Divorce Attorney Cape Town, Johannesburg, Pretoria, Durban

It is said that divorce is more emotionally devastating than losing employment, about equal to experiencing a major illness, and somewhat less devastating than the other spouse's death. Reasons perceived by both men and women as the causes of divorce include loss of love and incompatibility, poor communication, addiction, basic unhappiness, infidelity, emotional problems, conflict over roles, and spouses' personality traits. The common conclusion to all studies on prevention of relationship breakdown and the causes of divorce is that a constellation of factors, not one, is normally responsible for the breakdown of a marriage relationship. Men, women and especially children benefit from a secure, stable and nurturing marital partnership and family environment. Since relationships are dynamic and family circumstances alter through the course of the marriage (birth of a child, dealing with teenagers, a change in employment, illness of a family member), spouses can only benefit more from ongoing counselling options across the different stages of marriage and family life.

The reasons below were the most commonly cited drawn from the records of 500 divorce actions instituted in South Africa during 2011.

10. Difference in priorities

The difference in priorities amongst married couples, which a lot of men and women discuss and anticipate prior to their marriage do become major issues for many marriages at a later stage. If one spouse wants to start a family and the other does not, it may create immense conflict between the spouses. It happens often that one spouse starts spending less time with their family and focus on other priorities. This often creates a struggle for any marriage to survive. No matter how much the spouses try to harmonize their priorities, they still remain complete unique, distinct and complete different individuals.

9. Religious Differences

Couples of a different religion, culture or ethnicity sometimes disregard the expectations of their partner's religion and this often cause resentment amongst them. These differences are mainly due to the several taboos posed by a specific culture. Besides this, most parents prefer that the children's religion should be the same as themselves.

8. Parental Responsibilities

It often happens that spouses aren't able to constructively co-parent their children during their marriage. Children are reflections of our own selves, and sometimes parents are not being able to let go of their own egos and put their children in the backburner. Differences in ideas on how to raise children properly cause rifts in marriages, contributing to the list of reasons for divorce. It often happen that one parent creates a rift between the other parent and the children by siding with the children and thereby forming two camps within the marriage. This often causes the other parent to feel rejected within the marriage. Differences between parents on how to discipline children also create tension in the marriage, to the extent that the other parent feels rejected, especially where a parent reprimands the other parent in front of the children.

7. Finances

In the face of tough times, some marriages spiral downwards. Money or anything related to it is a cause of disagreement between spouses. Married couples, whether happy or not, may have disagreements over little financial issues. Money is not always the sole or primary cause of divorce in married couples and is usually combined with other top reasons for divorce causing distress.

6. Sexual incompatibility

Men and women are different emotionally, mentally, sexually. Things can change as the marriage progress, i.e children, health challenges, career changes etc. In most cases sexual dissatisfaction in a partner usually results in divorce. The issue of sexual incompatibility varies significantly from case to case. If a spouse is not being emotionally and physically fulfilled, he/she will look elsewhere.

5. Addiction

Marriage, family and addiction certainly don't mix well at all. Before the internet, strip clubs, videos and DVDs were the catalyst to pornographic addiction. These days more and more people spend countless hours viewing pornography online, buying into a fantasy. Addiction not only has a degrading effect on the person and his/her spouse, but most often it leaves disastrous emotional scars on children, close relatives and friends. Spouse who spend countless hours on social networks to the exclusion of valuable family interaction, create a permanent disconnect that cannot be repaired, and divorce follows. Addiction is like a black hole, sucks everything in its path of destruction throwing a relationship out of balance and the more it continues the stronger it gets.

4. Social Networks - Facebook, Twitter and Mxit

Facebook flirting and comments contribute to an increasing number of divorces and social media is affecting privacy and family interaction. Social media blurs the line between public and private. The nature of Facebook, Twitter, Mxit, Google+ and other social media outlets encourages free-spirited commenting, posting and sharing of information. What's posted on social networking sites is not as private as you think. Facebook has made it really easy for people to look if the grass is greener on the other side especially when there are so many profiles that are just a click away.

3. Marriage Infidelity

Infidelity, Adultery or more commonly known as "cheating" is on top of the list of reasons for divorce in South Africa. Most people know exactly what infidelity or cheating is but in more formal terms infidelity goes to the root of the basis of any relationship, namely trust and it is a violation of mutually agreed rules or boundaries that a couple assume in their relationship. Adultery may be defined as extramarital sex that wilfully and maliciously interferes with marriage relations which renders the irretrievable breakdown of the marriage relationship.

2. Physical, psychological, financial or emotional abuse

Abusers can be either a husband or a wife and it is a big area of concern for many couples. Domestic violence and abuse occur among heterosexual couples, same-sex couples, as well as any people living together in the same household. While women and children are the most victimized, men are also abused, especially verbally and emotionally, although sometimes physically too. Domestic violence occurs in all age ranges, ethnic groups, and class levels. Abuse varies from family to family, however in a short list they include things like telling a spouse that they are unwanted, name-calling, ignoring, restricting person to a room, monitoring phone calls, forcing spouse in doing something which they are not comfortable with, withholding of finances etc. Abuse is one of the top reasons for divorce.

1. Lack of communication

Josh Billings once said that "Silence is one of the hardest arguments to refute". The lack of communication is the single biggest cause for divorce and account for almost 70% of all breakdowns in a marriage relationship. Without communication properly no relationship can ever be effective. Communication in a marriage does not mean agreeing with each other. Couples who have communication problems, which usually lead to divorce and breakdown are not able to find the middle way and are not able to compromise. Many couples lack communication when it comes to making decisions about finances. The lack of communication cause financial problems and endless arguments. Many couples also have a complete lack of communication when they have to make decisions about their children for instance. The lack of communication in all areas of marriage cause major damage to the marriage relationship.

About the Author

Bertus Preller is a Divorce and Family Law Attorney in Cape Town and has more than 22 years experience in most sectors of the law and 14 years as a practicing attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. in Cape Town. Bertus is also the Family Law expert on Health24.com and is frequently quoted on Family Law issues in newspapers such as the Sunday Times and Business Times and magazines such as Noseweek, You and Huisgenoot, and also appeared on SABC television on the 3 Talk TV show. His clients include artists, celebrities, sports people and high networth individuals. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Parenting Plans, Parental Responsibilities and Rights, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters, international divorce law, digital rights, media law and criminal law.

Source: http://voices.news24.com/bertus-preller/2012/01/top-10-reasons-for-divorce-in-south-africa/

Contact details:

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Twitter: http://www.twitter.com/bertuspreller

Website: http://www.divorceattorney.co.za

Parenting Plans and the Children's Act

The Act  replaced the outdated concept of "parental authority" with a concept of parental responsibilities and rights which is defined as including care, contact, guardianship and maintenance. (Sections 18-20).

Section 19 provides that the mother whether married or unmarried has full parental responsibilities and rights.  Section 20 provides that fathers, whether married or previously married to the mother, have full parental responsibilities and rights.

The Family Advocate's approach is that, on divorce, parties should retain their full parental responsibilities and rights, including care, contact and guardianship.  Provision can be made that the child would be in the primary residence of one or other of the parents, without depriving the other parent of care of the child.

Therefore summonses which contain a prayer for care to one parent are queried as being contrary to this approach as are settlement agreements or draft consent orders to this effect.

A prayer for sole guardianship or sole care as provided for in Section 27 will similarly give rise to a query from the Family Advocate's office.

A query from the Family Advocate implies that the trial cannot proceed until the Family Advocate has investigated the matter and filed a report with recommendations.

Section 21 - Unmarried Fathers

The biological father of a child who does not have parental responsibilities and rights in respect of the child in terms of Section 20, acquires full parental responsibilities and rights -

(a) if at the time of the child's birth he is living with the mother in a permanent life-partnership; or

(b) if he, regardless of whether he has lived or is living with the mother -

i) consents to be identified or successfully applies in terms of Section 26 to be identified as the child's father or pays damages in terms of customary law;

ii) contributes or has attempted in good faith to contribute to the child's upbringing for a reasonable period; and

iii) contributes or has attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period. S v L WCHC 22994/2010 2010/12/10

Section 21(3) provides that if there is a dispute with regard to the fulfilment by the father of the conditions, the matter must be referred for mediation to a Family Advocate, Social Worker, social service professional or other suitably qualified person.

The Family Advocate has developed a Section 21 form which is available in all our offices.  The parents and the child are requested to attend a mediation session at the office of the Family Advocate.  In practice, in the larger offices, parental education workshops are conducted wherein groups of parents are given a presentation by the Family Advocate on the relevant provisions of the Act.  Thereafter, the parents are seen individually for mediation.

There are several possible outcomes of the Section 21 mediation:

• It emerges that the parties are in dispute as to whether father satisfies Section 21 or not; or

• The parties agree that the father does not meet Section 21 requirements and the mother is not prepared to grant him any parental responsibilities and rights; or

• The parties agree that the father does not meet Section 21 requirements but the mother is prepared to grant him specific parental responsibilities and rights by means of a Parental Responsibilities and Rights Agreement in terms of Section 22; or

• Non attendance by either party; or

• The parties agree that father has parental responsibilities and rights and go on to enter into a Parenting Plan; or

• The parties agree that father has parental responsibilities and rights but cannot agree on a Parenting Plan.

Section 33(1) provides that Parenting Plans may be entered into by holders of parental responsibilities and rights e.g. married parents, previously married parents and fathers who satisfy Section 21.

Section 33(2) provides that if co-holders of parental responsibilities and rights are experiencing difficulty exercising these responsibilities and rights, before resorting to litigation, they must first seek to agree on a parenting plan.

In preparing a parenting plan in terms of section 33(2) parties must seek either:

a.    The assistance of a Family Advocate, Social Worker or Psychologist.

or

b.    Mediation by a Social Worker or other suitably qualified person.

The Family Advocate has developed a form for use by persons who seek our assistance in compiling a Parenting Plan.

There is no regulated form provided in the regulations for a Parenting Plan.

If the parties entered into the parenting plan in terms of Section 33(2) then the plan must be accompanied by either Form 9 (Statement by Family Advocate, social worker or psychologist that the Parenting Plan was prepared after assistance) or Form 10 (Statement of Social Worker or other qualified person that Parenting Plan was prepared after mediation).

Parenting Plans in divorce -related proceedings:

All Parenting Plans (including those drawn up by private practitioners) entered into in the course of divorce or divorce related proceedings must be endorsed by the Family Advocate in terms of Regulation 3 of the Regulations to the Mediation in Certain Divorce Matters Act 24 of 1987.

Any application to have a parenting plan made an order of court that constitutes an amendment, termination or supervision of an existing order of a High Court or Divorce Court can only be brought before the court in which that order was made.  The newly established Regional Divorce Courts can amend, terminate or suspend orders made by the Divorce Courts.

Parenting Plans not related to divorce/ post divorce proceedings:

If the application concerns a parenting plan which is not related to divorce proceedings and where there is no existing order of either the High Court or the Divorce Court, then parties may institute proceedings in the High Court or the Children's Court. This would be the case for instance when an unmarried father seeks to have a parenting plan made an order of court.

The Children's Court has no jurisdiction to grant guardianship orders.

Ex parte Sibisi [2010] JOL 26177(KZN)

Therefore if these 'non-divorce related' parenting plans contain guardianship provisions, only the High Court can consider an application for the parenting plan to be made an order of court.

Registration of Parenting plans by the Family Advocate

Section 34(1)(b) provides that the Family Advocate may register a parenting plan.  This is not promoted by the Family Advocate because inter alia parenting plans registered by the Family Advocate are not enforceable in terms of Section 35.

Enforcement of Parenting Plans and PRR Agreements.

The provisions of a Parenting Plan or PRR Agreement can be enforced by:

• Section 65(4) which provides for the monitoring of the Children's Court order. If a party is not adhering to an order made by the Children's Court, the other party can institute proceedings in terms of this section.
• A High court application for contempt.
• Criminal proceedings in terms of Section 35. Section 35 is broader than the previous General Law Amendment Act in that it provides that it is an offence to prevent access or the exercise of other parental responsibilities and rights.

If a parent prevents the other parent from exercising his/her responsibilities and rights, this constitutes an offence in terms of Section 35 and the parent is liable on conviction to a fine or imprisonment not exceeding 1 year.  The same would apply to a parent who fails to notify the other parent in writing of a change in his/her residential address.

An article appeared in the Sunday Times recently of a divorce matter where a millionaire husband, is at the centre of a criminal investigation over the alleged illegal interception of his estranged wife's private e-mails, SMSes and BlackBerry messages, or BBMs.

The hacking was first suspected when Dr Graham Hefer - a former Natal rugby player - filed divorce proceedings against his wife Denise.

Court documents in that case seemed to show that Hefer had access to more than 50 BBMs, over a dozen SMSes and at least five e-mails between Denise and others this year.

The case has revealed that the BBM facility, one of the preferred "secure" methods of communication can be hacked with relative ease.

Hefer, 48, the managing director of a Nigeria-based British company, is accused of installing spyware software on 49-year-old Denise's BlackBerry. This type of spyware is readily available.

This is said to haveallowed real-time monitoring of her communication and her whereabouts, and for eavesdropping on her private conversations. These included discussions with her lawyer.

Police confirmed that the matter was under investigation by the Cape Town Central Police Station. Interception and monitoring of telephone communication is prohibited under the Regulation of Interception of Communications Act, known as Rica.

On Wednesday Denise filed a criminal complaint in which she claimed that Hefer had allegedly violated section 2 of Rica, which carries the possibility a fine of up to R2-million or up to 10 years in prison.

In an affidavit, she said she first became suspicious when her husband beat her to filing for divorce in May.

She said she had confidentially instructed her lawyer to issue summons to begin divorce proceedings.

She was shocked when Hefer 's attorney, without having been informed who her legal representative was, issued summons at her lawyer's office.

''What I could not understand was how the accused and his attorney's knew who my attorney of record was," read her affidavit.

She claims her husband mentioned details of confidential discussions she had had with her lawyer, which led her to believe her phone had been hacked.

Her lawyer, Bertus Preller of Abrahams & Gross, said the allegations were serious. "There was a grave injustice towards the party involved in that it infringed attorney/client confidentiality," Preller said.

Denise claims an investigation by her legal team revealed that a type of cellphone spyware, which can be purchased on the internet for R2 792, had been installed on her handset.

The software sends alerts to the e-mail address of the installer, who then has access to the telephone calls or messages on the phone being monitored.

Hefer's lawyer, Selwyn Shapiro, who said he had advised his client not to comment, said the allegations were unfounded.

''We will deal with it at an appropriate time in the right forum," said Shapiro.

Kathleen Rice, head of technology, media and telecommunications at law firm Cliffe Dekker Hofmeyr in Johannesburg, said Rica allowed for the interception of communication - but only in police investigations, ''and that can only be done with a court warrant. BBM messages are indirect communication but, if it's being intercepted and monitored, that makes it a criminal offence ."

MONICA LAGANPARSAD | 27 November, 2011 - http://www.timeslive.co.za/local/2011/11/27/man-probed-for-spying-on-wife

We tapped into the brain of Cape Town Divorce Attorney Bertus Preller regarding whether one can get divorced in a South Africa Court if one of the spouses live overseas.

If you are living in South Africa and your spouse overseas, you are able to institute divorce proceedings against your spouse through a South African. The same applies when you are a South African citizen that lives overseas and one spouse resides in South Africa.  Also foreigners living in South Africa may approach a South African court to institute divorce proceedings. A South African court has jurisdiction where the parties or either of the parties are domiciled in the area of the court’s jurisdiction on the date on which the action is instituted or ordinarily resident in the area of jurisdiction of the court on the date on which the action is instituted or has been ordinarily resident in the Republic for a period of not less than one year immediately prior to that date. Domicile is a matter of choice and although a person might work overseas a South African court may still have jurisdiction to entertain the matter.

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

Where a Defendant (the person against whom the divorce is instituted) lives in another country, a Plaintiff must first approach the court by way of what is known in law as an Edictal Citation application, a Defendant may direct in an appropriate way acceptance of the Summons at an address in South Africa. This affords permission to a Plaintiff to serve the divorce documents on a spouse living in a  foreign country by way of local service.

The proprietary consequences of a marriage are governed by the lex domicilii matrimonii, that is the laws of the place where the husband was domiciled when the marriage was concluded. The law of the husband’s domicile at the time of the marriage governs the matrimonial property regime of the spouses even if the husband subsequently acquires a new domicile.

If for example the husband was domiciled in England at the time of the marriage and no Antenuptial contract was entered into in South Africa, 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. Thus in a contested divorce where the husband was domiciled in England at the time of the marriage, a South African court is obliged to apply English law in respect of the patrimonial consequences of the divorce, i.e the division of the estate. Maintenance however and the aspects surrounding the children, like maintenance, care and contact will be dealt with in terms of South African law.

We have been dealing with numerous international divorce matters in South Africa matters concerning South African citizens and has acted in matters for South Africans living in countries such as Australia, United Kingdom, USA, Indonesia, The United Emirates, Germany, New Zeeland, Namibia to mention but a few and have been able to finalise some of these matter in as little as three weeks.

For further information email: info@divorceattorney.co.za

die aanwasbedeling voor 1 November 1984, sal jy geregtig wees om te vra vir 'n herverdeling van die bates, wat behels dat jy dalk in staat sal wees om 50% van die gesamentlike bates te eis, maar as jy getroud buite gemeenskap van goedere sonder die aanwasbedeling na 1 November 1984 sal jy net 'n eis vir onderhoud kan instel onder sekere omstandighede.

• Jy kan onder sekere omstandighede eis vir rehabiliterende onderhoud. Rehabiliterende onderhoud is waar een gade die ander vir 'n vasgestelde tydperk maandeliks betaal, bv vir twee jaar of langer.
• Onthou dat jy kan 'n aansoek loods hangende die egskeiding om onderhoud, terwyl die egskeiding nog nie afgehandel is nie, in so ‘n aansoek kan jy ook eis dat jou gade 'n bydrae maak tot jou regskoste.
• Kry soveel finansiële inligting oor jou eggenoot moontlik, maak afskrifte van alle bankstate, kredietkaart state en maak 'n lys van al die bates en laste, bronne van inkomste, ens.
• Stel 'n volledige begroting op van jou huidige maandelikse uitgawes en inkomste van jou en jou kinders. Dit kan die moeite werd wees om voorsiening te maak vir toekomstige uitgawes.
• Jy kan ook aandring op die sessie van ‘n lewenspolis van jou gade om die betaling van maandelikse onderhoud te verseker.
• Probeer om aan te bly in die gesamentlike woning vir solank as jy kan huis (as dit naby aan jou kinders se skool of werk is). Daar is 'n gesegde in ons reg, dat besit 9 / 10 van die reg is. Om in die gesamentlike woning aan te bly, sal ook die situasie van die kinders stabiliseer, aangesien ‘n trek na ‘n nuwe bestemming 'n baie traumatiese ervaring vir die kinders kan wees.
• Onthou dat jy nie noodwendig die oordragkoste hoef te betaal vir 'n eiendom wat aan jou oorgedra word in jou egskeiding nie. Daar is verskeie opsies met betrekking tot eiendom wat aan beide van julle behoort, byvoorbeeld deur dit te behou of te verkoop of die netto wins verdeel.
• Sien toe dat die Skikkingsooreenkoms so opgestel word dat jy kan aandring op ‘n aftrekking van jou gade se salaris indien hy nie betaal nie.
• Sorg dat jou egskeiding Skikkingsooreenkoms sou opgestel word om 'n deel van enige bates wat jou eggenoot wegsteek en waarvan jy nie bewus is op datum van die egskeiding nie te bekom wanneer jy later daarvan uitvind.
• Moet nie minder tevrede wees nie, baie vroue loop eenvoudig as gevolg van die emosionele druk met minder as waarop hulle geregtig is. Onthou dat egskeiding altyd 'n sake-besluit is en die besluite wat jy maak nou 'n definitiewe impak sal hê later in jou lewe.
• Egskeiding kan ‘n langdurige proses wees en dit kan baie frustrerend en emosioneel dreinerend wees, dit neem tyd en strategiese beplanning.
• Moenie verander prokureurs in die proses bloot as gevolg van jou eie frustrasie nie, soos hulle sê, die spel van 'n egskeiding is soos' n skaakspel.
• Onthou dat jou eggenoot se bates sluit ook in aandeelhoudings in maatskappye, aftreefondse, pensioenfondse en selfs belasting terugbetalings.
• Dink met jou kop en nie met jou hart.
• Onthou om jou testament te verander.