Divorce Attorney Cape Town

More women file for divorce than men


Although the novel Fifty Shades of Grey portrays Anastasia Steele as a submissive woman, more women are ending marriages and are filing for divorce these days, proving the point that women in general, are not as submissive as men would want them to be.

In the past the majority of Plaintiffs (the party initiating divorce) in South Africa were male, these days they are in fact women.

Recent figures released by the Department of Statistics has revealed that there were more female (49,8%) than male (35,9%) plaintiffs in divorces instituted during 2010.

According to the statistics there were significant differences among population groups. Among the white population group 55,8% of the wives filed for divorce compared to 41,3% of wives among the African population group.

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 (18,9%) were in clerical and sales occupations whereas husbands (15,3%) were in managerial and administrative occupations.

Adultery has become more common with the introduction of infidelity websites such as Ashley Madison.com with their slogan “Life is short have an affair”. Years ago it was more likely men who committed adultery, but research into the behaviour of 4,000 cases of infidelity in the UK claimed that women in general are more promiscuous, having an average of 2.3 secret lovers compared to a mere 1.8 for men. The survey found that while unfaithful men have their first affair until almost six years of married life the average female cheater strays just five years after exchanging wedding vows.

Catherine Hakim, a British social scientist and bestselling author argues that a “sour and rigid English view” of infidelity is condemning millions of people to live frustrated “celibate” lives with their spouses. According to her sex is no more a moral issue than eating a good meal. This view may be a bit skew especially since her view propagates the moral decline of our society.

She attacks the traditional morality and also accuses relationship counsellors and therapists of trying to “pedal a secret agenda of enforced exclusive monogamy”. Her argument is that the rise of the internet, has brought about a change in sexual behaviour on a par with the invention of the contraceptive Pill. Adultery is now, she says, simply the “21st-century approach to marriage”.

It is a fact that children living in families with greater parental supportiveness, from both mothers and fathers and less marital conflict live healthier lives. History repeats itself many times before we really learn that values matter. Families matter, moral courage matters, honour and integrity matter. Not only for individual happiness and prosperity, but more importantly for the good and strengthening of our society. The most important cause of our lifetime must be our family.  Devoting ourselves to this cause will improve every other aspect of our lives.

Source: http://voices.news24.com/bertus-preller/2012/09/beware-men-more-women-are-suing-for-divorce-these-days/

Bertus Preller

Family Law Attorney

Abrahams and Gross Inc.

Twitter: bertuspreller

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

Tel:  021 422 1323

Is a husband obliged to pay maintenance when his wife lives with another man?


 

A recent judgment concerned the issue whether a husband is obliged to pay maintenance to his former wife, who is involved in a relationship with another man, after divorce. The plaintiff issued summons against the defendant, her husband, during 2003, for a decree of divorce, maintenance for herself and their son and ancillary relief.

The parties had not lived together as man and wife for a continuous period of at least two years prior to the date of the institution of the divorce action. In terms of the provision of s 4(2)(a) of the Divorce Act 70 of 1979 (the Divorce Act), this is proof of the irretrievable break-down of the marriage. The remaining issues were whether the plaintiff is entitled to maintenance, and if so, what such maintenance should be. The defendant’s case in respect of the plaintiff’s entitlement to maintenance was that it is against public policy that a woman should be supported by two men.

The maintenance post-divorce Section 7(1) and (2) of the Act sets out when a court may order the payment of maintenance and the factors that should be taken into account when making such determination.

It provides as follows:

‘7(1) A Court granting a decree of divorce may in accordance with a written agreement between the parties make an order with regard to the division of the assets of the parties or the payment of maintenance by the one party to the other.

(2) In the absence of an order made in terms of subsection (1) with regard to the payment of maintenance by the one party to the other, the Court may, having regard to the existing or prospective means of each of the parties, their respective earning capacities, financial needs and obligations, the age of each of the parties, the duration of the marriage, the standard of living of the parties prior to the divorce, their conduct insofar as it may be relevant to the break-down of the marriage, an order in terms of subsection (3) and any other factor which in the opinion of the court should be taken into account, make an order which the court finds just in respect of the payment of maintenance by the one party to the other for any period until the death or remarriage of the party in whose favour the order is given, whichever event may first occur.’

Through a long line of cases dealing exclusively with maintenance pendente lite, it has become customary not to award maintenance to a spouse who is living in a permanent relationship with another.

In Drummond v Drummond the Appellate Division agreed with the definition of the phrase ‘living as husband and wife’ as stated by the full bench. The parties agreed that the husband would pay maintenance towards the wife and that maintenance would ‘cease should the plaintiff prove that the defendant was living as man and wife with a third person on a permanent basis’. The said phrase has the following meaning: ‘. . . the main components of a modus vivendi akin to that of husband and wife are, firstly, living under the same roof, secondly, establishing, maintaining and contributing to a joint household, and thirdly maintaining an intimate relationship.’ The plaintiff and S clearly live together as husband and wife according to the said definition.

In Cohen v Cohen the parties determined in a deed of settlement that the maintenance payable by the plaintiff (the husband) would cease if the defendant lived with another man as husband and wife for a certain specified period. This order was varied by a maintenance court in respect of the amounts the husband had to pay towards maintenance. In the maintenance court’s order the condition in respect of the cohabitation was left out. In a subsequent action it was decided that, where the magistrate had left out the said clause, the condition was no longer enforceable as it had been substituted by the maintenance court.

In Carstens v Carstens the wife claimed maintenance pendente lite in a rule 43 application while she lived with another man as husband and wife. Mullins J found: ‘It is in my view against public policy that a woman should be entitled to claim maintenance pendente lite from her husband when she is flagrantly and deliberately living as man and wife with another man. Not only is applicant in the present case living in adultery, but she and her lover are maintaining a joint household complete with the addition of an adulterine child. She has by her conduct accepted the support of Clarkson in lieu of that of her husband. The fact that Clarkson is unable to support her to the extent that she may have been accustomed in her matrimonial home with respondent does not appear to me to affect the position.’

In SP v HP (another rule 43 application) it was found, on the strength of Carstens, that ‘(t)he objection is not so much about the moral turpitude attaching to the illicit cohabitation, but more about the notion of a woman being supported by two men at the same time’.

In the unreported judgment of Qonqo v Qonqo dealing with a rule 43 application for maintenance pendente lite, the court, in spite of the fact that the applicant cohabited with her lover, ordered the respondent to pay maintenance pendente lite. The reason for ordering the payment of maintenance was that there was no proof that the lover supported the applicant in that instance.

It is also clear from the wording of s 7(2) of the Divorce Act that the legislature did not determine that maintenance should cease when the person receiving the maintenance is in a relationship akin to a marriage but only on remarriage. It is usually by way of an agreement between the parties that the additional condition relating to the cessation of payment of maintenance on the cohabitation with a third party is added.

Marriage entails that the parties establish and ‘maintain an intimate relationship for the rest of their lives which they acknowledge obliges them to support one another, to live together and to be faithful to one another’. One of the effects of marriage is the reciprocal duty of support. This duty of support does not exist, in circumstances such as these, if there is no marriage.

In Volks NO v Robinson and Others the proceedings had been initiated by Mrs Robinson who had been a partner in a permanent life partnership with Mr Shandling for a period of 16 years until his death in 2001. The couple had not been married, although there was no legal obstacle to their marriage. Following the death of Shandling, Robinson submitted a claim for maintenance against his deceased estate. The executor of the estate, Volks, rejected her claim because she was not ‘a survivor’ as contemplated by the Act. Skweyiya J said at paras 55 – 56: ‘Mrs Robinson never married the late Mr Shandling. There is a fundamental difference between her position and spouses or survivors who are predeceased by their husbands. Her relationship with Mr Shandling is one in which each was free to continue or not, and from which each was free to withdraw at will, without obligation and without legal or other formalities. There are a wide range of legal privileges and obligations that are triggered by the contract of marriage. In a marriage the spouse’s rights are largely fixed by law and not by agreement, unlike in the case of parties who cohabit without being married. The distinction between married and unmarried people cannot be said to be unfair when considered in the larger context of the rights and obligations uniquely attached to marriage. Whilst there is a reciprocal duty of support between married persons, no duty of support arises by operation of law in the case of unmarried cohabitants. The maintenance benefit in section 2(1) of the Act falls within the scope of the maintenance support obligation attached to marriage. The Act applies to persons in respect of whom the deceased person (spouse) would have remained legally liable for maintenance, by operation of law, had he or she not died.’

If regard is had to the decision of Cohen, that it cannot be read into s 7(2) of the Act that the maintenance will cease when the recipient of the maintenance lives as husband and wife with another, as an express agreement to that effect can be amended by the maintenance court. Having regard to the factors that should be taken into account when determining whether the defendant ought to pay maintenance for the plaintiff, in terms of s 7(2) of the Act, the factors mentioned are not exclusive.

When taking into consideration the factors mentioned in s 7(2) of the Act to determine whether the defendant is liable to pay maintenance the following emerge:

(a) The existing and prospective means of each of the parties and the parties’ respective earning capacities.

(b) The financial needs and obligations of the parties. It is clear that neither of the parties can live lavishly, but they are not destitute.

(c) The age of the parties.

(d) The duration of the marriage.

(e) The standard of living of the parties prior to the divorce.

(f) The conduct of the defendant insofar as it may be relevant to the breakdown of the marriage.

The facts of this matter differed materially from Carstens; SP v HP; and Qonqo. It is immaterial whether the defendant was unable to support the plaintiff and their son, or whether he was merely unwilling to do so. Other legislation also makes it clear that the legislature envisaged that a man can be supported by two women. In terms of the provisions s 8(4) of the Recognition of Customary Marriages Act 120 of 1998, a court dissolving a customary marriage has the powers contemplated in ss 7, 8, 9 and 10 of the Act. This has the effect that with polygamous customary marriages a husband will have the right to be supported by more than one wife, post-divorce, if circumstances demand it. Although it might have been a concept that was unacceptable in a previous dispensation, the concept is not unacceptable today. The court was of of the opinion that in the circumstances of this case it could not be said that it is against public policy that the defendant should be liable to pay maintenance to the plaintiff; there is no legislative prohibition and the court found that there was no general public policy to that effect or moral prohibition.

Adultery, Infidelity, Extra-marital Affairs and Divorce


From a moral, ethical and religious view adultery is a sin and an act contrary to the basis of trust between married spouses and so is the behaviour of that a third party that break up the marriage seen as immoral.  This article is purely focussed on the law and not the public view or for that matter any moral or religious viewpoint.

Adultery may be defined as extramarital sex that wilfully and maliciously interferes with marriage relations which renders the irretrievable breakdown of the marriage relationship. It is often cited as grounds for divorce. In our law, both the married person and the lover will be regarded as adulterers.

South African law has recognised  claims for damages that can be instituted by an aggrieved spouse against a mistress, but is our law not evolving away from the historic public and religious views? Damages may still be awarded on the basis of the insult caused to the innocent party and of the loss of consortium. Compensation can be claimed for financial loss caused by break-up of the marriage, as well as for the loss of the affection. A court will consider the spouse’s financial and social situation, their moral reputation and the state of the relationship before the adultery was committed. When an innocent spouse’s behaviour was partly responsible for driving his or her partner into another person’s arms, the damages awarded can be considerably lower.

It can however be argued that the South African common law on which a Plaintiff’s claim is predicated for damages against a spouse who committed adultery in a marriage must be developed to promote the spirit, purport and objective of the Bill of Rights contained in Chapter 2 of the Constitution of South Africa, 1996 (“the Constitution”) and the interests of justice (under Section 39 (2) and section 173 of the Constitution).

According to the view expressed above it is argued that the time has come to develop the common law so as to remove or curtail claims for damages by a married person, utilising the actio iniuriarum, against a person involved in an intimate relationship with the married person’s spouse. The actio iniuriarum is used to claim for the impairment of one’s personality.  The purpose of this action is to compensate for the intentional injury to one’s mental integrity.

The argument against such a claim is that it breaches the right to human dignity (of the adulterer and mistress) under Section 10 of the Constitution, in that:

  • The relationship and love between the adulterer and mistress is treated as morally reprehensible or without opprobrium;
  • The mistress is held wholly responsible for damage caused to an aggrieved spouse by the other spouse’s marital infidelity; and
  • The mistress is treated as an instrument, in that her human relationship with the adulterer is used as a means to express condemnation for the adulterer’s marital infidelity, and/or to generate sympathy for the aggrieved spouse.

It is further argued that such a claim breach the adulterer and mistress’s rights to equality and freedom from discrimination under Section 9 of the Constitution on basis of marital status, conscience and belief in that:

  • No similar claim for damages is possible against a person who begins an intimate relationship with a man or a woman involved in a long-term homosexual or heterosexual relationship, customary law marriage or religious union;
  • The emotional consequences and loss for the aggrieved partner (i.e the person who learns of the infidelity of his or her partner with a third person) in all of the above relationships may be no more or less serious than a spouse in a marital relationship;
  • The law accordingly differentiates between a person who enters a relationship with a married person; and a person who enters a relationship with a person in other types of committed, long-term relationships;
  • The differentiation amounts to unfair discrimination on the basis of marital status and on the basis that it impairs, or has the potential to impair, the fundamental human dignity of an adulterer and a mistress.

It can further be argued that an adulterer and mistress’ right to privacy under Section 14 of the Constitution is violated in that it causes a public inquiry into the details of their relationship, how it formed and its strength.

Furthermore it seems that an adulterer and mistress’ rights to freedom of conscience, thought, belief and opinion under Section 15 of the Constitution, expression under Section 16 (1) of the Constitution and freedom of association under Section 18 of the Constitution also come into play for the following reasons:

  • Burdening people such as the mistress with damages will have a detrimental effect on her ability to honestly and openly express her emotions and love for another person;
  • The expression of emotions and love between the adulterer and mistress will be treated as morally reprehensible or tainted with moral opprobrium.

Therefore it seems that the common law must be developed in the interests of justice taking in to account the recognition that both parties contribute to the breakdown of the marriage relationship, which is inherent in the ground for divorce introduced in Section 4 of the Divorce Act 70 of 1979, namely “the irretrievable breakdown of the marriage”.

It is so that many foreign jurisdictions don’t tolerate such claims anymore and that there seems to be developments in South African case law to that effect. The historic view in our law that damages are awarded on the basis of the insult caused to the innocent party and of the loss of consortium seems to be outdated and time will tell on how our courts will develop the common law.

About the Author

Bertus Preller is a Divorce Attorney in Cape Town he specializes in Family law and Divorce Law at Bertus Preller & Associates 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.

www.divorceattorney.co.za

info@divorceattorney.co.za

Paternity Fraud


Paternity Fraud

by Bertus Preller, Family Law Attorney, Abrahams and Gross Inc Cape Town.

Paternity fraud refers to a paternal discrepancy, in which a mother names a man to be the biological father of a child, particularly for self-interest, when she knows or suspects that he is indeed not the biological father.

Fathers’ rights activists’ state that in cases of paternity fraud, there are many potential victims: the non-biological father who pays erroneously maintenance, the child deprived of a relationship with his/her biological father, and the biological father who is deprived of his relationship with his child. Other victims include the child’s and the non-biological father’s families. In particular, financial hardship may have resulted for the non-biological father’s due to the maintenance and child support that he has to pay and his other children and spouse in cases in which the man was forced to make maintenance payments for another man’s child.

Foreign Jurisdictions

In Australia, mothers are being forced to pay back thousands of dollars to men they wrongly claimed fathered their children following a contentious reform of child support laws. The Australian face of paternity fraud is a Melbourne man named Liam Magill. In 2002, Magill’s ex-wife Meredith was ordered to pay him $70,000 for general damages and the economic loss he suffered as a consequence of her false declaration that he was, as one newspaper report put it, the biological father of “her lover’s children”.

In the UK, single mothers are deliberately naming the wrong man as the father of their children when making maintenance claims. Child Support Agency figures show that nearly one in five of the contested paternity claims it handled last year cleared the man originally named as the father. These are the actual figures. Its figures for 2007-2008, obtained under freedom of information rules, show that out of 3,474 DNA paternity tests ordered, 661 – 19 per cent – named the wrong man. It is the highest proportion since the agency started collating figures nationally. Government-approved DNA testing kits, deemed 99.99 per cent accurate, have exposed 4,854 false paternity claims since records began in 1998-99.

In the United States it is estimated that almost 30% of DNA paternity tests, excluded the man as the father of the child in question. Of the 353,387 cases in 2003, 99,174 (28.06%) were reported as exclusions.

South Africa 

Issues regarding paternity have been dealt with in a number of cases in the South African Courts.

Presumption of Paternity

The South African Children’s Act confirms in Section 36 a presumption in respect of a child born out of wedlock (parties who were not married to each other). The presumption is that the person whom had sexual intercourse with the mother at any time when that child could have been conceived will be presumed to be the biological father of the child in the absence of evidence to the contrary which raises reasonable doubt.

In the case of S v L 1992 (3) SA 713 (E) it was held that the phrase “in the absence of evidence to the contrary which raises reasonable doubt” means that whenever there is evidence to the contrary, the presumption does not operate or ceases to operate.

This is also in line with the court’s decision in R v Epstein 1951 (1) SA 278 (O), where it was held that a presumption operating “in the absence of evidence to the contrary” only requires evidence, not proof, to counteract the presumption. The Children’s Act does not define the word “evidence”, thus any acceptable evidence suffices, regardless of whether it is direct or circumstantial, however, it must raise reasonable doubt.

Compelling a person to undergo a paternity test

Most recently in YM v LB 2010 ZASCA 106 the Supreme Court of Appeal had been given an opportunity to provide judicial clarity on the law relating to court-ordered blood testing of potential parents refusing to voluntary submit themselves (and/or the minor child) to such testing, but the Court most unfortunately elected to side-step the issue based on the facts of the matter. It is not suggested that the court was necessarily wrong in its final decision, but it was hoped that it would provide guidelines as to this issue of compelling adults and children to undergo blood tests to determine paternity. In this case the court of first instance ordered the parents and child to undergo paternity testing, the decision of the court was then taken on appeal.

The issue had been unclear for about 30 years and certainty regarding the obligation and power of the court to order such tests against the wishes of one of the parties would have been valuable. It was indeed a missed opportunity to clarify the law once and for all.

The true biological paternity of a child is of the utmost importance in South Africa as it determines the parental responsibilities and rights of parties, including contact, care and the duty to maintain the child until the child becomes self-supporting. The

South African law remains rooted in biology. Unfortunately, it is not unknown for a woman to lie about whom she had intercourse with, resulting in two legal consequences:

(a)   the husband is legally regarded as the father of the child with the accompanying rights and obligations; and

(b)  the biological father is denied his parental rights and responsibilities that he may have had or have obtained automatically vis-à-vis his biological child.

The first principle has its roots in Roman law. I can’t imagine that it was ever the aim of the Roman law principles to force the husband of a wife to support another man’s child without his knowledge. The common law principle of stuprum after all made provision for the annulment of a marriage where a husband discovers that his wife was pregnant with the child of another man at the time of the marriage.

With DNA testing becoming more common and now being done for a variety of reasons, including medical testing for potential illnesses, this has resulted in a spate of paternity fraud cases making headline news worldwide. In these cases the husband and the child discover years later that the paternity was based on a lie and that the husband had supported the child for years as a result of this fraud (see inter alia the facts of Johncom Media Investments v M 2009 4 SA 7 (CC) (South Africa); Magill v Magill [2005] VSCA 51 (17 March 2005) (Australia), supra and the allegations of the horror film director Andrew Douglas against his ex-wife Ameena Meer (USA). This trend is unlikely to end.

In YM v LB, supra, the Supreme Court of Appeal (SCA) found that where the paternity of the child has been shown on a balance of probabilities, as was the case in casu, scientific tests on a child should not be ordered. In this matter paternity was not really in dispute as both parties (at various times before the attorneys joined the show) believed that the man in question was the father of the child. The mother’s maternity was obviously never in doubt.

The court made the following observations:

(a)          that as paternity is determined on a balance of probabilities, the man is not entitled to demand scientific proof;

(b)          that in relevant instances, the court has the inherent power as upper guardian of all minor children to order such tests if it is in the best interests of the child;

(c)          the SCA referred to the observations of the court a quo regarding truth as a primary value in the administration of justice, but by implication disagree with the statement.

The SCA did note that the rights of privacy and bodily integrity may be infringed if it is in the best interests of the child. However, it confirmed the statement made by Judge Didcott in an earlier case that it may not be in an individual’s best interest to know the truth. The court noted that in some cases it may be justified to order tests, but that the discovery of the truth should not be generalized. With these comments, the appeal was upheld.

The basis of a paternity matter is that the applicant will have to show that such a test would be in the best interest of the child. This in itself is extremely difficult as there seems to be no research done in South Africa as to the impact on a child that learns, at a much later stage, that his/her presumed father was not the biological father. One may argue that paternity testing may have a negative short-term impact on the family as it may reveal relationships that were previously unknown. After all, it has been acknowledged that from a broader family perspective, family genes are considered to be a valued possession passed down in a family through succeeding generations. Personally I am yet to be convinced by our courts that it would be better not to know the truth or to keep the truth from a child at any age and I ponder whether this is indeed in the interests of a child. In disputed paternity claims the emotional trauma of uncertainty definitely taints the relationships between the parents and sometimes also the relationships between the probable father and the child. Trauma such as this can be easily be resolved through testing. For the SCA to note that the man is not entitled to scientific proof when the reality is that it can readily be done seems to unnecessarily muddle such an important issue with legalities.

In O v O, Friedman JP stated that there is no statutory or common-law power enabling the court to order an adult to allow a blood sample to be taken for the purpose of establishing paternity. Although there is still no such power it is submitted that Section 37 of the Children’s Act does not bring certainty. The section states that if a person in proceedings in which paternity of a child is challenged refuses to submit him/herself, or the child, to take blood samples in order to carry out a scientific test to prove the paternity of the child, then a presumption in our law exists in which the failure of such a party to agree to such a test may be used as evidence to prove the contrary. The effect of this section is that it compels a court to warn the person who has refused to have his/her or the child’s blood sample taken ‘of the effect’ which such refusal might have on his/her credibility. The problem is that the section does not go far enough and does not resolve the main issue, namely the truth about the paternity of the child.

Although the SCA overturned the initial decision of the High Court, namely to force the parents and the child to undergo DNA testing, it is submitted that certain statements of the original decision remains quite valid. The court of first instance confirmed that judicial notice may be taken of the existence of these tests and that it is unnecessary for medical evidence to be adduced regarding the nature and accuracy of these tests before and that this does not exclude any challenge to the reliability of any particular test in litigation once the test had been performed. There is however no guidance as to the most important question: whether or not it will be in the best interests of the minor child to determine paternity with certainty.

A number of questions still remain, most importantly what weight our courts in future will place on the argument that concealing the truth from a child might have the supposed advantage of not ‘bastardising’ the child or cutting it off from an established source of maintenance? It surely creates an inherent and inescapable injustice in compelling a person to assume obligations not rightfully his.

The father in the YM v LB matter did agree to a marriage, but not to raise another man’s child. What is also important is that a child of the age of 18 has the right to the medical information of his genetic parents in instances of artificial fertilisation and surrogacy which is recognised by section 41(1) of the Children’s Act. One may argue that by refusing the compelling of blood tests for paternity disputes in instances of natural conception would result in denying these children of their right to information of their genetic parents.

It is my respectful view that the court of first instance was correct when it concluded that it will be in the best interests of the child that paternity be scientifically determined and it is unfortunate that the SCA did not provide the legal fraternity with their wisdom.

Another recent decision, this time by the High Court in the Western Cape in the matter of N v J Case Number A653/2009 are of importance. This case concerned an appeal from the Magistrates Court. The Appellant (the Defendant in the court a quo) and the Respondent (the Plaintiff a quo) were married to each other on 25 February 1989.  Their union bore a daughter, who was born in June 1990.  For the sake of convenience I shall refer to the parties as in the court a quo. On 3 February 1995 the parties were divorced and pursuant thereto the Plaintiff was directed to maintain the child by effecting payment of the sum of R350,00 per month and to retain her on his medical aid fund.

It was common cause that during the period February 1995 to June 2006 the Plaintiff paid to the Defendant the sum of R50050,00 in respect of maintenance for  the child.  The said sum included payment of an amount of R1000,00 to a Primary School in January 2000. In June 2006 the child underwent a paternity test which showed conclusively that the Plaintiff was not her natural father. On 30 July 2007, pursuant to an application brought by the Plaintiff an order was granted declaring that the Plaintiff was not the natural father of The child and, inter alia, varying the divorce order in terms of Section 8 of the Divorce Act, 70 of 1979, by the deletion of the Plaintiff’s maintenance obligations towards The child. At the same time the Plaintiff instituted action in the Magistrate’s Court for recovery of the sum of R50050,00 that he paid in maintenance. His claim was upheld and the Defendant appealed against the order of the magistrate.

It was common cause that the parties were married on 25 February 1989 and that the child was born on 12 June 1990.  Assuming a normal pregnancy of nine months, this would mean that the Defendant committed an act of adultery around September/October 1989 during which the child would have been conceived.

The Plaintiff testified that he had always believed that he was the natural father of the girl and that he raised her as such with the Defendant until they were divorced in February 1995. The Plaintiff further testified that he did not oppose his wife’s claims at divorce because he regarded the marriage as irretrievably broken down and because he believed that he was obliged to maintain the child whom he regarded as his daughter. After the divorce the Plaintiff maintained the child for more than ten years.  He testified that he later became resentful about the Defendant’s persistent claims for maintenance increases and eventually decided to ask for a paternity test.  The Plaintiff also testified that he was urged by certain family members to go for such tests.  They evidently had reason to suspect that the Plaintiff was not the father and eventually he succumbed to their entreaties.

The Plaintiff stated that the Defendant never confessed her adultery to him and that his impression was that she never had any idea of who the real father of the child was. Under cross-examination the Plaintiff accepted that he had defaulted on his maintenance obligations over the years but said that he had then paid up in full from time to time. He confirmed that he had paid the maintenance because he was obliged to do so in terms of the divorce order. Unfortunately the Defendant did not testify and so one does not know the circumstances surrounding her pregnancy.  Importantly, there was no evidence to suggest that she knew that her adultery had resulted in the birth of the child and that she intentionally withheld that information from the Plaintiff.  Had that been the case her claim in the divorce action for maintenance for the child would have been fraudulent and would have afforded the Plaintiff a different cause of action.

The Plaintiff’s legal obligation to pay the maintenance in respect of the child arises directly from an order of Court and was accordingly an obligation he could not avoid.  The basis therefore was his assumption that a child born during the subsistence of the marriage was fathered by him.  This is in accordance with the rebuttable common law presumption: pater est quem nuptiae demonstrant.

While it cannot be contended that the Plaintiff laboured under a mistake of law, the divorce order was underpinned by an erroneous factual assumption, (paternity) either by the parties jointly or, at least, by the Plaintiff.  The Judge demonstrated that the SCA has disregarded any notional distinction between mistakes of law and fact:  the focus is essentially on whether the payment was made indebitum i.e. without legal ground. While the parties were still married the Plaintiff maintained the child as a member of the household, believing that she was his child and that he was duty bound to do so.  When the Defendant issued the divorce summons and claimed payment of maintenance for the child, the Plaintiff still believed that the child was his daughter.  As stated, by not contesting the divorce action, he effectively consented to the Defendant’s claims, which included claims in compliance with the provisions of Section 6 of the Divorce Act which preclude the granting of a decree of divorce until the Court is satisfied that adequate provision has been made for the care and maintenance of any child born of the marriage.

Given the findings which the Judge made, it was not necessary to come to a final decision on this aspect of the case, save to state the father’s claim to re-claim the maintenance that he paid over the years did not succeed.  Our courts may in the future be wary of recognising claims in circumstances such as the present which necessitate an enquiry into paternity and which may have the tendency to destroy an otherwise loving and caring parental relationship with a child whose rights to family and parental care are protected under section 28 of the Constitution.

Conclusion

What is disturbing is the fact that it is impossible to accurately estimate just how widespread paternity fraud is. One may assume that there are a plethora of men in South Africa who are currently raising another man’s child; blissfully unaware of the devastating truth. For each of these men, the truth will only be revealed if the woman who duped them decides to confess, or for some reason, a paternity test is taken. A real problem however is to compel someone to undergo such a test in legal terms as evidenced by the cases dealt with above. It remains to be seen how our courts will deal with this issue in future. Fact is that naming the wrong father, could result in criminal prosecution, if proven that the mother concealed the truth deliberately.

About the Author:

Bertus Preller is a Divorce and Family Law Attorney in Cape Town and has more than 20 years experience in law and 13 years as a practising attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. in Cape Town and deals with Family Law cases on a national basis. Bertus is also the Family Law expert on Health24.com and on the expert panel of Law24.com. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters and international divorce law.

Contact: 021 422 1323

Is adultery in South African Law still a basis for a claim against the mistress?


From a personal, moral, ethical and religious perspective adultery is a sin and an act contrary to the basis of trust between married spouses and so is the behaviour of that infamous third party that broke up the marriage seen as immoral.  The purpose of this article is to revisit the law in respect of an aggrieved parties’ right to institute a claim for damages against the third party that was privy in the break-up of a marriage, i.e a claim against the mistress for monetary relief, to make good the hardship caused by the affair and the enticement of the spouse to leave the communal home in search of the greener pastures. The article is purely focussed on the law and not the public view or for that matter the religious viewpoint.

Our law has recognised in the past a claim for damages that can be instituted by an aggrieved spouse against a mistress. But what does our law say on the subject and is the law evolving away from the public view and religious views.

It is argued that the South African common law on which a Plaintiff’s claim is predicated for damages against a spouse who committed adultery in a marriage must be developed to promote the spirit, purport and objective of the Bill of Rights contained in Chapter 2 of the Constitution of South Africa, 1996 (“the Constitution”) and the interests of justice (under Section 39 (2) and section 173 of the Constitution).

According to the view expressed above it is argued that the time has come to develop the common law so as to remove or curtail claims for damages by a married person, utilising the actio iniuriarum, against a person involved in an intimate relationship with the married person’s spouse. The actio iniuriarum is used to claim for the impairment of one’s personality.  The purpose of this action is to compensate for the intentional injury to one’s mental integrity.

The argument against such a claim is that it breaches the right to human dignity (of the adulterer and mistress) under Section 10 of the Constitution, in that:

(a)               The relationship and love between the adulterer and mistress is treated as morally reprehensible or without opprobrium;

(b)               The mistress is held wholly responsible for damage caused to an aggrieved spouse by the other spouse’s marital infidelity; and

(c)                The mistress is treated as an instrument, in that her human relationship with the adulterer is used as a means to express condemnation for the adulterer’s marital infidelity, and/or to generate sympathy for the aggrieved spouse.

It is further argued that such a claim breach the adulterer and mistress’s rights to equality and freedom from discrimination under Section 9 of the Constitution on basis of marital status, conscience and belief in that:

(a)               No similar claim for damages is possible against a person who begins an intimate relationship with a man or a woman involved in a long-term homosexual or heterosexual relationship, customary law marriage or religious union;

(b)               The emotional consequences and loss for the aggrieved partner (i.e the person who learns of the infidelity of his or her partner with a third person) in all of the above relationships may be no more or less serious than a spouse in a marital relationship;

(c)                The law accordingly differentiates between a person who enters a relationship with a married person; and a person who enters a relationship with a person in other types of committed, long-term relationships;

(d)               The differentiation amounts to unfair discrimination on the basis of marital status and on the basis that it impairs, or has the potential to impair, the fundamental human dignity of an adulterer and a mistress.

It can further be argued that an adulterer and mistress’ right to privacy under Section 14 of the Constitution is violated in that it causes a public inquiry into the details of their relationship, how it formed and its strength.

Furthermore it seems that an adulterer and mistress’ rights to freedom of conscience, thought, belief and opinion under Section 15 of the Constitution, expression under Section 16 (1) of the Constitution and freedom of association under Section 18 of the Constitution also come into play for the following reasons:

(a)               Burdening people such as the mistress with damages will have a detrimental effect on her ability to honestly and openly express her emotions and love for another person;

(b)               The expression of emotions and love between the adulterer and mistress will be treated as morally reprehensible or tainted with moral opprobrium.

Therefore it seems that the common law must be developed in the interests of justice taking in to account the recognition that both parties contribute to the breakdown of the marriage relationship, which is inherent in the ground for divorce introduced in Section 4 of the Divorce Act 70 of 1979, namely “the irretrievable breakdown of the marriage”.

It is so that many foreign jurisdictions don’t tolerate such claims anymore and that there seems to be developments in South African case law to that effect. The historic view in our law that damages are awarded on the basis of the insult caused to the innocent party and of the loss of consortium seems to be outdated and time will tell on how our courts will develop the common law.

Bertus Preller

Family Law Attorney

Abrahams and Gross Inc

Adultery, infidelity on Facebook and Mxit


Adultery, infidelity on Facebook and Mxit

Social networks have made it easier for the infidelity that has grown exponentially with the advent of the internet, and whilst many would argue that virtual adultery can never be as bad as the real thing, even an online affair can be of great distress to the “victim.” The recent popularity of social networking websites like Facebook and Mxit have brought with them the possibility to make complete new friends with common interests, as well as to reconnect with those lost friends from school or your more recent past. Matrimonial investigations where once confined to the real world and the surveillance of partners were often a case of physical tracking of vehicles etc. However, with the advent of modern technology an effective matrimonial investigation needs to be able to work on a virtual as well as a physical level.

More and more frequently, otherwise sound marriages, are suffering from the use of online social networking sites like Facebook and Mxit. There are no figures or percentages yet to suggest that the rate of infidelity has risen with the growth of social networking sites.

But do social networking sites encourage flirtatious behaviour, and are they really to blame for a rise in adultery?

As anyone who has joined Facebook, will know that the first couple of weeks is often a race to add as many ‘friends’ as possible. It is also all too easy, and often irresistibly tempting, to look up old boyfriends or girlfriends or maybe just that guy from university or college you had that crush on, but never did anything about at the time, almost reliving that lost moment in time. Of course, it is only human to wonder what happened to people you were close to in the past.

The danger starts when that late night uninhibited surfing session, fuelled by that second glass of sauvignon blanc or cabernet, begets a ‘poke’ or a flirtatious message sent to an ex-lover or missed opportunity. One thing leads to another and you are soon exchanging emails reminiscing about the past; and the next thing you know you’re arranging to meet to catch up on old times and that is when the trouble starts.

It really doesn’t only apply to people known to you. The remote nature of the internet provides some people with a veil of anonymity which can lead them to act in a complete different way that they wouldn’t in a real life situation. People who are generally shy can often act much more confidently in a virtual situation, leading them to be much more flirtatious and socially assertive than they otherwise would. Asking someone out over the internet feels less risky than it does face to face, as it is only your avatar that is facing possible rejection.

Of course, social networking sites don’t make anyone cheat on their partner. They do make it easy to get in contact with people, and therefore provide the opportunity to cheat to someone who is that way inclined. They also provide a much greater chance of getting caught, as they provide an electronic trail of evidence to a suspicious partner who knows where to look. So, the problem is not so much the social networks, but human nature.

As a divorce attorney I have seen a huge increase in the recent years in people producing print outs of emails, instant messages, Facebook wall screenshots and sms messages to back up claims of their partner’s infidelity.

So how many exes does your current partner have on their list of Facebook friends? And for that matter how many do you have on yours? It is worth bearing in mind next time you receive a friend request and the option to ‘Confirm or Ignore?’ Is it someone you would be happy for your partner to know about? That is the question.

Finally, spare a thought for famous Emma Brady, reportedly the world’s first Facebook divorcee. She only found out that her husband wanted a divorce when friends started phoning her to console her on being dumped.

Some interesting facts appeared on the internet, altough the veracity thereof is unknown the stats are worth mentioning:

  • Only 46% of men believe that online affairs are adultery. (DivorceMag)
  • Up to 37% of men and 22% of women admit to having affairs. Researchers think the vast majority of the millions of people who visit chat rooms, have multiple “special friends”. (Dr. Bob Lanier, askbob.com)
  • One-third of divorce litigation is caused by online affairs. (The Fortino Group)
  • Approximately 70% of time on-line is spent in chartrooms or sending e-mail; of these interactions, the vast majority are romantic in nature. (Dr. Michael Adamse, PhD., co-author of “Affairs of the Net: The Cybershrinks’ Guide to Online Relationships”)

Written by: Bertus Preller

Family Law and Divorce Law Attorney

Abrahams and Gross Inc. Cape Town

bertus@divorceattorney.co.za

http://www.divorceattorney.co.za

Adultery in South Africa, can I claim against a third party in a divorce


adultery

From a moral, ethical and religious perspective adultery is a sin and an act contrary to the basis of trust between married spouses and so is the behaviour of that infamous third party that broke up the marriage seen as immoral.  The purpose of this article is to revisit the law in respect of an aggrieved parties’ right to institute a claim for damages against the third party that was privy in the break-up of a marriage, i.e a claim against the mistress for monetary relief, to make good the hardship caused by the affair and the enticement of the spouse to leave the communal home in search of the greener pastures. The article is purely focussed on the law and not the public view or for that matter the religious viewpoint.

Our law has recognised in the past a claim for damages that can be instituted by an aggrieved spouse against a mistress. But what does our law say on the subject and is the law evolving away from the public view and religious views.

It is argued that the South African common law on which a Plaintiff’s claim is predicated for damages against a spouse who committed adultery in a marriage must be developed to promote the spirit, purport and objective of the Bill of Rights contained in Chapter 2 of the Constitution of South Africa, 1996 (“the Constitution”) and the interests of justice (under Section 39 (2) and section 173 of the Constitution).

According to the view expressed above it is argued that the time has come to develop the common law so as to remove or curtail claims for damages by a married person, utilising the actio iniuriarum, against a person involved in an intimate relationship with the married person’s spouse. The actio iniuriarum is used to claim for the impairment of one’s personality.  The purpose of this action is to compensate for the intentional injury to one’s mental integrity.

The argument against such a claim is that it breaches the right to human dignity (of the adulterer and mistress) under Section 10 of the Constitution, in that:

  1. The relationship and love between the adulterer and mistress is treated as morally reprehensible or without opprobrium.
  2. The mistress is held wholly responsible for damage caused to an aggrieved spouse by the other spouse’s marital infidelity; and
  3. The mistress is treated as an instrument, in that her human relationship with the adulterer is used as a means to express condemnation for the adulterer’s marital infidelity, and/or to generate sympathy for the aggrieved spouse.

It is further argued that such a claim breach the adulterer and mistress’s rights to equality and freedom from discrimination under Section 9 of the Constitution on basis of marital status, conscience and belief in that:

  1. No similar claim for damages is possible against a person who begins an intimate relationship with a man or a woman   involved in a long-term homosexual or heterosexual relationship, customary law marriage or religious union;
  2. The emotional consequences and loss for the aggrieved partner (i.e the person who learns of the infidelity of his or her partner with a third person) in all of the above relationships may be no more or less serious than a spouse in a marital relationship;
  3. The law accordingly differentiates between a person who enters a relationship with a married person; and a person who enters a relationship with a person in other types of committed, long-term relationships;
  4. The differentiation amounts to unfair discrimination on the basis of marital status and on the basis that it impairs, or has the potential to impair, the fundamental human dignity of an adulterer and a mistress.

It can further be argued that an adulterer and mistress’ right to privacy under Section 14 of the Constitution is violated in that it causes a public inquiry into the details of their relationship, how it formed and its strength.

Furthermore it seems that an adulterer and mistress’ rights to freedom of conscience, thought, belief and opinion under Section 15 of the Constitution, expression under Section 16 (1) of the Constitution and freedom of association under Section 18 of the Constitution also come into play for the following reasons:

  1. Burdening people such as the mistress with damages will have a detrimental effect on her ability to honestly and openly express her emotions and love for another person;
  2. The expression of emotions and love between the adulterer and mistress will be treated as morally reprehensible or tainted with moral opprobrium.

Therefore it seems that the common law must be developed in the interests of justice taking in to account the recognition that both parties contribute to the breakdown of the marriage relationship, which is inherent in the ground for divorce introduced in Section 4 of the Divorce Act 70 of 1979, namely “the irretrievable breakdown of the marriage”.

It is so that many foreign jurisdictions don’t tolerate such claims anymore and that there seems to be developments in South African case law to that effect. The historic view in our law that damages are awarded on the basis of the insult caused to the innocent party and of the loss of consortium seems to be outdated and time will tell on how our courts will develop the common law.

Bertus Preller

Family Law Attorney

Abrahams and Gross Inc.

www.divorceattorney.co.za

info@divorceattorney.co.za

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