Divorce Attorney Cape Town

Latest Divorce Trends South Africa


divorce statistics

Divorce Trends in South Africa

According to the latest statistics issued by Stats SA there is a consistent decline in the number of people getting married in South Africa.

There has also been a decline in customary marriages, indicating a decrease of 12,5% from the previous year. Civil unions (Gay and Lesbian) registered in South Africa increased by 15,2%. These figures are indicative of the fact that less and less people are opting for marriage.

According to the latest data the crude divorce rate was 0,5 divorces per 1 000 estimated resident population. The number indicates an increase of 3,4% divorces from the previous year.

Reasons for Divorce

According to a survey on the Divorce Laws Website South Africans had stated that the following reasons were the main reasons for divorce:

  1. Lack of Communication 23.47%
  2. Adultery / Cheating 21.6%
  3. Abuse 11.99%
  4. Lack of Intimacy / Sex 10.86%
  5. Falling out of love 7.24%
  6. Finances 5.74%
  7. Addiction 4.87%
  8. Involvement of parents 3.37%
  9. Religious Differences 2.25%

Characteristics of plaintiffs

The website www.divorcelaws.co.za, South Africa’s premier resource on Divorce and Family Law attracted 465 420 unique visitors in South Africa during the period 1 August 2015 to 30 August 2016. It is interesting to note that over 60% of those visitors were female in comparison to 40% being male. Of these visitors 59.56% were from Gauteng, 21.70% were from the Western Cape, 11.29% were from KwaZulu-Natal, 3.15% were from the Eastern Cape, 1.17% were from the Free State, 1.12% were from North West, 0.98% were from Limpopo, 0.73% were from Mpumalanga and 0.25% were from the Northern Cape. Sandton, 20.59% seems to be the area from where most people requested information on divorce, maintenance, parental rights, custody, domestic violence and general family law, followed by Cape Town 20.56%, Pretoria 15.23%, Johannesburg 8.92%, Durban 6.91%, Centurion 3.01%, Roodepoort 2.84%, Port Elizabeth 1.85%, Krugersdorp 1.66% and Randburg 1.48%.

More wives 51,7% than husbands 34,4% initiated the divorce according to the latest data. With the exception of women from the black African population who had a lower proportion of plaintiffs 44,1%, the proportion of women plaintiffs from the other population groups was above 50,0%.

White population group 57,8%, coloured population group 56,9% and Indian/Asian population group 54,6% were women. However, it should also be noted that the black African population group had a much higher proportion of divorces with unspecified sex of the plaintiff 17,3%.

Population Groups

Couples from the white population group dominated the number of divorces until 2007 thereafter, the black African couples had the highest number of divorces up until 2014. In 2003, 40,0% of the divorcees were from the white population group whereas 24,3% came were from the black African population group. By 2014, 37,1% of the divorcees were from the black African population group and 28,2% from the white population group. The proportions of the divorcees from the coloured and the Indian/Asian population groups were quite constant during the twelve-year period. However, there was a prominent increase in the proportions of divorcees from the coloured population group (from 16,3% in 2013 to 20,2% in 2014) which may have affected the result. Generally, there was an increase in the proportion of divorces for black Africans and decline for white population group from 2003 to 2014.

Occupation of Plaintiffs

It is noted that a high proportion of the plaintiffs 28,2% of the men and 30,9% of the women did not indicate the type of occupation they were engaged in at the time of divorce. In addition, 15,2% and 22,1% of the men and women respectively were not economically active at the time of divorce.

 

Most plaintiffs were:

  • professional, semi-professionals and technical occupations 12,0%;
  • managers and administrators 9,3%; and
  • 9,2% in clerical and sales occupations.

Some differences were observed regarding the type of occupation of men and women. The men who initiated the divorce were largely managers and administrators 14,5% while the women were mainly in professional, semi-professionals and technical occupations 14,3%.

Number of times married

Results presented that divorce cases for both men and women were mainly from individuals who had married once. About 80,0% of divorces for men and women were from first-time marriages compared to 12,4% of men and 10,9% of women from second-time marriages. Around 2,0% of men and women were getting divorced for at least the third time.

Age at the time of divorce

The median ages at divorce were 43 years for men and 40 years for women, indicating that generally, men were older than women, with a difference of about three years. The pattern of median ages in 2014 by population group shows that black African and white men had the highest median age of 44 years while women from the other population group had the lowest median age 33 years. The difference in the median ages at the time of divorce for men and women was higher among the other population group (ten years) than among black African, coloured, Indian/Asian and white population groups. Although there were differences in the ages at which most men and women from the various population groups divorced, the age patterns were quite similar. The data revealed that there were fewer divorces among the younger less than 25 years old and the older (65 years and older) divorcees. For men, the peak age group at divorce was 40 to 44 for all population groups. In the case of women, the peak age group for coloured and white population groups was 40 to 44 and the black African and Indian/Asian was 35 to 39.

Duration of marriage of divorcing couples

Statistics from the annual divorce data do not give a comprehensive picture of the number of marriages ending in divorce. The largest number 27,3% of the divorces were for marriages that lasted between five and nine years. This group is followed by marriages that lasted between ten and fourteen years 18,7% and marriages that lasted for less than five years 18,4%. Thus 45,7% of the 24 689 divorces in 2014 were marriages that lasted for less than 10 years. According to results irrespective of the population group, the highest proportion of divorces occurred to couples who had been married for five to nine years. Thus 32,6% of divorces from the black African; 25,6% from both coloured and white; 24,4% from the Indian/Asian population groups were marriages that lasted between five and nine years. For the white population an equally high proportion 23,7% of divorces occurred in the first five years. Furthermore, for all population groups, after nine years of marriage, the proportion of divorces declined as the duration of marriage increased.

Divorces involving couples with minor children

In 2014, 13 676 55,4% of the 24 689 divorces had children younger than 18 years. The coloured and the white population groups had the highest 64,9 and the lowest 46,2% percentages respectively. The distribution of the number of children affected by divorce shows that 39,1% were from the black African population group; 24,9% from the coloured population group; 23,3% from the white population group and 5,6% from the Indian/Asian population group.

Source: http://voices.news24.com/bertus-preller/2016/09/latest-divorce-trends-south-africa/

 

Divorce Statistics – South Africa


Trends

The 2011 data was published in December 2012 by Statistics South Africa. 20 980 divorces from civil marriages were processed. This indicates a decrease of 1 956 (8,5%) divorces from the 22 936 cases processed in 2010, which may largely be explained by some 2011 divorce forms that did not reach Statistics South Africa before the publication. The total number of divorces generally fluctuated over the period 2002–2011, with the highest number observed in 2005 (32 484) and the lowest in 2011 (20 980).

Population groups

Couples from the white population group dominated the number of divorces between 2002 and 2007, after which the black African couples had the highest number of divorces up to 2011. In 2002, 45,2% of the divorcees were from the white population group whereas 22,5% came from the black African group. By 2011, 35,8% of the divorcees were from the black African population group and 32,1% from the white population group. The proportions of the divorcees from the coloured and the Indian/Asian population groups were quite invariable during the ten-year period. However, there was a notable increase in the proportions of divorcees from the coloured population group (from 13,9% in 2010 to 16,6% in 2011).  The data show that there were more females 10 408 (49,6%) than males 7 212 (34,4%) who instituted divorce (plaintiffs). With the exception of females from the black African population who had a lower proportion of plaintiffs (39,7%), the proportion of female plaintiffs from other population groups was above 50,0%. That is, 56,8%, 56,2% and 52,4% of plaintiffs from the white, coloured and Indian/Asian population groups, respectively, were females.

Occupations that divorce

A high proportion of the plaintiffs (13,5% of the males and 19,4% of the females) did not indicate the type of occupation they were engaged in at the time of divorce. In addition, 27,3% and 30,6% of the males and females respectively were not economically active at the time of divorce. For specified occupations, most of those who divorced in 2011 were in clerical and sales occupations (11,5%) and managers and administrators (10,2%), with some differences observed by sex of the plaintiff. Husbands who divorced were largely managers and administrators (14,7%) while females who divorces were mainly in clerical and sales occupations (18,2%). Less than a quarter of males (23,6%) and females (20,2%) were in the professional and managerial occupations. Very few plaintiffs were in farming and related occupations.

Number of times married

The 2011 divorce cases for both males and females were mainly from individuals who had married once. About 80,0% of divorces for males and females were from first-time marriages compared to approximately 10,0% from second-time marriages. About 2,0% of males and females were getting divorced for at least the third time.

Age at the time of divorce

The median ages at divorce in 2011 were 42 years for males and 38 years for females, indicating that males generally divorced at older ages than females, with a difference of about four years. The median age for males was up from 41 years in 2010 while it remained the same for females for 2010 and 2011. The pattern of median ages in 2011 by population group shows that black African males had the highest median age (43 years) at the time of divorce while females from the mixed group had the lowest median age (34 years). The age difference at the time of divorce was highest for black African couples (five years) and was between two and three years for other couples. Although there are differences in the ages at which most males and females from the various population groups divorced, the age patterns are quite similar. The data reveal that there were fewer divorces among the younger (less than 25 years old) and the older (55 years and older) divorcees. For male divorcees, the peak age group at divorce was 35–39 for Indian/Asian and coloured population groups while the peak for the black African and white population groups was 40–44. In the case of females, the peak age group was generally at age group 35–39 for all population groups.

Duration of marriage of divorcing couples

The largest number [5 535 (26,4%)] of the divorces were for marriages that lasted between five and nine years. This group is followed by marriages that lasted less than five years [4 489 (21,4%)]. Thus, almost half (47,8%) of the 20 980 divorces in 2011 were marriages that lasted for less than 10 years. Divorces for the black African, coloured and Indian/Asian population groups occurred mostly to couples who had married for five to nine years whereas for the white population group those that divorced did so mostly during their first five years of marriage. Furthermore, the number of divorces for the white population consistently declined as the duration of marriage increased and this pattern is observed for marriages lasting for five to nine years for the other population groups.

Divorces involving couples with children

In 2011, 11 475 (54,7%) of the 20 980 divorces had children younger than 18 years. The proportions of divorces with children were quite high among the coloured population group (64,4%), Indians/Asians (57,8%) and the black Africans (57,1%). The distribution of the number of children affected by divorce shows that 37,4% were from the black African population group; 27,1% from the white population group and 20,2% from the coloured population group. There were 18 571 children (younger than 18 years old) involved in divorce indicating that, on average, there was between one and two children per divorce.

Source: http://voices.news24.com/bertus-preller/2013/02/latest-south-african-divorce-statistics  

Compiled by:

Bertus Preller

Family Law Attorney

Abrahams and Gross Inc.

A:1st Floor, 56 Shortmarket Street, Cape Town, 8000

O: +27 (0) 21 422 1323

Twitter: @bertuspreller

International Child Abduction South Africa


South Africa is a party state of the Hague Convention on Civil Aspects of International child abduction. South Africa ratified the convention in 1996 and it came in operation on 1 October 1997. Emphasis is placed on securing the prompt return of any child wrongfully removed to or retained in a contracting state.

The Hague Convention is a treaty designed to expedite the return of children back to their country of habitual residence, in cases where they have been wrongfully removed. Habitual residence sometimes differs from citizenship and nationality. The Hague convention aims to curb the international abductions of children by providing additional remedies to those seeking the return of the child were a child has been wrongfully removed or retained. It provides a simplified procedure for seeking the return of the child to his/her country of habitual residence.

The purpose for of the speedy return is to place the child in the jurisdiction of a court that is best appraised to deal with the merits of the parental dispute. A child removed from one parent and taken to a country different from that in which the child was habitually resident is then likely to be subject to the concentrated influence of the custodial parents.  Unless firm steps are taken to ensure the prompt implementation of the Convention procedures, in a prolonged separation from a parent his or her influence on the child would have a tendency to wane.  Time would favour the abductor. The parent remaining in the place of the child’s habitual residence, from which the child is taken, would ordinarily be at a considerable disadvantage in litigating a contested claim for custody and access (or equivalent orders) in the courts of another country rather than those of the place of habitual residence.

Few persons can readily afford litigation in their own jurisdiction, still less contemplate the prospect of participating in courts (or administrative authorities) far away, where the legal system may be different, laws and even language unfamiliar, costs substantial and facilities for legal assistance difficult to obtain or non-existent.

The removal or the retention of a child is to be considered wrongful where

a)      it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention, and

b)      at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

The rights of custody mentioned in (a) above, may arise in particular by operation of law or by reason of judicial or administrative, or by reason of an agreement having legal affect under the law of that State. The Convention shall apply to any child who was habitually resident in a contracting State immediately before any breach of custody or access rights.

Where a child has been wrongfully retained and, at the date of the commencement of the proceedings before the judicial or administrative authority of the contracting State where the child is, a period of less than one (1) year has elapsed from the date of the wrongful removal of retention, the authority concerned shall order the return of the child forthwith.

In practice, applications are generally heard on an urgent basis or semi-urgent basis by way of notice of motion proceedings. Inevitably, the overriding principle that our courts have regard to is the best interest of the child principle. In South African law the right to consent or refuse the removal of the child from South Africa is entrenched in the concept of guardianship. In terms of section 18 (2)(c) of the Children’s Act, 38 of 2005), a person who has parental responsibilities and rights in respect of a child has the right to act as guardian of the child. In terms of section 18 (3)(c)(iii) of the Act a guardian must consent to the child’s departure or removal from South Africa and where more than one person on has guardianship over a child all of them must consent before the child can be removed.

The role of the Central Authority

A contracting state is bound to set up an administrative body known as a “Central Authority”, which has the duty to trace the child and to take steps to secure a child’s return. In South Africa the Chief Family Advocate is designated as Central Authority.

The Central Authority assists in both “outgoing” cases (when a child has been wrongfully taken from South Africa to a foreign country or retained in a foreign country, as well as “incoming” cases (when a child has been wrongfully brought to, or retained in South Africa). A party may submit an application for the return of a child, or access to a child to the Central Authority.

What does habitual residence mean?

This concept is not defined by the Convention itself. It has been interpreted according to “the ordinary and natural meaning of the two words it contains, as a question of fact, to be decided by reference to all the circumstances of any particular case” The intention thereby is to avoid the development of restrictive rules as to the meaning of habitual residence, so that the facts and circumstances of each can be assessed free of presuppositions and presumptions. However, the fact that there is no “objective temporal baseline” on which to base a definition of habitual residence requires that close attention be paid to the subjective intent when evaluating an individual’s habitual residence. When a child is removed from its habitual environment, the implication is that it is being removed from the family and social environment in which its life has developed, The word “habitual’ implies a stable territorial link, which may be achieved through length of stay, or through evidence of a particularly close tie between the person and the place. A number of reported foreign judgements have established that the possible prerequisite for “habitual residence” is some “degree of settled purpose” or “intention”. A settled intention or settled purpose is clearly one which will not be temporary.

What can South African parents do when a former spouse or partner has abducted a child and taken them abroad?

Establish the details of the departure and destination of the abducting parent and/or the child. The left behind parent has an option of approaching the office of the designated Central Authority for the Republic of South Africa, which is the office of the Chief Family Advocate or the Central Authority of the country where the child has been abducted to. The abducted child must be below 16 years of age. In order to facilitate the processing of the application in the office of the Chief Family Advocate, the left behind parent furnish the following documents:

• Original or certified copies of setting out care and contact (custody) and/or guardianship rights. Examples of these are marriage certificate, court orders granting the alleged rights, unabridged birth certificates, parenting plan or parental rights and responsibilities agreement etc;

• Recent photographs of the abductor as well as the child;

• A detailed sworn statement setting out the exact facts and circumstances that led to the alleged abduction;

• Copies of all pleadings filed in pending litigation in South African courts, where applicable.

If the parent who has taken a child overseas feel that the left behind parent in South Africa is abusive, a danger to the child or cannot provide adequate care for the child, can the parent defend his/her actions, in terms the Hague Convention and SA Children’s Act?

The Hague Convention makes provision for the abducting parent to oppose the application for return of the child. When there is a grave risk that the return of the child will expose the child to physical, psychological harm, or would place the child in intolerable situation, then the court hearing the application is not bound to order the return of the child. Mere allegations of grave risk will not persuade a court to refuse the return; it must be shown that the risk is a serious or that the envisaged harm is of significant proportion.

What countries are subscribed to the Hague Convention?

Most European and Commonwealth countries and the USA are members. On the African continent, only South Africa, Mauritius and Zimbabwe subscribed to the convention. When a child is removed to another country that is not a party state to the convention, the South African High Court, as the upper Guardian of the minor children, will have jurisdiction and the application should be made to such a court for the return of the child.

What are the steps to be taken in recovering an abducted child, in terms of the Hague Convention and SA Children’s Act?  

The South African Central Authority (CA) must immediately after receipt of the necessary documents consider the legal aspects of the request as well as the Convention status of the country to which the child has been taken.

If the child has been taken to a contracting country and all legalities have been satisfied, the CA will compile a bundle and forward the application to the foreign CA, requesting prompt return of the child. The procedure does not apply where a child has been taken to a non-Convention country. All CA’s are required by the Convention to take steps to obtain a voluntary return of the child. This is done through cross-border mediation. Litigation is resorted to in the event that the mediation fails. This approach is also consistent with the general principles set out in the Children’s Act, namely, that in any matter concerning a child ‘an approach which is conducive to conciliation and problem-solving should be followed’.

It is however, important that the left-behind parent alert the Central Authority to the possibility of further movement/possible harm to the child, should the abducting parent know of the application for return. In such cases the CA will take steps to obtain an urgent court order to prevent further movement of, or possible harm to the child.

How does the Hague Convention on the Civil Aspects of International Child Abduction relate to care and contact (custody) rulings made in South African civil courts?

An order granting care and contact can be used as proof of the existence of parental rights by the parent seeking return of the abducted child. Where an abductor seeks an order in the South African court, which will have an effect of ratifying the wrongfulness of the removal or retention of the child in South Africa the CA will invoke article 16 of the Convention to stop or suspend the proceedings until a decision has been made on the return of the child to his/her country of habitual residence. The judicial authorities/courts of a contracting state to which a child has been taken or retained are required by the Convention not decide on the merits of custody rights until a determination has been made that the child will not be returned.

There are limitations to the treaty’s application, in that the Convention applies only between countries that have adopted it as “Contracting States.” What are the procedures for recovering a child from a non-Contracting State?

From a South African perspective, it is advisable that the left behind parent obtain an order through the normal civil procedures, which declare the removal/retention of the child unlawful and a breach of their parental rights. Once such an order has been obtained, the left behind parent must obtain a mirror order or an order for enforcement in the foreign jurisdiction which also orders return of the child. This route is very expensive as it involves the instruction of lawyers in foreign countries. For this reason, the Hague Conference on Private International Law is taking steps to encourage other countries to consider contracting under this Convention.

Are there time frames that apply under the Hague Convention on the Civil Aspects of International Child Abduction?

Among the most popular defences that have been raised in return applications is that the child objects to the return. In such instances, an assessment must be made, usually through the assistance of a Family Counsellor or psychologist, whether the child possesses sufficient maturity to form a viewpoint that the court may consider. The child’s reasons for the objection will also be examined in order to exclude possible influence by the abducting parent.

Some of the defences available are that the removal was not wrongful, that the left behind parent was not exercising his/her parental rights at the time of removal or retention, or that the left behind parent had agreed or subsequently acquiesced to the removal/retention:

Where available evidence indicates that the child has become settled in the new environment the court may not necessarily order a return. In cases where a child’s return would be contrary to the South Africa’s fundamental principles relating to protection of human rights and fundamental freedoms, our courts are also under no obligation to order the return of the child.

A court may withhold permission to return the child for the following reasons:

  • that the child is above the age of 16 years and therefore not covered by the Convention.
  • If a child has been wrongfully removed for less than one year, the child’s removal is to be ordered forthwith under the Convention. The Convention makes it mandatory for the judicial authority to order return.
  • If a child has been wrongfully removed for more than one year, the child should still be returned but an exception is allowed -a court may choose not to return the child if there is evidence that the child is settled in his/her new environment. The court has discretion to order/refuse the return.
  • Courts and administrative authorities should act quickly in such cases but if one has not reached a decision within six weeks from the date proceedings commenced, an applicant or the Central Authority of the requested State may officially request a reason for the delay.
  • The Convention only applies to wrongful removals/retentions occurring after the treaty became effective between the involved countries.
  • The Convention requires that countries act without delay in child abduction cases that fall within its parameters. It is one of the objectives of the Convention to protect children internationally from the harmful effects of wrongful removal or retention and to establish procedures of ensuring prompt return of children to their country of habitual residence. The aim is to ensure that a competent court in the country of habitual residence decide on the merits of custody, access and even permanent removal to another country. This is based on the premise that court in the country of habitual residence is better apprised to obtain all relevant evidence regarding the merits of custody, care and contact and in a better position to grant an order that will be in the best interests of and/or least detrimental to the welfare of the child. For this reason, the Hague Convention is deemed to be consistent with our applicable laws and the Constitution, through affording the best interests of the child paramount importance.

Compiled by:

Bertus Preller
Family Law Attorney

Abrahams and Gross Inc. Cape Town

Online Divorce


No one would deny that the world has changed immensely in the past ten years. Today we are doing almost everything online. We shop online, listen to music online, research online, book flights and accommodation online.  The internet is growing at a phenomenal rate, especially the sector of online e-commerce. New generations are considering it as the conventional method of purchasing goods and services. Businesses which fail to embrace this large catchment of clients and customers will perish. The legal services profession is one that has already fallen way behind the rest of the business fraternity.

It is a fact that clients and customers can purchase legal document services and templates at certain stationary shops. Contemporary legal customers have an expectation of wanting everything for the cheapest possible price and in the quickest possible time. Online legal services provide instant virtual access to legal support services.

That is exactly what more and more South Africans have been doing since the first online DIY Divorce website eDivorce launched. And it costs only about R950, a fraction of what one usually pays for an uncontested divorce. The service makes South Africa’s divorce system more accessible and affordable to the general public. With people struggling to make ends meet in a volatile economic climate an online Divorce website is a definite alternative for spouses seeking an uncontested divorce.

There is a clearly an increase in Europe and the US in the number of online legal services and in the UK alone online Divorces have increased by over 50% over the past few year. Online divorce has been available in the UK since the late ’90s and it’s a growing trend in South Africa too. But this doesn’t mean you can get divorced with just a click of the mouse. Websites for online divorces handle uncontested cases only and generate the forms needed to conclude the divorce. It is therefore up to the spouses to conclude their own divorce.

Where a divorce is contested, for example where the spouses are not able to agree on how to divide their assets, it will be in their interest to rather consult an attorney who specialises in Family Law and Divorce Law.

Where the divorce is less complicated and the spouses agree on the division of their assets then using an online divorce website makes more sense.

Father, please give me my daily bread – child maintenance


According to the Institute of Race Relations 9 million children in South Africa grow up with absent fathers. One may assume that the majority of these fathers don’t pay any child maintenance and then an alarming number of fathers in South Africa default on their child maintenance payments. It is a novel idea when people and celebrities alike engage in projects such as “Save the Rhino” but don’t we miss the point? Has the time not come to throw our weight behind projects to save the many thousands of children in South Africa who must suffer the consequences of an absent father who don’t pay child maintenance?  With the increase in divorce and the number of children born outside marriage, more and more women find themselves bearing the sole responsibility of caring for their children.

It is generally accepted that children with fathers who default on their maintenance payments grow up with a strong sense of resentment and rejection. When a parent fails to pay maintenance for their child, the child ends up feeling depressed, disadvantaged and unloved. The non-payment of maintenance, results in degeneration of the family unit and the children are sometimes driven to a life of crime.

In 2005 the government launched Operation Isondlo a maintenance defaulter programme with its aims to decrease the backlog of maintenance cases. This was indeed a noble initiative for which government must be applauded but in reality the effectiveness of the programme is doubtful having regard to the many women complaining about the ineffectiveness and inability to bring defaulters to book.

In 2011 the Western Cape Department of Justice and Constitutional Development released a list of 7 084 fathers across the Western Cape who were in arrears with their maintenance payments. The fathers collectively owed close to R16 million to their children in maintenance, with one father owing more than R200 000. Some women don’t even bother to approach the maintenance court because they feel that it is a pointless exercise. But the reality is that it is not only fathers who default in paying their child maintenance and the second biggest maintenance defaulter captured last year in Cape Town was a woman who owed her child R112 000. It was also found that there are mothers who did not collect their child maintenance and in 2011 about R 1 million in maintenance had been allocated for mothers who simply failed to collect it.

Much sterner measures need to be put into place to compel fathers to pay maintenance. In reality many of these father’s also shift the responsibility to the mother’s new husband or partner which is an extra burden in the harsh economic climate that we live in.

Some of the problems in our maintenance system include inadequately trained court staff and insufficient facilities and resources. The problems in our maintenance system cannot be resolved through the process of legislation alone, but by also creating a culture of maintenance payment amongst all those that are legally liable to maintain those in need of maintenance. If there is no respect for the law, the maintenance system will fail. A well functioning and effective maintenance system is critical not only for the children in South Africa.

We need to find measures to expedite maintenance application procedures, application processing, payments and punitive measures for defaulting parents. The possibility of Saturday courts for maintenance and other matters related to family law need to be investigated and the possibility to introducing mediation services in maintenance matters. In order to address the problem the media need to be engaged in creating awareness of the growing problems regarding child maintenance.

Legally, a duty of support exists between people who have a familial bond. A person who owes another person a duty of support may have to pay maintenance for that person, if the person has the means to provide maintenance and if the receiving person is in need of maintenance. The law requires a child to be supported or maintained by both his/her parents, whether married, living together, separated or divorced or by both his/her grandparents, in certain cases. South African law imposes a duty on both maternal and paternal grandparents to contribute towards maintenance if the child’s parents are unable to do so in part or in full. There is a duty of support between siblings, both full and half brothers and sisters where the parents and grandparents are unable to provide support, but the support does not extend to include tertiary education of a major sibling. Effectively this means that a mother in need of maintenance of her child may summons the paternal grandparents to the maintenance court if the father is unable to pay.

Source: http://voices.news24.com/bertus-preller/2012/05/child-maintenance/

Contact details

bertus@divorceattorney.co.za

O: 021 422 1323

Children are not pawns in the deadly game of divorce


Parental alienation involves the systematic brainwashing, poisoning and manipulation of children with the sole purpose of destroying a loving and warm relationship they once shared with a parent.  As everyone knows, divorces can often be acrimonious. Add children to the mix, and the animosity heightens even more, as both parents strive to do what they feel is in the best interests of the children. At times these efforts evolve into accusations that the other parent is “bad” causing the child to side with one parent over his/her dislike for the other. This world is rife of parents using their children as pawns in the dirty game of divorce or where children are born out of wedlock. We have all heard of the old saying “no maintenance no kids” or “you left me so you won’t see your kids”. Parents don’t realise the damage they are doing in using their children as a means to get back at the other parent.

So often you hear about a mother complaining that a father sexually abused a child, with no evidence to substantiate the claim, simply in an attempt to isolate the father from having a relationship with the child or a mother obtaining a restraining order against a father simply to restrain the father from having a relationship with a child. Although it seems to be mostly women that play this deadly game, there are also fathers who use their children as pawns against the mother. Unfortunately in battles of this sort attorneys are sometimes also to blame and fuel the battles on behalf of a client losing sight of what the best interest of a child really means. Depriving the other parent of a relationship with his/her children is possibly one of the most devious methods to ruin a solid society.

“Parental Alienation Syndrome” (PAS), is a term first used by the late child psychiatrist Richard A. Gardner in 1985. Dr. Gardner studied the behaviour of parents involved in child custody disputes. He noted that sometimes the children align themselves with one parent. While this is natural to a degree, Dr. Gardner noticed that in some cases it could be extreme to the point it borders on a physiological disorder. He described the so-called disorder or syndrome as follows:

“Its primary manifestation is the child’s campaign of denigration against the parent, a campaign that has no justification. The disorder results from the combination of [either deliberate or unconscious] indoctrinations by the alienating parent and the child’s own contributions to the vilification of the alienated parent”.

The American Psychiatric Association is contemplating adding PAS to the new edition of the Diagnostic and Statistical Manual of Mental Disorders, scheduled to be published in May 2013. William Bernet, a professor of psychiatry at the Vanderbilt University School of Medicine and an advocate for its inclusion in the Diagnostic and Statistical Manual of Mental Disorders, describes it as “a mental condition in which a child, usually one whose parents are engaged in a high conflict divorce, allies himself or herself strongly with one parent, and rejects a relationship with the other parent, without legitimate justification.”

The form of PAS most experienced is that of negative words by one parent about the other, leading the child’s thoughts and attitudes in the same direction. The alienating parent might also cause the child, through manipulation and access blocking, to unjustifiably fear and/or hate the target parent. The parent with primary residence may engage in direct and indirect methods designed to alienate the child from his or her non-residential parent. As a result the child becomes preoccupied with unjustified criticism and hatred of the non-residential parent. This sometimes lead to brainwashing which result in conscious acts of programming the child against the other parent”. Examples include accusing the father of being an “adulterer” and “deserter.” The father is unjustifiably accused of providing too little maintenance, sometimes to the point that the mother misleads the children to believe that terrible things will happen to them. When a father leaves the home, the mother may make statements such as, “your father has abandoned us,” to teach the child that the rejection extends not only to the mother but to the c. children as well. Minor negative attributes one the father’s side are exaggerated greatly. For example, the father who occasionally has a drink after dinner is described as an alcoholic.

Section 35 of the South African 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.

http://voices.news24.com/bertus-preller/2012/04/children-are-not-pawns-in-the-game-called-divorce/

Court confirms ex-spouses access to government pension fund in divorce


The Constitutional Court on Friday confirmed the declaration by the Western Cape High Court of the constitutional invalidity of the “clean-break” principle of the Government Employees Pension Law.

This case highlighted the plight previously experienced by people married in community of property and whose spouses were, upon divorce, members of the Government Employees Pension Fund (Government Pension Fund) established under the Government Employees Pension Law (GEPL).

Under the matrimonial laws, non-member spouses could, in certain circumstances, be entitled to payment of part of the pension interest due or assigned to the member of the Government Pension Fund when any pension benefit accrued to that member. Prior to the Government Employees Pension Law Amendment Act (GEPL Amendment Act), the non-member’s benefit would be frozen on divorce until any pension benefit accrued to that member, unlike that of a counterpart under the Pension Funds Act (PFA). The effect of this was that non-members could not benefit from any interest or capital growth on the portion of the pension interest allocated to the member spouse – thus resulting in the portion devaluing over time.

Invoking the equality provision in the Constitution, the GEPL was originally challenged by the applicant on the ground that it did not afford to a former spouse of a member of the Government Pension Fund the same rights and advantages that are afforded to former spouses of members of funds subject to the PFA. The applicant also sought a constitutional remedy of reading in certain provisions of the PFA into the GEPL together with an order for costs.

Parliament passed the GEPL Amendment Act to cure the defects in the GEPL. As such the Constitutional Court did not pronounce on the constitutional issues in this matter. As a result of this legislative intervention, a question arose whether any live constitutional issue requiring determination by this Court was extant.

There are two parallel regimes of pension funds at play: first, those private funds governed by the PFA and second, government funds which are not governed by the PFA but, rather, by a statute unique to that fund. This latter class of government funds includes, but is in no way limited to, the Government Pension Fund.

During 1989, section 7(7)(a) was added by the Divorce Amendment Ac to deal with certain problems. Under the Divorce Act non-member spouses were, in certain circumstances, entitled to payment of part of the pension interest due, or assigned to, the member of the Government Pension Fund when any pension benefit accrued to that member. A pension interest which had not yet accrued was not considered an asset in the spouse’s estate. To cure this defect, the amendment provided that a pension interest is deemed to be an asset in the estate for the purpose of determining patrimonial benefits.

The Divorce Amendment Act was, however, not without difficulties. One was the question of when the payment of a pension interest should occur. Generally, this depended on the rules of a specific fund but usually took place on retirement, dismissal or some other defined “exit event”.

The problem was that a non-member spouse would be severely prejudiced if the value of his or her benefit was frozen at the date of divorce and the beneficiary would have had to wait for a later exit event.

To cure this defect, various amendments were made to the PFA, in particular, the Pension Funds Amendment Act, which incorporated the “clean-break” principle into section 37D of the PFA. The effect of this amendment is that the non-member spouse no longer has to wait for an exit event to occur. This means that a pension benefit awarded to a non-member spouse in terms of the Divorce Act is deemed to have accrued on the date of the divorce. This demonstrates the interplay between the Divorce Act and the PFA.

The oversight, however, was plainly that these amendments only apply to the PFA and, by extension, to funds that are governed by the PFA. As mentioned above, this is only one leg of the parallel regime. The Government Pension Fund could not benefit from the clean-break principle, as it was governed by its own statute, the GEPL.

In its amended form, section 3 of the GEPL Amendment Act introduces a clean-break principle by incorporating section 24A after section 24 of the GEPL. Section 24A is, in effect, similar to section 37D of the PFA.

Section 24A authorises the Government Pension Fund to make payment of a pension interest upon divorce or dissolution of a customary marriage.

Non-members of the GEPF were denied their share of the pension benefit immediately upon divorce or on dissolution of a customary marriage. They had to wait until their member and former spouse became entitled to his or her pension benefit. This was the subject of a challenge in the Western Cape High Court.

The Applicant Mrs Wiese submitted that it was unfair for the GEPF not to allow her access to the pension benefits that were awarded to her in terms of a divorce order. The High Court found in her favour and declared it unconstitutional as the GEPF failed to give former spouses of members the same rights as those afforded to spouses of members of pension funds falling within the ambit of the Pension Funds Act.

It granted Parliament a year to amend the Government Employees Pension Law so that the GEPF could amend its rules.

The High Court’s declaration was referred to the Constitutional Court for confirmation. The suspension of invalidity was appealed by Wiese.

While the proceedings in the Constitutional Court were pending, Parliament amended the law. Wiese and the GEPF agreed that the amendment disposed of the main issues before the Constitutional Court and the matter had become moot.

The court found that although the absence of a live controversy did not constitute an absolute bar to justifiability, the matter had become moot in the light of the amendment. It could still consider the question of costs.

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