Divorce Attorney Cape Town, Johannesburg, Pretoria, Durban

Forgot to de-friend your wife on Facebook while posting vacation shots of your mistress? Her divorce attorney might just be thrilled about you doing that.

Posting status updates and uploading your photos of otherwise fun filled events on social networks has led to an overabundance of evidence in divorce cases. According to the American Academy of Matrimonial Lawyers 81 percent of its members have used or were faced evidence plucked from Facebook, MySpace, Twitter and other social networking sites, including YouTube and LinkedIn, over the last five years. In South Africa the situation is much the same. According to Bertus Preller an Attorney specialising in Divorce Law at KWJ Inc evidence of all sorts have surfaced in some of the divorce matters that his firm handles, especially on sites like Facebook, Twitter and Mxit.

Facebook is the unrivalled leader for turning virtual reality into real-life divorce drama and a great starting point to source for online evidence in a divorce matter. "In fact we invested quite allot in our technology surveillance software to obtain information that will otherwise not be obtainable", he said.

According to a 2008 report by the Pew Internet and American Life Project about one in five adults uses Facebook for flirting.  But it's not just a man or a mistress exchanging innuendos that show up as evidence. Think of the father forcing his son to de-friend mom, bolstering her alienation of affection claim against him.

This is some of the funny stuff encountered by attorneys in America that appeared through an associated press site:

• Husband goes on Match.com and declares his single, childless status while seeking primary custody of said nonexistent children.
• Husband denies anger management issues but posts on Facebook in his "write something about yourself" section: "If you have the balls to get in my face, I'll kick your ass into submission."
• Father seeks custody of the kids, claiming (among other things) that his ex-wife never attends the events of their young ones. Subpoenaed evidence from the gaming site World of Warcraft tracks her there with her boyfriend at the precise time she was supposed to be out with the children. Mom loves Facebook's Farmville, too, at all the wrong times.
• Mom denies in court that she smokes marijuana but posts partying, pot-smoking photos of herself on Facebook.

The disconnect between real life and online is hardly unique to partners de-coupling in the United States. A DIY divorce site in the United Kingdom, Divorce-Online, reported the word "Facebook" appeared late last year in about one in five of the petitions it was handling. (The company's caseload now amounts to about 7,000.) In South Africa, the online DIY divorce site eDivorce reported similar patterns.

"One is finding information that you just never get in the normal discovery process" Jaco Weihmann a Family Law Attorney at KWJ Inc said. "People are just posting things all over Facebook. People don't yet quite connect what they're saying in their divorce cases is completely different from what they're saying on Facebook".

Social networks are also ripe for divorce-related hate and smear campaigns among battling spousal camps, sometimes spawning legal cases of their own.

Some American Attorneys are offering these tips for making sure your out-loud personal life online doesn't wind up in divorce court:

WHAT YOU SAY CAN AND WILL BE HELD AGAINST YOU

If you plan on lying under oath, don't load up social networks with evidence to the contrary.

BEWARE YOUR FRENEMIES

Going through a divorce is about as emotional as it gets for many couples. The desire to talk trash is great, but so is the pull for friends to take sides.

A PICTURE MAY BE WORTH ... BIG BUCKS

Grown-ups on a good day should know better than to post boozy, carousing or sexually explicit photos of themselves online, but in the middle of a contentious divorce?

PRIVACY, PRIVACY, PRIVACY

They're called privacy settings for a reason. Find them. Get to know them. Use them. Keep up when Facebook decides to change them.

Compiled by Bertus Preller

Family Law Attorney

KWJ Inc.

www.divorceattorney.co.za

 

 

Maintenance applications in the maintenance court

Every magistrate's court in South Africa is within its area of jurisdiction a maintenance court for purposes of the Maintenance Act 99 of 1998.

Any party to the proceedings under the Maintenance Act may be represented by a legal representative.

Lodging your complaint

To commence proceedings in an application for maintenance or an application for the substitution or discharge of an existing maintenance order, the applicant (or complainant as he is called in the Maintenance Act) must lodge a complaint in writing with the maintenance officer at the maintenance court, to the effect that

• the person legally liable to maintain the complainant or person (for example, dependent child) on whose behalf maintenance is claimed is failing to do so; or
• good cause or reason exists for the substitution (increase or decrease) or discharge of an existing maintenance order.

Applying for a maintenance order

In the first instance the complaint must be made in form A of the Annexure to the Maintenance Regulations (GN R1361/15-11-1999). The complainant must state in the complaint the reason why the person from whom maintenance is claimed is legally liable to maintain the person in respect of whom maintenance is claimed. The following people have reciprocal duties to maintain each other:

Parents & children

Both parents of a child have a duty to maintain the child according to their respective means. The duty exists irrespective of whether the child is adopted, born in or out of wedlock, or born of the first or a subsequent marriage.

When the court makes an order in respect of the maintenance of a child it will take into account inter alia

• what the reasonable maintenance needs of the child are;
• that both parents jointly have a duty to support a child; and
• that the parents' respective shares of their obligation are apportioned between them according to their means.

Husband & wife

At common law this duty comes to an end on divorce. However, in terms of the Divorce Act 70 of 1979, the court granting the decree of divorce may make an order directing one spouse to pay maintenance to the other spouse after divorce, either by agreement between the parties or, in the absence of such an agreement, after taking into account various factors set out in s 7(2) of the Divorce Act. If no such order was granted at the time of the divorce, the divorcé cannot at a later stage approach the maintenance court for an order directing his ex-spouse to pay him maintenance. However, if such an order was granted by the divorce court, the divorcé may approach the maintenance court at a later stage to apply for a substitution (increase or decrease) or the discharge of the existing order, provided that good cause exists for such a substitution or discharge.

Application for substitution or discharge

In the second instance, ie where application is made for the substitution or discharge of an existing maintenance order, the complaint must be made in form B of the annexure to the Regulations Relating to Maintenance (GN R1361/15-11-1999). The complainant must state the alleged reason or cause on which he relies for such substitution or discharge of the maintenance order.

In both instances, ie when application is made for a maintenance order or for the substitution or discharge of an existing order, the complainant must provide full details of his assets, income and the monthly expenditure in respect of himself and the children on whose behalf maintenance is claimed, supported by documentary proof. This information must be attested to under oath. Form A and form B to the Regulations Relating to Maintenance contain all the necessary information, including a comprehensive list of monthly expenses. The attorney should assist his client to complete the relevant form in full to avoid the matter being referred back to the complainant for further information, which will result in delay. Once the relevant form has been completed, it must be handed to the maintenance officer at the maintenance court who will issue a reference number for the particular matter.

The investigation

Once the complaint has been lodged with the maintenance officer, the latter will investigate the complaint. For purposes of the investigation, the maintenance officer may subpoena both the complainant and the defendant to appear before him on a date and time mentioned in the subpoena and to provide, inter alia, information regarding the financial position of the people affected by the application. In practice, to save costs, a subpoena is normally served on the defendant only, whereas the complainant receives mere written notification of the date and time of the investigation.

The investigation affords the parties' attorneys the opportunity to exchange information regarding the maintenance needs of the people in respect of whom maintenance is claimed and the financial position of the parties. Settlement negotiations often take place at the informal inquiry. The normal rules relating to discovery do not apply in the maintenance court. The attorney should, therefore, at the investigation make use of the opportunity to obtain as much information as possible from the opposing party, necessary for the preparation of the inquiry (trial). It is advisable that a list of the documents and information required for purposes of such preparation be prepared in advance and handed to the opponent at the investigation. The magistrate may be requested to warn the party requested to furnish the information and documents, within a certain period of time.

The inquiry

After the maintenance officer has investigated the complaint he may institute a formal inquiry, which is in effect a maintenance trial before a magistrate of the maintenance court. A date for the inquiry must be arranged with the maintenance officer and magistrate. The magistrate will warn both parties to be present at the inquiry.

The maintenance officer may subpoena any person to appear before the maintenance court on the day of the inquiry and to give evidence under oath or affirmation, or to produce any book, document or statement relating to the financial position of any party affected by the legal liability of a person to maintain any other person. This includes full particulars of the person's earnings signed by his employer. If the attorney of any of the parties to the proceedings requires a person to be subpoenaed to give evidence regarding the financial position of either of the parties or to produce a book, document or statement as referred to above, he should approach the maintenance officer and request that a subpoena be issued in respect of such a person.

At the maintenance inquiry the court may also examine any person who is present at the inquiry although he was not subpoenaed as a witness, and may recall and re-examine any person already examined.

The normal rules of evidence applicable in respect of civil proceedings in the magistrate's court apply in respect of the inquiry.

At the inquiry documentary evidence in the form of a statement in writing by any person other than the person against whom a maintenance order may be made may be placed before the court as evidence, provided that a copy of the statement together with any documents referred to in the statement are served on the person against whom a maintenance order may be made at least 14 days before the date on which the statement is to be submitted as evidence. Such person may then, at least seven days before the commencement of the inquiry, object to the statement being submitted as evidence.

It is important to note that the maintenance court may take into account any evidence in any proceedings in respect of the existing maintenance order or accept as prima facie proof any finding of fact in any such proceedings. In other words, evidence led and findings of fact in a divorce action may at a later stage be used in proceedings in the maintenance court. The record of such evidence or findings shall on its production at the inquiry be admissible as evidence, and so will any copy or transcription or extract from it certified as a true copy, transcription or extract by the registrar or clerk of the court or any other officer having custody of the records of the court where the existing maintenance order in question was issued.

After consideration of the evidence at the inquiry the maintenance court may decide as follows:

• Where no maintenance order is in force, the court may make a maintenance order against the person proved to be legally liable to maintain the person in respect of whom maintenance was claimed. The court may be requested to order that the maintenance be paid in at the maintenance court where the complainant will then have to collect the payments from month to month, or that the maintenance be paid into an account at a financial institution by stop order or in another manner.
• Where no maintenance order is in force the court may also make an order, in the case where maintenance is to be paid in respect of a child, for the payment to the mother of the child of such sum of money together with interest thereon, as the mother is in the opinion of the maintenance court entitled to recover from the person in respect of expenses incurred by the mother in connection with the birth of the child and expenditure incurred by the mother in connection with the maintenance of the child from the date of the child's birth to the date of the inquiry.
• Where there is already a maintenance order in force, the court may substitute the existing maintenance order with a new order or discharge the existing maintenance order, or the court may make no order.

Maintenance orders by consent

A maintenance order may also be obtained by consent.

The person against whom the maintenance order is sought must consent in writing to the maintenance order being granted. A copy of the written consent must be handed to the maintenance officer at the inquiry. Where such written consent has been obtained it is not necessary for the person against whom the order is to be made to appear in court at the inquiry. An example of such written consent can be found in part A of form G of the annexure to the Maintenance Regulations. A copy of the order made against the person not present at the inquiry must be delivered or tendered to him by a maintenance officer, police officer, sheriff or maintenance investigator. The return of any such officer, sheriff or investigator showing that a copy was delivered or tendered to the person shall be sufficient proof of the fact that he is aware of the terms of the order.

Maintenance orders by default

A maintenance order may also be obtained by default.

If the person against whom a maintenance order is sought does not appear in court on the date and time mentioned in the subpoena issued for his attendance at the inquiry to give evidence or for the production of a book, document or statement, the complainant may apply to court for an order by default. This application may be brought through the maintenance officer on the date of the inquiry.

The court must be satisfied that the person against whom the order by default is sought has knowledge of the subpoena issued for his attendance at the inquiry and/or to produce any book, document or statement at the inquiry. The return by a maintenance officer, police officer, sheriff or maintenance investigator showing that the subpoena was served on such person will be sufficient proof that he has knowledge of the fact that he had to attend court or that he had to produce a book, document or statement, as the case may be.

The court may request the complainant to adduce evidence in writing or orally, in support of his complaint, before an order by default is granted.

A copy of the order by default must be delivered or tendered to the person against whom the order was granted, by any maintenance officer, sheriff, police officer or maintenance investigator. The return by such officer, sheriff or investigator showing that a copy was delivered or tendered to such person will be sufficient proof that he is aware of the terms of the order.

The person against whom the order by default was granted may apply to the maintenance court for the variation or setting aside of the order within 20 days after the day on which the person became aware of the order by default or within such further period as the maintenance court on good cause shown shall allow. Notice of an application to set aside an order granted by default must be given to the person who lodged the complaint at least 14 days before the day on which the application is to be heard.

Appeal

Any person not satisfied with the order made by the maintenance court may appeal against such order to the High Court having jurisdiction.

Enforcement

When a person against whom a maintenance order has been made fails to comply with the terms of the order, and the order remains unsatisfied for a period of ten days, the person in whose favour the order was made may apply to the maintenance court where the person against whom the order was made is resident, for authorisation to issue a warrant of execution or for an order for the attachment of emoluments or for an order for the attachment of debt.

An order for the attachment of emoluments may also, on application by the complainant, be granted in respect of future monthly maintenance payments. The effect of such an order is that the defendant's employer will be directed to deduct the amount mentioned in the order monthly from the defendant's salary and to pay such amount to the complainant on behalf of the defendant.

Warrant of execution

The warrant of execution must substantially correspond with form L of the annexure to the Maintenance Regulations and must be prepared in triplicate.

The complainant must prepare part A of form L and thereafter the form must be lodged in triplicate with the clerk of the maintenance court concerned, who will issue the warrant of execution by preparing part B of form L of the annexure, provided that he is satisfied that

• authorisation for the issuing of a warrant of execution was granted; and
• the warrant of execution has been properly prepared;
• The clerk of the maintenance court will, after the warrant of execution has been issued,
• return the original warrant of execution and one copy to the complainant; and
• file the second copy of the warrant of execution in the relevant court file.

The original warrant and a copy must be handed to the sheriff or maintenance investigator for execution. Such person shall complete part C and, if applicable, part D of form L of the annexure and return the form to the clerk of the maintenance court, once the warrant has been executed.

The person against whom a warrant of execution had been issued may apply to the maintenance court concerned to have the warrant of execution set aside or suspended, by giving notice of his intention to make the application to the person in whose favour the maintenance order was made at least 14 days prior to the date on which the application is to be heard. The court may at the hearing of the application request either or both parties to adduce evidence in writing or orally, as the court considers necessary.

The court may, when suspending a warrant of execution, grant an order for the attachment of emoluments or the attachment of debt.

Attachment of emoluments

The complainant may request the maintenance court to make an order for the attachment of any emoluments at present or in future owing or accruing to the person against whom the maintenance order was made, for the amount necessary to cover the amount such person has failed to pay, together with interest thereon as well as the costs of the attachment. This order will authorise the employer of the person who failed to comply with the maintenance order to deduct from that person's emoluments and to pay on that person's behalf the amount specified in the order until the amount due, plus interest and costs, has been paid in full.

To give effect to the order for attachment of emoluments, the maintenance officer shall within seven days after the order was granted cause a notice with a copy of the order to be served on the employer of the person against whom the order was granted. The notice to the employer must substantially correspond with part A of form O of the annexure to the Maintenance Regulations.

An order for attachment of emoluments may, on application by the person against whom such order was granted, be suspended, amended or rescinded. Notice of such application must be given to the person in whose favour the maintenance order was made at least 14 days prior to the date on which the application is to be heard. The application must substantially correspond with part A of form N of the annexure to the Maintenance Regulations whereas the notice must substantially correspond with part B of the form.

Attachment of debt

The maintenance court may on application by the person in whose favour a maintenance order was made, or when it suspends a warrant of execution, make an order for the attachment of any debt at present or in future owing or accruing to the person against whom the maintenance order was made, for the amount necessary to cover the amount which the creditor failed to pay, together with interest thereon as well as the costs of the attachment. This order will direct the person who has incurred the obligation to make the payment specified in the order.

As in the case of the attachment of emoluments, an order for the attachment of debt may, on application by the person against whom the order was granted, be suspended, amended or rescinded. Notice of such application must be given to the person in whose favour the maintenance order was made at least 14 days prior to the date on which the application is to be heard. The application must substantially comply with part A of form P of the annexure to the Maintenance Regulations, whereas the notice must substantially correspond with part B of the form.

Compiled by Bertus Preller

Family Law Attorney

KWJ Inc

http://www.divorceattorney.co.za

Source: De Rebus

 

Alienation of joint property without consent of spouse

In the case of Visser v Hull and Others 2010 (1) SA 521 (WCC) the deceased sold and transferred property jointly owned by the spouses who were married in community of property to the first to fourth respondents, who were close relatives. The applicant, Mrs Visser, was not aware of the sale and transfer until after the death of her husband when the respondents served her with eviction papers. It transpired later that fraud had been perpetrated on her as the property, which according to a municipal valuation was worth R98 000, was sold for just R10 500. The applicant sought and was granted an order in setting aside the sale and ordering the deeds registry to register the property in her name. The Judge said that s 15(2)(b) of the Matrimonial Property Act 88 of 1984 (the Act) forbade the sale by a spouse, married in community of property, without the written consent of the other spouse, of immovable property falling into the joint estate. The third party was required to take steps to establish whether the contracting spouse had obtained the consent of the non-contracting spouse and could not simply rely on a bold allegation by the contracting spouse that he was not married. An adequate inquiry by the third party was required. The court further declared that if a husband, married in community of property, made a donation out of the joint estate to a third party in deliberate fraud of his wife, then the wife or her estate had a right of recourse against him or his estate on dissolution of the marriage and, where necessary, she or her estate could proceed with the actio Pauliana directly against the third party for the gift or its value. The same principles applied equally to a fraudulent transaction in some form other than a donation, such as a fraudulent transaction for the sale of land. The wife in the latter instance, would have to show that there was fraud on the part of her husband, that the sale was unreasonable and that the third party colluded in her husband's fraud.

In the case of Ryan v Petrus 2010 (1) SA 169 a widow had entered into an affair with a married man. The widow lived her life according to the tenets of the Christian faith and was involved in the life of her local church. One day the son of the man with whom she was consorting came across the widow while she was in the company of his father. The son verbally insulted the widow, the insults relating to her adultery and called her 'n hoer, teef and a bitch. The widow instituted action in a magistrates' court, claiming damages of R20 000. The cause of action was a hybrid between defamation and injuria. The magistrate treated the case as one of defamation and found that the words had been uttered by the son without any justification, but that they had not lowered the widow in the estimation of those who had heard them because it was well known that the widow was indeed involved in an adulterous affair with the father. He accordingly declined to award the widow any amount as compensation, but ordered the son to pay the widow's costs of suit.

The widow appealed to the High Court.

The court held that the word 'hoer' or 'whore' clearly constituted an unlawful aggression upon the appellant's dignity. To call any woman, who was not a prostitute, a whore, regardless of whether or not that woman was conducting an adulterous affair, was, absent any innocuous context, to degrade and humiliate her.

The court held that that the use of the word 'teef' or 'bitch' was similarly injurious in the context in which it was used by the respondent. The respondent, a man, knew that the use of the word towards the appellant, a woman, would insult her and it was clear from the circumstances in which the word was uttered,  in conjunction with all the other vulgar epithets hurled at the appellant, that he had intended deliberately to insult and humiliate her.

The court held that, despite the fact that the appellant's conduct fell within the ambit of the dictionary definition of 'fornication' (ie 'voluntary sexual intercourse between a man and an unmarried woman. The crude and vulgar word used by the respondent to categorise her behaviour was offensive and intended to humiliate her and to impair her dignity. Both objectively and subjectively it succeeded in doing so.

The court held further, that in the circumstances the appellant had established that her dignity had been impaired. She was accordingly entitled to an award of damages to compensate her for the hurt and humiliation suffered by her.

The court held further, as to the assessment of damages, that the fact that the appellant was committing adultery did not mean that she had thereby forfeited her right to respect and to be treated with dignity. However aggrieved and upset the respondent might have been at the appellant's conduct that did not afford him licence to speak to her in terms redolent of the gutter, as if she were a valueless and worthless member of society. That she clearly was not. Indeed, apart from her affair with the respondent's father, she was obviously a useful member of her community.

The court held further, however, that evidence relating to the appellant's mode of living and character was relevant in this context. Sight could not be lost, in the assessment of damages, of the fact that the appellant was unrepentantly and openly committing adultery with the respondent's father. In these circumstances the affront to the appellant's dignity and the sting of the insults, viewed from both a subjective and objective perspective, were less than they would have been had the appellant's actions been beyond reproach.

The Applicant was awarded R 15 000 in damages.

Compiled by Bertus Preller

Family Law Attorney

KWJ Inc. Cape Town

bertus@divorceattorney.co.za

 

 

What if you choose the wrong divorce attorney? Imagine the losses you could face and on top of it, the trauma of going through the divorce. How would you feel if the attorney that you hired was more interested in making money out of your problem rather than listening to your problem with empathy? This can be a disaster.

Qualities of a Divorce Attorney

If you do not want to double your emotional trauma, it's better to put in some efforts in contacting the best divorce attorneys in town. They would assist you with regards to the custody of your child. Besides, they would solve your property division problems and help in either reducing or increasing your child maintenance. In short, they would be ready to help you in whatever way you like, not mentioning the hundreds of rands you would save in due course of time.

Starting your search for an Attorney

Before you go hunting for divorce attorney, ask a few questions to yourself:

Do you both agree with the divorce?
Is the divorce proceeding expected to go peacefully or requires negotiation?
Has your relationship turned so bitter that you cannot tolerate each other?

Remember; divorces are of different types and so are the divorce attorneys. Therefore, it's important that you recognize the type of situation you are in and begin looking for a family law attorney accordingly.

Once you come across a seemingly suitable online divorce attorney, it's time to fix a meeting with him or her. Only then can you tell whether that particular attorney is right for your case or not.

Interacting with the Attorney

While talking to your divorce attorney, see whether you are comfortable discussing your problem with him. Personality also tells a lot about an individual. When you first meet the person who claims to be knowledgeable about law, you can make out whether he has substance or not.

Well, for those who don't want to rely on only intuition, it's good to list out a few questions and ask your attorney. Observe how and what kind of answers they give. The questions can be related to the attorney's experience, the number of similar cases they have handled in the past, their present case load, their fee, what they think about your problem, options available, and likewise.

Once you have the right divorce attorney by your side, relax; your divorce will be carried out smoothly.

 

Compiled by Bertus Preller, Family Law Attorney, KWJ Inc. Cape Town