Children – don’t stop the other parent from having access to his/her child

Refusal of access or refusal to exercise Parental responsibilities and rights

It happen frequently that one party who holds parental rights in terms of a minor child will block the other parent’s access to that child notwithstanding the fact that they have entered into a parental rights and responsibilities agreement. Once such an agreement was a made an order of court or registered at the family advocate’s office violation of rights contained in such an agreement may lead to a criminal offence.

Section 35 of the children’s act criminalizes the refusal to allow someone access or who holds parental responsibilities and rights in terms of a court order or a parental responsibilities and rights agreements that has taken effect, to exercise such access or parental responsibilities and rights. It also criminalizes prevention of the exercise of such access or parental responsibilities and rights. Punishment for any of these offences is a fine or imprisonment for up to one year.

The section further obliges a person who co-holds parental rights and responsibilities with another person in terms of an agreement or court order to notify the other party in writing immediately of any change in his/her residential address. Failure to notify such party will result in an offence.

Bertus Preller is a Divorce and Family Law Attorney who acts in Divorce matters in Cape Town, Johannesburg, Durban and Pretoria 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.

DIVORCE AND FAMILY LAW ATTORNEY CONSULTS IN CAPE TOWN, JOHANNESBURG, PRETORIA AND DURBAN

DIVORCE AND FAMILY LAW ATTORNEY CONSULTS IN CAPE TOWN, JOHANNESBURG, PRETORIA AND DURBAN

Bertus Preller is a Family and Divorce Law Attorney at Abrahams and Gross Inc. and offers expert advice and assistance in all aspects of divorce, separation and family matters. Due to demand he is also now offering weekly consultations in Johannesburg, Durban and Pretoria on all family law related matters. He offers a broad knowledge and years of experience of the whole range of family law issues and consider with you how best to resolve and help you to achieve your aims.

When considering children matters, he aims to assist you in resolving matters in a way that reflects the best interests of the children. His team can help you in preparing agreements to reflect what you would wish to happen should your relationship break down and can help you deal with any litigation arising either from divorce or break down of a relationship.

Whether advising in the context of divorce or separation his team recognise and understands the level of stress and emotional trauma that accompanies the breakdown of a marriage. There approach is to advise and assist in a sympathetic but objective manner. The team are sensitive to the very personal issues involved and are able to recommend suitably qualified professional counsellors/mediators, where appropriate.

DIVORCE

Married couples can dissolve their marriage through divorce. This ends the marriage and the divorced parties can then legally marry again. The divorce process will depend on whether the marriage is a civil marriage or a customary marriage. Civil marriages gets dissolved according to the rules and procedures set out in the South African Divorce Act. Marriages in terms of African Customary Law are dissolved according to the civil law but some of the consequences are determined by custom and tradition. Muslim and Hindi marriages are dissolved in terms of the rites and rituals of the religion.

There are a number of issues that need to be addressed in a divorce, including:

  • custody of the children
  • access to the children
  • maintenance
  • dividing up property
  • Contested Divorces

Contested Divorces are when the Parties involved cannot reach an agreement. A contested divorce can last anything between 3 months to 3 years and can be extremely expensive financially and emotionally draining.
Many Contested Divorce cases still do not go on Trial and are settled long before they end up in Court. It is extremely difficult to assess the costs of a Contested Divorce, for these matters his team would bill at an affordable hourly rate – as do the other Professional Practitioners who will become involved in this matter – for example Advocates, Psychologists, Private Investigators and the like.

The team is extremely flexible on fees when they act  in a Contested Divorce and negotiate our fees with due cognisance of the client’s income and what the client can afford. Client’s also know exactly what they are in for to enable right from the start.

Uncontested Divorces

This is by far the least expensive process to get divorced and recommended if you have been married for a short time, you don’t have children, you don’t have many assets, and you can talk to each other and reach agreement on the settlement. eDivorce is a DIY divorce servive founded by Bertus Preller. The eDivorce process has two Divorce Plans from which you can choose:

The Silver Plan – R 950 + Sheriff fee of between R 100 – R 150

  • All your divorce forms – completed for you by the eDivorce platform and checked by divorce experts
  • Step-by-Step Guide -W ritten in plain English and easy to follow
  • Fast Service – Documents delivered within 24 hours guaranteed

The Gold Plan – Managed Divorce Service – R 6 000 all inclusive

  • The price you pay is fixed from the start of your case and includes everything you will need.
  • Why choose our Gold Plan Managed Divorce Service?
  • No complicated form filling – We will do that for you.
  • All your required divorce documents-Prepared and completed by divorce specialists
  • 7 day a week service- We are open when it is convenient for you.
  • All documents filed at court for you – We deal with all the filing and admin.
  • Settlement Agreements are catered for- We can help you, with or without children
  • Get a Free Will – For both Husband and Wife if you need one.
  • Divorce in 4 to 6 weeks -Fast service guaranteed.
  • Attorney supervised – All services supervised by an Attorney
  • Appearance at Court – We appoint an Attorney or Advocate to appear on your behalf at Court.
  • Professional and Trustworthy
  • Save over R 2000 – Fixed fee for all the work

DIVORCE MEDIATION

The court system is the way disputes are decided, but there are now more effective and very different ways of resolving conflict than just going through our courts. Mediation is a voluntary and confidential process in which a mediator facilitates communication between the parties, assists them in identifying the issues to be settled and helping them reach a mutually agreeable resolution for their dispute. We specialize in mediating divorce and family issues.

Mediation can guide a couple through the many complex processes of divorce and can help them to make decisions regarding the division of their assets, custody, visitation rights and child support. We can also mediate and draft a Parenting Plan, offering a framework for divorced parents to help them to stay close to their children after the inevitable separation.

MAINTENANCE

We assist clients in both maintenance claims in regard to a spouse as well as the children. When a couple get divorced, one party is often in a much better financial position than the other. In order for a court to award maintenance to a spouse there must be a need for such maintenance and an ability to pay. In case of maintenance of children both parents have a duty to support their children having due regard to their financial positions.

RULE 43 APPLICATIONS

We assist clients in obtaining maintenance pending the finalisation of the divorce proceedings. A Rule 43 Application is an interim application which is brought mainly in cases of contested divorces in order to obtain interim relief pending finalisation of the divorce. The relief which can be requested include maintenance for the wife, maintenance for the children, interim custody and control or access to the children and interim contributions towards legal costs.

MATRIMONIAL PROPERTY & PROPRIETARY CLAIMS

We assist clients with advice regarding the proprietary claims in their marriage. In a marriage in community of property, division of the joint estate is a natural consequence of a divorce. Forfeiture of benefits of the marriage in community of property can however be claimed by a party. The court would have regard to various factors i.e. the duration of the marriage, circumstances leading to the breakdown, misconduct of one of the parties etc.
Where the marriage is out of community of property specifically excluding the cruel system and entered into after 1 November 1994, on dissolution of the marriage in essence each spouse retains his or her own separate assets. There are, however various other potential claims which may be instituted based on moneys loaned and advanced, universal partnerships etc. Where a marriage is out of community of property without the accrual and entered before 1 November 1984 a redistribution order in terms of section 7 (3) of the divorce Act can potentially be claimed by a successful party. In order to be successful, a party must satisfy the court that he or she contributed directly or indirectly to the increase of the estate of the other.

Where the marriage is out of community of property subject to the accrual system the net assets of each spouse is determined. Any assets specifically excluded from the operation of the accrual in the Antenuptial Contract are excluded from the calculation.

Any commencement value, increase in accordance with the rise in the Consumer Price Index (CPI) from date of marriage to date of divorce, is deducted from the accrual to each party’s estate. The net results (estates) of each party are considered and the lesser net accrual deducted from the greater.

The net difference between the parties is then divided in two or in such other ratio as the parties may have agreed in their Antenuptial Contract and the party showing the greater accrual shall pay the other such amount in settlement of the patrimonial consequences of the marriage.

FAMILY – DOMESTIC VIOLENCE AND ABUSE INTERDICTS

We assist clients in obtaining protection orders under the domestic violence act in cases where domestic violence has been committed. Domestic violence includes physical abuse, sexual abuse, and emotional, verbal and psychological abuse.

It further includes intimidation, harassment, stalking, and damage to property, entry into someone’s residence without consent where the parties do not share the same residence or any other controlling or abusive behaviour towards the complainant.

VISITATION – CUSTODY AND ACCESS

We assist clients in every aspect of obtaining custody, access and/or visitation rights as well as drafting proper parenting plans in terms of the new Children’s Act. We also assist clients to obtain endorsement of Settlement Agreements at the family advocate where children’s rights are at stake.

ADOPTION

Adopting a child in South Africa is a complex matter. We work in conjunction with social workers in private practice who offers personalised and professional services four South African and International adoptions.

COHABITATION AGREEMENTS

In an age when one out of every three marriages fails, parties with a trail of prior relationships and marriages behind them may prefer to live together, rather than get married to each other. These couples and same-sex or heterosexual partners who choose not to get married should sign a domestic partnership ( life partnership or cohabitation) agreement to protect themselves should their relationship come to an end.

PARENTING PLANS

We assist both divorced couples and unmarried couples with formulating parenting plans that is in the best interest of their minor children.

PRIVATE INVESTIGATIONS

We assist clients in investigations regarding matrimonial services such as a cheating spouse. We formed an alliance with a reputable private investigation organisation which is based nationally who can investigate any matter notwithstanding whether it is of a matrimonial or financial nature.

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.

Can a father reclaim maintenance when it is found that he is not the natural father of the child?

The following case illustrates that a father who pays maintenance under the impression that he is the natural father of a child may not have a claim to sue the mother of the child to repay the maintenance when he eventually finds out through a paternity DNA test that he is not the natural father of the child.

The case of Nel v Jonker in the High Court in Cape Town concerned an appeal from the Magistrates Court. The Appellant (the Defendant in the court a quo) and the Respondent (the Plaintiff a quo) were married to each other on 25 February 1989.  Their union bore a daughter, Nicole, who was born in June 1990.  For the sake of convenience I shall refer to the parties as in the court a quo.

On 3 February 1995 the parties were divorced by order of this Court and pursuant thereto the Plaintiff was directed to maintain Nicole by effecting payment of the sum of R350,00 per month and to retain her on his medical aid fund.

It was common cause that during the period February 1995 to June 2006 the Plaintiff paid to the Defendant the sum of R50050,00 in respect of maintenance for  Nicole.  The said sum included payment of an amount of R1000,00 to the Edgemead Primary School in January 2000.

In June 2006 Nicole underwent a paternity test which showed conclusively that the Plaintiff was not her natural father. On 30 July 2007, pursuant to an application brought by the Plaintiff, this Court issued an order declaring that he was not the natural father of Nicole and, inter alia, varying the divorce order in terms of Section 8 of the Divorce Act, 70 of 1979, by the deletion of the Plaintiff’s maintenance obligations towards Nicole. At the same time the Plaintiff instituted action in the Magistrate’s Court for recovery of the sum of R50050,00  His claim was upheld and the Defendant now appeals against the order of the magistrate.

It was common cause that the parties were married on 25 February 1989 and that Nicole was born on 12 June 1990.  Assuming a normal pregnancy of nine months, this would mean that the Defendant committed an act of adultery around September/October 1989 during which the child would have been conceived.

We know nothing about the circumstances of this dalliance because there was no evidence put before the magistrate in that regard.  The Plaintiff testified that he had always believed that he was the natural father of the girl and that he raised her as such with the Defendant until they were divorced in February 1995. The Plaintiff further testified that he did not oppose his wife’s claims at divorce because he regarded the marriage as irretrievably broken down and because he believed that he was obliged to maintain the child whom he regarded as his daughter. After the divorce the Plaintiff maintained Nicole for more than ten years.  He testified that he later became resentful about the Defendant’s persistent claims for maintenance increases and eventually decided to ask for a paternity test.  The Plaintiff also testified that he was urged by certain family members to go for such tests.  They evidently had reason to suspect that the Plaintiff was not the father and eventually he succumbed to their entreaties.

The Plaintiff concluded by saying that the Defendant never confessed her adultery to him and that his impression was that she never had any idea of who the real father of the child was. Under cross-examination the Plaintiff accepted that he had defaulted on his maintenance obligations over the years but said that he had then paid up in full from time to time.  He confirmed that he had paid the maintenance because he was obliged to do so in terms of the divorce order. As I said earlier, the Defendant did not testify and so one does not know the circumstances surrounding her pregnancy.  Importantly, there is no evidence to suggest that she knew that her adultery had resulted in the birth of Nicole and that she intentionally withheld that information from the Plaintiff.  Had that been the case her claim in the divorce action for maintenance for the child would have been fraudulent and would have afforded the Plaintiff a different cause of action.

The Plaintiff’s legal obligation to pay the maintenance in respect of Nicole arises directly from an order of this Court and was accordingly an obligation he could not avoid.  The basis therefor was his assumption that a child born during the subsistence of the marriage was fathered by him.  This is in accordance with the rebuttable common law presumption: pater est quem nuptiae demonstrant.

While it cannot be contended that the Plaintiff laboured under a mistake of law, the divorce order was underpinned by an erroneous factual assumption, (paternity) either by the parties jointly or, at least, by the Plaintiff.  The Judge demonstrated  that the Supreme Court of Appeal has disregarded any notional distinction between mistakes of law and fact:  the focus is essentially on whether the payment was made indebitum i.e. without legal ground.While the parties were still married the Plaintiff maintained the child as a member of the household, believing that she was his child and that he was duty bound to do so.  When the Defendant issued the divorce summons and claimed payment of maintenance for the child, the Plaintiff still believed that Nicole was his daughter.  As stated, by not contesting the divorce action, he effectively consented to the Defendant’s claims, which included claims in compliance with the provisions of Section 6 of the Divorce Act which preclude the granting of a decree of divorce until the Court is satisfied that adequate provision has been made for the care and maintenance of any child born of the marriage.

Given the findings which the Judge made, it was not necessary to come to a final decision on this aspect of the case.  Suffice it to say that courts may in the future be wary of recognising claims in circumstances such as the present which necessitate an enquiry into paternity and which may have the tendency to destroy an otherwise loving and caring parental relationship with a child whose rights to family and parental care are protected under section 28 of the Constitution.

The Judge found that the court a quo erred in finding that the Plaintiff had established a claim of enrichment.