Divorce Attorney Cape Town, Johannesburg, Pretoria, Durban

Owerspel

In die onlangse saak van Wiese v Moolman is daar bevestig dat owerspel wel 'n grond is om skadevergoeding van 'n derde party te eis.  

Owerspel druis direk in teen die eggenote se onderneming teenoor mekaar en die buitewêreld om slegs binne die huwelik seksueel te verkeer. As sodanig beskou ons reg dit as 'n inbreuk op 'n versameling persoonlikheidsregte wat vir elke eggenoot uit die huwelik spruit. Die oortuigings van die gemeenskap is dat die uitsluitlike seksuele verhoudings wat die huwelik meebring gerespekteer moet word en dat dit onregmatig is om daarmee in te meng. Regspolities is dit in elk geval noodsaaklik om die uitsluitlikheid van seksuele verhoudings waartoe eggenote hulleself verbind het, te beskerm teen inmenging deur derdes. Dit is derhalwe nie korrek dat die opvatting dat owerspel 'n iniuria daarstel onbestaanbaar is met, en 'nie in harmonie met die moderne konsepsie van die huwelik is nie'. Die actio iniuriarum vir skadevergoeding vir owerspel druis nie in teen die Handves van Regte in hoofstuk 2 van die Grondwet van die Republiek van Suid-Afrika, 1996, meer in besonder artikels 9, 10, 15 en 18 daarvan nie. Sodanige aksie bestaan nog steeds in die Suid-Afrikaanse reg en behoort nie afgeskaf te word nie.

Die eiser is in 1987 met Lettie Wiese getroud. Die huwelik is in 2003 by wyse van egskeiding ontbind. Die eiser het beweer dat die verweerder gedurende die bestaan van die huwelik met die gemelde Lettie Wiese owerspel gepleeg het. Op grond van die beweerde owerspel het die eiser teen die verweerder aksie ingestel vir skadevergoeding. Die verweerder het aangevoer in 'n spesiale pleit dat 'n aksie gegrond op owerspel nie meer bestaansreg het in die Suid-Afrikaanse reg nie en afgeskaf behoort te word.

Ons reg erken en beskerm 'n wye verskeidenheid van persoonlikheidsregte. Ingesluit daarby is elke persoon se reg op sy of haar eer en waardigheid. Verder is daarby ingesluit 'n versameling van persoonlikheidsregte waarna prof Neethling (Neethling Persoonlikheidsreg 4 uitg op 35 en verder) as die reg op die gevoelslewe verwys. Sommige van die persoonlikheidsregte word uitdruklik in die Handves van Regte beskerm, en ander by implikasie.

Daar kan op 'n wye verskeidenheid van maniere inbreuk gemaak word op mense se persoonlikheidsregte. Ons reg erken dat een manier waarop daar op 'n getroude persoon se persoonlikheidsregte inbreuk gemaak kan word, is deur owerspel met daardie persoon se eggenoot te pleeg ( Viviers v Kilian 1927 AD 449 op 450). Die eersgenoemde eggenoot (die onskuldige eggenoot) kan teen die derde party wat met die ander eggenoot (die skuldige eggenoot) owerspel gepleeg het, die actio iniuriarum instel en, indien die elemente van die aksie bewys word, genoegdoening van die derde verhaal ( Foulds v Smith 1950 (1) SA 1 (A).

Owerspel is 'vrywillige geslagtelike verkeer tussen 'n getroude persoon en iemand anders as sy of haar gade'. Om  te oorweeg of owerspel wel plaasgevind het, is dit nodig om eers te oorweeg waarom ons reg vrywillige geslagsverkeer tussen twee persone as 'n iniuria teen iemand anders (die onskuldige eggenoot) beskou.

Die belang en uniekheid van die huwelik as instelling is al by herhaling deur howe in sowel ons land as in ander lande beklemtoon. Dit is geyk dat huwelikspartye hulleself vrywillig daartoe verbind om saam te woon, mekaar te onderhou, mekaar te ondersteun, uitsluitlik binne die huwelik seksueel te verkeer en aan mekaar getrou te wees. Uit die aard van die intieme persoonlike verhouding waarop die huwelik gegrond is, aanvaar ons reg dat daar uit daardie verhouding vir elkeen van die huwelikspartye 'n versameling persoonlikheidsregte voortspruit wat deur buitestaanders gerespekteer moet word. Die eggenote se onderneming teenoor mekaar en teenoor die buitewêreld
Die huwelik is nie slegs 'n onderneming tussen eggenotes nie, maar word regtens gereël en vir openbare kennis geregistreer.  om slegs binne die huwelik seksueel te verkeer en om aan die huweliksverhouding getrou te wees, is wesenlik tot die huwelik en kan nie by ooreenkoms uitgesluit word nie. Owerspel druis direk teen daardie onderneming in.

In praktyk word gewoonlik beweer dat die owerspel contumelia (belediging, hoon) teenoor die onskuldige eggenoot daarstel en dat dit die consortium wat uit die huwelik voortspruit, aangetas het. Wat die bewering dat die owerspel contumelia daarstel betref, word owerspel as beledigend teenoor die onskuldige eggenoot beskou nie. Owerspel word meer algemeen as 'n iniuria beskou: dit tas volgens die stand van ons reg die eer, waardigheid en die gevoelslewe van die onskuldige eggenoot aan.

Die term consortium is een van daardie wye, ondefinieerbare begrippe wat nogtans 'n goed verstaanbare betekenis dra. Dit behels onder meer die samesyn, die kameraadskap, die wedersydse vertroue, liefde en ondersteuning wat vir die eggenote uit die huwelik voortspruit. Die presiese aard en inhoud van consortium verskil van huwelik tot huwelik: elke man soen sy vrou op sy eie manier. Uit hoofde van die huwelik het elke eggenoot 'n persoonlikheidsreg op die consortium . Ons reg aanvaar dat owerspel as algemene stelling daardie consortium versteur en so op die reg daarop inbreuk maak. Die onskuldige eggenoot kan ook vermoënsverlies vorder wat hy/sy as gevolg van die verlies aan consortium ly.

Om op te som: owerspel druis direk in teen die eggenotes se onderneming teenoor mekaar en teenoor die buitewêreld om slegs binne die huwelik seksueel te verkeer. As sodanig beskou ons reg dit as 'n inbreuk op 'n versameling persoonlikheidsregte wat vir elke eggenoot uit die huwelik spruit. Dit volg dat dit die oortuigings van die gemeenskap is dat die uitsluitlike seksuele verhoudings wat die huwelik meebring, gerespekteer moet word en dat dit onregmatig is om daarmee in te meng. Regspolities is dit noodsaaklik om die uitsluitlikheid van seksuele verhoudings waartoe eggenote hulleself verbind het, te beskerm teen inmenging deur derdes.

Artikel deur Bertus Preller, Familie Reg prokureur, by KWJ Inc.

Divorce Mediation in South Africa

1 Introduction

A number of recent court cases dealt with the importance of mediation in family law matters. The most recent judgement dealing with the aspect of divorce mediation was the judgement in Brownlee v Brownlee in the South Gauteng High Court, by Acting Judge Brassey that focussed on the duty of parties to a dispute to attempt to mediate the dispute and the obligation of the opposing attorneys to encourage mediation with their clients, before litigation commences. The judgment emphasised the virtues of mediation and also capped the fees of the attorneys on both sides because they had failed to advise their clients to go to mediation at an early stage. Normally an unsuccessful litigant pays the costs of the successful one. Judge Brassey expressed his disapproval of the parties' conduct and made each party bear their own costs. In Van den Berg v Le Roux, Judge Kgomo ordered the parties to privately mediate all future disputes with regard to their 10-year-old daughter and ordered that only subsequent to the conclusion of the mediation process could either party approach a competent court which has jurisdiction to decide the dispute. In Townsend-Turner and another v Morrow the full bench of the Cape Provincial Division of the High Court made a similar decision when confronted with an access dispute between the father of a 7-year-old boy and the boy's maternal grandmother. The parties were ordered to attend mediation offered by private mediators of their own choice or those proposed by the office of the family advocate in an effort to resolve the issues of conflict between them including, of course, the issue of access. The court ordered that the mediation had to commence within two weeks of the granting of the order that it should continue for a period of at least three months or for the duration of at least four mediation sessions. The parties were also ordered to share equally the costs of the mediation.

2 Divorce mediation structures in South Africa

Despite the fact that much has been written about divorce mediation and some media hype about it in the past two decades, little mediation still takes place in divorce matters in South Africa. One of the major obstacles is the cost factor and only a handful of the more prosperous section of the South African society can afford to make use of mediation services. Getting divorced by means of Divorce Mediation commonly costs around R 12,500-00 in total. Although the costs can be shared between the parties it is still expensive in comparison to an uncontested divorce where the parties amongst themselves can agree on a division of assets, maintenance, visitation and access and the kids and using a service like www.edivorce.co.za, will still be more cost effective.

There appear to be a couple of private mediators, who are generally affiliated to mediation organisations such as SAAM (The South African Association of Mediators in Divorce and Family Matters), FAMAC (The Family Mediators Association of the Cape), ADRASA (The Alternative Dispute Resolution Association of South Africa) and), it appears that these private mediation services are totally under-utilised. Besides the private services mentioned above, divorce and family mediation is also being offered by various non-governmental and community-based organisations such as Family Life and FAMSA (The Family and Marriage Society of South Africa).

In light of the decisions in Brownlee v Brownlee and Van den Berg v Le Roux regarding mandatory private mediation, it is very clear that divorce mediation, on private level, will soon start to play a more prominent role in South Africa. Mediation in the context explained here should, however, not be confused with the services offered by the office of the family advocate in terms of the Mediation in Certain Divorce Matters Act 24 of 1987 (MCDM). The purpose of the MCDM Act is to evaluate the parties and the circumstances of a case in order to furnish the court with a report and recommendation on matters concerning the welfare of any minor children, the activities of family advocates and family counsellors should not be regarded as mediation (even though they sometimes indeed try to mediate disputes between divorcing parties).

3 Important aspects of divorce and/or family mediation

It is impossible to give a general definition of mediation in the family law environment. The following elements can, however, be regarded as some of the most important features of divorce and/or family mediation:

* An impartial and neutral third party facilitates the negotiation process in which the parties themselves make their own decisions.

* The mediation operates under the auspices of the law.

* The mediation process is confidential.

* The aim of the mediation process is to assist parties to reach a mutually satisfying agreement which recognises the needs and rights of all family members.

* The mediation process is flexible and creative and can be adapted according to the context of the dispute and the needs of the parties.

4 Advantages of divorce and/or family mediation

Divorce and/or family mediation has numerous advantages for divorcing couples, children affected by divorce and the judicial system in general:

4.1 It is a much less stressful and emotional experience than the traditional divorce process.

Working together with a skilled mediator in a negotiation process results in much less animosity and ill will than the protracted confrontation that often occurs between adversarial lawyers and their clients. The shortened time duration of the process, as well as the considerably lower cost of mediation, also contributes to a lower level of emotional stress.

4.2 Divorce mediation is much less expensive and faster than the traditional divorce process.

The divorcing couple pays one mediator instead of two attorneys. Also, having both parties together during mediation sessions dramatically shortens the process and the billable time of the mediator. The cost of divorce mediation is on average 50% lower than the cost of traditional divorce litigation.

4.3 Divorce mediation is better for the children.

The divorcing parents remain in charge of their children's interests and needs, and are able to construct a cooperative parenting plan without turning the children's futures over to judges and lawyers.

4.4 Divorce mediation results in a lower rate of re-litigation.

Mediated settlements are more comprehensive and cooperative in nature, producing a much higher rate of compliance by both parties, and a lower rate of expensive re-litigation. After all, the goal in mediation is to help the spouses come to an agreement that is suitable for their needs and lives.

4.5 Divorce mediation teaches parties how to deal with conflict in a non-aggressive way and gives them the opportunity to express their feelings of bitterness, disappointment and anger.

It allows parties to deal with those matters they feel are important, but which the law may consider frivolous or unenforceable. Therefore, unlike in litigation, the mediation process is not restricted solely to legal issues, and allows parties to deal with all facets of divorce.

4.6 Divorce mediation can be cost effective

Although mediation may be more expensive than an uncontested divorce, it is definitely much cheaper than contested divorce litigation. In South Africa, the going rate for a mediation session is anything between R500 and R2 000, depending on who the mediator is. The mediation process usually runs for a period of four to six sessions. Six sessions of mediation may therefore cost parties up to R12 000. In comparison, a very straightforward, unopposed divorce costs about R4 500 today and the costs of an opposed divorce may run into the hundreds of thousands of rands. Mediation can save divorcing parties a considerable amount of money, but can also be more expensive than an uncontested divorce, where the parties agree amongst themselves on the divorce process.

4.7 Advantages for children affected by divorce

The stress and animosity often generated during litigation can be emotionally damaging not only for the couple, but for the children as well. Mediation is a more empowering choice for children because:

* Separating parents maintain control of their children's needs, and can develop a comprehensive parenting plan.

* Mediation is more private than a traditional divorce.

Mediation enables those who know the children best, namely the parents, and not a third party or institution, to make decisions about their welfare. Section 28(2) of the Constitution of the Republic of South Africa places an obligation on, amongst others, on the mediator to see to it that divorcing parties put the interests of their children first in all negotiations between them. The chances of the interests of children being protected in the mediation process are therefore excellent. Research has shown that upon divorce, mediated settlement agreements provide far more advantageous provisions regarding the interests of children than agreements or orders made in terms of the adversarial system. Mediation emphasises, that parenthood is not terminated on divorce, but that both parents retain their roles and responsibilities in a restructured family. In mediated divorce matters there are thus a greater chance of the non-custodial parent remaining involved in his or her children's upbringing. The involvement of both parents creates a positive atmosphere for children and helps them to adapt to their new circumstances upon the divorce of their parents.

5 The disadvantages of divorce and family mediation Divorce mediation is obviously not without problems. For instance, because a divorce mediator is seen as a neutral third party, he obviously is in no position to advise a party personally.

The most important criticisms of divorce mediation are:

5.1 The shortcomings of the mediator

Mediators themselves can have a negative impact on the mediation process, especially where they don't have a legal background and the disputes at large include both child and legal matters. This creates issues where two mediators need to mediate a dispute, which have a bearing on the costs. Thus, if individuals are interested only in mediating a custody or visitation problem, they might select a mediator who is skilled as a psychologist or social worker. If parties have a problem resolving spousal maintenance or child support, they might select a mediator who has experience as an attorney, accountant or financial planner. Finding a mediator with all the necessary skills can be difficult. A mediator's professional training may further influence his or her neutrality or impartiality. Since mediators from different professional backgrounds are presently involved in mediation, this necessarily gives rise to the following problems for example mediators who are trained in the behavioural or social sciences tend to play a more active role in facilitating the parties' agreements on the best interests of the children, but what about the law?

5.2 Divorce mediation is inappropriate where parties do not have equal bargaining power

According to critics, divorce mediation only reinforces the unequal bargaining power that may exist between divorcing parties. They hold that, in the mediation process, the stronger party may dominate and intimidate the weaker party thereby forcing the weaker party to agree to provisions which will benefit the stronger party at the weaker party's expense. According to Winks "Divorce mediation: a non-adversary procedure for the no-fault divorce", feminists feel strongly that women, in particular, are prejudiced by the mediation process, since socially and financially women are generally in a subordinate position to their husbands, a fact which they feel mediators do not take into account.

5.2 Divorce mediation is inappropriate in cases of family violence

Divorce mediation is totally inappropriate in cases of family violence. Women, who are usually the victims of this violence, has a physiological disadvantage and powerless against a husband in the mediation process and will be unable to negotiate fair settlement agreements for themselves. Abusers may also avoid criminal-law sanctions for their actions if their divorce is not dealt with by the courts, but settled privately in the mediation process where all disclosures of the parties are confidential.

5.3 Mediators cannot always be impartial and neutral

Mediators cannot always be impartial and neutral, and every mediator has his or her own perceptions of what is fair and right, linked to his or her cultural background, education and training. A mediator's cultural background may give rise to problems if it is not the same as that of the parties in the mediation process. Where mediators are for instance part of a dominant cultural group they may try to impose their values and principles on the parties.

5.4 Mediation does not offer the same safeguards as litigation

A fear is often raised that mediation, as an informal process, does not offer the parties and their children the same safeguards as the adversarial system of litigation. In mediation, no formal legal process is in place to ensure the parties' procedural rights, such as the disclosure of all relevant documentation and the testing of evidence for accuracy. Another concern is that the parties have less access to attorneys and advocates in the mediation process and are therefore denied the protection of legal representation. Critics worry that mediation does not offer the parties and their children the same just and fair results as traditional litigation in the courts does.

Conclusion

Mediation is an important tool for dealing with divorce and family disputes. However, having said that, there are instances where divorce mediation will simply burden the parties with extra bills and costs, especially in the uncontested divorce sphere and it might still be cheaper in circumstances to use an online do-it-yourself divorce service, after all, the best way still would be if the spouses can settle their issues between themselves. In contested matters however, mediation might be more convenient and less emotionally draining and the answer and will in fact be cheaper than litigation.

Compiled by Bertus Preller, attorney at Abrahams & Gross Inc. Visit us at: http://www.divorceattorney.co.za

info@divorceattorney.co.za

Source: M de Jong Unisa

Divorce Procedures in South Africa

The eDivorce Divorce

This is by far the cheapest way to divorce in South Africa. In this situation, make a pot of coffee, you sit down with your spouse, and work out an arrangement to divide your earthly goods. Next, you negotiate if there will be any spousal maintenance and if so, for how long, and so forth. If you are able to get through these initial matters, you move on to the most important one; child access and parenting. By that point, if you haven't dissolved into screaming, you are both in a state of caffeine overload! The next step is to go online to www.edivorce.co.za to prepare your divorce documents. The steps are easy and you basically fill in a questionnaire and follow the do-it-yourself approach.

The eDivorce system generates your documents and you do the filing at court, it’s fast simple and reliable. eDivorce’s cutting-edge technology revolutionized the divorce process in South Africa. Never before has a process been offered for divorcing couples that removes the adversarial element inherent in many divorce proceedings and which minimize costs to the core.

Mediation: Using A Neutral Third Party

To Resolve Issues In mediation, the couples appoint a trained, impartial person to help them resolve specific disputes relating to their divorce. Some mediators are also attorneys, so they have knowledge of the legal requirements of working out a valid settlement. A mediator acts as a guide, encouraging communication between the parties and writing down agreements reached.

Mediation, also called as "alternative dispute resolution" is a process by which an impartial third person (sometimes more than one person) helps two discordant parties to resolve dispute through a mutual concession and face-face negotiation. A mediator is a trained professional who doesn't force rather assists the parties in their own negotiation without making decisions for the parties. A mediator rather help the parties understand what is happening to them and encourages them to negotiate in good faith that brings fruitful results in future.

The mediation process is a cooperative approach to divorce. Together the parties work with the mediator to understand the issues and develop creative solutions. More importantly, the parties stay in control rather than sitting on the sidelines and leaving major decisions about their life to a judge. Because of its informality and stress on communication, parties may reach an agreement quickly and economically. This can eliminate a lot of post-divorce litigation. Mediation can work for divorcing couples as well as couples who want a separation but are unsure about divorce. Should you need to follow the mediation route, then you may want to visit www.divorceattorney.co.za and contact them to assist in the process.

Advantages of mediation

• The process promotes communication and cooperation.
• It allows the parties, not the court, to make decisions affecting their future.
• It promotes positive family relationships by reducing conflict.
• It's confidential. • Mediation usually costs less than litigation.

Disadvantages of mediation

• Because the mediator is only one person, they cannot personally advise either party. Thus the parties may not be fully informed of their options as they would be in the litigation process.
• If one party is dominant, the other party may not be able to fully express their views without the support of their own lawyer.
• Since the focus is on resolution, the many possible scenarios available to each individual party are usually not explored.
• The other spouse may not cooperate and you can't force him/her.
• The other spouse may frighten or threaten you, and once a spouse is afraid of personal safety, the participation interest drastically drops down.
• Others argue that the decrease in the cost of mediation and the higher fee of attorneys is due to their high expertise in the field and only they can better predict the appropriate outcome of the case.

Therefore, every divorcing couple must try to settle down their marital issues within themselves. If they can't go that way at least they must not hide anything from one another and should undergo the mediation process leading to a conclusion. In circumstances, the situation goes out of hand and both the spouses cannot reach to conformity, the traditional adversarial approach could be a final resort (bearing the costs in mind).

Attorney-Negotiated Settlement: The Traditional Approach

Currently the most common method of divorce is where each party appoints an attorney, one of them files for divorce, and the other defends. Then the attorneys begin to negotiate a settlement, or both parties make use of one attorney to attend to the whole process, including working out a settlement.

Advantages of attorney-negotiated settlements

• The attorney is active in each step of the negotiations.
• Parties can be assured that all legal issues have been dealt with.

Disadvantages of attorney-negotiated settlements

• Costs more than self-negotiated or mediated settlements.
• Attorneys bring their own biases to the negotiations. Parties must pay attention to ensure that their position, not the attorney's own life experience, is being presented.
• The procedure can get very elaborate. Instead of one spouse talking to the other, they call their attorney, who calls the other spouse's attorney, who calls their client, and the process is then repeated in reverse.
• Parties tend to become passive since their attorneys take charge of the details of the case.
• Parties can often feel like they are left on the sidelines while the attorneys fight it out between themselves.

Litigation: The Last Resort

Only 2% of divorce cases go to trial

Most divorcing couples do not want to end up in court. An actual case before a judge is truly the last resort for couples who are so entrenched in their positions that compromise is impossible. There may also be a desire to prove that the other spouse is the "bad guy" in the drama. In a trial each spouse's attorney argues their client's position on the disputed issues. Witnesses, including family members or friends, may be called and experts may be brought in by each side to give opinions on child custody arrangements or to value property.

Advantages of litigation

Below are some advantages of litigation

• It may be the only choice left after all else fails
• Decisions can be appealed
• Parties can get their day in court

Disadvantages of litigation

• Trials can take a lot of time. If the court has a busy role, it can take years to finalize.
• Parties tend to involve their children and try to get them to take sides.
• It is very expensive, financially and emotionally.
• Trials lock parties into their positions, believing they are the victim and the other spouse the villain. Often they call friends and family in to back up their side of the story.
• Co-parenting successfully is difficult after a trial.
• Parties never forget the bad things their spouse said about them at trial.

Compiled by eDivorce, South Africa’s largest online divorce service.

My Husband or Wife Having an Affair?

Our world has changed dramatically over the past few years with the introduction of social networking sites like Facebook and Mxit an ever-increasing number of people are wondering if a husband or wife is having an affair. You might be wondering if your husband or wife is cheating on you or you could be concerned for a friend. In today's world, adultery is becoming common and with the increase of social networking sites like Facebook and Mxit people are being brought in contact with others on a daily basis.

It will come as a bit of a shock to find that your partner may be having an affair. Our advice is to stay calm and don't overreact about things. You may be mistaken so look at things really objectively. It may just save your marriage or relationship.

The following information may be used as a tool in determining the likelihood of whether or not a spouse is a cheat. It might require some detective work on your part, but knowing if your spouse is being unfaithful to you is probably worth the work.

Phone Usage and Typical Patterns

If you notice that your spouse turns off his/her mobile phone when with you or leaves the room when taking or making calls. He/she might even become angry if you answer their cell phone. Check the cell phone bill for constant calls made to the same number. Often times these calls are in the morning of the evening while your husband/wife is driving to and from work. The only good thing about a cell phone bill is that it lists all the calls made in a billing cycle.

Other detail to examine on a cell phone bill would be extremely long calls. Sometimes such calls can be for business matters, but if your spouse is in a profession that doesn't require a great deal of cell phone use, or if the cell phone use has increased for no apparent reason, you have logical reason to be suspicious.

Sms is a great way for people to be in contact with others. You will soon realise that something is wrong when your spouse sms someone late in the evening or very early in the morning. Some cheaters change the contact name on their mobile phone by changing a female name into a male name and vice versa. You might think that hubby sms Nick, but instead he is smsing Nicolette.

The Computer: An Ally and an Enemy

Facebook and Mxit have become popular these days and you might find that your spouse is not playing Farmville as he/she mentioned when spending hours on these sites, but instead is chatting to Jack or Jill.

The computer can be a great tool for a cheating spouse. There are numerous types of software on the internet to collect, save and report all activity on a computer. This software is called key logger software and can be found around the Internet. BSafe Online software is worth mentioning. The software includes pornography filters, virus protection and other valuable tools that can aid you in your investigation.

Computer Behaviour of a Cheater

Cheaters will delete their Internet history if they know how (most do). If you notice that history has been deleted when you are certain the suspect has been online, your spouse is hiding something. Another clue is if he or she demands privacy when on a computer and often closes a screen when you "accidently" walk in. This may also tell you that your spouse is viewing pornography which in our opinion is digital adultery.

If you notice that your spouse loses interest in sex after being on the computer, it could be that he or she had an online sex partner. So if your spouse usually has a healthy and active attitude towards sex except after a lengthy computer session, the math might be laid out for you that he or she has found another outlet.

Money Clues

As marriage expert Joe Beam says, "Sin is expensive."

You need to look for credit card bills containing unusual expenses that may be gifts. That includes jewellery, travel, cosmetic products, perfume, florist items and lingerie. But if he's a smart cheater, he'll have lots of cash on him without good reason.

Physical Changes

It's common for a man or woman having an affair to alter his or her personal appearance to the likes of the lover. She might get a new hairstyle, visit the tanning salon, change perfume, buy large amounts of new clothes including lingerie and sexy underwear. He might join a gym, begin or increase taking Viagra without increasing lovemaking sessions with his wife, shave body hair or begin using a product to colour his gray hair or a gel to restyle it. Though there is nothing inherently wrong with these actions, if they exist along with other clues, you may have a cheater on your hands.

Relational Changes

Suddenly your spouse seems uninterested in your relationship and has fewer conversations with you. He or she makes spontaneous plans that don't include you and give you little time to object. The cheating spouse may ask specific details about your schedule for no apparent reason.

Sex between the cheater and spouse may decrease. He or she may request different kinds of sex or suggest a threesome or even swinging. Often time’s cheaters do not want to share baths or sleep while embracing their spouse. This is likely because they do not feel the emotional bond with you.

Family Time Changes

A husband or wife having an affair often loses interest in family events that involve the children. Yet lack of family time may lead to extravagant gift purchases for the children and unusual increases in time spent with them in order to appease the cheater's guilt.

At the Office

If your spouse comes home later than usual and becomes angry when you ask the reason, there's probably a problem. For example, if there's a new woman at work, ask him if he thinks she's pretty. If he's says no but when you meet her she is very pretty, you may have a cheater. After all, why would he lie about her looks? The answer is that he doesn't want you be suspicious of his relationship with her. An innocent man would be honest if in a healthy relationship. He would say something like, "She's pretty, but not as pretty as you."

When you get home

When you get home after the suspected cheater has been there "alone" look for the following clues to see if he or she has had an encounter with the lover:

• The bed comforter/sheets look as though more than one person has been laying on it and, perhaps, moving around.
• For men, if the toilet seat is up when you get home, but down when you left.
• The shower has been used during the day for no apparent reason (to remove perfume, sexual scents or sweat by cheater or lover).
• The tooth brush or mouthwash has been used in the middle of the day, though this is not a usual habit.
• The window shades in your room were open when you left, but are now closed even though it's the middle of the day.

Conclusion

You may find many of the clues in this article and yet your spouse MAY still be faithful. Nothing short of catching your spouse with the lover will prove beyond a doubt that an affair is taking place. But usually your suspicions are correct. If you have evidence that your spouse is cheating on you, don't automatically give up on your marriage.

Source: Familydynamics.com

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

Surely you can.

Rule 43 of the High Court Rules apply to whenever a spouse seeks relief from the court in respect of maintenance pending the divorce, a contribution towards the costs of a 'pending matrimonial action', and interim custody of or access to any child.

Rule 43 was designed to provide a streamlined and inexpensive procedure for procuring the same interim relief in matrimonial actions as was previously available under the common law in regard to maintenance and costs. The purpose of such relief was to regulate the position between the parties until the court finally determined all the issues between them. The entitlement to maintenance pending the divorce arises from a general duty of a husband to support his wife and children.

Rule 43 is a special procedure aimed at the expeditious and inexpensive resolution of maintenance issues pendente lite. In Colman v Colman, Theron J pronounced upon the purpose of and approach to Rule 43 proceedings as follows: 'The whole spirit of Rule 43 seems to me to demand that there should be only a very brief statement by the applicant of the reasons why he or she is asking for the relief claimed and an equally succinct reply by the respondent, and that the Court is then to do its best to arrive expeditiously at a decision as to what order should be made pendente lite .'

The power of the court in Rule 43 proceedings in terms of Rule 43(5) is to 'dismiss the application or make such order as it thinks fit to ensure a just and expeditious decision'. The discretion is essentially an equitable one and has accordingly to be exercised judicially with regard to all relevant considerations. A misstatement of one aspect of relevant information invariably will colour other aspects with the possible (or likely) result that fairness will not be done. Consequently, there is a duty on applicants in Rule 43 applications seeking equitable redress to act with the utmost good faith (uberrimae fidei) and to disclose fully all material information regarding their financial affairs. Any false disclosure or material non-disclosure would mean that he or she is not before the court with 'clean hands' and, on that ground alone, the court will be justified in refusing relief.

Generally however, parties in Rule 43 proceedings seem to ignore the purpose of the Rule. Their anxiety to ventilate the issues in the pending divorce action manifests itself in the Rule affidavits, where many of such issues have no place. This practice obstructs the expeditious resolution of these matters which should be decided inexpensively.

Compiled by eDivorce, South Africa's Number 1 Online Divorce Service