Divorce Attorney Cape Town

Facebook Leads to Divorce in South Africa?


The number of divorces occurring because of Facebook and other social networking sites has been on the rise since these sites have become increasingly popular, research claims. These sites are being utilized more and more by unhappy individuals to seek out and have an affair and cheat on their partner.

Facebook is now being cited in almost one in five of online divorce petitions, attorneys have claimed.

People will post just about anything on social networking sites. And the information can be used against them.

The social networking site, which connects old friends and allows users to make new ones online, is being blamed for an increasing number of marital breakdowns.

Divorce lawyers claim the explosion in the popularity of websites such as Facebook and Bebo is tempting to people to cheat on their partners. Suspicious spouses have also used the websites to find evidence of flirting and even affairs which have led to divorce.

One law firm, which specialises in divorce, claimed almost one in five petitions they processed cited Facebook.

An American insurance company, in defending its refusal to pay out a claim, is seeking to call in evidence personal online postings, including the contents of any MySpace or Facebook pages the litigants may have, to see if their eating disorders might have “emotional causes”. And the case is far from a lone one. Suddenly, those saucy pictures and intimate confessions on social networking sites can be taken down and used in evidence against you in ways never dreamed of.

Flirty emails and messages found on Facebook pages are increasingly being cited as evidence of unreasonable behaviour. Computer firms have even cashed in by developing software allowing suspicious spouses to electronically spy on someone’s online activities.

One 35-year-old woman even discovered her husband was divorcing her via Facebook. Conference organiser Emma Brady was distraught to read that her marriage was over when he updated his status on the site to read: “Neil Brady has ended his marriage to Emma Brady.”

Last year a 28-year-old woman ended her marriage after discovering her husband had been having a virtual affair with someone in cyberspace he had never met. Amy Taylor 28, split from David Pollard after discovering he was sleeping with an escort in the game Second Life, a virtual world where people reinvent themselves.

Around 14 million Britons are believed to regularly use social networking sites to communicate with old friends or make new ones. The popularity of the Friends Reunited website several years ago was also blamed for a surge in divorces as bored husbands and wives used it to contact old flames and first loves.

The UK’s divorce rate has fallen in recent years, but two in five marriages are still failing according the latest statistics. Mr Keenan believes that the general divorce rate will rocket in 2010 with the recession taking the blame.

In the US, a sex assault victim seeking compensation faces the prospect of her MySpace and Facebook pages being produced in court. In Texas, a driver whose car was involved in a fatal accident found his MySpace postings (“I’m not an alcoholic, I’m a drunkaholic”) part of the prosecution’s case.

According to an article in USA  research by the American Academy of Matrimonial Lawyers conveys that, over the last five years, 81% of divorce lawyers have either utilized or encountered evidence from social networking sites. Facebook is the most cited, appearing in 66% of cases using subpoenaed Internet evidence.

Now, the problem here is not the sites themselves. Marriages break up for the most ancient of reasons, power struggles, lack of kindness, loss of love, hurt, money problems, infidelity and the like. The Internet doesn’t cause marital problems (people do) but it can make matters worse.

Infidelity is without doubt, easier because of the sheer access to so many potential lovers. Gambling takes on new forms (like a poker addiction) found in one’s living room computer. But anonymity is not what one likes to think, because the Internet also makes it easier for the offending spouse to get caught.

The double life you try to lead on the Internet might just come back to haunt you. Lawyers know how to find information you’ve posted on social networking sites that you thought had been kept hidden. Sage advice: Like driving a car, it is a good idea to know about the power of technology before using it and finding yourself in trouble.

Source: TechJournal

Compiled by:

Bertus Preller is a Divorce and Family Law Attorney in Cape Town and has more than 20 years experience in law and 13 years as a practising attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. in Cape Town. Bertus is also the Family Law expert on Health24.com and on the expert panel of Law24.com and has written a number of articles in local newspapers on Family Law issues in South Africa. 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.

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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

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