Divorce Attorney Cape Town

Divorce – What every woman should know


Divorce - What women should know
Divorce – What women should know

Making the decision to divorce is a tough one, and the chances are it’s followed by an even more traumatic lead-up to the divorce, it is like a roller-coaster on an emotional track.

Women are mostly in the dark when it comes to the financial affairs of her husband and women are encouraged to gather as much financial information about their husband’s financial affairs before the divorce proceedings commence, to establish the magnitude of the estate.

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

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

In many divorce settlements, the wife ends up seeing what the estate is worth only late in the divorce process.

16 Important points to consider in divorce:

  1. Make copies of your husband’s bank statements, credit card statements and get hold of the short-term insurance policies as well as copies of pension funds and retirement funds. This will provide input on the extent of assets available and the value of the estate.
  2. If you are married in community of property or out of community of property with the accrual you have to ask your attorney to build a clause into the settlement agreement to say if any assets that come to light after the divorce settlement, you will be entitled to 50% of those assets and the husband will have to pay the legal fees involved in the recovery process of those assets when they do come to light.
  3. A more accurate sense of assets will come to light if the divorce is contested as parties are required to disclose any information to do with financial affairs. In terms of the court rules the husband can be required to make full disclosure of his assets and liabilities and you will be able to obtain all financial information spanning over a period of 3 years or more, including bank statements, credit card statements, investments etc.
  4. Women are advised not to leave the matrimonial home if there are minor children involved, because it provides a sense of stability for the kids. It’s better for the husband to leave if the husband is not the primary caregiver. If a husband makes himself guilty of abuse, the wife can get a restraining order to evict him from the property under certain circumstances or restrain him to enter certain areas of the house.
  5. Where the parties are married in community of property the wife is entitled to half the pension or retirement annuity fund. In a marriage out of community with the accrual, the pension fund will be regarded as part of the husband’s assets for purposes of calculating the accrual that the wife will be entitled to.
  6. In terms of the Divorce Act, the wife (if married in community of property) can choose to ask for the pension fund money to be paid in cash, or transferred to a pension fund of her choice.  Normally pension funds pay out the wife’s portion in 3 to 6 months after the divorce.
  7. Make a list of your monthly income and expenses, as if you’re going to live on your own with your children. It’s important because you get situations where the wife is not working or earns much less than the husband and doesn’t have the money to fight a divorce battle.  She can bring an application pending a divorce, for interim maintenance, which means contributing maintenance before the divorce is finalised. She can also apply for contribution to her legal expenses. If interim-maintenance is granted and the husband does not comply with the court order, he is in contempt of court.
  8. In some instances the wife can apply for emergency monetary relief in the magistrate’s court pending the institution of an application for interim maintenance by utilizing the provisions of the domestic violence act because the husband has blocked the use of credit.
  9. Interim maintenance falls away once the divorce order is granted. There have been situations where the wife has been granted very favourable interim maintenance terms, so sometimes a divorce is stalled  in order to continue getting a hearty amount of money each month.
  10. The granting of interim maintenance in a Rule 43 application cannot be appealed. The only way the husband can minimize this is if he goes back to court and explains and proves that his financial situation has changed so much that he’s entitled to a reduction. But this does not happen easily.
  11. Many battles in a divorce surround the children. Normally the wife is the parent of primary residence and the husband the parent of alternate residence. Increasingly, there’s a shared parenting approach with children staying with the mother for a week and then the father for a week and each party takes care of the children during that period.  I see a lot of children used as a pawn. It is important to get a parenting plan in place as soon as possible, and register that with the family advocate and stipulate that if issues arise with parenting and the children the parties need to go to a psychologist or a social worker to facilitate contact.
  12. In matters where money is not fought over, it may make financial sense to go to one lawyer who can work for both parties. But a divorce that is acrimonious requires that each party needs a lawyer to assist.
  13. A few mediation organizations exist where people can see a mediator to resolve disputes, to settle with both parties. The mediator doesn’t have the authority to issue and award for damages but he can facilitate the settlement process. If an abusive husband is involved, mediation is unlikely to work.  But it can work if the divorce is not acrimonious. Normally the spouses have to pay the costs of a mediator 50/50. Sometimes this route can be more expensive than an uncontested divorce, depending on the amount of sessions that the parties have to attend.
  14. Where a couple owns a property together, they need to decide whether both parties want to keep the interest in the property, sell the property and split the proceeds, or whether one wants to buy out the other. The decision has financial implications because of transfer duties and tax.
  15. It’s important to consider instances where the husband has no real assets. An insurance policy should be taken out in the event that the husband passes away and there is no money to help cover maintenance, in case of his death.
  16. The decision to divorce is always a business decision. You need to look at what happens until the children turn 21 or becomes self supporting, that there’s maintenance, medical cover for them, a school education and whether it’s government or private school and tertiary education.

About the Author:

Bertus Preller is a Divorce Attorney at Maurice Phillips Wisenberg in Cape Town, a law firm that has been in existence since 1994 and has more than 30 years experience in most sectors of the law. He specializes in Family Law and Divorce Law in and handles divorce and family law matters across South Africa. Bertus is also the Family Law expert on Health24.com, he blogs regularly on news24.com and nuus24.com and has been quoted on Family Law issues in various newspapers such as the Sunday Times and Business Times and magazines such as Noseweek, Keur, Living and Loving, Longevity, You and Huisgenoot, and also appears frequently on the SABC television show 3 Talk. His clients include artists, celebrities, sports people and high net worth individuals. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Parenting Plans, Parental Responsibilities and Rights, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters, international divorce law, digital rights, media law and criminal law.

Contact details

bertus@divorceattorney.co.za

O: +27 21 419 7115

Hacking your husband or wife’s mobile phone is a criminal offence


Hacking your spouse’s mobile phone is a criminal offence

I acted in a divorce matter where the husband hacked into his wife’s cell phone, email and facebook accounts in an endeavour to obtain information to strengthen his case. Although it is a criminal offense this happens frequently. Actions such as these amount to a criminal offense and is illegal.  Whether you use BBM, Whatsup or Mxit, all data can be hacked.

Cell phone hacking does occur in divorce matters, but not as frequently as computer hacking. Hacking is the intent to load viruses or spyware, obtain passwords or personal information, or cause general electronic mayhem. While smartphones can have a computer-like operating system, the majority have different operating systems like Andriod or Symbian. Hackers attempt to find flaws in an operating system, which makes a cell phone or computer vulnerable to attack. Because there are a large number of cell phone operating systems, a flaw in one system may not be the same flaw in another.

Recent figures by the GSM Association group of mobile operators found 18 different spyware applications sold openly on the internet, at prices ranging from $29.99 to $847.

Most of these require the snooper to get hold of the target’s phone to install the necessary software and then intercept and monitor communications. Getting the spy software installed on a phone without physically handling it is almost impossible, so if you think you can hack a phone over the internet you can’t, because any program that is installed on the phone must be done manually. So if your spouse had your phone in his possession then chances are good that he/she could have installed software on the phone to hack it.

What can be downloaded off the cell phone?

  • GPS. Since many cell phones have a GPS chip embedded within the phone, a hacker can determine your location. This in turn lets them find out places you go, like home or work.
  • Contact List. A hacker can obtain and download all your contacts. In 2005, Paris Hilton’s phone was hacked and all her contacts stolen. People on her contact list received prank calls for months afterwards.
  • Getting general personal information. Text messages, pictures, video: they are all vulnerable to getting stolen if cell phone hacking happens. This is akin to spyware stealing your passwords on your computer or a hacker seeking out all your private stuff in those folders you thought you had hidden away well.
  • Speakerphone or Spycam. A truly inventive hacker may hijack your phone in order to use the camera to spy visually and audibly.
  • Call Interception. Listen to the actual calls live on the target cell phone
  • Environment Listening. Make a spy call to the target cell phone running and listen in to the phone’s surroundings.
  • SMS Logging. Records both incoming & outgoing SMS and MMS
  • SIM Change Notification. Get instant notification via SMS when the target cell phone changes its SIM
  • Remote Control. Send secret SMS to the target phone to control all its functions

The hacker can download all the data from a web based programme to a computer, from any location in the world.

Hacking has been entrenched in our law in section 86 (1) of the Electronic Communications Act (ECT), which makes any unlawful access and interception of data a criminal offence. The section also make any attempt to gain unauthorised access a crime Section 86(3) and 86 (4) introduce a new form of crime known as the anti-cracking and hacking law. In terms of this law, the provision and/or selling and/or designing and/or producing of anti-security circumventing technology will be a punishable offence liable to a fine or imprisonment of up to 12 months.

About the Author

Bertus Preller is a Divorce Attorney in Cape Town and has more than 20 years experience in most sectors of the law and 13 years as a practicing attorney. He specializes in Family law and Divorce Law in Cape Town. Bertus is also the Family Law expert on Health24.com and on the expert panel of Law24.com and is frequently quoted on Family Law issues in newspapers such as the Sunday Times and Business Times and magazines such as Noseweek, You and Huisgenoot. His clients include artists, celebrities, sports people and high networth individuals. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Parenting Plans, Parental Responsibilities and Rights, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters, international divorce law, digital rights, media law and criminal law.

International abduction of minor children a South African Law Perspective


International abduction of minors a South African Perspective

Article 3(b) of the Hague Convention on the Civil Aspects of International Child Abduction (1980), which is incorporated into South African law by the Hague Convention on the Civil Aspects of International Child Abduction Act 72 of 1996 (the Act), provides that the removal or retention of a child is to be considered wrongful if, among others, at the time of the removal or retention, the rights of custody were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

In terms of article 13(b), the authority of the requested state is not bound to order the return of the child if the person, institution or other body in the other state that opposes the return or retention establishes that there is a grave risk that his return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. In Central Authority of the Republic of South Africa and Another v LG 2011 (2) SA 386 (GNP) the second applicant, the father, and the respondent, the mother, were married and living together with their minor child in the United Kingdom (UK). After several heated arguments the parties agreed to divorce and that the respondent would return to her native South Africa with the child. Alleging that the respondent agreed to return with the minor child to the UK after attending a wedding in South Africa and as she failed to do so she had unlawfully retained the child in this country, the second applicant (with the help of the first applicant, the Central Authority of South Africa) applied for a court order for the return of the child to the UK. The application was dismissed with costs.

Molopa-Sethosa J said the fact that the second applicant was prepared to stay away from the minor child, who was only 17-months-old at the time, for at least six months when the child was in South Africa with the respondent (who was during that time considering whether reconciliation with the second applicant was possible) was not indicative of a close bond between the second applicant and the child. Furthermore, the child would be exposed to the risk of psychological harm if he were to be returned to the second applicant who did not have the best interests of the child at heart. The fact that since the child had been in South Africa his health improved tremendously was of the utmost importance and could not be ignored.

Best interests and views of a child in international abduction matters:

In Central Authority v MR (LS Intervening) 2011 (2) SA 428 (GNP) the court dealt with the best interests of a minor child and her views in an international child abduction matter. After the death of her mother the minor child of some nine years lived with her biological father in Belgium. Subsequently the two relocated to Los Angeles, in the United States of America (USA), because of the father’s professional commitments.

There the two lived with the father’s new wife. After the child visited her maternal grandmother in Hoedspruit, Limpopo, the grandmother prevented the minor child returning to the father in Los Angeles and instituted an ex parte application to keep the child in this country. She sought, pending the final outcome of the family advocate’s investigation, full parental rights and responsibilities in respect of the minor. Meanwhile, the father sought the return of the child to the USA. The court dismissed the father’s application, but ordered the grandmother to pay costs because of the unacceptable way she instituted ex parte proceedings and for not being candid with the court.

Grounds for Divorce in South Africa


Dissolution of a civil marriage by divorce in South Africa

Three grounds for divorce were introduced by the Divorce Act:

  1.  irretrievable breakdown of the marriage (section 4);
  2. mental illness of a party to the marriage (section 5);
  3. continuous unconsciousness of a party to the marriage (section 3).

Irretrievable breakdown of the marriage

Section 4(1) – court may only grant a decree of divorce on the ground of the irretrievable breakdown of a marriage if it is satisfied that the marriage relationship between the parties to the marriage has reached such a state of disintegration that there is no reasonable prospect of the restoration of a normal marriage relationship between them.  There are thus 2 requirements:

(a)   marriage relationship must no longer be normal;

(b)   there must be no prospect of the restoration of a normal marriage relationship between the spouses.

The legal definition of “normal marital relationship” should be sought in the concept of consortium omnis vitae.  When either spouse or both of them behave in such a way that the consortium omnis vitae is terminated or seriously disrupted, it can be said that a normal marriage relationship no longer exists between the spouses.

Schwartz v Schwartz:  in determining whether a marriage has reached such a state of disintegration that there is no reasonable prospect of the restoration of a normal marriage relationship between the parties it is important to have regard to what has happened in the past, that is, history of the relationship up to the date of trial, and also to the present attitude of the parties to the marriage relationship as revealed by the evidence at the trial.

Swart v Swart:  a marriage has broken down if one spouse no longer wishes to continue with the marriage.  The formation of an intention to sue for divorce is the subjective element in the method of determining marriage breakdown.  However, in order to assess the probability of a successful reconciliation being effected, the court also has to consider the reasons that prompted the plaintiff to sue for divorce, and the parties’ conduct.  Only when the court has determined that there is no reasonable prospect of reconciliation, will it find that the marriage has broken down irretrievably and grant a decree of divorce.  The court looks at the objective scantiness and surmountability of the reasons why a divorce was applied for to ascertain whether the marriage in question can still be saved.

Coetzee v Coetzee:  in order to succeed in a divorce action based on irretrievable breakdown, the plaintiff must prove that there has been a change in the pattern of the marriage from which breakdown can be deduced.  The inherent problem in this conception is that a divorce cannot be obtained in a marriage which was unhappy from the start and remained unhappy throughout.

Guidelines for irretrievable breakdown of marriage (section 4(2))

The guidelines are merely examples of instances where the probability is high that a normal marriage relationship no longer exists and that there is no reasonable prospect for the restoration of a normal marriage relationship.  However, these guidelines are neither exhaustive nor conclusive.

(1)   parties have not lived together as husband and wife for a continuous period of at least one year immediately prior to the date of the institution of the divorce action

Since the legislator requires an unbroken period of at least one year, it is clear that if the period was interrupted by periods of resumed cohabitation, the plaintiff would have to present more evidence to the court than the mere fact that they have lived apart for a year.

The consortium between the spouses must have been terminated. Even if the spouses have continued living together under the same roof there is no reason why the plaintiff cannot show that the consortium between them has been terminated.

If the plaintiff wishes to rely only on the spouses having lived apart for a year without adducing any further evidence in support of the divorce action, he or she would have to produce proof that the full period of a year has elapsed.  If the spouses still share the same dwelling, the plaintiff would have to prove the particular point in time at which the consortium came to an end.

(2)   The defendant has committed adultery and the plaintiff finds it irreconcilable with a continued marriage relationship

The test to determine whether the plaintiff considers the defendant’s adultery irreconcilable with the continuation of the marriage is clearly subjective.  If the plaintiff alleges that he or she cannot continue with the marriage, there is no way in which this allegation can be refuted.  There is support for the contention that it is not necessary to convince the court on a balance of probabilities that adultery was committed.  The plaintiff should however place some evidence of the adultery before the court.  A mere allegation that the defendant committed adultery would not be sufficient to ensure the success of the divorce action.

(3)   A court has declared the defendant a habitual criminal and the defendant is undergoing imprisonment as a result of that sentence

If the defendant has not been declared an habitual criminal, the plaintiff would have to adduce evidence other than the mere fact of the defendant’s imprisonment to prove that the marriage has broken down irretrievably.  In any event, in terms of section 4(2), a plaintiff may sue for divorce after a year’s separation, regardless of whether or not the separation resulted from imprisonment.

Incurable mental illness or continuous unconsciousness

The criteria

Section 5(1) – mental illness

  1. The defendant has been admitted to an institution as a patient in terms of a reception order under the Mental health Act, or is being detained as a state patient or mentally ill convicted prisoner at an institution;
  2. The defendant has not been unconditionally discharged from the institution or place of detention for a continuous period of at least two years immediately prior to the institution of the divorce action;
  3. There is no reasonable prospect that the defendant will be cured of his or her mental illness.  This fact must be proved by the evidence of at least two psychiatrists, one of whom must be appointed by the court.

Section 5(2) – continuous unconsciousness

  1.  The defendant must be in a state of continuous unconsciousness caused by a physical disorder;
  2. The defendant’s unconscious state must have lasted for a period of at least six months immediately prior to the institution of the divorce action;
  3. There must be no reasonable prospect that the defendant will regain consciousness.  This fact must be proved by the evidence of at least two doctors, one of whom must be a neurologist or neurosurgeon appointed by the court.

The requirements of section 5 need not be complied with in order to obtain a divorce order against a mentally ill or unconscious spouse.  A decree of divorce can be granted under section 4 if the plaintiff can prove that the marriage has broken down irretrievably.  Only in the most exceptional circumstances will a court make a forfeiture order against a defendant whose mental illness or unconsciousness is the reason for a divorce which is granted in terms of section 4.

Special rules which apply in terms of the Divorce Act:

(a)   Section 5(3)

The court is empowered to appoint a legal practitioner to represent the defendant at the court proceedings, and to order the plaintiff to bear the costs of the defendant’s legal representation.

(b)   Section 5(4)

The court may make any order it deems ft in respect of requiring the plaintiff to furnish security for any patrimonial benefits to which the defendant may be entitled as a result of the divorce.

(c)   Section 9(2)

Forfeiture of patrimonial benefits may not be ordered against a defendant if the marriage is dissolved on the ground of the defendant’s incurable mental illness or continuous unconsciousness.

(d)   Maintenance

The plaintiff may indeed claim maintenance from the mentally ill or unconscious defendant if he or she qualifies for maintenance in terms of section 7(2) of the Act.

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. 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.

Divorce, Business Times Interview With Bertus Preller Top Divorce Attorney at Bertus Preller & Associates Inc.


Divorce and the obstacles facing matrimony in South Africa

Social networking sites should not be underestimated as contributors to divorce statistics. The impact of social network sites should not be underestimated in current divorce statistics as “virtual adultery” connects people outside of marriages.

The popularity of social networking websites  like Facebook and Mxit have brought the possibility to make new friends, and reconnect with old  friends from school or the more recent past, said Bertus Preller, a divorce and family law attorney at Abrahams & Gross in Cape Town. “It creates a platform for ‘virtual adultery'”. “As a divorce attorney I have seen a huge increase in the recent years in people producing print outs of emails, MXIT messages, Facebook wall screen-shots and sms messages to back up claims of their partner’s infidelity,” said Preller.

SA divorce statistics are high. Estimates suggest that 50% of all marriages end in divorce, or as much as two in three marriages end up in the divorce courts. A large proportion of those filing for divorce cite finances and money as the leading cause of separation – along with divorce or infidelity/ adultery, physical, emotional or verbal abuse, in-law problems, life transitions, addictions, childhood baggage, different life agendas, life overload, mid life crisis and controlling behaviour.

Money is a dominant theme. Many women stay in a marriage out of fear of being left with nothing. Preller said men generally want to keep their financial independence and tend to want to give away as little as possible. For many women, a divorce will be the biggest business deal of their lives.  “They need to know the financial ramifications of the decisions that they are making in the divorce and for their future. I see often that many women do not have the slightest idea of the assets of their husband,” he said.

When a couple splits, a woman’s standard of living generally drops with about 25% in the first year after a divorce. Spousal maintenance is not a right any longer, though rehabilitative maintenance i.e temporary maintenance to tie the woman over until she finds employment or until her financial position improves may be awarded to the wife depending on the circumstances of each particular case. A wife can also apply that her husband pays interim maintenance or pays a contribution towards her legal expenses pending the divorce action through rule 43 of the high court rules or she can apply for emergency monetary relief through the mechanisms of the domestic violence act if the husband abuses her financially.

Divorce is a business decision, said Preller. It is of utmost importance to obtain as much financial information as possible to establish the net worth of each party and their ability to make future payments such as child and spousal maintenance after divorce, he said.  In larger divorce matters, a divorce attorney will appoint a forensic auditor to determine the exact assets and liabilities of the parties to arrive at a fair split of the assets. Any divorce attorney should work towards what will be in the best interests of the children, if children are involved.

When an estate has very few if any assets, it may be better to use an online divorce service and it does not make sense to litigate in a divorce court because of the expense. In SA law, the patrimonial consequences of a marriage are governed by the law of the place where the husband was domiciled at the time of the marriage. If for example the husband was domiciled in England at the time of the marriage and no Antenuptial contract was entered into, the marriage will be out of community and in terms of English law. Should the parties later emigrate to SA, the marriage would remain out of community of property.

In a marriage in community of property, it is important to establish the net value of the communal estate at the date of divorce. Then one can establish what each party is entitled to. Often, spouses can’t agree on a division on the joint estate and a Receiver or Liquidator needs to be appointed to divide the assets. When a marriage in community of property dissolves through divorce, each spouse is entitled to 50% of the joint estate, which includes the parties’ pension benefits.

In a marriage out of community with accrual, an auditor often needs to be appointed to determine the accrual. Preller said however he’s been involved in a number of divorce matters where extremely wealthy people were married in community of property. They may not have received the proper legal advice, “or became so focussed on the wedding ceremony that they forget about the consequences of a failed marriage.

Where there has been a shift towards shared responsibility is with children. “When there are children involved, women generally focus more on their wellbeing than men would do. However through the years I have seen a definite shift regarding the parental responsibilities over the children”.  More and more, shared parenting arrangements between spouses over the children.

Source Sunday Times – Business Times Interview by Adele Shevel

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. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Custody (care and contact) of children, same sex marriages, unmarried father’s rights, domestic violence matters and international divorce law.

Contact Bertus at info@divorceattorney.co.za

http://www.divorceattorney.co.za

January is Divorce Season in South Africa


Divorce Season

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

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

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

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

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

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

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

Collaborative Family and Divorce Law in South Africa, a fresh approach


Collaborative Family Law

A fresh new approach to family law

The adversarial court system in South Africa is often not well-suited for resolving family law disputes. For this reason, I often question our ability to help clients heal and move forward with their lives in a productive and constructive manner.

In a court, legal representatives are constrained by the principles and rules of law which are often not well suited to a client’s particular situation and his/her needs. The problem is that the legal community as a whole, our laws, our courts, court rules, and legal institutions – values and rewards ‘victory’ at any cost and this makes it difficult for us to focus on the post-divorce needs of clients.

Despite any intentions to the contrary, a court-sanctioned outcome is very seldom a good fit for families. The issues at stake are way too personal and require a high level of detail that the overburdened South African court system is not able to provide.

The mere fact that the judiciary is not in a position to gain more than a superficial understanding of the dynamics of any family, divorce attorneys find it challenging to maintain a balanced professional relationship with a family law client. The client’s perception is that he/she has few options and very little control over the outcome. When the divorce attorney explains that the courts are subjective, impatient, slow and inconsistent, it undermines the client’s confidence in the legal process during one of the most stressful periods in his life. The attorney has the delicate task of managing the client’s expectations while trying to give the client some confidence that the court process will meet his needs. The result is a difficult dynamic that causes many divorce attorneys to grind their teeth whenever a client call.

Most family law attorneys interact with child experts and other mental health professionals who can assist families in using their resources to create a more stable life for themselves after a separation or divorce. However, in a divorce trial setting, divorce attorneys and advocates are often forced to blindly refute or defend these experts’ recommendations. Often, the information is not used as a guide for the clients but as a weapon against the client’s spouse.

Several years ago, Stuart Webb, a lawyer in the United States of America decided that he wanted to make a positive difference in most cases and pledged to himself and his legal community that he would find a way to practise family law in a principled manner. His commitment resulted in an international movement known as ‘collaborative law’, which is practised in many countries, including the USA, Canada, Australia, New Zealand, the United Kingdom, Ireland, Germany, Austria and the Netherlands.

Webb analysed the court-based system and concluded that, in most instances, if a client resorted to the court or even threatened to do so, it resulted in a powerful disequilibrium. For most clients, the reconstruction of the family after court intervention was at best delayed and at worst unattainable.

Webb bravely decided to make his own practice ‘court-free’ and advised his legal community that any case in which he was involved had to be settled. His idea and its implementation were tactically very astute. When the lawyers and their clients adopt the ‘no court’ rule, any opportunity to strong-arm, bully or pressure is removed because such tactics are no longer effective in the settlement environment. Absent ultimatums, both lawyers and their clients can explore settlement in an atmosphere of cooperation.

Collaborative law is a ‘one-idea’ or ‘one-rule’ process: There is a contractual requirement that the collaborative attorney and all members of his firm must withdraw if the matter goes into litigation. This requirement is set forth in the participation agreement, which is signed by both parties and both attorneys. It provides that the clients must retain new litigation counsel if they decide to terminate the process and litigate. It is substantively different to be contractually bound to non-litigious resolution than to negotiate ‘nicely’ with the threat of court still available.

The lawyers limit the scope of their representation to collaborative law negotiations. The lawyer and client enter into a separate retained agreement wherein the client acknowledges the limited scope of the lawyer’s representation (for settlement purposes only) and acceptance of the waiver of the lawyer/client privilege during settlement meetings. The agreement also contains commitments to voluntary full disclosure.

The process plays out in a series of ‘all party’ meetings with the clients and their collaborative lawyers present. Negotiations are conducted in a principled fashion, exploring interest rather than discussing positions. Negotiations are interest-based rather than positional.

The participation agreement also provides that the substance of all negotiations is confidential and thereby creates a safe environment where clients can freely explore different options to meet their goals and needs.

In the collaborative law process all participants form a team with a common goal: To concentrate all efforts towards reaching a settlement that is acceptable to both parties. As a team, they are less likely to give up. Impasse becomes a challenge rather than an opportunity to assign blame, and successful negotiations are much more likely. The team approach also provides the opportunity for the lawyers to discuss the legal context and its application to the clients and assist in brainstorming options for resolution of the issues.

Collaborative law training assists lawyers in accomplishing the shift from ‘warrior’ to ‘facilitator’. Traditionally, the client provides a set of facts and we rush to reconstruct them into a ‘triable issue’. A collaborative lawyer assists the client in formulating a forward-looking set of goals and understanding the goals of his spouse. A collaborative lawyer does not solicit a recitation of woes, but encourage the client to take a broad view. The lawyer must be vigilant not to raise expectations of a particular outcome. The choice of the collaborative law process provides a framework for the client to work towards his broad goals with the lawyer’s support and assistance.

Collaborative law has been expanded to include financial and mental health professionals as members of the professional team. Financial professionals, such as accountants, financial planners and appraisers assist with the financial details of the settlement. Mental health professionals help design a parenting plan and act as facilitators. Although this team approach may seem costly to the family, the total cost is often the same as in a lawyer-only model because the assistance provided by other professionals results in more efficient, focused negotiations. The allied professionals can help facilitate discussions and formulate options for resolution. Together, the professionals and clients leave behind the troubled history of ‘winning battles but losing wars’ that has left so many families without a road map for rebuilding their lives and those of their children after divorce.

The effect of collaborative law on family Law attorneys is overwhelmingly positive. It dramatically improves the relationship between attorneys and eliminates litigation surprises and stressful relationships with clients resulting from unrealistic expectations. The focus shifts from differences to commonalities. All possible assistance is provided to help formulate a plan for restructuring the post-separation family.

The clients cannot abdicate responsibility to their lawyers and cannot use judicial discretion as a sword or a shield. Planning for the best outcome is their responsibility and requires their full participation. They ultimately decide their own future and the future of their children with the assistance of the professionals.

Collaborative law is different from mediation. In mediation, a neutral mediator assists the parties in reaching a resolution. In collaborative law, each client’s representative is present during negotiations to provide support and legal advice and to manage the process. Legal advice is concurrent with and integrated in negotiations.

The collaborative lawyer meets with his clients between negotiation meetings to prepare for the next meeting. The lawyer also assists the client in expressing his or needs and concerns during the meetings. Many clients prefer to have a representative present during negotiations, particularly where there is a power imbalance between the parties.

By Bertus Preller

Family and Divorce Law Attorney

http://www.divorceattorney.co.za

email: info@divorceattorney.co.za

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