Top 10 Divorce Issues Of The Decade: Divorce Attorney Bertus Preller’s Perspective

This past decade has challenged many people in South Africa and around the world with through various emotional events. The outspoken Julius Malema, President Zuma’s acquittal, Shabir Shaik’s release from prison and the murders of Lolly Jackson and Eugene Terblanche, the 9-11, wars in Iraq and Afghanistan, the Tsunami, the deepest recession since the Great Depression, the sacking of President Mbeki and the first African-American President. Many changes happened in the area of divorce and Family Law as well. The following, in no particular order, are my  top divorce and family law related issues since 2000:

The advent of the Internet and social networking

The immense impact of the virtual world and the internet on divorce. Social networking. The rise of Facebook, YouTube, and other sites, where people carelessly share their innermost secrets, with little concern for the consequences of detection by the wrong party. Sms, E-mails, bullying and “sexting” have had a noticeable impact on divorce, and the way family law attorneys handle their cases, and have also impacted our society as a whole.

The recognition of Same-Sex Marriages

Same-sex marriages have come to the forefront during the past several years, became legal in South Africa.

Divorcing without an Attorney

The tremendous rise in people filing for divorce on their own online through divorce services such as eDivorce, people can no longer afford to hire professional legal services.

Parental alienation

Parental alienation, which has been talked about, written about, and discussed, at length, exists in many of my cases. One parent systematically alienates the child/children against the other parent, with devastating and long-term results, not only to the child or children, but to both the parent being alienated, and most assuredly, the alienating parent.

Uprooting families

The poor economy and retrenchments have forced many people to seek employment in other provinces and countries, uprooting entire families and forcing children into unfamiliar surroundings and new schools.

Fathers becoming primary caregivers and parents of permanent residence

The significant increase in fathers becoming primary caregiver and the parent of permanent residence. In addition, there is a considerable increase in the number of couples opting for shared or joint parenting on an equal or close-to-equal basis.

Domestic Violence

The rise in domestic violence, especially with the stress caused by the economic nightmare of the past three years.

Debt Review

During the past two years, people have been inflicted with a brutal reality self-imposed credit card debt, resulting in a lack of financial resources to weather the storm. Couples stayed married, however, simply because of the financial decay each would undeniably face if a divorce action was pursued. Many of my recent divorce cases went hand-in-hand with debt problems.

Unamarried Fathers Rights

The parental rights unmarried fathers gained  automatically to their children was an absolue necessity in our law.

Bertus Preller

Family Law Attorney

Abrahams and Gross Inc.


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More Christians Get Divorced

A recent study released by the Barna Group—a leading research company focused on the intersection of faith and culture—has been the spark plug for a surge of editorials around the country because of the study’s eye-opening, statistical revelations regarding Christianity and divorce.

Among the findings, divorce rates among conservative Christians are not only counter to Christian ideals, they are significantly higher than that of other faith groups, including atheists and agnostics.

George Barna, the director of the study observed, “There no longer seems to be much of a stigma attached to divorce. (Instead), it is now seen as an unavoidable rite of passage. Interviews with young adults suggest that they want their initial marriage to last, but are not particularly optimistic about that possibility.”

Offering a unique insight into the depths of modern-day Christian marriages is minister and author, Rodney Winters, who’s new book, Go Into the House, much like the Barna study, has Christians talking.

Winters explores a wide range of marital mysteries among Christians, particularly when held up against the chasm between the sexes.

Why do Christian men choose to commit adultery? Why don’t men share their fears and emotions with women? Why do women want and need to hear the man’s perspective on “when a wife cheats”?

Further, Winters writes about the other side of Christian marriage, when a spouse is facing the aftermath of divorce. Barna pointed out in his company’s report that, “(our) research also raises questions regarding the effectiveness of how churches minister to families. The ultimate responsibility for a marriage belongs to the husband and wife, but the high incidence of divorce within the Christian community challenges the idea that churches provide truly practical and life-changing support for marriages.”

Rihanna and baseball player Matt Kemp divorce

Rihanna and her baseball player beau, Matt Kemp, have called it quits, Us Weekly reports.

Rihanna and the L.A. Dodgers outfielder began their romance in early 2010, almost one year after she ended her tumultuous relationship with Chris Brown. Kemp was reportedly an integral part in the ‘Only Girl in the World’ singer’s recovery after being assaulted by Brown.

Only months ago, Rihanna said of Kemp, “I have a boyfriend. I’m so happy. I feel really comfortable, and it’s so easy,” but according to an Us source, “Matt’s sick of always following after her like a puppy dog all over the world. He wants something more normal.”

The singer seems to be coping well with the split. “It was never as serious as it looked. It was always just [about] having fun,” says the source. “She basically was just over it.”

Celebrity Divorce Records

Britney Spears and Jason Allen Alexander. Lasted for 55 hours.

Dennis Rodman and Carmen Electra. Lasted for 9 days in November 1998.

Mario Lopez married Ali Landry on 24 April 2004; two weeks later she had the marriage annulled.

Drew Barrymore and Jeremy Thomas, from 20 March to 28 April 1994.

Rick Rockwell and Darva Conger, married on the television program Who Wants to Marry a Multi-Millionaire February 15, 2000. Annulled April 5, 2000.

Colin Farrell and Amelia Warner, from July to November 2001.

Chad Michael Murray and Sophia Bush, married 16 April 2005, announced their separation 26 September 2005. Bush sought an annulment (citing “fraud”) in February 2006.

Jennifer Lopez and Cris Judd. Lasted 6 months.

Shannon Doherty and Ashley Hamilton. Lasted 6 months.

Axl Rose and Erin Everly, married April of 1990. Rose filed for divorce one month later, but the two made up; the marriage was annulled in January 1991.

Jennifer Lopez and Ojani Noa married on 22 February 1997, lasted 11 months

Drew Barrymore and Tom Green, married 7 July 2001, Green filled for divorce on 17 December 2001, became official 15 October 2002.

Liza Minnelli and David Gest, married from March 16, 2002 to July 25, 2003

Source Wikipedia

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Divorce Statistics in South Africa

The South African Divorce Rate

Marriages in South Africa

In 2008, 186 522 marriages were registered in South Africa. This number includes 959 marriages of South African citizens solemnised outside the borders of South Africa but were registered in South Africa. Information from the Department of Statistics show that the number of registered marriages has generally been increasing over the last ten years (1999–2008). In 1999, 140 458 marriages were registered. This number had increased to 186 522 in 2008 showing an annual increase of 2,9% since 1999. The 2008 186 522 shows an increase of 3 492 (1,9%) from 183 030 marriages recorded in 2007.

Age at the time of marriage

In 2008, marriages of 930 men and 6 774 women aged less than 21 years were registered. Women enter marriage for the first time at younger ages than men. In 2008, the median age for grooms was 34 years compared to 29 years for brides. Major differences however, are observed when the marital status at the time of current marriage is considered. For first time marriages, the median age for bachelors was 32 years and that of spinsters was 29 years giving a difference of three years. The age at first marriage for both men and women has remained the same as 2006. For remarriages, the median age of divorce men was 52 years compared to 46 years for their female counterparts yielding an age gap of six years. Similarly, the median ages for widowers and widows were 45 years and 29 years respectively resulting in a 16 years’ gap. Despite the fact that men tend to marry younger women, in 2008 14,6% of bridegroom were younger than their brides whilst 7,1% were of the same age.


Trends in divorces (1999-2008)

The published data on divorces indicate that the number of granted cases has been fluctuating between 37 098 and 28 924 per annum in the past decade (1999-2008). The distribution of couples divorcing by population group shows that there were more divorces among the African population group compared to the other groups. Despite the general fluctuations, the proportions of divorces from the mixed and the African groups have been increasing whilst that of the White group has been declining in the past ten years. In 1999 the African, Indian/Asian, White and mixed groups made up 18,4%; 5,3%; 39,9% and 1,0% of the number of divorces respectively. However, in 2008 the contribution of the African, Indian/Asian and mixed groups increased to 35,0%; 6,2% and 3,1% respectively whilst that of the White group declined to 32,8%.

Who is suing who?

The 2008 data reveal that there were more female (50,6%) than male (37,8%) plaintiffs. However, there were significant differences among population groups. Among African plaintiffs, more husbands (43,5%) than wives (41,1%) initiated the divorce. This is in sharp contrast to the other population groups, particularly among the White (58,0%) and the Coloured (57,9%) whereby most divorces were initiated by women.

Even though a high proportion of the plaintiffs did not indicate the type of occupation they were engaged in at the time of divorce, the highest percentage of wives (19,8%) were in clerical and sales occupations whereas husbands (14,9%) were in managerial and administrative occupations. Very few plaintiffs were in farming and related occupations.

Number of times married

The 2008 divorce cases were mainly from first marriages. The pattern of remarriages among husbands was quite similar to that of the wives. Slightly fewer (76,4%) husbands were from first marriages compared to 77,1% of wives. Approximately 9,0% were second time divorcees for both husbands and wives. About 2,0% of husbands and wives were getting divorced for at least the third time.

Age at the time of divorce

The median age at divorce in 2008 was 41 for men and 38 for women. African men had the highest median age (43) at divorce. Women from the mixed and India/Asian group had the lowest median age (36 years).

Duration of marriage of those divorcing

The median duration of marriage in 2008 was 9 years. The largest number of divorces (7 859 or 27,2%) lasted five to nine years. This group is followed by marriages that lasted less than five years (6 143 or 21,2%). Thus, almost half (48,4%) of the 28 924 divorces in 2008 were from marriages that lasted less than 10 years. As the duration of marriages increased the number of divorces decreased. Irrespective of the population group of the divorcees, the distribution of divorces continues to be skewed towards earlier years of marriage.

Divorces involving couples with children

In 2008, there were 26 947 children (younger than 18 years old) involved in divorce. It is observed that 16 370 (56,6%) of the 28 924 divorces had children younger than 18 years indicating that, on the average, there was between one and two children per divorce.


Divorce Settlement Agreements in South Africa

In South Africa it is accepted practice to regulate the consequences of a divorce by means of a Settlement Agreement between the parties. In most divorces the parties enter into a settlement agreement, also called a consent paper or deed of settlement in which they agree on matters such as the division of the assets, payment of maintenance, care of and contact to the children and the payment of costs of the proceedings.

Parties in a divorce matter may include any provision in their deed of settlement which is not impossible, illegal, or contrary to good morals. They may for example agree on a division of their assets that differ completely from the normal rules regarding the matrimonial property system that regulates their marriage. For example the parties may agree that neither will have a claim for the accrual against the other and that each party will simply retain his or her own assets.

In terms of the Divorce Act the court may incorporate the spouses’ settlement into a court order if it is in writing. Once the settlement agreement is made an order of the court a party may only vary or amend it on application to the court. The parties may do so by mutual consent, it is important to note that any amendment to the settlement agreement should be made an order of court.

If one of the parties disagrees to amend or vary the settlement, the aggrieved party may approach the court on application in terms of Section 8 (1) of the Divorce Act for variation or rescission if a particular provision relates to guardianship, custody, access or maintenance. If the dispute relates to maintenance the maintenance court may be approached in terms of the Maintenance Act.

If the settlement agreement is not incorporated into the divorce order it is merely a contract and it can therefore not be enforced in the same way as an order of court.

Written by:

Bertus Preller

Family Law Attorney

Abrahams and Gross Inc.

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(ArticlesBase SC #3934823)


Divorce, moneys lent and advanced to the other spouse

It is not uncommon for parties in a marriage to advance to advance to the other spouse amounts of money from time to time. Between the two spouses this would normally be regarded as a transaction of borrowing money or lending, but the legal implications might be otherwise depending on the matrimonial system (married in community or out of community of property) applicable to the marriage.

Where the spouses are married to each other in community of property, the joint estate is divided on the date of divorce as it exists on date of divorce, including all the assets and liabilities. Parties who are married in community of property obtain an undivided half share in all the assets which constitute the joint estate and in most instances become jointly liable for all debts incurred. So if the spouses were married in community of property and enter into an agreement in terms whereof the one party lends an amount of money to the other, the right to claim such an amount is an asset of the joint estate and the liability to pay the amount is a liability of the joint estate. It therefore follows that it is impossible to enforce such a claim on divorce as a result of the fact that the parties are married in community of property.

Where spouses are married out of community of property it is possible to claim as a result of the fact that the parties are married out of community of property and does not share in the profit or loss. The right to claim such an amount would be an asset for purposes of determining the value of a spouse’s estate.  Where parties’ were married before 1 November 1984 a claim in respect of moneys lent will form a basis of a claim to claim a transfer of assets in terms of section 7 (3) of the Divorce Act. Where parties married after 1 November 1984 a claim to recoup moneys advanced would be simple if proved.

It is also interesting to note that a claim for moneys advanced where the parties married out of community of property, cannot prescribe in terms of the Prescription Act 68 of 1969.

It is therefore important to note that where a party is married in community of property and that party advanced moneys to the other spouse that a claim cannot be instituted for the recovery thereof.

Bertus Preller

Family Law Attorney

Abrahams and Gross Inc.