Divorce Attorney Cape Town, Johannesburg, Pretoria, Durban

This is a summary of the law at present to determine what is in the best interests of the child. In the case of Ford v Ford [2004] 2 All SA 396 (W) the mother sought leave of the court to relocate a minor child of the marriage (who was eight years old at the time) from South Africa to the United Kingdom (UK). The father counter-applied for a variation in the custody order if the mother relocated to the UK. Judge Weiner dismissed the application pointing out that even if a custodial parent (the mother in this case) had made sufficient, reasonable and adequate arrangements for her relocation which would provide the child with an education, an acceptable standard of living and way of life, it would not necessarily mean that such a decision would be in the minor child's best interests. The court ought also to have regard to any detrimental consequences of the relocation and that of major consideration in deciding an application of this nature should be the consequences of interrupting a close psychological and emotional bond which a child has with the non-custodial parent. The mother had failed to show that the benefits to the child of relocating outweighed the negative consequences of a drastic change in the relationship between the child and her father. The mother took this decision on appeal and lost again.

In the reported case of F v F [2006] 1 All SA 571 (SCA), the appellant, a custodian mother of a ten-year-old daughter, sought permission of the court to relocate to the United Kingdom (UK) with her, citing among other factors fear of violent crime and lack of job security in this South Africa. By comparison, in the UK, she would be reunited with her family and live in a peaceful environment that offered better social security. The non-custodian husband opposed the relocation of the child, indicating that, while he was in a position to provide for the financial needs of the child in this country, the mother did not have concrete financial arrangements for both herself and the child in the UK. The High Court held that it was not in the best interests of the child to have her relocated. The court concluded that in deciding whether or not relocation would be in the child's best interests, the court should carefully evaluate, weigh and balance a myriad competing factors, including the child's wishes in appropriate cases. In the instant case the custodian parent faced just too many imponderables relating to her financial position in the UK as she had only a promise of temporary low-paying employment, without a formal appointment. Such imponderables made it difficult for the court to determine their likely effect on the physical, emotional and psychological well-being of the child.

The courts consistently applied the criterion that the child's best interests were paramount. What was in the child's best interests, however, depended on the facts of the particular case. In deciding whether or not relocation would be in the child's best interests, the Court will evaluate, weigh and balance a myriad of competing factors, including the child's wishes in appropriate cases.  From a constitutional perspective, the rights of a custodian parent to pursue his or her own life or career involved fundamental rights to dignity, privacy and freedom of movement. Thwarting a custodian parent in the exercise of those rights might well have a severe impact on the welfare of the child involved. So, a refusal to allow a custodian parent to emigrate with the child might impact adversely on the custodian parent and, in turn, on the child. For that reason, the Courts consider the impact of a refusal of an application for leave to emigrate with the child on the custodian parent insofar as it might have an adverse effect on him or her and, in turn, on the child.

Courts are also required to be acutely sensitive to the possibility that differential treatment of custodian and non-custodian parents could, and often did, constitute indirect gender discrimination as it was still predominantly women in South Africa who were the custodian parents. In determining whether the proposed move was in the best interests of the child, the Courts consider the custodian parent's interests, the reasonableness of his or her decision to relocate, the practical and other considerations on which that decision was based, and the extent to which he or she had properly thought through the advantages and disadvantages to the child of the proposed move. The views of a child is also a factor which the Court will take into account.

Compiled by Bertus Preller

Family Law Attorney

KWJ INC.

http://www.divorceattorney.co.za

bertus@divorceattorney.co.za

 

Children and Divorce

Care and Contact

What is meant by the term "contact"?

Contact (formerly known as "access") is what is awarded in a divorce matter to the non-resident parent and entitles such a parent to visit the child. Theoretically this right is vested in the child, however, non-resident parents cannot be forced to have contact with their child.

Maintenance that a parent pays towards a minor child and the contact aspect are two complete separate issues which are decided by a court. So, in paying maintenance for a child, it does not automatically entitle a parent to see or have contact with the child.

What is meant by the term "care"?
Care (formerly known as "custody") of a child entails more than a parent physically having the child with her/him and controlling the child's everyday life. Care now places a duty on parents to maintain a good solid relationship with the child and also promotes the child's well-being.

If we get divorced, what determines when my ex-spouse and I will see the child?
The new Children's Act 38 of 2005 states that both parents, upon divorce, will usually have parental responsibilities and rights in respect of a child born of the marriage. These rights and responsibilities include care, contact, guardianship and maintenance of the child.

When parents divorce, the court will make an order regarding their children. The order will include which parent the child will live with ("the primary resident parent") as well as the parental rights and responsibilities. The order will either be based on a parental agreement reached by the parents or, if no parental agreement was reached, the court will determine what is in the best interests of the child and what is reasonable in the circumstances.

When can a child make his own decisions about the contact he has with the other parent?
A child can only make a decision when he reaches the "age of majority", i.e 18 years old. However, a child that does not want to have contact with the non-resident parent cannot be forced to do so once he is of an age, development and maturity where his wishes can be taken into account.

The Children's Act also states that before any person holding parental rights and responsibilities makes a major decision regarding the child, that person must consider the views and wishes expressed by the child, bearing in mind the child's age, maturity and stage of development.

"Major decisions" are decisions affecting the contact of the child with his parents as well as any of the decisions which require the consent of both guardians, such as consent for a child to get married, be adopted, apply for a passport, be removed from the Republic of South Africa, enter into a contract or for that child's immovable property to be sold. Consideration must also be given to the wishes and views expressed by any person having parental rights and responsibilities, which is usually the other parent.

What if one parent wishes to take the child on an overseas holiday and the other parent refuses to let the child go?
A parent's consent (if he is also a guardian of the child) is required to apply for a passport for a child and to remove the child from the Republic. If one parent unreasonably withholds his consent then the court can be approached. The court can be approached on an urgent basis and once the matter is heard, the court will make a ruling.

If the court rules in favour of the parent who wants to take the child on holiday, the requirement of consent from the other parent will be dispensed with and the court will consent for the child to travel.

If the refusing parent is found by the court to be unreasonable in withholding his/her consent then that party may be forced to pay the legal costs incurred by the other parent.

 

 

When one parent turns a child against the other

This is called parent alienation and occurs when a child is significantly influenced by one parent ('the alienator') to completely reject the other parent ('the target parent').

Parental alienation syndrome (or PAS) places children in a situation where they must view one parent as bad and one parent as good. This leaves no space for a child to love both parents. The child is forced to deny or reject a part of themselves.

• Intervention should be guided by the assessment of a qualified professional.
• Remember that when a child distances themselves from a parent, parental alienation may not be to blame. Consider all other possible causes.

Hostile aggressive parenting (or HAP) is related to parental alienation syndrome.

• Often seen in high-conflict situations where an adult is unable to get over the separation and uses the child to control or seek revenge on the target parent. These parents cannot acknowledge their child's needs, may view children as belonging just to them and often cannot see the damage they are inflicting on their children.
• Can develop into parental alienation syndrome but does not always lead to the child's rejection of the target parent. But it greatly interferes with the development of a healthy parent-child relationship.
• Can extend beyond the parent-child relationship and include other significant adults in a child's life such as grandparents or step-parents.

Some tips for managing these situations:

Dos:

• Understand the problem so that you can act before things get worse.

• Seek professional support to help you manage the stress and emotional drain.
• Seek good legal representation when necessary. Ensure your lawyer is educated about parental alienation syndrome and hostile aggressive parenting.
• Behave with integrity. You may not have control over the other parent's actions, but you can control how you handle the situation with your children.
• Maintain contact and be consistent with your children. Despite their attempts to reject you, follow through with what you say you will do.

• Offer children an alternative perception of reality whenever possible. It is okay to say that you do not agree with the other parent's actions, but do not criticise them as this may push your child further away.
• Give clear messages to your children, such as 'children should not have to choose one parent over the other' or 'this is an issue between Mum and Dad'.

Don't:

• Put your child in the middle of adult issues.
• Blame your children for the rejection. They are being placed in a situation where, to be embraced by one parent, they must reject the other.
• Think you don't matter to your children - you do. Your child still needs you and cannot manage this situation without support.

• Give up. It may take years before you see change.

Compiled by:

Bertus Preller

Family Law Attorney

KWJ INC. Attorneys

http://www.divorceattorney.co.za

 

 

Talking to your children about your divorce

Here some tips to consider when telling your children about your divorce or separation.

• If possible, both parents should be present. But if this will create tensions, have separate discussions.
• Discuss what you will say beforehand. Children benefit from hearing similar messages from both parents. Keep explanations simple.
• View things through your children's eyes and avoid blaming each other. Children have a right to love both parents.
• Think through how you will manage your feelings in front of the children.
• Let children know how life will change, including major concerns such as how they will see each parent and where they will live. If they have questions you can't answer, let them know that you are both working out the details.
• Children can feel responsible when their parents split up. Make it clear that the split has nothing to do with them and also that they cannot change things.
• Let children know that you understand this will be a difficult change for them, and that they can ask questions and talk about how they feel.
• Keep discussions straightforward and age-appropriate.
• Follow-up talks do not have to be formal or structured.

How to listen to your children

Truly listening is hard, especially when you are a parent. When our kids are having a difficult time, our tendency is to want to fix it and take the hurt away.

But one of the most helpful things you can do is listen and support their feelings. This helps children to learn how to identify, accept and feel comfortable about expressing their feelings. It builds self-belief that they can handle difficult situations.

Here are some tips:

• Give children your full attention when they are talking to you. Sit down and make eye-to-eye contact. If you can't stop what you are doing, let your child know that what they have to say is important and arrange a time when you can give them your undivided attention.
• Listen to your child without trying to fix, judge, criticise or change their feelings. When children do not have chance to solve their problems or have their feelings acknowledged they are deprived of building self-esteem and self-confidence.
• Try to understand your child's feelings and perspective. Consider focusing on what your child is feeling and verbalising that for them through statements such as "It sounds like you are feeling -"
• Remember what your children most need is for you to listen, not to solve their problems.
• Keep your issues separate from your children's feelings. If it is difficult, take some time to process what is going on and your feelings.
• When necessary, get help or find professional support.
• If your child doesn't want to talk let them know you understand it is hard for them and that when they are ready to talk you will be there to listen.
• One way to improve your listening skills is to ask simple questions and then just listen. You could ask: How did that make you feel? What did that mean to you? How would you like things to change?

Managing the negative impact of divorce for Children

Experts suggest children need to hear approximately four positive statements for every negative comment to counterbalance the impact of negative comments. Using a 4 to 1 ratio of positive to negative statements with your children is a powerful yet simple way to counterbalance the negative impact of divorce for their children.

• Remember that what we say to our children often stays with our children, positive or negative.
• Be mindful of what you say to children and how you say it.
• Offer descriptive praise rather than general praise. Instead of saying "great", consider saying something like "You did a great job colouring that picture - you put a lot of work into it".
• You may not have control over everything your child hears, experiences or is told, but raising your awareness and implementing the 4 to 1 ratio can make a big difference.
• Whenever possible praise your kids for the things they are doing right. Make your praise sincere; they will know when it isn't.

Source: Resolution UK

Compiled by eDivorce

 

Reasons that one may decide to be married out of community of property include the following:

• Neither spouse wants to be held jointly and severally liable for the debts or obligations incurred by the other spouse prior to the marriage, nor for the debts that the other spouse may incur during the marriage;

• Spouses may wish to protect his/her own assets from creditors of the other spouse;

• Spouses may own assets at the time of the marriage which they intend to exclude from a joint estate; and

• Parties may want to be able to exercise independence and freedom to enter into financial transactions without being required to obtain consent from the other spouse.

The basis of an Antenuptial Contract is that it excludes community of property and excludes community of profit or loss. The Matrimonial Property Act of 1984 (the "Act") provides two options, namely:

• an Antenuptial Contract with application of the accrual system; and

• an Antenuptial Contract without application of the accrual system.

If you conclude an Antenuptial Contract prior to your marriage, the accrual system will automatically apply unless it is expressly excluded.

Without Application of the Accrual System

Exclusion of the accrual system simply means that there is no sharing of profit or loss. All assets are completely separated, including those brought into the marriage and those acquired during the marriage, and neither party shall be liable for any debt or obligation incurred by the other before or during the subsistence of their intended marriage.

As there is no sharing, neither spouse has any claim against the assets of the other upon dissolution of the marriage,

With Application of the Accrual System

In many instances the accrual system may be considered as the "fair" option in that this system offers the advantages of the protection afforded to marriages concluded out of community of property, while it also provides for the notion of sharing. With application of the accrual system, both spouses also have separate estates during the subsistence of the marriage and do not share in each other's profits or losses during the marriage. Although neither spouse is liable for the other spouse's debts or obligations, the parties will be entitled to an equal share of the assets that were acquired during the subsistence of the marriage, upon dissolution of the marriage. Where the marriage is dissolved by death, the accrual claim must be paid prior to any testamentary dispositions.

The 'accrual' is the extent to which the spouses have increased their respective estates by the time of dissolution of the marriage. Thus, the accrual of the estate of each party is the amount by which the value of his or her estate, at the dissolution of the marriage, exceeds the value thereof at the date of marriage. While the result of calculating the accrual is simply that each party shares equally in the accrual, the formula may appear to be more complex. Essentially, the formula provides that the estate that shows smaller growth during the marriage has a claim against the estate that shows larger growth, for half the difference.

In the Antenuptial Contract, the parties are required to declare the nett value of their respective estates at commencement of the marriage. If either party has no value in their estate, or their debts at the time of the marriage exceed the value of their property, the nett value of that estate at commencement of the marriage is regarded as nil. Generally, in the event that an estate has as a nil value upon commencement, everything owned upon dissolution of the marriage will be deemed to have accrued during subsistence of the marriage.

 

The nett value of the estate of each party at the commencement of the marriage is calculated with due allowance for any difference in the value of money which may exist at the commencement and the dissolution of the marriage. For this purpose the weighted average of the consumer price index (published from time to time in the Government Gazette) or any index published in substitution therefor will be accepted as prima facie proof of any change in the value of money.

 

Certain property belonging to either spouse may not be taken into account when the accruals are calculated, including:

 

• any amount which shall have accrued to such spouse's estate by way of damages other than damages for patrimonial loss;

 

• all inheritances, legacies and donations which may accrue to either spouse during the subsistence of the marriage and all assets which either spouse may acquire by virtue of his or her possession or former possession of such inheritance, legacy or donation and income derived therefrom; and donations made by either spouse to the other, other than donations mortis causa.

Compiled by:

Bertus Preller

Family Law Attorney

KWJ Inc.

http://www.divorceattorney.co.za

bertus@divorceattorney.co.za