Sterkstroom, Steynsburg, St Marks (Cofimvaba), Tarka, Venterstad, Wodehouse and Xalanga (Cala).
Humansdorp Humansdorp, Hankey, Joubertina, and Steytlerville.
Free State Bethlehem Bethlehem, Ficksburg, Fouriesburg, Frankfort, Harrismith, Lindley, Reitz, Senekal, Villiers, Vrede and Witsieshoek.
Bloemfontein Bloemfontein , Bethulie, Boshof, Botshabelo, Brandfort, Clocolan, Dewetsdorp, Edenburg, Excelsior , Fauresmith, Jacobsdal, Jagersfontein, Koffirfontein, Ladybrand, Marquard, Petrusburg, Philippolis, Reddersburg, Rouxville, Smithfield, Trompsburg, Thaba Nchu, Wepener and Zastron
Kroonstad Kroonstad, Heilbron, Koppies, Parys, Sasolburg, Viljoenskroon and Vredefort.
Welkom Welkom, Bothaville, Bultfontein, Hennenman, Hoopstad, Odendaalsrus, Theunissen, Ventersburg, Virginia, Wesselsbron and Winburg.
Gauteng Ekangala Ekangala, Bronkhorstspruit and Cullinan.
Johannesburg Johannesburg. [Can also go to Kliptown Regional Court]
Kempton Park Kempton Park, Benoni, Boksburg, Daveyton and Tembisa.
Kliptown (Canalso go to Johannesburg



Armadale, Chiawelo, Comptonville, Devland, Dhlamini, Diepkloof, Dobsonville, Dobsonville Gardens, Doornkop, Dube, Emdeni, Jabavu, Jabavu Central Western, Jabulani, Klipriviersoog, Klipspruit, Klipspruit West, Lenaron, A.H., Lougherin A.H., Lufhereng, Mapetla, Meadowlands, Meredale, Mofolo Central, Mofolo North, Mofolo South, Molapo, Moletsane, Moroka, Moroka North, Naledi, Naturena, Nomzamo, Noordgesig, Orlando, Orlando East, Orlando Ekhaya, Orlando West, Phiri, Pimville Ext & Zones, Power Park, Protea City, Protea Glen, Protea North, Protea North Ext.1, Protea North Ext.9, Protea South Ext.1, Racecourse, Riversdale, Senaoane, Stesa A.H, Slovoville, Slovoville Ext.1, Tladi, Zola, Zola Ext.1 and Zondi.
Oberholzer Oberholzer and Westonaria.
Pretoria Pretoria, Atteridgeville, Mamelodi, Soshanguve and Wonderboom.
Randburg Randburg and Alexandra.
Roodepoort Roodepoort, Krugersdorp and Randfontein.
Germiston Germiston and Alberton.
Vereeniging Vereeniging, Meyerton and Vanderbijlpark.
Springs Springs, Brakpan, Heidelberg and Nigel.
KwaZulu-Natal Durban Durban, Chatsworth, Inanda, Lower Tugela, Ndwedwe, Pinetown, Umbumbulu, Umlazi and Ntuzuma.
Empangeni Empangeni (Lower Umfolozi), Eshowe, Hlabisa, Kranskop, Mahlabatini, Mapumulo, Mtonjaneni,Mtunzini and Nkandhla.
Newcastle Newcastle, Dannhauser, Dundee, Estcourt, Glencoe, Klip River, Madadeni, Msinga, Utrecht and Weenen.
Vryheid Vryheid, Babanango, Ingwavuma, Ngotshe, Nongoma, Nqutu, Paulpietersburg, Piet Retief and Ubombo.
Pietermaritzburg Pietermaritzburg, Bergville, Camperdown, Impendle, Lion’s River, Mooi River, New Hanover, Polela, Richmond, Umvoti and Underberg.
Port Shepstone Port Shepstone, Alfred, Ixopo, Mount Currie, Umzimkulu and Umzinto.
Limpopo Giyani Giyani, Bolobedu, Malamulele, Sekgosese, Tshitale and Vuwani.
Lebowakgomo Thabamoopo.
Sekhukhune Sekhukhuneland, Nebo and Praktiseer
Modimolle Waterberg, Ellisras, Northam, Phalala, Thabazimbi and Warmbaths.
Polokwane Pietersburg, Bochum, Mankweng, Mokerong, Potgietersrus and Seshego.
Tzaneen Letaba, Lulekani, Namakgale, Naphuno, Ritavi and Phalaborwa.
Thohoyandou Thohoyandou, Dzanani, Hlanganani, Messina, Mutale, Sibasa, Soutpansberg, Tiyani and Tshilwavhisiku.
Mpumalanga Eerstehoek (Elukwatini) Eerstehoek, Carolina, Ermelo, Piet Retief and Wakkerstroom.
Evander Highveld Ridge, Amersfoort, Balfour, Bethal, Delmas, Standerton and Volksrust.
KwaMhlanga Kwamhlanga, Mathanjana, Mbibana, Mdutjana and Mkobola.
Middelburg Middelburg, Groblersdal, Kriel, Moutse and Witbank.
Mbombela Nelspruit, Barberton, Belfast, Lydenburg, Mapulaneng, Mhala, Nkomazi, Nsikazi, Pilgrim’s Rest, Waterval-Boven and White River.
Northern Cape De Aar De Aar, Britstown, Carnarvon, Colesberg, Hanover, Noupoort, Philipstown, Richmond and Victoria West.
Kimberley Kimberley, Barkly West, Hartswater, Douglas, Hopetown, Jan Kempdorp and Warrenton.
Springbok Calvinia, Fraserburg, Garies, Namaqualand, Port Nolloth, Sutherland and Williston.
Upington Gordonia, Groblershoop, Hay, Kakamas, Kathu, Keimoes, Kenhardt, Kuruman, Olifantshoek, Pofadder, Postmasburg and Prieska.
North West Brits Brits and Warmbaths.
Ga-Rankuwa Odi and Pretoria.
Klerksdorp Klerksdorp, Bloemhof, Christiana, Schweizer-Reneke and Wolmaransstad.
Mmabatho Molopo (Mafikeng), Atamelang, Ditsobotla, Mafeking, Lehurutshe, Lichtenburg, Mafeking, Ottosdal and Zeerust
Potchefstroom Potchefstroom, Coligny and Ventersdorp.
Rustenburg Rustenburg, Bafokeng, Koster, Madikwe, Mankwe, Marico and Swartruggens.
Temba Moretele
Vryburg Vryburg, Delareyville, Ganyesa, Kudumane (Tlhaping-Tlharo), Kuruman and Taung.
Western Cape Atlantis Atlantis, Clanwilliam, Hopefield, Malmesbury, Moorreesburg, Piketberg, Van Rhynsdorp, Vredenburg and Vredendal.
Bellville Bellville, Bluedowns and Kuils River.
Cape Town Cape and Goodwood.
George George, Heidelberg, Knysna, Mossel Bay, Riversdale, Thembaletu and Uniondale.
Mitchells Plain Mitchells Plain and Khayelitsha.
Oudtshoorn Oudtshoorn, Beaufort West, Calitzdorp, Ladismith, Murraysburg and Prince Albert.
Somerset West Somerset West, Bredasdorp, Caledon, Grabouw, Hermanus, Paarl, Stellenbosch, Strand,Tulbagh, Wellington and Wolseley.
Worcester Worcester, Bonnievale, Ceres, Laingsburg, Montagu, Robertson and Swellendam.
Wynberg Wynberg, Athlone, Phillipi and Simon’s Town.

Compiled by Bertus Preller

Family Law Attorney

Bertus Preller & Associates Inc.


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