Divorce Attorney Cape Town, Johannesburg, Pretoria, Durban

You've just been though a divorce. Maybe you got rejected and dumped. Maybe your spouse cheated on you or you just grew apart as the years went by. However, your divorce happened and that is the reality that you have to face.

In most cases, there are things that BOTH parties involved could have done differently. The feelings that dwell after a divorce are often very difficult. You may think that all men are pigs or that all women are mutts. That's not the case. Though it's normal to be a bit gun shy when it comes to finding a new love, you need to learn to deal with those bad feelings in a non destructive manner. Why not try some counseling? Why counseling? History often repeats itself.

Most of the time, we learn so much more from our mistakes than we do from the things we succeed with. Counseling can help us deal with all of the negative feelings and anger than come after a divorce. You'll be a better person for the next relationship that comes into your life with a bit of post divorce counseling. Where can I find counseling? You can find post divorce counseling at an organisation such as SADSA and the good news is that it is not that expensive. You can also go to a professional therapist if you have the funds to permit. Now if you're not the kind of person that wants to sit down face to face with someone and discuss your feelings, there's still hope for you. The Internet hosts hundreds maybe even thousands of online forums for people just like you. You can seek advice from others who have gone through the same feelings that you're experiencing right now. After you have learned to deal with those feelings, you can give advice and help others at the very place where you got help. Online forums are a great way to get counseling. Post divorce counseling is essential if you want your next relationship to be successful. You need to find a way to deal with those negative feelings. You'll be no good to your children and/or a potential new date if your divorce leaves you cynical and negative.

It's important to clear both the mind and heart after something as emotionally challenging as a divorce. Coming to terms with whatever wrongdoings you experienced might sound difficult, but the rewards can be plentiful. Forgiving your ex may not seem like an easy thing to do, but it could help set you free mentally and allow you to truly move on with your life.  Once you've made it a point to set things straight emotionally and seek out any support necessary, you'll be a lot closer to getting back to that point in life where you're comfortable. It probably won't happen right away, but that's to be expected as the strain of a divorce doesn't end with the paperwork. A little work and determination can make starting over a lot easier and you may find that a bright future still awaits you.

Source: Divorce.com

Compiled by eDivorce, South Africa's premier online Divorce service

Parental Rights in South Africa – What are in the best interest of the child?

The principle of:

“the best interests of the child”

is enshrined in the United Nations Convention on the Rights of the Child (CRC) together with non-discrimination (article 2), survival and development (article 6) and child participation (article 12). In this regard Article 3(1) provides that In all actions concerning children whether undertaken by public or private social welfare institutions, courts of law, administrative authorities, or legislative bodies, the best interests of the child shall be a primary consideration.

In South Africa law, the best interests of the child is a constitutional right of every child. Article 28(2) of the Constitution provides that: A child’s best interests are of paramount importance in every matter concerning the child. Section 9 Children’s Act states that the child’s best interests are of paramount importance in all matters concerning the care, protection and well-being of a child. Factors to be considered when determining a child’s best interest Prior to the Children’s Act of 2005, the Court considered the list of factors developed in McCall v McCall 1994 (3) SA 201 (c) to determine the best interests of the child.

In McCall, Justice King listed 13 factors, which are linked to the determination of the best interests of the child:

(a) the love, affection and other emotional ties which exists between parent and child and the parent’s compatibility with the child;

 (b) the capabilities, character and temperament of the parent and the impact thereof on the child’s needs and desires;

(c) the ability of the parent to communicate with the child and the parent’s insight into, understanding of and sensitivity of the child’s feelings;

(d) the capacity and disposition of the parent to give the child the guidance which he requires;

(e) the ability of the parent to provide for the basic physical needs of the child, the so-called ‘creature comforts’, such as food, clothing, housing and the other material needs- generally speaking, the provision of economic security;

(f) the ability of the parent to provide for the education well-being and security of the child, both religious and secular;

(g) the ability of the parent to provide for the child’s emotion, psychological, cultural and environmental development;

(h) the mental and physical health and moral fitness of the parent;

(i) the stability or otherwise of the child’s existing environment, having regard to the desirability of maintaining the status quo;

(j) the desirability or otherwise of keeping siblings together;

(k) the child’s preference, if the Court is satisfied that in the particular circumstances the child’s preference should be taken into consideration;

(l) the desirability or otherwise of applying the doctrine of same sex matching;

(m) any other factors which is relevant to the particular case with which the Court is concerned.

Section 7 of the Children’s Act provides similar but more detailed list of factors, these are:

(a) the nature of the personal relationship between-

(i) the child and the parents, or any specific parent; and

(ii) the child and any other care-giver or person relevant in those circumstances;

(b) the attitude of the parents, or any specific parents, towards-

(i) the child; and

(ii) the exercise of parental responsibilities and rights in respect of the child

(c) the capacity of the parents, or any specific parent, or of any other care-giver or person, to provide for the needs of the child, including emotional and intellectual needs;

(d) the likely effect on the child of any change in the child’s circumstances, including the likely effect on the child or any separation from-

(i) both or either of the parents; or

(ii) any brother or sister or other child, or any other care-giver or person, with whom the child has been living;

(e) the practical difficulties and expense of a child having contact with the parents, or any specific parent, and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with the parents, or any specific parent, on a regular basis;

(f) the need of the child-

(i) to remain in the care of his or her parent, family and extended family; and

(ii) to maintain a connection with his or her family, extended family, culture or tradition;

(g) the child’s-

(i) age, maturity and stage of development;

(ii) gender

(iii) background; and

(iv) any other relevant characteristics of the child;

(h) the child’s physical and emotional security and his or her intellectual, emotional, social and cultural development;

(i) any disability that a child may have;

(j) any chronic illness from which a child may suffer;

(k) the need for a child to be brought up within a stable family environment and, where this is not possible, in an environment resembling as closely as possible a caring family environment;

(l) the need to protect the child from any physical or psychological harm that may be caused by-

(i) subjecting the child to maltreatment, abuse, neglect, exploitation or degradation or exposing the child to violence or exploitation or other harmful behavior; or

(ii) exposing the child to maltreatment, abuse, degradation, ill-treatment, violence or harmful behavior towards another person;

(m) any family violence involving the child or a family member of the child; and

(n) which action or decision would avoid or minimize further legal or administrative proceedings in relation to the child.

In this section ‘parent’ includes any person who has parental responsibilities and rights in respect of a child.

 It is important to note that Section 7 has a wider application compared with the McCall list of factors. Its application is not limited only to parents of the child, but more importantly applies equally to a care-giver or any relevant person in the child’s life. Section 7 also puts a rather strong emphasis on the emotional, intellectual and spiritual well-being and stability of the children and unlike the McCall list, section 7 does not include ‘child preference’.

Section 7(g) does include the child maturity and developmental stage, which are often the criteria to consider when taking children’s wishes into account, to be considered but it does not specifically mention the wishes of the child. Section 10 states that every child must be given the opportunity to participate in any proceedings regarding that child. One is therefore under an obligation to take section 10 into consideration with section 7 in all proceedings concerning the child.

The McCall list is not exhaustive and Section 7, on the other hand, does not state that the court may consider any other factors, nor does it list the factors by starting with the word “including” which normally indicates that a list is not exhaustive.

In S v M (Centre for Child law as Amicus Curiae) 2008 (3) SA 232 at paragraph 24, the Constitutional Court held that the principle of the best interest of a child should not be applied to a ‘predetermined formula’. Thus in light hereof a High Court sitting in a matter as upper guardian of a minor must consider all the relevant factors including but not limited to those listed in section 7 when determining the best interest of a child. Meaning and application of the best interest principle The application of the best interest principle found further consideration by the Constitutional Court in the case of AD and Another v DW and Others (Centre for Child Law as Amicus Curiae; Department of Social Development as Intervening Party) 2008 (3) SA 183 (CC). Here the Court had to look at the best interest of a baby girl who was at the centre of an adoption application.

The Court expressed confirmation that the best interest of a child who is the subject of adoption proceedings is best protected by following the correct judicial procedures when bringing adoption applications. In S v M the Court had to consider the application of the best interest principle by a sentencing court when dealing with a primary care-giver. The Court emphasized the need to take a child-centred approach when determining the best interest of the child and held that section 28 required that ‘[S]tatutes must be interepreted and the common law developed in a manner which favours protecting and advancing the interests of children; and courts must function in a manner which at all times shows due respect for children’s rights’. Thus when determining the best interest of a child courts must focus on the individual child and examine ‘the real life situation of the particular child involved’. In essence the Constitutional Court found that although the best interest principle is not absolute and not without problems its purpose is to safeguard the interests of children individually and collectively. Thus the best interest principle is a child-centred approach aimed at protecting the needs and entitlements of children. The unique circumstances of a particular child will then determine the different factors to consider in securing the best interest of that child.

Source: Centre of Child Law

Compiled by: eDivorce

 

It is important for both parents, no matter what the circumstances leading to deciding to divorce, to tell their children it is a mutual decision. Choosing to divorce is a destruction of a child’s safe, protected, secure world of a stable family and parents would like them to think that at least one of the most important people in their lives would not choose to do that to them but sought to preserve their world as they knew it.

Children don’t really care that much about whose fault it is, or whether one parent wanted to keep the family together or behaved reasonably and the other didn’t.

Children are much more interested in knowing the answers to the following questions when their parents are planning to divorce:

1. Is it my fault?

2. If you can fall out of love with each other, can you fall out of love with me?

3. If you don’t like my Mom or Dad’s behaviour and want to leave them, will you leave me if you don’t like my behaviour?

4. Do we have to move?

5. Do I get to go to the same school?

6. How often will I get to see the parent who’s moving out?

7. If Mom or Dad remarries or starts dating someone new, will they love that person more than me?

8. Am I being disloyal to Mom or Dad if I like their new spouse or significant other?

9. Will there be enough money for me to continue to do the things that give me pleasure?

10. If you hate my Mom or Dad, do I have to, too?

11. Do I have to take care of you now that Mom or Dad has gone?

12. Is it selfish of me to not want to take care of you and just think about myself?

The reason that explaining your innocence or dedication to the marriage in light of the other parent’s behaviour is that it pitches you as the good guy and the other parent as the bad guy. “Well, what if that’s true?” you may rightly ask. “What if the marriage is ending because my spouse was a lying, cheating, terrible person and I was actually a dedicated parent and spouse?” Well, fair enough, but if that’s the case, your children will likely discover that for themselves when they’re older. And, if not, you can tell them that when they’re older. Much older. Old enough to have had time to grow and develop as individuals without being pulled into the almost inevitable loyalty conflict that even a good divorce brings. Because, as much as you may dislike or even hate your spouse, your children probably still love him/her. And their love for him/her is the same as their love for themselves. It can’t be separated out. They have a right, a need to love, admire, and respect him/her because it helps them to love, admire, and respect themselves. It’s a lot to swallow, I know. But, it’s a bit of what we signed up for when we became parents, however unknowing we were of what we would one day, be asked to do.

Compiled by eDivorce, South Africa’s No.1 online Divorce Service.

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

In the past adultery used to be one of two grounds for divorce in South Africa, the other being malicious desertion. The Divorce Laws Amendment Act, 1935, added two further grounds - seven years' incurable insanity and imprisonment for five years after a declaration of habitual criminality.

Changes were then introduced in the Divorce Act, 1979 and it is now unnecessary to prove that one of the parties has committed a 'matrimonial offence' such as insanity, desertion or adultery in order to obtain a divorce. There are at present only two grounds for divorce. These are the irretrievable breakdown of the marriage, or the mental illness or continuous unconsciousness of one of the spouses.

The 'co-defendant'

An innocent spouse cannot sue a guilty spouse for damages as a result of adultery, although the latter may be prevented on divorce from deriving any financial benefit from the marriage by reason of his or her conduct, this is normally referred to as a forfeiture of the patrimonial benefits. An innocent spouse may bring an action for damages against the third person (the 'co-defendant'), with whom the adultery was committed; this can be done even if divorce proceedings are not instituted against the other spouse. A third party who was unaware that the other person was married at the time the adultery was committed cannot be sued, as the action is based on a deliberate interference with the consortium (the right of association of a husband and a wife).

Damages

Damages are awarded on the basis of the insult caused to the innocent party and of the loss of consortium. Compensation can be claimed for financial loss caused by break-up of the marriage, as well as for the loss of the affection. A court will consider the spouse’s financial and social situation, their moral reputation and the state of the relationship before the adultery was committed. When an innocent spouse's behaviour was partly responsible for driving his or her partner into another person's arms, the damages awarded can be considerably lower.

If the co-respondent behaves particularly callously towards the innocent partner - for example, if she entices a husband away from his wife and lives openly with him, pretending to be his wife damages will be increased. An action for damages may be brought by the innocent party only within three years of learning about the adultery of his or her partner otherwise the claim would be nullified as a consequence of prescription.

Compiled by DivorceAttoney and eDivorce South Africa's No. 1 Online Divorce Service

5. How is the amount of maintenance calculated?

The maintenance court or the maintenance officer at court will help in working out how much money should be paid as maintenance. Both parents will need to fill in an income and expenditure form in order for the magistrate to make his ruling. Usually, the court first works out how much the children need for their maintenance (i.e., to provide them with food, shelter, clothes, and so on). The court can order that the child’s medical costs be paid by one or both parents or that the child be registered as a dependent on one of the parent’s medical aids. The court will then see that each parent makes a fair contribution to those needs, usually by requiring them to contribute in proportion to their respective incomes. The level of maintenance is usually determined by the standard of living of both the parents and their social standing in the community.

6. Why pay maintenance?

If you do not live with your children, you are not there on a day-to-day basis to provide their basic needs such as shelter, food, clothing, medical care and schooling. Therefore, you must pay money as maintenance to help the parent living with the children to provide the children with these basic needs. Maintenance ensures that your children keep, as much as possible, the same standard of living as before the parents separated.

7. What happens at the maintenance enquiry?

The following people are allowed at the enquiry: the complainant, the defendant, witnesses and any other person whom the court permits. Whether you are the complainant or the defendant, the maintenance officer or your legal representative will question witnesses on your behalf at the enquiry. The magistrate will listen to the witnesses, consider the financial statements of both the complainant and the defendant and assess a fair amount of maintenance that should be paid. The magistrate may then make an order to this effect and may also order that 2 photographs be taken of the person ordered to pay maintenance.

8. What happens if the other person does not arrive at the maintenance enquiry?

If the court is satisfied that the person knew that he or she had been subpoenaed to appear in the maintenance court, it may make an order even though that person is not there. This maintenance order is enforceable, but the absent person may apply to have the order changed or set aside.

9. How is maintenance paid?

Most parents decide themselves how the parent living away from the children should support his or her children and contribute his or her share towards their upbringing. However, the maintenance system is there if the parents cannot decide themselves how maintenance should be paid, or how much. The maintenance court will tell you how much is to be paid, when it is to be paid, and where it should be paid. The maintenance officer issues a card, on which each month’s payment is filled in – this is to keep track of payment made. In some cases, the court may order that maintenance can be paid directly into your bank account by way of stop order, or to the maintenance court. The court can also order that the maintenance-payer’s employer should deduct the maintenance money from his/her salary or wages.

10. Must I still pay maintenance if the other parent:

remarries?

is involved in another relationship?

does not let me see the children?

Your children's right to their basic needs has nothing to do with your view of the other parent's behaviour. Your children still need maintenance, and you must still pay maintenance, even if you or the other parent remarries or gets involved in another relationship. Again, your children are still entitled to maintenance even if you cannot see them. Your duty to maintain them is totally separate from their right to see you. Your duty to pay does not depend on whether or not you can see them.

11. What if I have other children?

Your duty to maintain your children continues even if you live with the children and have other children. If you live away from the children and have other children yourself, you are still obliged to pay maintenance. You must also still pay maintenance if you now live with a new partner and that partner's children. If you are a step-parent, you are not obliged to support a step-child. It is important to remember that, regarding maintenance payments, the child of a first marriage no longer has priority over the child of a second marriage.

12. What happens if a child is born outside of marriage and paternity is contested?

If you are a woman claiming maintenance for your child, you must be able to prove paternity. If paternity is uncertain, the maintenance officer may request the court to conduct a paternity test (if the biological mother and alleged father agree to the tests). If the alleged father refuses to be tested, the court will probably assume that he is the father. If both the alleged father and biological mother were not married, but had sexual intercourse during the period that conception could have taken place, then it is assumed that the alleged father is in fact the child’s biological father. If the father denies this, then he will have to agree to blood tests to prove the contrary.

13. What happens if a parent fails to pay maintenance?

If you have a court order against a person to pay maintenance and he/she fails to pay, you should go to the maintenance officer at your local magistrate’s court and report the failure to pay to the maintenance officer. A person may have a maintenance order enforced against him/her if the person fails to pay maintenance within 10 days from the date that payment is due and may be ordered to pay interest on the arrear maintenance (that is maintenance that is due and owing but that has not been paid). A parent who neglects to pay maintenance can be criminally charged and be fined or sentenced to twelve months’ imprisonment. You must apply for an order of enforcement at the maintenance court in the area where the maintenance defaulter lives.

The maintenance court can make one of the following orders in enforcing the maintenance order:

1) Execution against the person’s property (this is a process whereby the maintenance defaulter’s property is sold and the proceeds of the sale are used to pay the maintenance)

2) Emoluments attachment order (this is a process whereby the outstanding amount is paid directly by the employer from the maintenance defaulter’s salary or wages)

3) Attachment of any debt (this is a process whereby a third party who owes the maintenance defaulter money will be ordered to pay you, rather than the maintenance defaulter). The maintenance defaulter’s pensions, gratuities and similar benefits may be used to settle to maintenance debt.

The name of the defaulting parent will also appear on the blacklist of the Credit Bureau. Even if the defaulting person is unemployed, he/she is still legally obliged to pay maintenance, although the amount is changed according to the person’s means. However, if a person proves that he/she has no means to pay maintenance and that it is not due to unwillingness to work or wrongdoing on his/her behalf, then a court will not enforce a maintenance order. Similarly, if a maintenance order has been suspended by an appeal against the order, then the order will not be enforced.

Compiled by Bertus Preller - Divorce Attorney

bertus@divorceattorney.co.za