In so far as grandparents’ rights and responsibilities are concerned, ss 23 and 24 of the Children’s Act, which govern non-parental rights to care and guardianship respectively, came into operation on 1 April 2010. Before that date grandparents had no inherent rights or responsibilities and it was only a high court, as upper guardian of a child, which could confer access, custody or guardianship on a grandparent. This would be done only if it were in the best interests of a child – an assessment that must be made having regard to the rights of the biological parents.
Grandparents very often receive the fallout from their chidren’s divorces – limited, restricted or no access at all to their often beloved grandchildren. This has all changed with the New Children’s Act whose main objectives are, amongst others to:
- make provision for structures, services and means for promoting and monitoring the sound physical, psychological, intellectual, emotional and social development of children;
- strengthen and develop community structures which can assist in providing care and protection for children;
- promote the preservation and strengthening of families;
And calls for
- the prioritisation of the best interest of the child,
- the right to the child being able to participate in any matter concerning that child,
- a child’s right of access to court.
One of the issues covered by the new Children’s Act, is giving the right of contact and care to an interested person, in this instance the grandparent, by order of court, Children’s or High Court,
It also makes provision for any person having an interest in the care, well-being and development of a child to apply to the High Court for an order granting guardianship .
The Court In making its order, will consider and take into account:
- the best interests of the child;
- the relationship between the applicant and the child
- the degree of commitment that the applicant has shown towards the child
- the extent to which the applicant has contributed towards expenses in connection with the birth and maintenance of the child; and
- any other fact that should, in the opinion of the court, be taken into account
Compiled by Bertus Preller, Family and Divorce Law Attorney Bertus Preller & Associates
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.