Divorce Attorney Cape Town

In January divorces are on the increase




Divorces follow the seasons and divorce season is upon us.

It is a well-known fact that divorces in January and February dramatically increase. Spouses do not want to upset the apple cart over the holidays, and they need a peaceful Christmas or New Year’s. And then, because they do not want to spend another lost year with that spouse of theirs, as soon as the holidays are over they pull the plug and file for divorce.

While there are no specific reasons this can be related to the fact that people don’t want to interrupt their summer holiday so they wait until it is over before filing for divorce. Couples are also forced to spend more time together on holiday during which time they come to the conclusion that they are totally incompatible. Some people reach the New Year with the idea that they do not ever want to have to spend another Christmas with exactly the same group of family. Another reason may be that couples stay together until the children leave the house, a daughter may be getting married, so her parents wait until after her wedding to file for divorce.

These days people work often far too hard to make a living, so they do not see enough of each other to keep their relationships working as they should. Instead of talking to one another about their problems they ignore them until Christmas when they appear with a vengeance.

Worse of all is that Christmas is expensive, and couples argue more about money than about anything else so when the pricey presents start piling up the arguments increase. People often overspend on money during the festive season, and when there is a financial breakdown, often the whole marriage breaks down and comes to a halt.

The reality is that divorce makes financial problems even more worse. In marriage, every burden is generally shared but in divorce the burdens are double, not just emotionally, but also financially. One house usually becomes two houses, one electricity bill, two electricity bills and two lifestyles to deal with so when a marriage breaks down everyone usually has to suffer.

If you are considering divorce, here are some tips to consider:

Can your marriage be saved? Divorce can be expensive and will have an emotional toll for you and your children that can last for many years. You must ask yourself if you have done everything possible to avoid divorce. If there is the slightest chance to reconcile counselling should be considered.

Have a plan. Become familiar with our divorce laws and your marital regime. The latter will be crucial when there are assets to be divided. When there are children involved make sure that the decisions that you take is in their best interests. Remember that a child needs the involvement of both parents post-divorce, so for the sake of your children act like adults. It is not always the divorce that is detrimental but the conflict in the divorce.

Build a support network, remember that divorce is also hard on those close to you your family and friends.

Save, divorce is not cheap. Besides legal fees, you will also need extra cash to create a new household. In addition, you should expect disagreements with your spouse about who pays what. Talk to your attorney about a temporary maintenance application (pending finalization of the divorce) and an application for a contribution to your legal expenses. Many spouses are unaware of the chance to obtain a court order against the other spouse for a contribution to his/her legal costs.

Protect your safety. Filing for a divorce may unleash angry and potentially violent feelings and reactions. Before you do file for divorce, think about how your spouse may react, and consider obtaining a restraining order if there is a history of violence in your family.

Put your children first. It is critical to reassure them that they are not at fault. It is also important that both parents tell the children that they are loved, as angry as you might be, it is imperative not to belittle your spouse in front of your children.

Get your documents in order. Before you do file for divorce, get all important documents in order, make copies and start your own file. You should know the status of all accounts, assets and liabilities, the balances of current and savings accounts, debts, the sources and the amount of income entering the home each month as well as the monthly expenses.

Bertus Preller

Family Law Attorney

Abrahams and Gross Inc. – Cape Town – 021 422 1323

Follow him on Twitter: @bertuspreller

Web: www.divorceattorney.co.za

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.

January is Divorce Season in South Africa

Divorce Season

Divorce Attorneys are being flooded with inquiries from unhappy couples following a festive season loaded with over-spending their budgets and obviously too much time spent together.

The number of divorces instituted during December and January is triple than that of the other months, according to top Cape Town Divorce Attorney Bertus Preller at Abrahams and Gross Inc. who handles matters in Cape Town and Johannesburg. “The number of enquiries from spouses about filing for divorce increases to about six times the normal amount during this season”, he said.

It is a well known fact that Divorces in January dramatically escalate, because of spouses being forced to spend time more time together on holiday during which time they come to the conclusion that they are completely incompatible. People often overspend on money during the festive season and, “when there’s a financial breakdown, often the whole marriage breaks down comes to a halt.

Social Networks like Facebook, Myspace and Mxit also light the fire for possible affairs outside the marriage; it’s so much easier these days to make contact with the opposite sex. “I see a lot of cases where men and women provide evidence of the other parties’ extra-marital affair on Facebook and Mxit”, says Preller.

An unopposed divorce settlement could take up to three months to resolve and would cost anywhere between R6000 and R12000. In bigger divorces cases, where there are large estates and the parties quarrel for every last cent, it can cost as much as R1-million.

“Altough January and February are the season for divorce in South Africa, I do believe that a lot of divorces are unnnecessary and that many couples can in fact reconcile, the first issue I always clarify with my client’s are whether a possibility exist to make things work”, says Preller.

Divorce and Family Law Attorney Bertus Preller already has more than 1500 Twitter followers follow at @edivorce.
Source: Newsbreak

Top 10 Divorce Issues Of The Decade: Divorce Attorney Bertus Preller’s Perspective

This past decade has challenged many people in South Africa and around the world with through various emotional events. The outspoken Julius Malema, President Zuma’s acquittal, Shabir Shaik’s release from prison and the murders of Lolly Jackson and Eugene Terblanche, the 9-11, wars in Iraq and Afghanistan, the Tsunami, the deepest recession since the Great Depression, the sacking of President Mbeki and the first African-American President. Many changes happened in the area of divorce and Family Law as well. The following, in no particular order, are my  top divorce and family law related issues since 2000:

The advent of the Internet and social networking

The immense impact of the virtual world and the internet on divorce. Social networking. The rise of Facebook, YouTube, and other sites, where people carelessly share their innermost secrets, with little concern for the consequences of detection by the wrong party. Sms, E-mails, bullying and “sexting” have had a noticeable impact on divorce, and the way family law attorneys handle their cases, and have also impacted our society as a whole.

The recognition of Same-Sex Marriages

Same-sex marriages have come to the forefront during the past several years, became legal in South Africa.

Divorcing without an Attorney

The tremendous rise in people filing for divorce on their own online through divorce services such as eDivorce, people can no longer afford to hire professional legal services.

Parental alienation

Parental alienation, which has been talked about, written about, and discussed, at length, exists in many of my cases. One parent systematically alienates the child/children against the other parent, with devastating and long-term results, not only to the child or children, but to both the parent being alienated, and most assuredly, the alienating parent.

Uprooting families

The poor economy and retrenchments have forced many people to seek employment in other provinces and countries, uprooting entire families and forcing children into unfamiliar surroundings and new schools.

Fathers becoming primary caregivers and parents of permanent residence

The significant increase in fathers becoming primary caregiver and the parent of permanent residence. In addition, there is a considerable increase in the number of couples opting for shared or joint parenting on an equal or close-to-equal basis.

Domestic Violence

The rise in domestic violence, especially with the stress caused by the economic nightmare of the past three years.

Debt Review

During the past two years, people have been inflicted with a brutal reality self-imposed credit card debt, resulting in a lack of financial resources to weather the storm. Couples stayed married, however, simply because of the financial decay each would undeniably face if a divorce action was pursued. Many of my recent divorce cases went hand-in-hand with debt problems.

Unamarried Fathers Rights

The parental rights unmarried fathers gained  automatically to their children was an absolue necessity in our law.

Bertus Preller

Family Law Attorney

Abrahams and Gross Inc.


Email: info@divorceattorney.co.za

Blog also at: http://www.divorceattorneys.wordpress.com

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