Divorce Attorney Cape Town

When billionaires divorce


When dealing with high net worth and multimillionaires divorce matters a divorce attorney must make sure to employ the best possible experts as part of the legal team, this is especially so if the assets at stake run into millions. I was involved as the divorce attorney of a client in a recent matter where two British citizens divorced in South Africa with assets across the globe that ran into millions of rands. In matters such as these various expert witnesses may be employed to lead evidence on behalf of a party to the divorce proceedings, consisting of forensic auditors, valuers, art experts, industrial psychologists, child psychologists, immigration experts etc.

In this matter I was fortunate to work with one of Britton’s top leading Family Law Barristers Richard Todd QC who rendered an opinion on the division of the matrimonial assets in this divorce case as far as it relates to UK law. Richard is an Oxford scholar who won the Hugh Bellott Prize (Highest Placed in the Oxford University Public International Law Finals) and who obtained the highest awards available to a practising Silk: The Chambers & Partners “Family Law Silk of the Year “ and The Lawyer’s “Hottest Family Law QC”. Richard have given expert evidence of English law to the courts of Australia, Belgium, the Cayman Islands, the Channel Islands, Cyprus, France, Germany, Gibraltar, Hong Kong, India, Italy, New Zealand, South Africa, Spain and the USA and appeared in over 4000 matrimonial cases with a long list of report cases, needless to say the identity of former clients is confidential. However former clients include twelve Billionaires (Sterling) and two Oscar winning actors (plus another three who have been nominated).

In this matter the parties were married in England and subsequently immigrated to South Africa. In such a case the matrimonial property regime of England would apply to their marriage and English law would always apply to their marriage. In a case such as this and where the divorce is contested a South African court could divorce them but, the court would have to apply English Law. It is interesting to note that if a South African couple is on holiday in England and decides to get married, they would automatically marry in community of property and not according to English law.

The test is the husband’s domicile as at the date of the marriage, i.e. what country the husband considered to be his permanent home plus his mental intention to remain there indefinitely. Domicile is defined as the principal place of residence of an individual. This is determined primarily by intent.

Thus, if the husband regarded his place of domicile to be Cape Town at the time of the marriage, the parties would be married according to the laws of South Africa and not England and their type of marriage (matrimonial property regime) would be one in community of property. For the marriage to have been out of community of property, the parties would have had to enter into an antenuptial contract in South Africa before leaving for holiday. If they failed to do so, they would have to apply to court to register an antenuptial contract, postnuptially.

About the author:

Bertus Preller is a Divorce 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 and magazines such as Noseweek, You and Huisgenoot, and also appeared on SABC television on the 3 Talk TV show. His clients include artists, celebrities, sports people and high networth individuals. 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.

Email: bertus(@)divorceattorney.co.za

Divorce and Pension Funds – Landmark Case For Government Employees


Divorce and Pension Funds –Landmark Case For Government Employees

In a divorce, where one spouse was awarded a portion of the pension benefits of the other spouse, who is a member of a Pension Fund in the private sector the waiting period for payment of such benefits would normally be 3 to 6 months. However, when the spouse is a member of a Government Pension Fund the spouse that was awarded such benefits had to wait until resignation, termination of employment or death of the other spouse before the benefits could be paid. This has now changed by a landmark decision handed down by Judge Bozalek in the Cape Town High Court in the matter of  Wiese v Government Employees Pension Fund. The Goverment was granted a period of 12 months to change the legislation.

In this case it was declared that the Government Employees Pension Law,  Proclamation 21 of 1996, was inconsistent with section 9(1) of the Constitution of the Republic of South Africa, Act 108 of 1996, insofar as it fails to afford to former spouses of members of the Government Employees Pension Fund  the same rights and advantages as are afforded to former spouses of members of funds subject to the Pension Funds Act, 24 of 1956, more particularly those contained in section 37D(1)(d), (3) (4) and (5), and is invalid to the extent of that inconsistency.

The applicant was a former spouse of a member of the Government Employees Pension Fund (‘the Fund’), the first respondent, who, in March 2008, in terms of a settlement agreement which formed part of a divorce decree, was awarded a 25% share of her spouse’s pension interest in the Fund. The applicant was unable to realise this interest, however, since the legislation governing the Fund, unlike that governing private pension funds, only allows for the realisation of such an interest as and when an ‘exit event’ takes place in relation to the former spouse, such as resignation, termination of employment or death, and no such event has occurred.

As a result of financial hardship the applicant has at all time unsuccessfully sought to realize her share of her former spouse’s pension interest in the Fund. Having exhausted all other avenues she seeked an order that the governing legislation, the Government Employees Pension Law, Proclamation 21 of 1996, (‘the Law’) is inconsistent with s 9(1) of the Constitution of the Republic of South Africa and is invalid to that extent. She seeked, furthermore, an order whereby, broadly speaking, certain provisions in the Pension Funds Act 24 of 1956, (‘the PFA’) which allow for the immediate realization of pension benefits awarded on divorce to the non-member spouses of members of private pension funds, be read into the ‘Law’.

The applicant’s case was that differential treatment of a non-member spouse of a Fund member to that of a non-member spouse of a member of a pension fund governed by the PFA violates the affected party’s right, in terms of s 9(1) of the Constitution, to the equal protection and benefit of the law. More particularly, she contended that the applicant’s right of access to social security as entrenched in s 27 (1)(c) of the Constitution, and that of others in her position, was violated.

Given that the ‘clean break’ principle is applied to the divorced spouses of private pension fund members, there appears to be no rational reason why this should be withheld from their counterparts on divorce from a member of the Fund (or any other public pension fund, for that matter).

Bertus Preller

B.Proc; AD Dip L Law

Family Law Attorney

Bertus Preller & Associates

O: +27 (0) 21 422 2461

F: 086 572 8373

E: bertus@divorceattorney.co.za

Interview with Bertus Preller, a celebrity divorce attorney based in Cape Town


Business Times Interview – by Adele Shevel

Maria Shriver’s doing it; Tiger Wood’s wife did it. Making the decision to terminate a marriage is a tough one, and the chances are it’s followed by an even more traumatic lead-up to the divorce.

Shriver and Woods are very wealthy, their husbands hugely successful, and high profile infidelity was peppered into the mix. But it’s not only the rich who need to ascertain the financial situation of their husbands.

Women are encouraged to gather as much financial information about their husband’s financial affairs before the divorce proceedings commence, to establish the magnitude of the estate.

Bertus Preller, a celebrity divorce attorney at Abrahams and Gross in Cape Town provides guidance as to how to get your affairs in order before making that final call.

“It’s extremely important for any woman to know what’s going on in her husband’s financial affairs. It’s difficult when you don’t have access to his share portfolio or balance sheet, but one must reasonably expect to get an idea of financial affairs.”

An attorney cannot negotiate on behalf of a client without knowing in advance what the estate is worth.

In many divorce settlements, the wife ends up seeing what the estate is worth after it takes place.

  • Make copies of your husband’s bank statements, credit card statements and get hold of the short-term insurance policies as well as copies of pension funds and retirement funds. This will provide input on the extent of assets available and the value of the estate.
  • Build a clause into the settlement agreement to say if any assets that come to light after the divorce settlement, the wife is entitled to 50% of those assets and the husband will have to pay the legal fees involved in this process.
  • A more accurate sense of assets will come to light if the divorce is contested as parties are required to disclose any information to do with financial affairs. The husband can be required under oath to make full disclosure of his assets, and it is perjury if he doesn’t.
  • Women are advised not to leave the matrimonial home if children are involved, because it provides a sense of stability for the kids. It’s better for the husband to leave. If he makes himself guilty of abuse, the wife can get a restraining order to evict him from the property. In some instances, the husband can be restricted from accessing certain parts of the home.
  • Where the parties are married in community of property the wife is entitled to half the pension or retirement annuity fund. In a marriage out of community with the accrual, the pension fund will be regarded as part of the husband’s assets for purposes of calculating the accrual.
  • In terms of the Divorce Act, the wife (if married in community of property) can choose to ask for the pension fund money to be paid in cash, or transferred to a pension fund of her choice.  Normally pension funds pay out the wife’s portion in 3 to 6 months after the divorce. Wives of employees for the SA government have had to wait for her husband to resign or die before she could access her portion of his pension. But this might change — a judgement issued this month said it was unconstitutional for the wife of a government employee not to be allowed to access his pension following a divorce.
  • Make a list of your monthly income and expenses, as if you’re going to live on your own with your children. It’s important because you get situations where the wife is not working or earns much less than the husband and doesn’t have the money to fight a divorce battle.  She can bring an application pending a divorce, for interim maintenance, which means contributing maintenance before the divorce is finalised. She can also apply for contribution to her legal expenses. If interim-maintenance is granted and the husband does not comply with the court order, he is in contempt of court.
  • In some instances the wife can apply for emergency monetary relief in the magistrate’s court pending the institution of an application for interim maintenance by utilizing the provisions of the domestic violence act because the husband has blocked the use of credit.
  • Interim maintenance falls away once the divorce order is granted. There have been situations where the wife has been granted very favourable interim maintenance terms, so she stalls the divorce in order to continue getting a hearty amount of money each month.
  • The granting of interim maintenance divorce cannot be appealed. The only way the husband can minimize this is if he goes back to court and explains and proves that his financial situation has changed so much that he’s entitled to a reduction. But this does not happen easily.
  • Many battles in a divorce surround the children. Normally the wife is the parent of primary residence and the husband the parent of alternate residence. Increasingly, there’s a shared parenting approach with children staying with the mother for a week and then the father for a week and each party takes care of the children during that period.  “We see a lot of children used as a weapon. I tend to immediately get a parenting plan in place, and register that with the family advocate and stipulate that if issues arise with parenting and the children they need to go to a psychologist or a social worker”.
  • In matters where money is not fought over, it may make financial sense to go to one lawyer who can work for both parties. But a divorce that is acrimonious requires that each party needs a lawyer to assist.
  • A few mediation organizations exist where people can see a mediator to resolve disputes, to settle with both parties. The mediator doesn’t have the authority to issue and award damages but he can facilitate the process. If an abusive husband is involved, mediation is unlikely to work.  But it can work if the divorce is not acrimonious. Parties have to pay. “Sometimes this route can be more expensive than an uncontested divorce, depending on the amount of sessions that the parties have to attend” says Preller.
  • Where a couple owns a property together, they need to decide whether both parties want to keep the interest in the property, sell the property and split the proceeds, or whether one wants to buy out the other. The decision has financial implications because of transfer duties and tax.
  • It’s important to consider instances where the husband has no assets. A policy should be taken out in the event that the husband passes away and there is no money to help cover maintenance, in case of his death.

“The decision to divorce is a business decision. You need to look at what happens until the children turn 21, that there’s maintenance, medical cover for them, a school education and whether it’s government or private school and tertiary education,” says Preller.

About Bertus Preller

Bertus Preller is a Family Law and Divorce Attorney based 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. and deals with Family and Divorce matters across the country.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 clients include celebrities, actors and actresses, sportsmen and sportswomen, television presenters and various high net worth individuals.

His areas of expertise are Divorce Law, Family Law, International Divorce Law, Divorce Mediation, Parenting Plans, Parental Responsibilities and Rights, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters, digital rights, media law and criminal law.

Bertus also has a passion for gadgets and technology and he co-pioneered the development of technology in which the first book in the world was delivered to a mobile phone utilizing sms and java technology and also advised a number of South African book publishers on the Google Book settlement class action and negotiated contracts with the likes of Google and Amazon.com.

He specializes in 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.

Divorce Statistics in South Africa


The South African Divorce Rate

Marriages in South Africa

In 2008, 186 522 marriages were registered in South Africa. This number includes 959 marriages of South African citizens solemnised outside the borders of South Africa but were registered in South Africa. Information from the Department of Statistics show that the number of registered marriages has generally been increasing over the last ten years (1999–2008). In 1999, 140 458 marriages were registered. This number had increased to 186 522 in 2008 showing an annual increase of 2,9% since 1999. The 2008 186 522 shows an increase of 3 492 (1,9%) from 183 030 marriages recorded in 2007.

Age at the time of marriage

In 2008, marriages of 930 men and 6 774 women aged less than 21 years were registered. Women enter marriage for the first time at younger ages than men. In 2008, the median age for grooms was 34 years compared to 29 years for brides. Major differences however, are observed when the marital status at the time of current marriage is considered. For first time marriages, the median age for bachelors was 32 years and that of spinsters was 29 years giving a difference of three years. The age at first marriage for both men and women has remained the same as 2006. For remarriages, the median age of divorce men was 52 years compared to 46 years for their female counterparts yielding an age gap of six years. Similarly, the median ages for widowers and widows were 45 years and 29 years respectively resulting in a 16 years’ gap. Despite the fact that men tend to marry younger women, in 2008 14,6% of bridegroom were younger than their brides whilst 7,1% were of the same age.

Divorces

Trends in divorces (1999-2008)

The published data on divorces indicate that the number of granted cases has been fluctuating between 37 098 and 28 924 per annum in the past decade (1999-2008). The distribution of couples divorcing by population group shows that there were more divorces among the African population group compared to the other groups. Despite the general fluctuations, the proportions of divorces from the mixed and the African groups have been increasing whilst that of the White group has been declining in the past ten years. In 1999 the African, Indian/Asian, White and mixed groups made up 18,4%; 5,3%; 39,9% and 1,0% of the number of divorces respectively. However, in 2008 the contribution of the African, Indian/Asian and mixed groups increased to 35,0%; 6,2% and 3,1% respectively whilst that of the White group declined to 32,8%.

Who is suing who?

The 2008 data reveal that there were more female (50,6%) than male (37,8%) plaintiffs. However, there were significant differences among population groups. Among African plaintiffs, more husbands (43,5%) than wives (41,1%) initiated the divorce. This is in sharp contrast to the other population groups, particularly among the White (58,0%) and the Coloured (57,9%) whereby most divorces were initiated by women.

Even though a high proportion of the plaintiffs did not indicate the type of occupation they were engaged in at the time of divorce, the highest percentage of wives (19,8%) were in clerical and sales occupations whereas husbands (14,9%) were in managerial and administrative occupations. Very few plaintiffs were in farming and related occupations.

Number of times married

The 2008 divorce cases were mainly from first marriages. The pattern of remarriages among husbands was quite similar to that of the wives. Slightly fewer (76,4%) husbands were from first marriages compared to 77,1% of wives. Approximately 9,0% were second time divorcees for both husbands and wives. About 2,0% of husbands and wives were getting divorced for at least the third time.

Age at the time of divorce

The median age at divorce in 2008 was 41 for men and 38 for women. African men had the highest median age (43) at divorce. Women from the mixed and India/Asian group had the lowest median age (36 years).

Duration of marriage of those divorcing

The median duration of marriage in 2008 was 9 years. The largest number of divorces (7 859 or 27,2%) lasted five to nine years. This group is followed by marriages that lasted less than five years (6 143 or 21,2%). Thus, almost half (48,4%) of the 28 924 divorces in 2008 were from marriages that lasted less than 10 years. As the duration of marriages increased the number of divorces decreased. Irrespective of the population group of the divorcees, the distribution of divorces continues to be skewed towards earlier years of marriage.

Divorces involving couples with children

In 2008, there were 26 947 children (younger than 18 years old) involved in divorce. It is observed that 16 370 (56,6%) of the 28 924 divorces had children younger than 18 years indicating that, on the average, there was between one and two children per divorce.

Source: http://www.edivorce.co.za

Divorce, moneys lent and advanced to the other spouse


It is not uncommon for parties in a marriage to advance to advance to the other spouse amounts of money from time to time. Between the two spouses this would normally be regarded as a transaction of borrowing money or lending, but the legal implications might be otherwise depending on the matrimonial system (married in community or out of community of property) applicable to the marriage.

Where the spouses are married to each other in community of property, the joint estate is divided on the date of divorce as it exists on date of divorce, including all the assets and liabilities. Parties who are married in community of property obtain an undivided half share in all the assets which constitute the joint estate and in most instances become jointly liable for all debts incurred. So if the spouses were married in community of property and enter into an agreement in terms whereof the one party lends an amount of money to the other, the right to claim such an amount is an asset of the joint estate and the liability to pay the amount is a liability of the joint estate. It therefore follows that it is impossible to enforce such a claim on divorce as a result of the fact that the parties are married in community of property.

Where spouses are married out of community of property it is possible to claim as a result of the fact that the parties are married out of community of property and does not share in the profit or loss. The right to claim such an amount would be an asset for purposes of determining the value of a spouse’s estate.  Where parties’ were married before 1 November 1984 a claim in respect of moneys lent will form a basis of a claim to claim a transfer of assets in terms of section 7 (3) of the Divorce Act. Where parties married after 1 November 1984 a claim to recoup moneys advanced would be simple if proved.

It is also interesting to note that a claim for moneys advanced where the parties married out of community of property, cannot prescribe in terms of the Prescription Act 68 of 1969.

It is therefore important to note that where a party is married in community of property and that party advanced moneys to the other spouse that a claim cannot be instituted for the recovery thereof.

Bertus Preller

Family Law Attorney

Abrahams and Gross Inc.

www.divorceattorney.co.za

info@divorceattorney.co.za

International Divorce in South Africa, Spouse Living Overseas


A spouse living in South Africa is able to institute divorce proceedings through the divorce courts in South Africa if a spouse lives overseas. The same applies when you are a South African citizen that lives overseas and one spouse resides in South Africa.

In terms of the South African Divorce Act, a South African court will have jurisdiction where the parties or either of the parties are domiciled in the area of the court’s jurisdiction on the date on which the action is instituted or ordinarily resident in the area of jurisdiction of the court on the date on which the action is instituted or has been ordinarily resident in the Republic for a period of not less than one year immediately prior to that date.

The above also implies that foreigners (people who are not South African citizens) and who have been living in South Africa for more than a year, may divorce through the South African courts.

After service has taken place, your spouse will have a month to defend. If he ignores the summons or, if he  defends it, after reaching settlement of the financial terms, the attorney can set the matter down for a trial date that has been pre-arranged.

The person instituting the divorce proceedings are called the Plaintiff. Where the parties reached a settlement, only the Plaintiff appears in Court. So, if a Plaintiff lives abroad he/she will have to appear once the matter is placed on the Court roll. The same applies if the Plaintiff resides in South Africa. In an uncontested divorce it is not necessary for the Defendant to appear in court.

  • Where a Defendant (the person against whom the divorce is instituted) lives in another country, a Plaintiff must approach the court by way of what is known in law as an Edictal Citation application. The reason for this is that a Summons in divorce proceedings must be served on the Defendant personally and the Court needs to be satisfied that service will be done properly by an official of the court in that foreign country. Edictal citation is therefore a procedure according to which a legal document such as a divorce summons is served by a sheriff (in some countries known as a “service processor” or a solicitor) in a different country.
  • There is also another method to serve summons on the Defendant by serving the Summons on an address in South Africa which the Defendant had chosen in terms of a Power of Attorney.

Where the divorce is uncontested, the process is relatively easy. But where the divorce is of a contested nature it is more problematic.  After serving of the summons in a foreign country, a spouse will have a month to defend the action. If he or she ignores the summons or, if he or she defends it, after reaching settlement on the financial terms the matter may be setdown for a date that has been pre-arranged with the Registrar of the High Court.

If your spouse  disappeared, the court will order that the divorce summons be served by way of substituted service (i.e. other than by way of personal service) so it may order, e.g., that it be served on a relative of your spouse or by way of publication in a newspaper that your spouse used to read.

Where your spouse has disappeared, you will have to satisfy the court that you have done everything in your power to trace him or her as personal service is clearly preferable and the least prejudicial form of service.

Abrahams and Gross Attorneys specialises in international divorce matters concerning South African citizens and has acted in matters for South Africans living in countries such as Australia, United Kingdom, USA, Indonesia, The United Emirates, Germany, New Zeeland, Spain, Namibia and Germany to mention but a few.

info@divorceattorney.co.za

www.divorceattorney.co.za

Hotline: +27834439838

CD9XYSVUAT2S

Parenting Plans and Divorce in South Africa


Parenting plans and the Children’s Act in South Africa

A parental responsibilities and rights agreement is a mechanism by which a person who does not have parental responsibilities and rights acquires them by agreement with the child’s mother or another person who has parental responsibilities and rights in respect of the child.

Two categories of persons can acquire parental responsibilities and rights in this way: the first, which is of particular importance in the context of the law of persons, is the biological father who does not have automatic parental responsibilities and rights in respect of his child in terms of s 21 of the Act and has not acquired parental responsibilities and rights by a court order or by marrying the child’s mother or entering into a civil union with her.

Thus, an unmarried father who does not already have parental responsibilities and rights can acquire them by means of a parental responsibilities and rights agreement. The second category is any other person who has an interest in the child’s care, well-being and development (such as a grandparent).

A parental responsibilities and rights agreement confers only those responsibilities and rights that are set out in the agreement and cannot confer more responsibilities and rights than the conferrer has. Thus, for example, a 16-year-old unmarried mother, generally, cannot in a parental responsibilities and rights agreement confer guardianship on the child’s father, as her guardian is the child’s guardian.

The parental responsibilities and rights agreement must be in the format and must contain the particulars prescribed by the regulations under the Act. The agreement is unenforceable until it is registered with a family advocate or is made an order of court on application by the parties to it.

The courts which may make the agreement an order of court are the High Court, divorce court dealing with a divorce matter, and the children’s court within whose area of jurisdiction the child is ordinarily resident. However, if the agreement relates to guardianship only the High Court may confirm it.

Before registering the agreement or making it an order of court, the family advocate or court must be satisfied that the agreement is in the best interests of the child. Once the agreement has been registered or made an order of court, it can only be terminated or amended by the family advocate or the court. If the agreement relates to guardianship, only the High Court may vary or terminate it.

Adoption is another way in which an unmarried father can acquire parental responsibilities and rights. He can adopt his child either as a single parent, or jointly with his spouse, civil union partner or permanent domestic life-partner.

Regardless of whether or not he has parental responsibilities and rights in respect of the child, the unmarried father’s consent is required if another person wants to adopt the child, unless:

(1)          He is incompetent to give consent due to mental illness.

(2)          He has abandoned the child, his whereabouts cannot be established, or his identity is unknown.

(3)          He has abused or deliberately neglected the child, or has allowed the child to be abused or deliberately neglected.

(4)          He has consistently failed to fulfil his parental responsibilities towards the child during the last 12 months.

(5)          A court has divested him of the right to consent to the child’s adoption.

(6)          He has failed to respond to a notice of the proposed adoption within 30 days of service of the notice.

(7)          He failed to acknowledge paternity in the manner prescribed by the Act.

(8)          The child was conceived as a result of incest.

(9)          Following an allegation by the child’s mother, the children’s court has found on a balance of probabilities that the child was conceived as a result of rape.

Grounds (1) to (6) above apply equally to the unmarried mother of the child. Further, if either parent unreasonably withholds consent to the child’s adoption, his or her consent can be dispensed with and the adoption order granted if the court finds that the withholding of consent is unreasonable and the adoption is in the best interests of the child.

If more than one person has parental responsibilities and rights in respect of a child, a parenting plan may be needed. A parenting plan is an agreement in which co-holders of parental responsibilities and rights make arrangements on the way in which they will exercise their respective responsibilities and rights.

If co-holders of parental responsibilities and rights experience difficulties in exercising their parental responsibilities and rights, they must try to agree on a parenting plan before seeking court intervention.

Thus, for example, if both unmarried parents have parental responsibilities and rights, they must attempt to enter into a parenting plan if they disagree on the exercise of these responsibilities and rights. In preparing their parenting plan, they must seek the assistance of a family advocate, social worker or psychologist, or mediation through a social worker or other suitably qualified person.

Co-holders of parental responsibilities and rights may enter into a parenting plan even if they do not experience difficulties in exercising their responsibilities and rights, but then they need not seek the assistance of a family advocate, social worker or psychologist, or mediation by any person. A parenting plan must be in writing, be signed by the parties and comply with the best interests of the child standard as set out in s 7 of the Act.

Bearing in mind the child’s age, maturity and stage of development, he or she must be consulted during the development of the parenting plan, and he or she must be granted an opportunity to express his or her views. Those views must be accorded due consideration.

Once a parenting plan has been agreed on, the family advocate, a social worker, social service professional, psychologist or suitably qualified person, or the child’s legal representative must inform the child of the contents of the plan, bearing in mind the child’s age, maturity and stage of development.

The plan may be registered with a family advocate or be made an order of court. A parenting plan that was registered with a family advocate may subsequently be amended or terminated by the family advocate upon application by the parties to the plan.

If the parenting plan was made an order of court, it may be amended or terminated only by another order of court. The co-holders of parental responsibilities and rights who are parties to the plan, the child (with the court’s consent), or any other person acting in the child’s interests and with the court’s consent may apply for the amendment or termination.

Finally, in respect of a minor’s capacity to act, and specifically his or her capacity to consent to medical treatment and an operation, s 129 should be noted. It provides that a child who is below the age of 12 years may not have medical treatment or an operation without his or her guardian’s consent.

Consent is also needed if the child has already turned 12 but is immature and does not have the mental capacity to understand the benefits, risks, social and other implications of the medical treatment or operation.

If the child is older than 12 and sufficiently mature and has the mental capacity to understand the benefits, risks, social and other implications of the operation, he or she still needs the assistance (but not the consent) of his or her guardian for an operation on himself or herself or his or her child.

If the guardian unreasonably withholds consent, refuses to assist the minor, is incapable of consenting or of assisting the minor, cannot readily be traced or is deceased, the Minister of Social Development may give consent.

Divorce Application Forms


If you intend to get divorced in South Africa, the best way would be to use an online Divorce Service like eDivorce. The process is easy and without hassle, simply fill in the online divorce application form and your papers will be ready in less than 24 hours.

The eDivorce process has three Divorce Plans from which you can choose:

The Silver Plan – R 950 + Sheriff Fee of between R 100 – R 150 – The best DIY divorce service to meet all your needs

  • All your divorce forms – Summons, Particulars of Claim, Annexure A, Government Statistic Form and Settlement Agreement, completed for you by the eDivorce platform and checked by divorce experts
  • Step-by-Step Guide -Written in plain English and easy to follow
  • Fast Service – Documents delivered within 24 hours guaranteed
  • Divorce in 6 – 8 weeks

The Silver + Plan – R 2 000 – Partially DIY

  • All your divorce forms – Summons, Particulars of Claim, Annexure A, Government Statistic Form and Settlement Agreement, completed for you by the eDivorce platform and checked by divorce experts
  • Step-by-Step Guide -Written in plain English and easy to follow
  • Issuing of papers and registering at Court
  • Delivering of papers to sheriff
  • You collect served papers from sheriff and file and obtain divorce date at court
  • Divorce in 6 – 8 weeks

The Gold Plan – Managed Divorce Service – R 5 000 all inclusive by Specialist Divorce Attorney

We will not charge you by the hour or minute to deal with your divorce. The price you pay is fixed from the start of your case and includes everything you will need.

Why choose our Gold Plan Managed Divorce Service?

  • No complicated form filling – We will do that for you
  • All your required divorce documents-Prepared and completed by divorce specialists
  • 7 day a week service- We are open when it is convenient for you
  • All documents filed at court for you – We deal with all the filing and admin
  • Settlement Agreements are catered for- We can help you, with or without children
  • GET A FREE Will – For both Husband and Wife if you need one
  • Divorce in 3 weeks -Fast service guaranteed
  • Attorney supervised – All services supervised by an Attorney
  • Appearance at Court – We appoint an Attorney or Advocate to appear on your behalf at Court
  • Professional and Trustworthy

How to Find a Good Divorce Attorney in South Africa


A life ruined by a poor choice of a divorce attorney is a real possibility.

Divorce in South Africa can be a very complex matter which requires a considerable degree of expertise on the part of an attorney. Divorces are tricky situations and should be handled with care. Your divorce attorney must understand the sensitivity of the issue. He should be compassionate and aim at resolving the case peacefully. People read in the newspapers about large divorce settlements and people will say the person must have had a good divorce attorney. It’s probably true, in all likelihood they’ve employed a high-powered, and very expensive, attorney who specialises in divorce work and know how to make the best of all the facts available.

Most of people, however, don’t have the deep pockets to afford that kind of legal representation in divorce or Family Court proceedings. But even for ordinary mortals, can a good attorney make a real difference?

The emotional context of a divorce is often built on feelings of loss, betrayal, humiliation, financial uncertainty, guilt, anxiety, the fear of losing one’s access to one’s children and loss of custody of such children. Too often, the process of bringing a divorce to a sensible  resolution is bedeviled by emotional factors, which, if not properly managed, can then be acted out in costly divorce wars. An attorney who has the necessary experience and insight into the psychological circumstances of the divorce in question, will be far more capable in assisting the client to “see the road ahead”.

The attorney must structure an appropriate and affordable service within the reach of the client. It is part of the job of an experienced divorce attorney to help the client properly access the financial resources.

Here are two points to consider:

  • Find an attorney who specializes in divorce, ideally within a law firm specializing in family law and divorce. An attorney who specializes in divorce (and has done so for some time) will have a greater depth of experience and expertise than an attorney who does not. This may seem obvious but there is a hidden danger. Unlike the medical profession, there are no rules and regulations governing when an attorney may or may not call themselves a “specialist.”
  • Look for a divorce attorney with extensive experience. Find a divorce attorney who has been practicing for some years and has practiced for many or most of these as a family law and divorce specialist.

DivorceAttorney is one of the specialist Divorce Law Firms in South Africa and also the first Virtual Law firm in South Africa who specialises in divorce and family law matters. Divorce Attorney goes beyond the constraints of “brick and mortar” law firms to provide excellent legal services both on and offline on a national basis at rates lower than those of conventional law firms. Powered by a sophisticated digital infrastructure, Divorce Attorney eliminates costs and minimizes environmental impact, while significantly lowering administrative costs and overheads. Divorce Attorney was designed to be better for clients.

Here’s how:

  • Better Progress Information: Clients have the ability to monitor the progress much more closely than conventional law firms. The attorneys enter their progress reports and drafted documentation weekly, and the information is immediately posted to a password-protected MyDA homepage. Where clients can view the running progress on a case.
  • Better Legal Cost Control: Where there were no agreement on a flat rate clients are given the ability to monitor their legal costs much more closely than conventional law firms. The attorneys enter their time at least weekly, and their time is immediately posted to your password-protected MyDA homepage. Clients can also communicate with us through the MyDA homepage.
  • Lower Billing Rates: Rates are less than the rates of attorneys with comparable experience at large law firms, due to our lower overheads.  They do projects on a “flat fee” basis if clients prefer.
  • Better Technology: Divorce Attorney have developed tools unique to the legal industry to connect with their clients.
  • Better Investigation Teams: Divorce Attorney have teamed up with formidable investigation agencies to obtain all the information you need for purposes of contested divorce cases.

For more information visit Divorce Attorney South Africa at http://www.divorceattorney.co.za for contested divorces or visit eDivorce at http://www.edivorce.co.za for uncontested divorces.

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