International abduction of minor children a South African Law Perspective

International abduction of minors a South African Perspective

Article 3(b) of the Hague Convention on the Civil Aspects of International Child Abduction (1980), which is incorporated into South African law by the Hague Convention on the Civil Aspects of International Child Abduction Act 72 of 1996 (the Act), provides that the removal or retention of a child is to be considered wrongful if, among others, at the time of the removal or retention, the rights of custody were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

In terms of article 13(b), the authority of the requested state is not bound to order the return of the child if the person, institution or other body in the other state that opposes the return or retention establishes that there is a grave risk that his return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. In Central Authority of the Republic of South Africa and Another v LG 2011 (2) SA 386 (GNP) the second applicant, the father, and the respondent, the mother, were married and living together with their minor child in the United Kingdom (UK). After several heated arguments the parties agreed to divorce and that the respondent would return to her native South Africa with the child. Alleging that the respondent agreed to return with the minor child to the UK after attending a wedding in South Africa and as she failed to do so she had unlawfully retained the child in this country, the second applicant (with the help of the first applicant, the Central Authority of South Africa) applied for a court order for the return of the child to the UK. The application was dismissed with costs.

Molopa-Sethosa J said the fact that the second applicant was prepared to stay away from the minor child, who was only 17-months-old at the time, for at least six months when the child was in South Africa with the respondent (who was during that time considering whether reconciliation with the second applicant was possible) was not indicative of a close bond between the second applicant and the child. Furthermore, the child would be exposed to the risk of psychological harm if he were to be returned to the second applicant who did not have the best interests of the child at heart. The fact that since the child had been in South Africa his health improved tremendously was of the utmost importance and could not be ignored.

Best interests and views of a child in international abduction matters:

In Central Authority v MR (LS Intervening) 2011 (2) SA 428 (GNP) the court dealt with the best interests of a minor child and her views in an international child abduction matter. After the death of her mother the minor child of some nine years lived with her biological father in Belgium. Subsequently the two relocated to Los Angeles, in the United States of America (USA), because of the father’s professional commitments.

There the two lived with the father’s new wife. After the child visited her maternal grandmother in Hoedspruit, Limpopo, the grandmother prevented the minor child returning to the father in Los Angeles and instituted an ex parte application to keep the child in this country. She sought, pending the final outcome of the family advocate’s investigation, full parental rights and responsibilities in respect of the minor. Meanwhile, the father sought the return of the child to the USA. The court dismissed the father’s application, but ordered the grandmother to pay costs because of the unacceptable way she instituted ex parte proceedings and for not being candid with the court.

Top South African Divorce Attorney shares information on Antenuptial Agreements or Prenup Agreements

Top South African Divorce Attorney shares information on Antenuptial or Prenup Agreements

We tapped the brain of Bertus Preller one of Cape Town’s best divorce and family law attorneys on Antenuptial or Prenup Agreements. Bertus Preller is based in Cape Town and has more than 20 years experience in most sectors of the law. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. in Cape Town and litigates in divorce matters across the country. He is also the Family Law expert on Health24.com and on the expert panel of Law24.com and is frequently quoted on Family Law issues in newspapers such as the Sunday Times and Business Times. His clients include celebrities, actors and actresses, sportsmen and sportswomen, television presenters and various high net worth individuals as well as ordinary people. He has a deep passion for matters involving children. His areas of expertise are Divorce Law, Family Law, International Divorce Law, Divorce Mediation, Parenting Plans, Parental Responsibilities and Rights, Custody (care and contact) of children, same sex marriages, unmarried father’s rights, domestic violence matters.

What is an Antenuptial agreement?

It is a contract entered into by two people, prior to their marriage, in which they stipulate the terms and conditions for the exclusion of the community of property between them. It ensures that one spouse’s creditors cannot hold the other person liable for repayment of debt, unlike when people marry without entering into an Antenuptial Contract, i.e. ‘in community of property’.

An Antenuptial Contract can also include any terms and conditions as long as they are not contrary to public policy. Most of these terms and conditions relate to the division of assets should the marriage be dissolved due to either death or divorce. During the marriage each spouse will retain his/her separate property and would have complete freedom to deal with that property as he/she chooses. This would not be the case if the parties were married ‘in community of property’.

Who needs an Antenuptial agreement?

While antenuptial agreements (“prenups”) are recommended to anyone for whom they make good economic and personal sense.

People who may benefit from prenups include those who:

  • Have assets, even if they are not considered wealthy
  • Owned a business prior to getting married
  • Have children from a previous marriage
  • Will marry someone with a poor financial track record, high-risk business investments
  • Want to avoid the emotional and financial stress associated with a contested divorce
  • Want a quick and inexpensive method of ending their marriage, if it should fail eventually
  • Want to protect their assets in the event of divorce or death

What types of issues can be included in an Antenuptial agreement?

Antenuptial agreements or prenups can include provisions relating to:

  • The rights and obligations of each of the parties regarding property owned or acquired by either, at any time and wherever located
  • The exclusion of property or business
  • Donations made to a spouse
  • The allocation, division and distribution of the parties’ assets and debts upon divorce or death
  • Any other matter that isn’t illegal or in violation of public policy

Should an Antenuptial agreement be considered cast in stone or can it be varied during the course of the marriage?

It is possible to change your Antenuptial agreement on application to the High Court.

What is meant by a Marriage out of Community of Property?

Each spouse retains his or her own assets and liabilities whether acquired before or during marriage. There is no sharing of profits and losses. Both spouses have full and independent contractual capacity. Upon death or divorce, each spouse keeps control over their own assets. This clearly gives parties absolute independence of contractual capacity and protects the estates of each party against claims by the other party’s creditors. There is no provision for any sharing whatsoever. A party who contributed to the other party’s estate whether in cash or otherwise would have a heavy onus to prove that he or she was entitled to anything from that party’s estate on dissolution of the marriage. Where one party stays at home to raise children and does not contribute financially towards the marriage and the other spouse works and accumulates assets, the former may find herself with nothing and no claim to the assets of the latter. The marriage is governed by a contract known as an ante nuptial contract which is concluded by the parties before the marriage. If the marriage occurred after 1 November 1984, the contract had to specifically exclude the system of accrual. In the absence of this exclusion the rules of accrual will automatically apply.

What is meant by a Marriage out of Community of Property with Inclusion of the Accrual System?

The Matrimonial Property Act 88 of 1984 brought with it the “accrual” system which permits a form of sharing, consistent with a primary objective of marriage, but permitting retention of each party’s independence of contract and ability to retain their own unique separate estates. “Accrual” means increase. The accrual system is a form of sharing of the assets that are built up during the marriage. The underlying philosophy in respect of the accrual system is that each party is entitled to take out the asset value that he or she brought into the marriage, and then they share what they have built up together. One spouse’s property cannot be sold to pay the other’s creditors if the other becomes insolvent – in contrast to the case where the parties are married in community of property. It is of utmost importance that a party wishing to enter into an Ante Nuptial Contract must fully understand what it is they are signing. It is for this reason that a standard form contract cannot be used, that consultations cannot be held over the phone or by means of email and that, unfortunately. The important features of an accrual marriage are in essence the following: Each party retains his or her own estate. Each party may accumulate assets and incur liabilities without interference from or assistance of the other spouse. The estate of each party is determinable separately. The monetary value of the smaller estate is subtracted from the monetary value of the larger estate, the difference is split, and the party having the larger estate pays half of the difference between the two estates to the party with the smaller estate. At dissolution of the marriage, the estate of each party is calculated by listing all assets, listing all liabilities, subtracting liabilities from assets and arriving at a net asset value. In practical terms this amounts to a similar division to a marriage in community of property. However there are certain crucial factors of an accrual marriage which add complexity and much more freedom of choice. When drafting the Ante Nuptial Contract, the parties can each decide to exclude certain assets. The effect of excluding an asset will be that it does not feature on the asset statement at dissolution of the marriage and is completely excluded from the calculation. Assets which are not properly described can cause huge problems when the executor or the divorce attorney tries to decide what to do with it in calculating the net accrual value. To exclude either a specific asset, or a commencement value, or both (which must be separate and not derived from the same asset), can effectively ensure that couples share only what they choose to share and keep separate any item or items, or values, which they do not believe it fair to share (for example something acquired before the relationship commenced). Parties not wishing to exclude specific assets may exclude a certain sum of money which is the agreed equivalent of assets which they do not wish to share, and which is termed a “commencement value”. Excluded from the Accrual Certain property belonging to either the husband or the wife may not be taken into account when the accruals are worked out: Any damages awarded to either spouse for defamation or for pain and suffering; Any inheritances, legacies or gifts that either spouse has received during the marriage, unless the parties have agreed in their antenuptial contract to include these or the donor has stipulated their inclusion; A donation made by one spouse to the other. This is not taken into account as part of either the giver’s or the receiver’s estate, with the result that the giver cannot recover part of what he or she gave and the receiver need not return any of it.

SAMPLE OF AN ANTENUPTUAL AGREEMENT WITH ACCRUAL

This agreement is a sample and is of a general nature. Certain additions and ammendments may be required to suit your specific needs.

It is hereby certified that a R10.00 stamp is affixed to the original contained in my protocol register. PROTOCOL NO : _________________________

ANTENUPTIAL CONTRACT

with the

APPLICATION OF THE ACCRUAL SYSTEM

in terms of the

MATRIMONIAL PROPERTY ACT, 1984

BE IT HEREBY MADE KNOWN THAT on this _________________day of ________________________ 2011 before me

(INSERT NAME OF NOTARY PUBLIC) Notary Public, practising at Pretoria in the Province of _______

appeared

FULL NAME: _______________________ IDENTITY NUMBER: ________________ UNMARRIED

-and-

FULL NAME: ________________________ IDENTITY NUMBER: _________________ UNMARRIED

And the appears declared that whereas a marriage has been agreed upon, and is intended to be solemnised between them, they have agreed and now contract with each other as follows :

1. That there shall be no community of property between them.

2. That there shall be no community of profit or loss between them.

3. That the marriage shall be subject to the accrual system in terms of the provisions of Chapter 1 of the Matrimonial Act, 1984 (Act No. 88 of 1984).

4. That for the purposes of proof of the nett value of their respective estates to be as follows: that of (INSERT FULL NAME) to be R 000.00 consisting of :_______ (INSERT DETAILS) that of (INSERT FULL NAME) to be ZERO

5. That the assets of the parties or either of them, which are listed hereunder, having the values shown, and all liabilities presently therewith, or any other asset acquired by such party by virtue of his possession of former possession of such asset, shall not be taken into account as part of such party’s estate at either the commencement or the dissolution of the marriage.

The assets of (INSERT FULL NAME) so to be excluded are R000.00 consisting of : (INSERT DETAILS)

The assets of (INSERT FULL NAME) so to be excluded are NONE

THUS DONE AND EXECUTED at _________________________aforesaid on the day, month and year first aforewritten in the presence of the undersigned witnesses.

AS WITNESSES:

1.

2.                                                      ………………………………………………………

THUS DONE AND EXECUTED at _________________________aforesaid on the day, month and year first aforewritten in the presence of the undersigned witnesses.

AS WITNESSES:

1.

2.                                                      ………………………………………………………

QUOD ATTESTOR NOTARY

The Effects of Divorce on Children

The Effects of Divorce on Children

As a family law attorney I am involved on a daily basis in stories about divorce or care and contact issues between parents and children and many times I see how the loss of a parent has affected the lives of children. Although my approach is  always clinical, I’m often saddened by these stories, but in awe as to how many of these adult children have risen above their loss to develop an emotionally healthy outlook on life.

It was with great interest that I watched psychotherapist, Gary Neuman, who appeared on one of Oprah’s shows. Gary interviewed two young children, a brother and sister; they were abandoned by their mother when she divorced her husband, their father. Both children were crying, and yet were remarkably articulate in their description of their thoughts and feelings regarding their mother’s abandonment of them due to divorce. While parents do divorce each other, they don’t divorce their children.

Children nonetheless are the ones who live out the divorce because their day-to-day routines, not to mention their emotional lives, are so deeply affected by it. And of course, the impact of being estranged or abandoned by a parent as a result of divorce can have far reaching and long lasting consequences on their lives. A number of experts on children of divorce question whether the abandonment or estrangement necessarily leads to lifelong behavioural and emotional scarring. What they do find is that one parent’s love, nurturing, and support, can go a long way to helping a child overcome many of the emotional and behavioural issues that otherwise could ensue.

It is a fact that divorce can affect the closeness of the parent versus child relationship for a number for reasons and can take a serious emotional toll on the child. Joan Kelly, one of the America’s foremost experts on children of divorce, defines an estranged relationship between a parent and child as a diminished, thinned out, and less meaningful bond. She says that 24% of children in the United States from divorced families are seeing a parent once a year, if at all and one may assume that this figure is even bigger in South Africa.

In his research, Robert Emery Director of the Centre for Children, Families, and the Law at the University of Virginia, found that non-residential fathers saw their children only 4 times per month following divorce, and about 20% of children had no contact at all with their fathers 2-3 years after divorce. Other research have concluded that, many students of divorced parents who had a limited relationship with their fathers while growing up stated that they would have liked more contact with their fathers during their adolescence, would have liked to have been closer, and wanted more time together. It is a fact that a parent’s rejection of a child or a parent’s inconsistent presence could drastically affect a child’s self esteem.

One good parent who is loving and nurturing can overcome the negative effects of losing the relationship with the other parent. While the emotional impact on a child resulting from the loss of a parent’s relationship could be significant, it doesn’t have to be disastrous.

The following advice should be considered:

  • Family is not a just about biology. Find role models who will support and care about you. Be there for your kids.
  • Be reliable, pay maintenance, show your love, and do what you say you are going to do.
  • Provide help. Initiate the conversation about their loss of the relationship with their other parent.
  • Lend an understanding ear. Don’t lecture, and don’t feel you have to have the perfect answer.
  • Honesty. Find help for what to say to your children if you don’t know what to say. Children need to be heard.
  • You can’t control what the other parent does; you can only control yourself.
  • To help your children get through their pain, ensure that they feel heard and listened to –that gives them value.

You want your children to perceive themselves with their own goals and aspirations, independent of their status as the children of divorce.

Bertus Preller is a Divorce and Family Law Attorney in Cape Town and has more than 20 years experience in most sectors of the law and 13 years as a practicing 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 and is frequently quoted on Family Law issues in newspapers such as the Sunday Times and Business Times. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Parenting Plans, Parental Responsibilities and Rights, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters, international divorce law, digital rights, media law and criminal law.

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E: bertus@divorceattorney.co.za; W: www.divorceattorney.co.za; Blog: www.divorceattorneys.wordpress.com;  Twitter: www.twitter.com/edivorce; Facebook: www.facebook.com/divorceattorneys; Skype: divorceattorney

Financial Tips for Women Facing Divorce

Financial Tips for Women Facing Divorce

Financial Tips for Women Facing Divorce

While neither gender has an exclusive lock on money management skills, the financial deck is stacked against women. Women earn about three-quarters of what men earn. In a divorce, they get less of the assets and more of the children. They live longer, and one in eight elderly women lives in poverty, compared to one in 12 men, according to  figures from the U.S. Department of Health and Human Services, the same may apply in South Africa. Unfortunately, many women view money and money-related tasks as necessary evils, not opportunities to even the odds.

The divorce rate is beginning to tick upward for couples who have been married for several years, decades or longer.

Recent media reports tell the tale, and it’s easy to point to the divorces of long-time couples like Arnold Schwarzenegger and Maria Shriver, Al and Tipper Gore and others for evidence of what many now consider a growing trend across the world.

Older women who have been in long-term marriages must nowadays confront unique financial issues when they’re facing divorce. Just as younger brides have their own set of concerns to mull over; older women have to pay special attention to a number of financial matters specific to their age and the often sizeable assets that have accumulated over the course of a lengthy marriage.

For example, women who have been married for some time and facing divorce must be particularly vigilant about protecting their:

1.         Business

Even though it may seem incredibly unfair, a divorce can ruin your business –unless you have taken the appropriate steps to “divorce-proof” it (ideally while you were still single).

How can a divorce ruin your business? Consider this:

If you nurtured a business, and it increased in value while you were married, the amount of increased value must usually be included as part of the marital assets that will be divided between you and your husband, unless of course if you got married out of community of property without the accrual. It doesn’t matter who operated the business or how it’s titled.

2.         Retirement funds

Divorce requires the careful scrutiny of all retirement annuities and pension funds. It’s essential for your divorce settlement agreement to clearly spell out how these assets will be split and how those funds will be transferred.

Many women often make the mistake of assuming that a divorce order will fully protect their rights to their portion of their husband’s retirement annuity or pension fund. This is usually not the case, and the settlement agreement need to be drafted in a particular way to include these assets.

3.         Insurance

Most women pay careful attention to their health insurance needs. But, don’t forget: In your new role as a single woman, you’ll need to consider life, property/casualty and disability insurance, as well. What’s more, if you will be receiving child maintenance you will want an insurance policy that protects you financially in the event something happens to your ex-husband.

4.         Short-term and long-term financial stability

Following your divorce, you’ll need financial stability in the short-term, and you’ll have to take the right steps to plan for financial security into your retirement years.  For starters, you must create a budget that will allow you to maintain your lifestyle, pay off debt and increase your savings.

But, what happens if the divorce settlement doesn’t provide enough income to pay your expenses? In that case, you will need to start immediately liquidating assets to maintain your lifestyle.

5.         Assets that he concealed

What happens when you find out 2 years after the divorce of certain assets that your husband did not disclose and which would have had an impact on your initial divorce settlement? A good divorce attorney will know how to deal with issues such as these in a divorce settlement agreement, to allow a claw back to claim any assets that your ex might have hide.

The following steps may be recommended for women in a divorce:

  1. Set a financial goal — be as diligent about money as you are about fitness or your career or about anything else.
  2. Train yourself to be financially independent — don’t allow yourself to become reliant upon your partner’s decisions, and become involved in long-term financial planning.
  3. Buy your own home — don’t wait for Prince Charming to come along and do it for you.
  4. Fund your retirement annuity — an important step for everyone, not just young women.
  5. Opt for long-term planning over crisis management — get serious about money now; don’t wait for trouble to strike.
  6. Start investing — do it now, and don’t be afraid to make mistakes.
  7. Don’t fear risk — women are especially prone to conservative investments; be willing to seek aggressive growth when appropriate.
  8. Don’t go it alone — work with a financial planner to educate yourself and to feel more secure in your decisions.
  9. Know that it’s never too late — remember that you can start late and finish rich.

About the author:

Bertus Preller is a Divorce and Family Law Attorney in Cape Town and has more than 20 years experience in most sectors of the law and 13 years as a practicing 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 and is frequently quoted on Family Law issues in newspapers such as the Sunday Times and Business Times. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Parenting Plans, Parental Responsibilities and Rights, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters, international divorce law, digital rights, media law and criminal law.

Cohabitation and Living Together

Gone are the days of “single” or “married”. You only have to look at Facebook’s relationship declaration options to know that today’s partnerships come in all shapes and sizes. But what are the financial risks of being involved in a long-term relationship that is not formally recognized as a marriage?

Patterns of marriage, divorce and cohabiting without marriage had been changing for years. The incidences of domestic partnerships are growing throughout the world, according to the 1996 census, 1.3million people described themselves as living with a partner. When the 2001 census came around, this figure had almost doubled to nearly 2.4million. Many people believe that, if they live together for some time, the relationship will be recognized by the state, and there will be legal rights, duties and protection. But there was no such thing as common-law marriage – because the concept has been abolished worldwide. The time a couple spend living together does not translate into a default marriage. The consequence is that, at the dissolution of the relationship, the assets or any obligations are determined or distributed on a basis of the arrangement that parties used during their relationship.

Domestic partnerships were never prohibited in South African law – but neither did they enjoy any noteworthy recognition or protection. In SA, marriage laws traditionally provided parties with a variety of legal protections. These laws governed what happened to the property of the parties during the marriage and on dissolution, either by divorce or death, and also meant that certain benefits were automatically acquired, such as membership of medical aid funds, pension funds, etc. Married spouses also had a reciprocal duty of support under the common law. South African courts had occasionally helped couples by deciding that an express or implied universal partnership existed, but this was usually difficult to prove. The only way to be protected in our law is to enter into a cohabitation agreement. Such an agreement clarifies the expectations of the partners and also serves as an early warning of future problems.

A cohabitation agreement will determine what would happen to the property and assets of the couple if they should decide to separate. The agreement is, however, not enforceable in so far as third parties are concerned.

However, in terms of the 2005 Children’s Act, the parents of children born out of wedlock had a duty to maintain their offspring, irrespective of the living arrangements. Basically a cohabitation agreement regulates rights and duties between the partners. It could almost be compared to an antenuptial contract entered into prior to the conclusion of a civil marriage. The agreement can provide for the division and distribution of assets upon dissolution: for instance, the formal agreement may set out the rights and obligations towards each other; the respective financial contributions to the joint home; clarify arrangements regarding ownership of property that they may purchase jointly and the division of their jointly owned assets should they separate.

An agreement such as this will be legally binding as long as it contains no provisions that are immoral or illegal. If there is no agreement on the dissolution of a domestic partnership agreement, a party would only be entitled to retain those assets which he or she has purchased and owns and further would be entitled to share in the assets proportionately in terms of the contribution which they have made to the partnership. However, problems arose if a partner tried to enforce a domestic partnership agreement if the partner being sued was married to someone else. It has been argued that in such cases domestic partnership agreements violate public policy to the extent that they impair the community of property rights (where applicable) of the lawful married spouse.

The Domestic Partnerships Bill was still being formulated, and it wasn’t clear how it would be implemented. In the current constitutional dispensation it is unlikely that a partner will be left in despair, taking into account the Domestic Partnerships Bill. My advice would be for cohabiting couples to enter into a contract – a written partnership agreement that states exactly what will happen in the event of death or a split, protecting their rights and outlining their obligations. For example, when it comes to the ownership of property, the contract should state what happens to ownership of the property (such as one spouse buying out the other) or payments in the event of death or a split. Putting any relationship into writing is always helpful, even if it’s just adding someone on your medical aid as a dependant. “Having said that, in the event of death, having a will is always the best idea. Out of the bounds of a legally recognised marriage there is no intestate succession – meaning there is no automatic participation in the estate to make sure the other partner is looked after. Joint accounts never a good idea Money is one of the most important matters a couple needs to resolve when contemplating living together or marriage. One issue that often comes up in these kinds of discussions is whether to have a joint bank account. In many ways, this can seem like an appealing option. However, most financial experts don’t recommend having a joint account at all.

One never encourage a joint account because whether you are married or living together, you both need to grow your assets and get a good credit rating. Having a joint account invariably makes it difficult for one of the partners to do so. Besides, a joint bank account puts one partner at great risk in the event of a break-up, death or financial difficulties. There is no joint bank account with two equal account holders. A ‘joint’ account is actually an account in one person’s name, to which the other person is a signatory. This causes a number of complications for that signatory. The most important of these is that without a bank account in your name, you will have no credit record at the bank – which makes it difficult to get credit at shops, open a cellphone account or apply for a loan. In the event of a break-up, the joint account could be emptied by one partner or the person in whose name the bank account is held could remove the second signatory. If one partner dies, banks tend to freeze the account until the estate is resolved – leaving the signatory partner with no access to the funds for an extended time. One should advise couples to split responsibility for monthly expenses, or open an account for the household into which both pay a portion of their salaries for general expenses.

Who gets your pension? There are typically two types of benefits payable to “spouses”. Firstly pensions, which are payable to those who qualify as spouses – and that would depend on how each fund defines an ‘eligible spouse’: people must check the fund rules to see if their partner/spouse would qualify. Fund rules may stipulate that you must be married to the same person at date of retirement and date of death for them to qualify for a spouse’s pension. This prevents so-called ‘death-bed marriages’ where a pensioner marries someone much younger than them after they have already retired – and on their death the fund realises that there is a much younger spouse to whom they have a liability to pay a pension for many years.

The second benefit type is the typical fund benefit (fund credit or share of fund) plus an insured multiple of a salary (three times annual salary, for example). This is allocated by the trustees, to your dependants and nominees. A dependant includes a spouse; the Pension Funds Act defines a spouse as a person who is the permanent life partner or spouse or civil union partner of a member in accordance with the Marriage Act, Recognition of Customary Marriages Act, Civil Union Act or the tenets of a religion. A very wide definition. To ensure that no partner is overlooked, the pension fund member should always nominate a beneficiary in the relevant form to help the trustees – although trustees are not absolutely bound to follow that nomination. Unfortunately, when it comes to death and money such decisions by fund trustees are often contested.

Here is a very basic Cohabitation Agreement:

Cohabitation Agreement

The following form is intended for illustrative purposes only. You and your attorney can use this sample as a guide in drafting a cohabitation agreement that best protects your interests and complies with the laws in effect where you live.

Why do I need a Cohabitation Agreement?

A Cohabitation Agreement sets out the financial terms of a couple’s relationship, and provides protection for the parties upon death, or should the relationship fail. 

Who should use a Cohabitation Agreement?

Any unmarried couple in a relationship and living with each other could find this agreement useful.

Also known as:

  • Conditions of Cohabitation
  • Cohabitation Contract

It is advisable that you contact an attorney in regard to drafting such an agreement.

COHABITATION AGREEMENT

Between

(The 1st Party)

and

(The 2nd Party)

PREAMBLE

WHEREAS

1.  The parties are currently living together in a domestic partnership and intend to continue living together in this arrangement;

2.  The parties wish to define their respective proprietary rights and liabilities arising from their domestic partnership arrangement;

3.  The parties each acknowledge that they enter into this agreement voluntarily, without any duress or undue influence, and that each has had the opportunity to consult with an attorney of his/her choice;

 

 

THE PARTIES AGREE:

 

1.         Marital Status

The joint residency of the parties shall in no way render the parties married in any way, whether by operation of common law or any other law.

2.         The Agreement

2.1       This Agreement consists solely of the mutual promises contained herein and the mutual promises of each party to act as the living companion and partner to the other.

2.2       This Agreement fully contemplates and compensates any and all services provided by either party for the benefit of the other during the course of their joint residency. The furnishing of sexual services shall in no way be construed as consideration for this Agreement.

3.         Disclosure of Current Financial Status

Each party has fully and completely, to the best of his/her knowledge, disclosed to the other party his/her current financial condition including all assets and liabilities. Each party has attached a balance sheet to this agreement indicating his/her current assets and liabilities with the understanding that this balance sheet reflects his/her current financial status to the best of his/her ability.

4.         Division of Living Expenses

Necessary and jointly approved living expenses shall be divided between the parties as below:

4.1       The 1st Party shall contribute _____________ percent ( ____%) per month;

4.2       The 2nd Party shall contribute _____________ percent ( ____%) per month.

The parties shall contribute their monthly pro rata contributions into the joint savings/current account of the parties. Any property purchased using funds in this account shall be considered to be the joint property of the parties and owned according to the respective party’s percentage of contribution as stated above. Either party may draw upon this checking account.

5.         Separate Property

The following properties shall be kept by the parties as the separate property of the recipient and the said properties shall not be subject to division at the termination of this Agreement:

5.1       All and any property, real or personal, owned by a specific party at the date of execution of this Agreement;

5.2       Individual gifts, bequests or inheritances acquired before or after the execution of this Agreement;

5.3       Individual earnings, salary or wages acquired before or after the execution of this Agreement;

5.4       All income or proceeds derived from the aforementioned properties.

6.         Commingling of Property

All commingled property shall be presumed to be joint property of the parties unless otherwise agreed.

7.         Joint Property

All property acquired by the parties after the date of execution of this Agreement and before the termination of this Agreement and procured jointly with joint resources and funds shall be considered joint property of the parties with each party possessing his/her aforementioned percentage of ownership.

8.         Division of Property upon Termination

Upon termination of this Agreement or termination of the joint residency, all jointly owned property shall be divided among the parties according to their pro rata share listed above.  If the parties are unable to agree on the appropriate division of joint property, they may appoint an independent and mutually agreed upon Third-party to act as Appraiser.  The Appraiser shall divide the property among the parties according to his/her pro rata share.

9.         Duty of Good Faith and Confidentiality

9.1       This Agreement creates a fiduciary relationship between the parties in which each party agrees to act with the utmost of good faith and fair dealing toward the other in the management of their joint property and in all other aspects of this Agreement.

9.2       Without obtaining a parties’ written consent in advance, a party shall not directly or indirectly publish, or cause to be published, any diary, memoir, letter, story, photograph, interview, article, essay, account, or description or depiction of any kind whatsoever, whether fictionalised or not, concerning the relationship or any other aspect of a parties’ personal, business or financial affairs, or assist or provide information to others in connection with the publication or dissemination of any such material or excerpts thereof.

10.       Legal Names of Parties

Each party shall retain his/her legal name, including surname, as printed and signed in this Agreement.

 

11.       Duration of Agreement

This Agreement shall become effective at the date of execution and shall remain in effect until termination. Termination shall be effected by written notice by either party, cessation of the joint residency by either party or death of either party.  Either party may terminate this Agreement unilaterally at any time.

12.       Death of Party

Upon the death of either party, the surviving party waives all rights to support by the deceased party.

13.       Complete Agreement

It is the intent of the parties that this Agreement be the full and complete agreement between the parties regarding their joint residency.  No variation of this agreement shall be of force or effect unless reduced to writing and signed by both parties.

14.       Severability of Provisions

Should any paragraph or provision of this Agreement be held invalid, void, or otherwise unenforceable, it is the intent of the parties that the remaining portions shall nevertheless continue in full force and effect without impairment.

15.       Governing Law

This Agreement shall be governed by, interpreted and construed in accordance with the laws of the Republic of South Africa.

DATED at                                     this                  day of                                    201_

AS WITNESSES:

 

1.

 

2.

 

DATED at                                     this                  day of                                    201_

AS WITNESSES:

 

1.

 

2.

About the author:

Bertus Preller is a Divorce and Family Law Attorney in Cape Town and has more than 20 years experience in most sectors of the law and 13 years as a practicing 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 and is frequently quoted on Family Law issues in newspapers such as the Sunday Times and Business Times. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Parenting Plans, Parental Responsibilities and Rights, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters, international divorce law, digital rights, media law and criminal law.

Email: info@divorceattorney.co.za

Spying spouses and Fake identities, divorce and the Facebook battleground

A woman posed as a teenage girl on Facebook to dig for dirt on her husband ahead of their divorce – and ended up getting him arrested by the FBI.

Everyone is entitled to be stupid, but some abuse the privilege. (author unknown)

What would angry, bitter divorcing couples do without Facebook for a battleground?

In the latest example of two people losing all sense of reason while they part ways, Angela Voelkert, of Indiana, decided to go digital dirt-digging on her ex-husband, David. She created a fake profile on Facebook of a teenager named Jessica Studebaker (complete with a cute picture) and became friends with him.

“Jessica” quickly became a confidante, as The New York Post reports, and everything was going to plan. But then Mr. Voelkert began to spill details of a plot to bump off Angela. In e-mail messages, he apparently explained how he had attached a GPS to his ex’s car so he could find her when the time came, and even allegedly asked “Jessica” whether she knew someone who might do the job for him.

Ms. Voelkert went to the authorities, who promptly charged Mr. Voelkert last week with illegally installing a GPS, with warnings of more charges to come. In court, the Post story says, his e-mails were widely quoted, including his asking Jessica to run away with him when the deed was done. “Let me know, Baby!” (Signed with a smiley face.)

Except, on Tuesday, all charges were dropped suddenly. It appears Mr. Voelkert had been running a scam of his own. According to The Smoking Gun, he produced a notarized affidavit – signed six days before he first mentioned any sinister plans – that made clear he’d suspected all along that Jessica was really Angela. His affidavit stated that he had “no plans” to harm anyone. “I am lying to this person,” the affidavit states, “to gain positive proof that it is indeed my ex-wife trying to again tamper in my life.”

For all their mutual scheming, Mr. Voelkert paid the bigger price: He spent four days in custody until federal investigators confirmed his affidavit was real. (In the end, though, it’s the kids trapped in the middle of this mess that deserve our sympathy.)

If you had to take sides, who was the most wrong? The wife for spying? Or did the husband’s fake murder plot go too far?

Seven Big Post-Divorce Money Mistakes Women Make

The Seven Big Post-Divorce Money Mistakes Women Make

Breaking up is not only hard to do, it can be brutal on your finances.

Legal fees and creating and running two households from one are just the initial costs of separation process. And while some expenditure is necessary, others can be emotionally charged and careless and can lead to serious debt.

Here are seven common ways divorced couples can get into big financial trouble after a split:

1.            Ignorance

While a divorce Settlement Agreement may specify who is to pay what account, it carries little weight with creditors.

The most frequent mistake of all after divorce is assuming that because the ex spouse has been the one ordered to pay back the debt in the divorce, they are off the hook for it.  Most people do not realise that courts do not have the authority to make creditors abide by a judge’s orders in divorce. A spouse may have recourse to re-claim a debt from the other spouse who assumed the debt, but it does not nullify liability towards the creditor where the debt was a joint debt of the parties.

2.         Delusion

If you relied on the other person’s income during the marriage, your cash flow may take a serious dip. As it constricts, so must your budget. Unfortunately, many who are accustomed to abundance deny reality and continue to shop till they drop. The bills, however, wind up on the cards.

The most important thing most parents want is for their child’s lifestyle to continue, be conscious of your current circumstances and spend accordingly.

3.         Neglect

Own a home together? Make sure that your share in the property is transferred, especially if you are married in community of property. There are many cases where one party was awarded the other spouse’s share in the home, but neglected to transfer it. If your ex lands in financial trouble after divorce, creditors may still attach his/her share in the property, so make sure it is transferred.

4.         Revenge.

Wanting to ruin your ex by charging up the cards is a frequent response to betrayal; it is what one call ‘the saboteur spouse’. Squelch this desire, though. While big balances may result in the hoped-for fury, you too could be held responsible for the balance.

5.         Beauty

If you’ve been dumped for a younger model and want to make yourself feel better by looking better with the hope of attracting a new mate, you may be considering splurging on a beautification procedure.

Be careful, though it usually translates into little more than added liabilities. Some people spend thousands on plastic surgery after discovering the husband’s affair. It may be money that one could not afford to spend, it was more important to paying off credit cards. Worse, those nips and tucks normally has no positive impact on the soon-to-be ex. Delay any major decisions — financial and cosmetic — for at least six months to a year after a divorce is finalized.

6.         Competition

What happens when one parent can afford more and better things for the children post-separation? The less wealthy partner sometimes attempts to keep up with or even outdo the other.

Oftentimes, there is a pre-divorce battle for the children’s love and affection by purchasing gifts for kids or taking them to concerts or cruises in order to gain their affection over the other spouse. Question your motivation for purchasing certain items for the kids. If it’s to prove your love, stash the cards.

7.         New love

Getting sucked into a fresh romance when a marriage falls apart can be seductive. It can also be pricey. One of the most common post-divorce credit issues are loans people make for new partners. In some cases, it may be thousands to fix a broken car, but in others, it is tens of thousands to help a new lover with a business, or hundreds of thousands to put towards an ‘investment’ that was really a scam. Avoid lending or giving money to anyone for at least a year after divorce.

Almost everyone has regrets about a broken relationship. Don’t make needless, emotion-based liabilities one of them. Divorce your mate, not common sense.

About the author:

Bertus Preller is a Divorce and Family Law Attorney based in Cape Town and has more than 20 years experience in most sectors of the law and 13 years as a practicing attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. and litigates in divorce matters across the country. He is also the Family Law expert on Health24.com and on the expert panel of Law24.com and is frequently quoted on Family Law issues in newspapers such as the Sunday Times and Business Times. His clients include celebrities, actors and actresses, sportsmen and sportswomen, television presenters and various high net worth individuals.  His areas of expertise are Divorce Law, Family Law, International Divorce Law, Divorce Mediation, Parenting Plans, Parental Responsibilities and Rights, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters, digital rights, media law and criminal law.

Bertus other passion is technology and he also co-pioneered the development of technology in which the first book in the world was delivered to a mobile phone utilizing sms and java technology and also advised a number of South African book publishers on the Google Book settlement class action and negotiated contracts with the likes of Google and Amazon.com.