Friendly Divorce is that possible?
July 26th, 2010Divorce can be on friendly terms
An excellent article recently appeared in the Washington Post concerning the importance to severe marriage ties in a friendly manner.
Some of today's divorcing couples, who may have witnessed some wretched family separations, are vowing to do it differently. Even if their own parents didn't divorce, many kids saw how hard it was on their friends.
So more couples are opting for a friendly divorce, whether through mediation, collaboration or even do-it-yourself methods. And the majority of couples choosing friendly divorces in the United States are those with children.
Divorce no matter how friendly is still an emotional issue. However couples do it, the process should be more amicable. At the end of the day, you can save time, money and increase the odds that you might actually still be friends in future. And the kids are the biggest beneficiaries.
This new kind of divorced mom and dad might attend parent-teacher meetings together and share calendars electronically so Dad can arrange to take the kids when mom's out of town on business.
Traditional vs friendly
Most divorce cases still are handled in the traditional adversarial way, with attorneys on each side trying to get the best deal for their client, often through nasty disagreements over care and contact (custody), child maintenance, property settlements and finances. Divorcing couples typically aren't feeling friendly toward each other anyway, and contentious experiences in court can make those feelings even worse.
"It makes it almost impossible to have a civil relationship going forward. You don't easily forget what it's like to be cross-examined by your spouse's advocate," says family law attorney Bertus Preller, who co-founded eDivorce a do-it-yourself Divorce Platform in South Africa. "It sets them up for years and years of not being able to communicate well."
Mediation is another kind of a friendly divorce. Proponents say it reduces the emotional costs on everyone; both children and adults start their new lives on relatively stable ground.
A typical traditional divorce can stretch out for months - even years - and cost both parties R 5000 - R 150 000.
Over the past 30 years, DIY divorces popularity has grown as an alternative to going to attorneys across South Africa.
Setting the tone
How parents interact and handle the kids during the initial separation and early in the divorce sets the tone for the years ahead.
Research shows that kids who remain close to both parents are less stressed by divorce, and dads who are connected to their kids are more likely to keep up with their obligations, financial and otherwise.
Compiled by eDivorce, South Africa's top online divorce service
Interview with Bertus Preller Top Divorce Attorney Cape Town
July 25th, 2010Interview with Divorce Attorney Bertus Preller at KWJ Inc.
Why do people from all over South Africa come to you for divorce and family law matters?
Well, firstly, I think it is because I care, work hard and because I am involved personally in my client's cases. I am only as good as the team behind me and my office staff really helps in alleviating a lot of the pressure as well.
What is a typical day look like for you?
Well, I start at 5am in the mornings doing my normal correspondence until 7am, drop my daughter at school at 8 am and start seeing clients from 9am till 3pm by the hour, other days I will be in Court. Evening times I use to read and blog on Family Law matters and spend time with my family.
You are also the founder of eDivorce a do it yourself divorce platform in South Africa, can you tell us more about this?
eDivorce is a document generating platform that generates all the documents that you will need to conclude an uncontested divorce in South Africa.
So how does the eDivorce process work?
A spouse will browse a web page, http://www.edivorce.co.za fill in a questionnaire and the technology platform will then generate all the necessary documents such as the Summons, Particulars of Claim, Settlement Agreement, Family Advocate Affidavit, Notice of Set Down and Statistics Form. A team of experts then checks whether the documents were drafted correctly and release them to the user. The document generation process takes 24-hours and the divorce itself, depending which court you file in takes between 3 - 8 weeks.
How many divorces have you handled so far?
It is difficult to say, more than 300.
What are the reasons why people divorce in South Africa?
There are many reasons, but the most frequent reasons are infidelity, physical, emotional or verbal abuse, money, in-law problems, life transitions, addictions, childhood baggage, different life agendas, life overload, mid life crisis and controlling behaviour.
Are you not concerned about the high divorce rate in South Africa?
Yes, definitely. I believe that a healthy society is built on a solid marital relationship. That is why I would urge my client's always to reconcile if the slightest possibility exist to make things work. If that is impossible, then my roll becomes clinical and the interests of my client and the minor children come first.
Are people generally up to scratch with their rights in a divorce?
Yes and No. The internet and media have played a significant role in educating people on all aspects of life, so in many instances you will find that a party in a divorce matter will know what he/she will be entitled to claim, but in other instances people seem to lack that knowledge, especially women.
Don't you get subjectively involved in your clients lives?
In order to be successful you have to look at a case clinically. Like a doctor operating on a patient. You have to distance yourself from the emotional aspects. But yes, there are times that you are touched by the hurt of the parties involved, especially when there are children involved. So to answer your question, I am human after all.
Don't you think people give up to easy in their marriage?
It is difficult to say. It depends on the facts of each case. In a matter concerning adultery, it is very difficult for instance. People can forgive, but forgetting is rather difficult, so unless there is not a huge effort from both spouses to mend the relationship, it will not work and divorce will be inevitable. But then there are many instances where parties can mend their relationships and where opting for divorce would be wrong. Unfortunately life has become like a remote control, if you don't like the channel you simply click and change it, so if you don't like the relationship you click and move on, I don't think that is a good thing for society as a whole.
What advice can you give to someone going through a divorce?
Well firstly, when there are children involved you have to set the emotions apart and make decisions in the best interests of the children. Divorce is always an emotional circus and although how difficult it may sound, you have to think with your brain and not with your heart. Relationships are all about control, like using a remote to change the TV channels, one of the parties constantly changes the channels, the kids, the money etc. and that is where many problems surface.
Bertus Preller can be contacted:
Via email: info@divorceattorney.co.za
Office: 021 4036510
Artificial Fertilisation and the Children's Act
July 25th, 2010Rights of a child conceived by artificial fertilisation
Section 40 of the Children's Act states:
Whenever the gamete or gametes of any person other than a married person or his or her spouse have been used with the consent of both such spouses for the artificial fertilisation of one spouse, any child born of that spouse as a result of such artificial fertilisation must for all purposes be regarded to be the child of those spouses as if the gamete or gametes of those spouses had been used for such artificial fertilisation. Until the contrary is proved, both spouses have granted the relevant consent. Whenever the gamete or gametes of any person have been used for the artificial fertilisation of a woman, any child born of that woman as a result of such artificial fertilisation must for all purposes be regarded to be the child of that woman. No right, responsibility, duty or obligation arises between a child born of a woman as a result of artificial fertilisation and any person whose gamete has or gametes have been used for such artificial fertilisation or the blood relations of that person, except when that person is the woman who gave birth to that child; or that person was the husband of such woman at the time of such artificial fertilisation.
The Act therefore provides that a child who is born as a result of the artificial fertilisation of a spouse using a donor gamete must for all purposes be regarded to be the spouse's child as if the gamete had been used for such artificial fertilisation. In other words, the donor's biological contribution will be ignored and the donor does not qualify as being the child's biological parent. There is also a presumption in the act that both spouses have consented to the fertilisation. The Act refers to 'spouse' or 'spouses'.
Although the terms "married", "spouse" and "spouses" are used in the Act it is not open to the same Constitutional attack under the previous legislation. Therefore a child that is born as a result of artificial fertilisation in a legal same sex partnership in terms of a Civil Union is now treated in exactly the same method as a child who is born as a result of the artificial fertilisation of a spouse who is party to a civil marriage.
In the case of the artificial fertilisation of an unmarried woman with a donor gamete or donor gametes, the child will be regarded as the child of his/her unmarried birth mother, but the biological contribution of the donor of the gametes is not disregarded and the donor may well qualify as the child's biological parent.
No rights, duties or obligations is bestowed upon a donor in respect of the child born as a result of artificial fertilisation save for what was pointed out above, unless the donor is the child's birth mother, or her husband at the time of the artificial fertilisation.
Paternity Tests in South Africa
July 24th, 2010
The new Children's Act confirms in Section 36 a presumption in respect of a child born out of wedlock. 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.
Section 37 of the Children's Act 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.
Refusal by mother to submit her and child to testing
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, Section 37 obliges the court to warn the mother of the consequences of her refusal (perhaps that the man she is accusing of having fathered her child cannot be deemed to have fathered the child in the absence of a blood test). He would then in all probability not be ordered to pay maintenance for the child.
Pension Funds and Divorce in South African Law
July 18th, 2010What is the position of a spouse's pension in the case of a divorce?
A pension fund or pension benefit, as defined by the Pension Fund Act, 24 of 1956, includes not only a Pension Fund but also an Annuity Fund and a Provident Fund. Section 7(7) of the Divorce Act7 of 1989 (as amended) provides that, in the determination of the patrimonial benefits to which the parties in any divorce action may be entitled, the pension benefits of a party shall be deemed to be part of his/her assets. Thus in any divorce action, a party's pension benefits shall also form part of his/her estate in the determining the patrimonial benefits to which a party in a divorce action will be entitled.
The position regarding the pension benefits in the different marital regimes is therefore as follows:
Marriages in community of property
Where the parties have entered into a marriage in community of property, one joint estate is formed. When the marriage dissolves through divorce, each spouse will be entitled to 50% of the joint estate, which joint estate includes the parties' pension benefits as well. The only exception would be if the Court made an Order in terms of Section 9 of the Divorce Act to the effect that one party forfeits in favour of the other, either wholly or in part his/her patrimonial benefits due to substantial misconduct during the divorce.
Marriages out of community of property without the accrual system
When a marriage out of community of property without the accrual system ends through divorce, each spouse will retain his/her own estate. The basic rule is that neither spouse will have a claim against each other spouse, but Section 7 of the Divorce Act provides that a Court may, on application by one of the parties, order that a part of one-spouse's assets be transferred to the other spouse. The spouse's assets, which are to be transferred to the other, shall then also include his/her pension benefits.
Marriages out of community of property with the accrual system
At the dissolution of a marriage out of community of property with the accrual system through a divorce, a redistribution of assets will be done according to a prescribed formula, which means that the spouse whose accrual during the marriage was smaller is entitled to half of the difference of the accruals between the spouse's estates. The accrual is calculated by deducting the beginning value of the estate from the end value of the estate. A spouse's pension benefits will therefore in this be taken into account when the accrual is calculated.
In terms of Section 1 of the Divorce Act, a spouse is only entitled to the other spouse pension benefit as at date of divorce, a spouse is not automatically entitled to any interest accrued to the other spouse pension benefits. This means by implication that any benefits of whatever nature including the interest accrued upon a pension benefit, does not form part of a person's estate for the purposes of divorce.
The parties are however entitled to enter into an agreement between themselves regarding the interest accrued to a spouse's pension benefit.
Who pays the tax?
In terms of Section 37A of the Pension Fund Act 24 of 1956, a person's pension benefits are taxable. The parties are entitled to enter into an agreement, which provides that the tax payable on that part of the pension benefits, to which the non-members spouse is entitled, shall be recovered from such spouse.
In the case of divorces granted before 13 September 2007, the member is responsible for any tax in respect of the spouse's benefit, irrespective of whether it is paid to the spouse or transferred to another retirement fund.
In the case of divorce orders granted on or after 1 March 2009, any tax is payable by the spouse on the benefit that he or she receives.
In respect of divorce orders granted from 13 September 2007 to 28 February 2009, the person liable for the tax on the pension interest depends on the date the spouse made his/her election as to whether he/she wants the benefits to be paid in cash or be transferred to another retirement fund of the spouse's choice:
- for an election before 1 March 2009 the member has to pay the tax.
- for an election from 1 March 2009 the spouse has to pay the tax
The Income Tax Act provides the member with a right to recover tax that the member had to pay in respect of the spouse's benefit, from the spouse.
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