Divorce Attorney Cape Town

Grounds for Divorce in South Africa


Dissolution of a civil marriage by divorce in South Africa

Three grounds for divorce were introduced by the Divorce Act:

  1.  irretrievable breakdown of the marriage (section 4);
  2. mental illness of a party to the marriage (section 5);
  3. continuous unconsciousness of a party to the marriage (section 3).

Irretrievable breakdown of the marriage

Section 4(1) – court may only grant a decree of divorce on the ground of the irretrievable breakdown 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.  There are thus 2 requirements:

(a)   marriage relationship must no longer be normal;

(b)   there must be no prospect of the restoration of a normal marriage relationship between the spouses.

The legal definition of “normal marital relationship” should be sought in the concept of consortium omnis vitae.  When either spouse or both of them behave in such a way that the consortium omnis vitae is terminated or seriously disrupted, it can be said that a normal marriage relationship no longer exists between the spouses.

Schwartz v Schwartz:  in determining whether a marriage has reached such a state of disintegration that there is no reasonable prospect of the restoration of a normal marriage relationship between the parties it is important to have regard to what has happened in the past, that is, history of the relationship up to the date of trial, and also to the present attitude of the parties to the marriage relationship as revealed by the evidence at the trial.

Swart v Swart:  a marriage has broken down if one spouse no longer wishes to continue with the marriage.  The formation of an intention to sue for divorce is the subjective element in the method of determining marriage breakdown.  However, in order to assess the probability of a successful reconciliation being effected, the court also has to consider the reasons that prompted the plaintiff to sue for divorce, and the parties’ conduct.  Only when the court has determined that there is no reasonable prospect of reconciliation, will it find that the marriage has broken down irretrievably and grant a decree of divorce.  The court looks at the objective scantiness and surmountability of the reasons why a divorce was applied for to ascertain whether the marriage in question can still be saved.

Coetzee v Coetzee:  in order to succeed in a divorce action based on irretrievable breakdown, the plaintiff must prove that there has been a change in the pattern of the marriage from which breakdown can be deduced.  The inherent problem in this conception is that a divorce cannot be obtained in a marriage which was unhappy from the start and remained unhappy throughout.

Guidelines for irretrievable breakdown of marriage (section 4(2))

The guidelines are merely examples of instances where the probability is high that a normal marriage relationship no longer exists and that there is no reasonable prospect for the restoration of a normal marriage relationship.  However, these guidelines are neither exhaustive nor conclusive.

(1)   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

Since the legislator requires an unbroken period of at least one year, it is clear that if the period was interrupted by periods of resumed cohabitation, the plaintiff would have to present more evidence to the court than the mere fact that they have lived apart for a year.

The consortium between the spouses must have been terminated. Even if the spouses have continued living together under the same roof there is no reason why the plaintiff cannot show that the consortium between them has been terminated.

If the plaintiff wishes to rely only on the spouses having lived apart for a year without adducing any further evidence in support of the divorce action, he or she would have to produce proof that the full period of a year has elapsed.  If the spouses still share the same dwelling, the plaintiff would have to prove the particular point in time at which the consortium came to an end.

(2)   The defendant has committed adultery and the plaintiff finds it irreconcilable with a continued marriage relationship

The test to determine whether the plaintiff considers the defendant’s adultery irreconcilable with the continuation of the marriage is clearly subjective.  If the plaintiff alleges that he or she cannot continue with the marriage, there is no way in which this allegation can be refuted.  There is support for the contention that it is not necessary to convince the court on a balance of probabilities that adultery was committed.  The plaintiff should however place some evidence of the adultery before the court.  A mere allegation that the defendant committed adultery would not be sufficient to ensure the success of the divorce action.

(3)   A court has declared the defendant a habitual criminal and the defendant is undergoing imprisonment as a result of that sentence

If the defendant has not been declared an habitual criminal, the plaintiff would have to adduce evidence other than the mere fact of the defendant’s imprisonment to prove that the marriage has broken down irretrievably.  In any event, in terms of section 4(2), a plaintiff may sue for divorce after a year’s separation, regardless of whether or not the separation resulted from imprisonment.

Incurable mental illness or continuous unconsciousness

The criteria

Section 5(1) – mental illness

  1. The defendant has been admitted to an institution as a patient in terms of a reception order under the Mental health Act, or is being detained as a state patient or mentally ill convicted prisoner at an institution;
  2. The defendant has not been unconditionally discharged from the institution or place of detention for a continuous period of at least two years immediately prior to the institution of the divorce action;
  3. There is no reasonable prospect that the defendant will be cured of his or her mental illness.  This fact must be proved by the evidence of at least two psychiatrists, one of whom must be appointed by the court.

Section 5(2) – continuous unconsciousness

  1.  The defendant must be in a state of continuous unconsciousness caused by a physical disorder;
  2. The defendant’s unconscious state must have lasted for a period of at least six months immediately prior to the institution of the divorce action;
  3. There must be no reasonable prospect that the defendant will regain consciousness.  This fact must be proved by the evidence of at least two doctors, one of whom must be a neurologist or neurosurgeon appointed by the court.

The requirements of section 5 need not be complied with in order to obtain a divorce order against a mentally ill or unconscious spouse.  A decree of divorce can be granted under section 4 if the plaintiff can prove that the marriage has broken down irretrievably.  Only in the most exceptional circumstances will a court make a forfeiture order against a defendant whose mental illness or unconsciousness is the reason for a divorce which is granted in terms of section 4.

Special rules which apply in terms of the Divorce Act:

(a)   Section 5(3)

The court is empowered to appoint a legal practitioner to represent the defendant at the court proceedings, and to order the plaintiff to bear the costs of the defendant’s legal representation.

(b)   Section 5(4)

The court may make any order it deems ft in respect of requiring the plaintiff to furnish security for any patrimonial benefits to which the defendant may be entitled as a result of the divorce.

(c)   Section 9(2)

Forfeiture of patrimonial benefits may not be ordered against a defendant if the marriage is dissolved on the ground of the defendant’s incurable mental illness or continuous unconsciousness.

(d)   Maintenance

The plaintiff may indeed claim maintenance from the mentally ill or unconscious defendant if he or she qualifies for maintenance in terms of section 7(2) of the Act.

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 fathers rights, domestic violence matters and international divorce law.

Co-Parenting after Divorce, Tips from a Family Law Attorney


Co-parenting tips

Basic Conflict Resolution for Co-Parents

It’s hard enough as a married couple to keep lines of good communication open and flowing. It can seem like an insurmountable problem if you are divorced. Your old ways of nitpicking at each other, anger and frustration will crop up again. After all, if you and your former spouse don’t know each other’s hot buttons, who does?

If you find yourself in conflict with your co-parent, here are some tips:

You are Divorced Now

You are no longer a couple who is trying to stay together and work on your marital relationship. The focus of your relationship must now shift from being about the two of you to being about two separate individuals doing your best to raise your children in the most amicable, cooperative way possible.

Make a Resolution to Start Fresh

A very effective way to move into a new relationship as co-parents rather than spouses is to give each other a chance to start anew. Give each other a clean slate and an opportunity to build a new and different relationship, leaving past arguments behind you.

Demonstrate Respect

You’re a role model, and your children are watching you very, very closely. Showing your children that mom and dad can respect each other and resolve conflict respectfully will give them a good foundation for the conflict that arises in their own lives. Demonstrating respect involves a lot of non-verbal communication. Do your best to remain relaxed and focused, use a calm tone of voice and a concerned facial expression when tensions rise.

Don’t Put it Off

If conflict arises, meet it head on and deal with it immediately. If you sweep it under the rug, it could add to your stress level and grow from a small issue to a large resentment. If it is a major concern, discuss it in private, away from the children. Be hard on the problem, not on the people. Focus on solutions rather than guilt, shame and blame. Make sure you are listening to your former spouse as you brainstorm for solution. It is tempting to hear everything your ex says as “yadda yadda yadda,” so try to listen actively even though it may seem you’ve heard it all before.

Take the High Road

Once your children are grown, you won’t have to parent together any more in terms of caretaking, discipline, school, health issues, etc. and you’ll be out of the day-to-day contact which might be challenging you now. But keep an eye toward the future—it will be fun to be grandparents, and it will be easier if you can get along well enough to dance at your child’s wedding and not make them choose where the grandkids spend Thanksgiving. If you want your children to have a good relationship with both you AND your former spouse, there will be times when you may have to put your own feelings aside temporarily. Keep in mind that you only have the power to change the things you can, and the rest is just something you’ll have to let go.

Homes Sweet Homes

Your children now have two homes. To avoid conflict around custody and visitation schedules, be flexible, prompt and respectful. Also, don’t use transfer time to discuss problems. Put agenda items in writing for a meeting later.

Extracurricular Activities

There will be many school and sporting events that your children will have that they will want you both to attend. Be on your best behavior at these times and as polite and nice to your former spouse as possible. Even making subtle jabs at each other in front of the kids’ friends is humiliating and distracting. And no screwing around with coming late to practice, or skipping it altogether. Let your kids have a childhood.

Ask any adult child of divorce if this is good advice. I know it’s tempting to take the low road during your divorce (I am divorced and remarried myself). But the short run rush you get from that biting comment or throwing a monkey wrench into your co-parent’s plans is short lived, while the fall out may be permanent. Make your divorce easier on yourself by making it easier for your co-parent, not to mention your kids.

Compiled by Bertus Preller – Family and Divorce Law Attorney at Abrahams and Gross Attorneys in Cape Town, South Africa.

Source: Diana Mercer is the co-author of Making Divorce Work: 8 Essential Keys to Resolving Conflict and Rebuilding Your Life (Penguin 2010), and Your Divorce Advisor (Simon & Schuster 2001) and a mediator at Peace Talks Mediation Services, Inc.

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.

Cohabitation Law in South Africa – if you don’t have an agreement you may leave with nothing


Cohabitation Trends

Patterns of marriage, divorce, and cohabitating without marriage have been changing. The incidences of domestic partnerships are growing throughout the world. In America 45% of all couples living together are unmarried.

In Sweden, 9/10 couples marrying for the first time already live together, while in Denmark, more than 1/3 of women in their early 20’s are living with a partner without the ties of marriage. As a rough estimate, around one million heterosexual couples are living together without being married in Britain, while in France the number has reached 2.5 million.

South Africa

South African statistics demonstrate a rising trend in cohabitation. Somewhat conservative statistics indicate that a very large number of people live in domestic partnerships in South Africa. The census of 1996 found that 1, 268,964 people described themselves as living together with a partner while the 2001 Census estimated that nearly 2.4 million individuals were living in domestic partnerships, almost doubling the figures of 1996.

In South African law, there is no such thing as a Common Law Marriage. There is no common law marriage in South African law and therefore the duration that 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 the subsistence of their relationship.  Many people believe that simply living together with another person for a continuous period of time establishes legal rights and duties between them. Some people believe that the duration of the relationship creates legal protection while others think that having children together entitles the cohabitation relationship to legal protection. Many people do not know that there is actually no legal recognition of domestic partnerships.

The lack of awareness of legal rights may be as a result of the still prevalent belief in the existence of common-law marriage, despite the fact that this concept has been abolished worldwide.

In South Africa marriage laws have traditionally provided parties to a marriage 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 it also means that many State 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.

Domestic partnerships have never been prohibited by South African law, but nor have they enjoyed any noteworthy recognition or protection by the law.

The South African Courts have on occasion come to the assistance of formerly married couples and couples in domestic partnerships by deciding that an express or implied universal partnership exists between the couple. The problem is that it is extremely difficult to prove such a partnership in South African Law.

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 it also serve as an early warning of future problems. A cohabitation agreement will determine what would happen to 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.

With regard to children, the Children’s Act 38 of 2005 provides that the father of a child who is not married to the child’s mother acquires responsibilities and rights. These responsibilities and rights include caring for the child, maintaining contact with the child, acting as a guardian of the child, and contributing to the maintenance of the child. Notably, a parent to a child born out of wedlock, regardless of whether he or she lives with that child at the birth of the child, has a duty to maintain that child. Thus there is an absolute legal duty to maintain a child irrespective of their living arrangements.

Cohabitation Agreements

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;
  • The division of their jointly-owned assets should they separate.

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.

Problems arise with the enforcement of a domestic partnership agreement – express or implied – where the partner being sued is still legally married to a third party. 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.

Domestic Partnerships Bill of 2008

The Bill is still at its formulation stages and it remains to be seen how it is to 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.

Bertus Preller is a Divorce and Family Law Attorney who acts in Divorce matters in Cape Town, Johannesburg, Durban and Pretoria 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 fathers rights, domestic violence matters and international divorce law.

Children – don’t stop the other parent from having access to his/her child


Refusal of access or refusal to exercise Parental responsibilities and rights

It happen frequently that one party who holds parental rights in terms of a minor child will block the other parent’s access to that child notwithstanding the fact that they have entered into a parental rights and responsibilities agreement. Once such an agreement was a made an order of court or registered at the family advocate’s office violation of rights contained in such an agreement may lead to a criminal offence.

Section 35 of the children’s act criminalizes the refusal to allow someone access or who holds parental responsibilities and rights in terms of a court order or a parental responsibilities and rights agreements that has taken effect, to exercise such access or parental responsibilities and rights. It also criminalizes prevention of the exercise of such access or parental responsibilities and rights. Punishment for any of these offences is a fine or imprisonment for up to one year.

The section further obliges a person who co-holds parental rights and responsibilities with another person in terms of an agreement or court order to notify the other party in writing immediately of any change in his/her residential address. Failure to notify such party will result in an offence.

Bertus Preller is a Divorce and Family Law Attorney who acts in Divorce matters in Cape Town, Johannesburg, Durban and Pretoria 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 fathers rights, domestic violence matters and international divorce law.

Interview with one of Cape Town’s Best Divorce Attorneys Bertus Preller


Interview with one of Cape Town’s Top Divorce Attorneys Bertus Preller at Abrahams and Gross Inc.

Why do people and celebrities from all over South Africa come to you for divorce and family law matters?

Well, firstly, I guess it is because I care a great deal, I work hard and I am involved personally in my client’s cases. I am only as good as the team behind me and our office staff and junior attorneys really assist in alleviating a lot of the pressure associated with my work

What is a typical day look like for you?

I commence work at 5am in the mornings doing my normal correspondence until 7am, drop my daughter at school at 8 am and start seeing clients from 9am till 3pm by the hour, three days a week other days I will be in Court. Evening times I use to read and blog on Family Law issues, study case law and spend time with my family.

You are also the founder of eDivorce a do it yourself divorce platform in South Africa, can you tell us more about this?

eDivorce is a divorce document generating platform and generates all the documents that you will need to conclude an uncontested divorce in South Africa with a click of a button.

So how does the eDivorce process work?

A user will browse a web page, http://www.edivorce.co.za fill in a questionnaire and the technology platform will then generate all the necessary documents such as the Summons, Particulars of Claim, Settlement Agreement, Family Advocate Affidavit, Notice of Set Down and Statistics Form. A team of experts then checks whether the documents were drafted correctly and release them to the user. The document generation process takes 24-hours and the divorce itself, depending which court you file in takes between 3 – 8 weeks.

How many divorces have you handled so far?

It is difficult to say, more than 400.

What are the reasons why people divorce in South Africa?

There are so many reasons, but the most frequent reasons are infidelity, physical, emotional or verbal abuse, money, in-law problems, life transitions, addictions, childhood baggage, different life agendas, life overload, mid life crisis and controlling behaviour.

Are you not concerned about the high divorce rate in South Africa?

Yes, most definitely. A healthy society is built on a solid marital foundation and it is the reason why I urge my client’s always to reconcile if the slightest possibility exist to make things work. If that is not possible, then my roll becomes clinical and the interests of my client and the minor children come first.

Are people generally up to scratch with their rights in a divorce?

Yes and No. The internet and media have played a significant role in educating people on all aspects of life, so in many instances you will find that a party in a divorce matter will know what he/she will be entitled to claim, but in other instances people seem to lack that knowledge, especially women.

Don’t you get subjectively involved in your clients lives?

In order to be successful you have to look at a case clinically. Like a doctor operating on a patient. You have to distance yourself from the emotional aspects. But yes, there are times that you are touched by the hurt of the parties involved, especially when there are children involved. So to answer your question, I am human after all.

Don’t you think people give up to easy in their marriage?

It is difficult to say. It depends on the facts of each case. In a matter concerning adultery, it is very difficult for instance. People can forgive, but forgetting is rather difficult, so unless there is not a huge effort from both spouses to mend the relationship, it will not work and divorce will be inevitable. But then there are many instances where parties can mend their relationships and where opting for divorce would be wrong. Unfortunately life has become like a remote control, if you don’t dig the channel you simply click and change it, so if you don’t like the relationship you click and move on, I don’t think that is a good thing for society as a whole.

What advice can you give to someone going through a divorce?

When there are children involved you have to set the emotions apart and make decisions in the best interests of the children. Divorce is always an emotional rollercoaster and although how difficult it may sound, you have to think with your brain and not with your heart. Relationships are all about control, like using a remote to change the TV channels, one of the parties constantly changes the channels, the kids, the money etc. and that is where many problems surface.

Bertus Preller can be contacted on email at: info@divorceattorney.co.za or at http://www.divorceattorney.co.za

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