Who’s your Daddy?, paternity testing and South African Law

As a Family Law attorney I do get a lot of cases where paternity is denied, especially when maintenance responsibilities comes into play.South African law acknowledges three kinds of blood tests to determine paternity, these are:

  1. The first and oldest test is based on an analysis of the blood cells. And antiserum is used in this test to identify the blood groups of the mother, her spouse and the child. Because parents belonging to particular blood groups can procreate children belonging only to a limited number of possible blood groups, this test can sometimes indicate that the father concerned cannot be the father of the child. Owing to the fact that lots of people belong to the same blood group, the test cannot determine who actually is the father of the child.
  2. The second kind of test is based on an analysis of white blood cells and is known as the HLA system of tissue typing. By determining the haplotype of the child as well as of both husband and wife, it can be determined whether the child has indeed inherited one haplotype from each of the two adults. This test can positively identify the natural father of the child concerned. In previous cases before the courts medical evidence was accepted that the tissue typing will indicate the natural father to a degree of probability of 99.9%. This test can therefore be used to show that the husband of the child’s mother is not the father of the child.
  3. The most recent test, namely the DNA system of identification, has previously been used to identify criminals after analyzing the blood, tissue and even saliva or semen found at the scene of a crime. DNA tests can be used to identify paternity to a very high degree of certainty. The test normally involves determining the DNA structures of all the parties involved. These DNA patterns are transmitted to a person’s descendents. Owing to the fact that the DNA inherited from the mother is distinguishable from that of the father, a particular man can be positively identified as the natural father of the child.

The Children’s Act confirms in Section 36 a presumption in respect of a child born out of wedlock. The presumption is that the person whom had sexual intercourse with the mother at any time when that child could have been conceived will be presumed to be the biological father of the child in the absence of evidence to the contrary which raises reasonable doubt. In the case of S v L 1992 (3) SA 713 (E) it was held that the phrase “in the absence of evidence to the contrary which raises reasonable doubt” means that whenever there is evidence to the contrary, the presumption does not operate or ceases to operate. This is also in line with the court’s decision in R v Epstein 1951 (1) SA 278 (O), where it was held that a presumption operating “in the absence of evidence to the contrary” only requires evidence, not proof, to counteract the presumption. The Children’s Act does not define the word “evidence”, thus any acceptable evidence suffices, regardless of whether it is direct or circumstantial, however, it must raise reasonable doubt.

Section 37 of the Children’s Act states that if a person in proceedings in which paternity of a child is challenged refuses to submit him/herself, or the child, to take blood samples in order to carry out a scientific test to prove the paternity of the child, then a presumption in our law exists in which the failure of such a party to agree to such a test may be used as evidence to prove the contrary. The effect of this section is that it compels a court to warn the person who has refused to have his/her or the child’s blood sample taken ‘of the effect’ which such refusal might have on his/her credibility.

Refusal by mother to submit her and child to testing

In O v O, Friedman JP stated that there is no statutory or common-law power enabling the court to order an adult to allow a blood sample to be taken for the purpose of establishing paternity. Although there is still no such power, Section 37 obliges the court to warn the mother of the consequences of her refusal (perhaps that the man she is accusing of having fathered her child cannot be deemed to have fathered the child in the absence of a blood test). He would then in all probability not be ordered to pay maintenance for the child.

About the Author:

Bertus Preller is a Divorce and Family Law Attorney in Cape Town and has more than 20 years experience in law and 13 years as a practising attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. in Cape Town. Bertus is also the Family Law expert on Health24.com and on the expert panel of Law24.com. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters and international divorce law.

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Divorce and the forfeiture of your assets

The case of JW v SW 2011 (1) SA 545 (GNP).

In a divorce action the plaintiff (Wife) claimed forfeiture of the defendant’s (Husband) patrimonial benefits of their marriage in community of property in terms of the Divorce Act 70 of 1979, s 9(1). The defendant counter-claimed for an order, in terms of s 7(8) (a) of the Act, that he was entitled to a share in plaintiff’s pension-fund benefits. When the parties entered into the marriage, the defendant brought immovable property into the estate with improvements, in the form of a house. The wife brought no assets into the marriage, but effected renovations to the property in respect of which she alleged the husband made no contributions. The wife had been in continuous employment for 25 years and had built up a pension interest, whereas the husband, due to his erratic employment history, had built no such interest.

The Court found, that, before the issue of whether a benefit was undue arose, it first had to be established that the party, against whom an order of forfeiture was sought, would in fact benefit if the order were not made. Only if the nature and ambit of the benefit were proved, could the court decide whether it was undue or not.

The Court found, further, that a party could only benefit from an asset brought into the estate by the other party, not from his own — a fortiori, such a party could not be ordered to forfeit her/his own asset. The wife only proved the value of the house when the divorce proceedings were instituted, but not what the house was worth when the parties entered into the marriage. The wife had therefore not proved the extent of the husband’s benefit on the dissolution of the marriage.

The Court found, further, that s 7(8) (a) of the Act conferred a discretion on the court in considering an order in terms thereof. Such discretion had to be exercised judiciously, taking into consideration all relevant factors, including fairness. It was fair and just, in the circumstances of the case, that no order be made in terms of s 7(8) (a) of the Act.

The wife’s claims for forfeiture of the benefits arising from the marriage, and the husband’s counter-claim for an order in terms of s 7(8) (a) of the Act, were both dismissed.

About the author – Bertus Preller is a Divorce and Family Law Attorney in Cape Town and has more than 20 years experience in law and 13 years as a practising attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. in Cape Town. Bertus is also the Family Law expert on Health24.com and on the expert panel of Law24.com. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters and international divorce law.

http://www.divorceattorney.co.za

 

Adultery or an “inappropriate relationship”may have serious consequences

Pastor Benny Hinn Sued by Christian Book Publisher Strang Co.

Televangelist Benny Hinn is being sued by Strang Communications, a Christian publishing company that alleges that Hinn violated a morality clause in their contract when he began an “inappropriate relationship” with Without Walls pastor Paula White.

In August, The National Enquirer published photos of Hinn and White holding hands in Rome. Hinn was married to Suzanne Hinn at the time. His wife had filed for divorce in February 2010.

“I will not deny that the friendship has strengthened, and, while it has remained morally pure at all times, I have enjoyed the company of someone who has also gone through the trauma of a painful and public divorce,” Hinn said in a statement at the time.

Hinn acknowledged to his publisher “his inappropriate relationship” with White in August, the suit, obtained by the Orlando Sentinel, says. Strang Co. (now known as Charisma Media) says that it should receive $250,000 of unrecouped royalties but Hinn has refused to pay the amount.

Hinn had signed a three-book deal and was paid a $300,000 advance for Blood in the Sand (2009). The suit includes a letter where Strang said Hinn violated the contract by failing to work hard enough to market the book, according to the Sentinel.

He failed to make television appearances to promote it, including several on 700 Club, the television show that Pat Robertson founded.

Paula White and her husband divorced in 2007, and she left Without Walls, returning in 2009 after her husband announced his departure due to poor health. White also described the National Enquirer piece as false.

“We were never alone and were in the constant company of staff and other associates,” she said in a statement at the time. “I value my friendship with Pastor Benny and remain supportive with a deep respect of him, his family and his ministry. My relationship with Pastor Benny is genuine and pure and should not be taken out of context.”

Hinn and White were cited in Sen. Chuck Grassley’s investigation of televangelists, which recently concluded.

Source: http://blog.christianitytoday.com/ctliveblog/archives/2011/02/benny_hinn_sued.html

 

Divorce, Business Times Interview With Bertus Preller Top Divorce Attorney at Bertus Preller & Associates Inc.

Divorce and the obstacles facing matrimony in South Africa

Social networking sites should not be underestimated as contributors to divorce statistics. The impact of social network sites should not be underestimated in current divorce statistics as “virtual adultery” connects people outside of marriages.

The popularity of social networking websites  like Facebook and Mxit have brought the possibility to make new friends, and reconnect with old  friends from school or the more recent past, said Bertus Preller, a divorce and family law attorney at Bertus Preller & Associates Inc., in Cape Town. “It creates a platform for ‘virtual adultery'”. “As a divorce attorney I have seen a huge increase in the recent years in people producing print outs of emails, MXIT messages, Facebook wall screen-shots and sms messages to back up claims of their partner’s infidelity,” said Preller.

SA divorce statistics are high. Estimates suggest that 50% of all marriages end in divorce, or as much as two in three marriages end up in the divorce courts. A large proportion of those filing for divorce cite finances and money as the leading cause of separation – along with divorce or infidelity/ adultery, physical, emotional or verbal abuse, in-law problems, life transitions, addictions, childhood baggage, different life agendas, life overload, mid life crisis and controlling behaviour.

Money is a dominant theme. Many women stay in a marriage out of fear of being left with nothing. Preller said men generally want to keep their financial independence and tend to want to give away as little as possible. For many women, a divorce will be the biggest business deal of their lives.  “They need to know the financial ramifications of the decisions that they are making in the divorce and for their future. I see often that many women do not have the slightest idea of the assets of their husband,” he said.

When a couple splits, a woman’s standard of living generally drops with about 25% in the first year after a divorce. Spousal maintenance is not a right any longer, though rehabilitative maintenance i.e temporary maintenance to tie the woman over until she finds employment or until her financial position improves may be awarded to the wife depending on the circumstances of each particular case. A wife can also apply that her husband pays interim maintenance or pays a contribution towards her legal expenses pending the divorce action through rule 43 of the high court rules or she can apply for emergency monetary relief through the mechanisms of the domestic violence act if the husband abuses her financially.

Divorce is a business decision, said Preller. It is of utmost importance to obtain as much financial information as possible to establish the net worth of each party and their ability to make future payments such as child and spousal maintenance after divorce, he said.  In larger divorce matters, a divorce attorney will appoint a forensic auditor to determine the exact assets and liabilities of the parties to arrive at a fair split of the assets. Any divorce attorney should work towards what will be in the best interests of the children, if children are involved.

When an estate has very few if any assets, it may be better to use an online divorce service and it does not make sense to litigate in a divorce court because of the expense. In SA law, the patrimonial consequences of a marriage are governed by the law of the place where the husband was domiciled at the time of the marriage. If for example the husband was domiciled in England at the time of the marriage and no Antenuptial contract was entered into, the marriage will be out of community and in terms of English law. Should the parties later emigrate to SA, the marriage would remain out of community of property.

In a marriage in community of property, it is important to establish the net value of the communal estate at the date of divorce. Then one can establish what each party is entitled to. Often, spouses can’t agree on a division on the joint estate and a Receiver or Liquidator needs to be appointed to divide the assets. When a marriage in community of property dissolves through divorce, each spouse is entitled to 50% of the joint estate, which includes the parties’ pension benefits.

In a marriage out of community with accrual, an auditor often needs to be appointed to determine the accrual. Preller said however he’s been involved in a number of divorce matters where extremely wealthy people were married in community of property. They may not have received the proper legal advice, “or became so focussed on the wedding ceremony that they forget about the consequences of a failed marriage.

Where there has been a shift towards shared responsibility is with children. “When there are children involved, women generally focus more on their wellbeing than men would do. However through the years I have seen a definite shift regarding the parental responsibilities over the children”.  More and more, shared parenting arrangements between spouses over the children.

Source Sunday Times – Business Times Interview by Adele Shevel

Bertus Preller is a Divorce and Family Law Attorney in Cape Town and has more than 20 years experience in law and 13 years as a practising attorney. He specializes in Family law and Divorce Law at Bertus Preller & Associates Inc., in Cape Town. Bertus is also the Family Law expert on Health24.com and on the expert panel of Law24.com. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Custody (care and contact) of children, same sex marriages, unmarried father’s rights, domestic violence matters and international divorce law.

Contact Bertus at info@divorceattorney.co.za

http://www.divorceattorney.co.za

How not to tell your spouse you want a divorce

The cruellest way you can tell your spouse you want out of the marriage is to never mention that you are unhappy and then, one day quite out of the blue say, “I’m not happy. I want a divorce.” I call this a “hit and run” way to tell your spouse you want out of the marriage and, in my professional opinion, it is the most hurtful, hateful and heinous way to exit your nuptials.

Those on the receiving end of this proclamation would surely agree with me. A hundred per cent of the people who come to see me after their spouse has dropped this two ton bomb on them have been nothing short of devastated, bleary eyed and incapacitated–often for a long time. What, when and how you tell your spouse you want a divorce will depend greatly on whether the two of you have had any previous conversations about divorce.

Couples who have been mutually unhappy or have had conversations using the “D” word will obviously be less thrown off than those who didn’t see it coming. One woman described the day she was told this way: “My biggest concern that morning as we went to work was what we would be having for dinner that night.” She had no idea that her husband was even unhappy, let alone that he was thinking of leaving. It makes me wonder why so many people take this strategy. What could they be thinking? Or not thinking? Feeling? Or not feeling? While there are always exceptions to any rule, I have seen five main reasons why “hit and runs” are so prevalent. I’ve also included rebuttals to these reasons that demonstrate how the leaver actually ends up getting the opposite result intended.

1) Fear: If I tell him I’m unhappy, he will go to pieces and I’ll feel guilty Where’s the logic here? Do you not see that if you LEAVE suddenly he will be more likely to go to pieces and you will feel more guilty?

2) Selfishness: I don’t care about her feelings. “I just want out!” Treating someone with this level of disrespect and disregard actually keeps you in longer and stronger because the person you are leaving is in shock and often can’t/won’t accept the fact that you really mean what you are saying and that you want out.

3) Impatience: I just want to get this over with! Again, the chances of exiting quickly or gracefully diminish drastically when you give your spouse no warning of your departure. Your spouse, who may be just starting the grief process, will delay the process interminably by having to have their emotions “catch up” to yours.

4) Lack of Courage: I’m a “rip the band-aid off quickly” kind of person because I can’t stand to hurt someone If this person had courage, they would have told their spouse way back when that they were not happy. They would have had the courage to do the work it takes on themselves and on the marriage; the courage to face their problems.

5) Sneakiness: Maybe I can live a double life and he’ll never find out It is often people who have been having an affair who take this tack in leaving their marriage. They have set themselves up with a new life and they are ready to move on. I’m sure there are other justifications people can come up with as to why they leave this way, but it only serves to make the process take longer, make the separation more difficult, make your spouse more emotional and perhaps even irrational and it is not the way you treat someone you exchanged vows with.

By Susan Pease Gadoua Author, Contemplating Divorce, A Step-by-Step Guide to Deciding Whether to Stay or Go Original article at: http://www.huffingtonpost.com/susan-pease-gadoua/how-not-to-tell-your-spou_b_820042.html

Compiled by Bertus Preller Divorce Attorney – Abrahams and Gross Inc. http://www.divorceattorney.co.za

Love and Money: Tie up the loose ends before you tie the knot

The major problem with an antenuptial contract is that it is drawn up at a time when divorce is probably the last thing on one’s mind.

Yet the contract governs what will happen to a married couple’s assets in the event of divorce or dissolution of the marriage. And it has implications for married life too. Moreover, it’s a bargain compared to what a wedding costs.

There are three types of marriage regimes in South Africa:

  • In community of property – everything is pooled into a joint estate; husband and wife become owners of all assets at the time of the marriage, and all assets and liabilities thereafter. The advantage is economic equality; the disadvantage is there is no protection if one of the spouses becomes insolvent or is sued. The joint estate is then liable for the debts of both parties;
  • Out of community of property before 1984 – it is common in such a marriage for one party to have significantly more assets than the other. For instance, the wife brought up the children, while the husband was the breadwinner. In the event of divorce in this instance, the courts have discretion to award a redistribution of assets;
  • Out of community of property after 1984 – unless specifically stated in the antenuptial contract, such a marriage is subject to the accrual system; what is amassed over the life of the marriage is accrued. If a marriage out of community of property after 1984 with accrual is dissolved, the parties get an equal share of what they have amassed over the marriage, minus what they owe.

If accrual is expressly excluded, the parties have no claims against each other, other than for maintenance.

The advantage is that there is protection for spouses should the other become insolvent. Each spouse has his/her own estate and does not share in the other’s profit or loss. But not sharing in profits could be a major disadvantage for the spouse with a much smaller estate.

When drafting the antenuptial contract, the spouses can expressly exclude certain assets, such as a property or a share portfolio.

The advantage is protection should one of the spouses become insolvent. There is a fair division of profit accumulated during the marriage, but not prior to it.

Wealth, ignorance and poverty play a role in determining which format is chosen, said Bertus Preller, a divorce and family law attorney at Abrahams & Gross. Most married couples from a poor or uneducated background marry in community of property because they don’t have the means to pay the fees for an antenuptial contract, or simply lack the knowledge.

Preller said marriage out of community of property with the accrual system is perhaps, the fairest marriage system for most couples.

One of the advantages of an antenuptial contract is that there is nothing preventing one spouse from making a donation to the other – there is no donations tax between husband and wife – provided that the donor is solvent and that the donation doesn’t render him/her insolvent.

This is the only regime that allows for tax-free donations between spouses.

The reason for the accrual system is, essentially, to protect the wife.

One’s circumstances will usually dictate what marriage option to choose. In a second marriage, for example, the couple may be in their 40s or 50s and exclude accrual altogether. There may be children from earlier marriages. Accrual would affect what children inherit.

To be valid, the antenuptial contract must be signed by both parties prior to the marriage before a notary public. It must be registered at the Deeds Office within three months of marriage.

Attorneys’ and/or notaries’ fees to draft and register a simple antenuptial contract vary between R1000 and R3000.

To change it, the parties must make a court application and place adverts seeking creditors’ approval. The cost is between R10000 and R20000.

Source: Times Live

About Bertus Preller:

Bertus Preller is a Divorce and Family Law Attorney in Cape Town and has more than 20 years experience in law and 13 years as a practising attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. in Cape Town. Bertus is also the Family Law expert on Health24.com and on the expert panel of Law24.com. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters and international divorce law.

Parenting after Divorce, helping your children to cope with divorce

Parenting after Divorce

Following divorce, the role of a spouse ends, yet the role of a parent continues.

The following questions may be helpful –

  • How can I be involved in my child’s life?
  • How do I manage parenting if my ex spouse and I can’t get along?
  • How can I get along with my ex spouse well enough to parent our children together?

Co-parenting means that both parents play an active role in their children’s day-to-day lives. A vital key to successful co-parenting arrangements is how well the parents function. What works best for some divorced parents may not work well for others.

Research has shown that benefits of co-parenting include:

  • Children develop stability.
  • Children continue relationships with both parents.
  • Children are less likely to feel torn between their parents.
  • Children are less likely to feel abandoned.
  • Children are less likely to feel they have to meet the social and emotional needs of their parents.

In every divorce, parents must recognize the importance of finishing what they started namely raising their children. Divorce is extremely difficult for most children. They benefit when they have relationships with both parents and they tend to adjust better to divorce when:

  • Parents don’t place their children in the middle of their conflicts.
  • Both parents respond to the needs of their children.
  • They have a good relationship with both of their parents.
  • Parents don’t argue, especially when their children are present.

Problems between parent and child may result from problems between parents

Problems may develop if parents send messages to each other through their children. Problems also arise when a parent talks negatively about the other parent. Children may feel guilty and unsure of their parents’ love when they’re caught in the middle. If a parent asks about a former spouse, children may report that things are fine, even if they’re not. Or children may say things to make one of the parents feel bad. Again, don’t use your children by putting them in the middle. If you want to know something about your ex-spouse, ask that person yourself.

Parents often disagree on how to discipline their children. When mothers and fathers have different rules, children may not respect either set of limits, or they may use the differences to gain power over parents. For example, a mother may change a curfew and the daughter may say to her father, “Mom lets me stay out until midnight.” It’s important to have clear rules and boundaries in your household. Try not to feel guilty if your rules are different than those of your ex-partner. If you are comfortable with the rules you have set, stick with them. When it seems you and your former-spouse can’t agree on certain issues, it helps to restate common goals.

Helping children adjust

Children can adjust to a variety of living patterns, including living in two homes. How well children adjust depends on whether parents can minimize their conflicts, stop arguing and focus on their children’s needs. When parents can’t agree, tell the children there will be separate rules in each home. It may be frustrating, but it’s important to remember that your children need you to be a strong, positive influence in their lives.

The following books can be recommended on the subject of parenting:

Helping your kids cope with divorce the sandcastles way.

The author will empower you to contain your children’s anxiety and feelings of insecurity and to re-establish a measure of equilibrium as effectively as possible. Using loads of case studies from her extensive files, Anne highlights the following: How, when and where to inform your children in an age-appropriate and honest way; Emotional support for you, the parent; Guidance on effective parenting skills to help your children. The how to of active listening, anger management and clear, firm and consistent boundary setting – all with practical examples.

This revised and updated second edition features ideas from the latest research, more information on long-distance parenting, dealing with the courts, and working with a difficult co-parent. “Parents argue a lot before a divorce,” says Dr. Stahl. “If they continue to argue after the divorce, their children will suffer.” Stahl knows parents are not perfect, and he uses that knowledge to show imperfect parents how to settle their differences in the best interests of the children. Often required reading in court-mandated divorce education classes.

Invaluable parenting advice on how to coparent. during and after divorce, from a sought-after expert on parenting topics. As a court-appointed child custody evaluator for 15 years, Dr. Peter Favaro is uniquely qualified to write this must-have guide for parents going through divorce. A child psychologist, he understands the effects divorce can have on families, especially when difficult exes, lawyers, visitation schedules, and other issues directly affect the child. Favaro addresses 50 essential topics in. short, easy-to-read chapters, including 100 dos and donts that will make things easier on your child–and better for your family.

Compiled by:

Bertus Preller is a Divorce and Family Law Attorney in Cape Town and has more than 20 years experience in law and 13 years as a practising attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. in Cape Town. Bertus is also the Family Law expert on Health24.com and on the expert panel of Law24.com. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters and international divorce law.