Abusing a restraining order

Trivial pursuit

Noseweek – Issue #143, 1st September 2011

When mild-mannered Bishops old boy Colin Chaplin told his friends that  the surprise domestic-violence order the police had served on him at work was obtained by a woman he’d threatened to unfriend on Facebook, many found it hard to believe – there had to be a more serious reason.

Bewildered Colin Chaplin

Even more bewildering to the 36-year-old Chaplin is that the purported victim – a woman with whom he’d “shared a kiss or two” in the space of a week, years ago – said she’d been advised to seek the order by his ex-girlfriend, well-known Cape Town attorney Lauren Fine.

The spurned friend is fashion designer Danielle Vermaas, who uses the professional name of Danielle Margaux. Two years after his flirtation with Vermaas, Chaplin hooked up with Fine. Their six-month relationship ended amicably, he thought, in July last year.

“I just want you to know that I have done a search on you and I’m very anxious because you and my ex-girlfriend have several Facebook friends in common.”

The ease with which strangers can connect through mutual friends on Facebook – and the painful consequences for Colin Chaplin – are what prompt his anxious first words when he meets with Noseweek at a restaurant in Newlands, Cape Town.

Although lawyer-talk first alerted Noseweek to the story, it took some sleuthing to identify Chaplin, and then numerous emails through an intermediary, to set up this meeting.

Noseweek had been tipped off that two of Chaplin’s exes – Lauren Fine, a one-time ballerina and now a partner in a top Cape Town law firm, and Danielle Vermaas, a local designer who goes by the name of Danielle Margaux – had purportedly teamed up to have a Domestic Violence protection order slapped on him, on charges that were patently without substance.

A domestic violence order is no trivial thing but lawyers, policemen and even magistrates have all contributed to trivialising it. (See editorial in this issue).

Fine and her partners at well-known law firm Bernadt, Vukic, Potash and Getz have since been briefed about the facts of the case, but have refused to meet the victim of the outrage.

Chaplin finally agreed to see Noseweek as a last resort in a system that has failed him. “I’ve exhausted every avenue to clear my name,” he says.

After matriculating at Bishops, Chaplin went to England where he obtained an LLB (Hons) from the University of Buckingham. Back in Cape Town, he has for some years been working in the property development industry.

His story:
“Several years ago I met a girl called Danielle Vermaas at a dinner party. We became friends and kissed once or twice, but nothing serious happened between us. It was a very brief fling. I did not take it seriously from a romantic point of view. Quite simply, she is not my sort of woman.

Designer Danielle Vermaas

“After that and during early 2009, we remained friends. She’d sometimes visit me at my parents’ home and became very fond of my mother.”

Might Vermaas have been under the impression they were in an exclusive relationship? “No. It was just a fun friendship,” Chaplin stresses.

During the first half of 2009, Vermaas started “getting weird”, says Chaplin: sending him numerous emails, phoning regularly, and constantly sending Facebook messages.

“[As a fashion designer], she would make me clothes, invite me to functions, cook food and show up at my flat with it, unannounced. I always turned her down.

“In a nutshell, she was in love with me. I kept saying, I’m not interested. Basically, I was just trying to say f-off.”

Towards the middle of 2009, Chaplin says he decided to start putting some “serious distance” between himself and Vermaas. He produces Facebook messages sent to him by Vermaas to demonstrate the point:

On 15 March 2009 at 11.07pm: Hi there! How are you? I am lying in my bed and thinking…I miss you and miss having you in my life and I would love to have you back in it…I do have a lot of issues, I know, and I suppose I am a difficult woman at times…In the same breath, I could have made the biggest tit out of myself now, because you might have met someone else…Deep down inside I hope you miss me as much as I miss you!…I don’t want you to feel that I am pressurising you…

On 21 April 2009: Hallo Col, you must think I am crazy…I just read the mail I sent you on Sunday and it was a bit intense…It feels like my life is falling apart ...

On 13 July, 2009: Col, I don’t understand why you don’t answer my emails. Have you thought about what I said? I really think we’d be great together.

Later that day Chaplin  replies:  Hi Danielle, I feel we keep going over this. I think you keep misreading my friendship. I like you as a person but am just not interested in going out with you. Please just accept this as you are making things awkward. Colin.

On 18 July, 2009, Vermaas writes: You are obviously very angry with me and have decided not to contact me at all. I, on the other hand, am not a person of a few words, as you very well know and have decided to mail you, because I know you won’t even pick up the phone if I try to call you. I should probably just let you be, but…I have gotten used to spending time with you… You always say I am needy. Perhaps, but it is because I feel like the outsider in your life, the one you keep at a distance…

You’re probably thinking I’m some sort of psycho chick and that I keep contacting you in all sorts of ways, but… I do mean well…Hope to hear from you soon, Danielle x.

Vermaas’s overtures continued, accelerating in November 2009 when Chaplin began a relationship with Fine. When he speaks about her, it’s easy to see that this was a woman who clearly meant something in Chaplin’s life. “We had our first date on 17 November. Lauren is beautiful and intelligent.”

About a week after this first date, Vermaas arrived at a bar where Chaplin was having a drink with friends, and tried to speak to him.

“She followed me home and insisted we talk. She asked me whether I was going out with Lauren Fine and then said she knew I was. She knew Lauren was Jewish and told me her father was Solomon Fine. I didn’t know what she was talking about. It turns out that Solomon Fine was Lauren’s grandfather. How Danielle came by this information, I don’t know. Danielle also made some derogatory remarks about Lauren being Jewish. It took quite an effort to get rid of Danielle that evening. I had to repeatedly ask her to leave.”

“She started crying, and told me she loved me, saying she was going to leave the country as there was nothing left for her here. She continued to slag off Lauren, using anti-Semitic comments.”

The next day, a somewhat freaked-out Chaplin removed Vermaas as a friend on Facebook.

On 30 November, Vermaas writes: Hey Col, I am sorry for the things I said about your new girlfriend the other night. I just think you need to know that this girl is not for you. This relationship will not last. She is a Jew and they will not accept you. They are not like us. Lauren Fine, sy klink soos ’n Jood. I am telling you this because you need to know. Danielle.

The next day Chaplin responds: You need to leave me alone and stop saying bad things about my girlfriend  – she has done nothing to you.

After their showdown in November, Vermaas slowed down contact with Chaplin for a while, but a month or two later, she started sending more emails and Facebook messages.

“The tone was friendly – she claimed she wanted to be friends. She sent me a Facebook friend request [again], which I accepted. During December 2009 and January 2010, she made contact again. I did not respond as I was really in love with Lauren and did not think much about Danielle. She contacted me a few times in 2010 It all seemed harmless.”

For example on 1 January 2010, at 4.28pm, Vermaas writes: Hi Colin, haven’t spoken to you in a while and I thought it well to wish you all the best of luck for 2010…and especially with you starting a new job on Monday…good luck! I know that you will make a great success of it….

Chaplin and Fine dated from November 2009 until the end of June 2010, when they split up. He stresses that it was an amicable parting: that she had wanted “space”.

“There were no bad feelings between us. Everything was cool. In fact, she susequently sometimes asked me for my help, which I gave her freely.”

When her mother was diagnosed with a serious illness a few weeks later, Colin was among the first she told, and he was there to support her.

But this is where it gets really weird, he relates.

“In early August 2010, a month-or-so after his relationship with Fine ended, Vermaas started “causing problems again” on Facebook. This included sending friendship requests to female friends on his site. “They would call me, asking who is Danielle Vermaas? Why does she want to be my friend? I sent her an SMS asking her to stop, or I would remove her as a friend from Facebook. I felt she was up to no good.”

It gets weirder, he says, because,  within a week, Fine suddenly blocked him on Facebook.

“I sent her an SMS asking why she had done this, but she did not respond.”

Chaplin suspected that, some time between 6 and 12 August, Vermaas used Facebook to establish that Chaplin and Fine were no longer dating, that she then contacted Fine with the intention of causing trouble and driving a final wedge between them. [He would be proved correct – but that only comes later – Ed].

“Whatever Danielle told her, Lauren did not check with me whether what she had been told was true. I was confused and hurt as I couldn’t think of anything I had done wrong to her.”

Chaplin, in the meantime, had maintained a friendship with Fine’s mother. “I would occasionally call on her –  always by prior appointment – to take some flowers or just for a chat. She is a Mills & Boon addict. I started writing a Mills & Boon-type romance and would take bits of the manuscript to her for proofing; really just to entertain her.”

On 27 September 2009 he arranged to visit Fine’s mother and took her some fluffy white slippers and some bath salts. He hadn’t visited in the previous three weeks, prompting her to ask whether he’d been away.

“She asked if it was true I’d been dating another girl at the same time I was dating Lauren. She named Danielle Vermaas. I denied it emphatically. I explained that I’d had issues with Danielle before and that I’d always loved Lauren.”

Now he knew for certain that Danielle had contacted Lauren.

And, within no time he also knew that Lauren had rushed to tell Danielle that he knew. Because, within an hour they’d spoken to each other.

Within an hour of his visit to Mrs Fine, Chaplin received a hostile message from Lauren Fine – the first communication he’d had from her since her birthday three weeks earlier: “It’s time to move on now and leave me and my family alone. Please don’t contact me and my family again!”

(Later that evening, Lauren Fine SMSed him again: “Hi Colin. I apologise for my earlier SMS. I am really not in a good space. I do, however, think it is best for you to move on.”)

Next day, it was Vermaas sending Chaplin and his mother an SMS, asking to meet. (She also got a friend to ring his mother with the same message.) All these messages were ignored. But that was hardly reason to anticipate the shock of what came next.

Three days later Chaplin got a call from the manageress at his office: the police had called, looking for him.

For an outstanding parking ticket?

No, much more serious. In fact, the office manageress told him, the police had warned her that he was to be considered dangerous. They wished to serve a restraining order on him in terms of the Domestic Violence Act.

Danielle Vermaas had filed for a protection order (a kinder title for the same thing) against him on the 28 September – the day after Mrs Fine had revealed to him that Vermaas had contacted her daughter and had claimed he’d been double-dating them.

“The day before she filed for the order against me, she wanted to meet me. It was the most bizarre thing. When she filed for the restraining order, she told the police that I was to be considered violent. She gave them my work number and my work address. The police then made several phone calls to my office.

“My head just spun.”

Chaplin runs through the haze of what ensued over the next few days. His employers said they were concerned about how clients would react to the information. “I didn’t make a big deal of it. I just quietly left. What was I going to do?

“I then had to present myself at the Cape Town Police Station with my parents to sign for receipt of the order.

“I looked at  Danielle’s statement and couldn’t believe my eyes. It was all bullshit. The reasons she gave for wanting the restraining order were that I was a dishonest person who did not pay tax to SARS. She then cited an SMS from two months earlier, in which I threatened to remove her as a friend on Facebook if she did not leave me alone.”

He continues: “It was insane. There was one other thing: at the bottom of the application, she said the reason she was filing was that she had been advised to do it by my ex-girlfriend, Lauren Fine. I can’t describe how I felt. It made no sense.

“So now I have no job, somebody has a restraining order against me for no reason, and I hear that my ex-girlfriend,  someone I’ve only ever been kind to, is involved.”

Danielle Vermaas’s application for a protection order – Noseweek has obtained a copy –  is too long to reproduce here. Some excerpts:

  • A few weeks ago he sent me a sms saying “stop this facebook crap with La. If I find anyone on her site tmrw who is not meant to be there my reaction will be extreme.” … on the 12th August 2010 one sms read (because I did not respond): “Call me in the next 5 mins or I am removing you permanently.”
  • I received a call from Lauren Fine…She is a lawyer…She suggested a restraining order.
  • I am an honest and trustworthy person who does not manipulate people. He is not an honest person as he does not pay taxes to SARS.
  • Please grant a restraining order, because he clearly despises me and I am scared.

Based on this affidavit, Magistrate Van der Spuy granted an interim protection order against Chaplin on 29 September. It reads, in part: “The respondent [Chaplin] is ordered not to commit the following acts of domestic violence: verbal, emotional, psychological abuse; not to harass, intimidate the applicant…not to communicate with the applicant at all, except through the courts or legal representatives”.

The order had been granted without notice and without Chaplin having been given a hearing – a fact that irks him about the nature of restraining orders and the ease with which they are granted. “It’s bizarre. The man is simply presumed guilty. It’s a case of ‘better safe than sorry’.”

Confused, but determined to get to the bottom of things, Chaplin contacted law firm Abrahams and Gross for advice. The attorneys took one look at the affidavit and told Chaplin he had a serious problem.

“They said there were no grounds for a restraining order, but that it was essential to get it dismissed as soon as possible. They said that Vermaas could try to deliberately manufacture a breach of the order which would mean I could be arrested and go to jail.

“My lawyers filed an opposing affidavit. It was quite simple – address each lie and show that the last contact you had with her was two months before she filed.”

Chaplin was able to provide tax records to show that, in fact, he had overpaid tax and had actually received a refund from SARS.

Chaplin’s answering affidavit is also in Noseweek’s possession.

Excerpts include: “The application is… ill-fated and amounts to a mockery of the true objectives of the Domestic Violence Act…Applicant and I never lived together in a relationship or partnership of any sort. [She] was merely a friend like all the other male and female friends that I have… [If] the scope of the Domestic Violence Act were to extend to an area as in this case…any confrontation in the normal scope of a friendship could be construed as domestic violence, with absurd consequences.”

His answering affidavit details how Vermaas sent “friend” requests to Chaplin’s friends on Facebook, which prompted him to tell her, in August 2010, that he was “permanently removing” her as a friend on Facebook. He says, “It is astonishing to note how the Applicant is distorting the true facts by using the phrase to mean that I have committed some sort of Domestic Violence against her”.

A lawyer from Abrahams and Gross attended the magistrate’s court, where he served the opposing affidavit on Vermaas.

Chaplin’s attorneys said they wanted to move to a court date. That was when Vermaas said that she wanted none other than Lauren Fine to represent her. Chaplin’s attorney reported: “[This} will be a complete disaster simply because Ms Fine will be a witness in the matter and I can see no reason why Ms Fine will want to get involved. Ms Vermaas also indicated that her main concern was that our client [Chaplin] was badmouthing her in and around the Jewish community from which she obtained most of her work.”

The next court date was set down, for 3 November last year, which left Chaplin with the interim order hanging over him and the cost of yet another court appearance.

On the return date, Vermaas showed up with an attorney – not Fine – and changed her tune once again. “Now she was asking for a restraining order requiring me to stop stalking her.”

Chaplin laughs bitterly: “I don’t even know where she lives or works and hadn’t seen her in 11 months. She  just wanted me to be found guilty of something”.

Chaplin received the following confirmation from family law attorney Bertus Preller on November 3: “I wish to confirm that Ms Vermaas has withdrawn her application. Initially she wanted an apology and an agreement that you won’t stalk her in future, which we naturally refused and we demanded that the matter go to trial, however, her attorney backed off and withdrew the application.”

When the attorneys phoned him with the good news that the application had been withdrawn, Chaplin heaved a sigh of relief. “I thought, phew, it’s all gone away.”

Chaplin goes on: “So, the application is dismissed, she walks out. At this stage, one side of me is relieved, as the stalker girl is gone, but another part of me feels aggrieved. Firstly, I had incurred unnecessary legal costs – I had stopped counting at R20,000. Secondly, I was furious that an unsubstantiated order had been brought against me by ‘a woman scorned’ who lied to the court, and thirdly, I could not understand why Lauren Fine had become involved. I could not think of a single thing I had done against her. The only thing I was guilty of was doing good things for her and her family. In return, she branded me with the stigma of a domestic violence charge which never goes away. People just think that you go around beating up women.”

Two weeks ago, Chaplin asked a woman out. “She had heard this story that I threaten women. Cape Town is a small place.”

He can’t imagine having a normal life and a normal relationship. “To be honest, women scare the shit out of me at the moment. I have no plans to date any women for the foreseeable future.”

Asked for comment on how on earth Chaplin had an interim protection order slapped against him on the basis of that application, Magistrate Van der Spuy referred Noseweek to Linda Unuvar, Judicial Head of the Family Court in Cape Town. While reluctant to comment on an individual case, Unuvar said:

“This is an affidavit. [In Danielle Vermaas’s case, it appears to have been an unsigned statement. – Ed.] If  a person takes an oath and says I have been threatened, and claims that someone is calling her at all hours and upsetting her emotionally, that is harassment. If she says under oath that any act of domestic violence is committed, the court must grant an interim protection order. That includes harrassment, intimidation, unwanted calling or SMSing. Even if such harassment is the only complaint, it still warrants an order.”

Unuvar said that once the order is served on the respondent, “the respondent can come to court and say, ‘this was served on me and it is not true, I want to bring the return date forward within 24 hours’. We give him the earliest available date. If it is urgent, we will hear it”.

Unuvar said there would have been nothing stopping someone in Chaplin’s position from asking for a counter order against his accuser and saying that in fact, he was the one being emotionally abused. “He would have had that right. He should have anticipated the hearing and asked the court for a protection order against her. We would have had a hearing within a few days.”

Unuvar stressed that protection orders are not granted if the court is not satisfied that some form of domestic violence has been committed. “If an interim order is granted, and, on the return date, the court is not satisfied, it will not confirm the order.”

Abuse of the system is the exception, she added. “We are all trained and experienced magistrates, but we do not know whether somebody is lying under oath.”

Vermaas had this to say to Noseweek: “I have spoken to my lawyer and have decided not to comment. I am very busy and am not going to invest any time in this.”

And Lauren Fine? She agreed to meet a reporter from Noseweek at a coffee shop near her office, and arrived accompanied by her colleague, Mia Gibson. The answers she gave to Noseweek’s questions do not always tally with the documentary evidence that Noseweek has seen, and were aimed at generally discrediting Chaplin, while minimising the interaction she’d had with Vermaas and her role in the latter’s application for the protection order.

The closest Fine had got to giving Chaplin an explanation for her involvement in Vermaas’s application came in a letter she wrote to his mother shortly after the order was granted. Some extracts:

“I am sure you can understand the tension it caused when he would visit my mother and she would not tell me that he’d visited. I would hear from Trayer (my mother’s domestic worker) that he had visited and what had been said. I did not make a big deal out of this as I didn’t want to upset my mother and I assumed Colin was visiting with only good intentions.

“On 28 September I phoned home only to be told by Trayer that Colin was there again and talking to my mother about me. This upset me, as my mother had mentioned the day before that having visitors was very tiring. …When I came home … my mother confirmed … that Colin had made certain derogatory remarks about Danielle, which I do not believe to be true.

“Since I had been advised by Danielle that Colin had threatened her in the past – and I now knew he was aware that she and I had made contact… I did telephone Danielle, and I told her that if Colin were to threaten her with any further legal action, she should contact me to discuss it.

“Danielle advised me that she was scared Colin would harm her and she was thinking of taking out a restraining order… I advised her (as I would with anyone) that if she genuinely felt threatened… then she should get a restraining order. She asked me to assist her and I told her that she should ask the police…

“I am certain that the contents of this email…will be upsetting to you. I have not forgotten the beautiful things that Colin has done for my family and me, but I have had equally numerous unpleasant experiences involving Colin…

“Wishing you and Colin only the best. Lauren.”

Now, she told Noseweek that he was “weird”, that friends had told her he was an alcoholic (she confirmed that he had never consumed alcohol or smoked in her presence throughout their relationship in deference to her wishes, but now believed this to be a sign that he was “obsessive”); she said he was a “stalker” since friends had told her they had seen him “lurking” near her office and she believed she had seen him “lurking” downstairs from her Sea Point apartment; that he kept visiting her mother “day and night” just to irritate her [Lauren]; that she had shown his “Mills and Boon” manuscript to a psychologist and a psychiatrist she knew and they had both described it as “abnormal, verging on psychotic”. [She sent us a copy, which I read in lurid anticipation, only to find it pretty harmless, even good, as Mills and Boon novels go. My diagnosis: that psychologist and psychiatrist must be “verging on the psychotic” – Ed.]

But, she emphasised, what really upset her were Chaplin’s “endless” lies. [i.e. don’t believe anything he tells you? – Ed.]

Did she herself have any reason to believe he might be violent? “Yes.” Why? “When he got angry, he would just get up and leave.”

Later Fine would add to the list that a “good friend” had recently told her Chaplin had plans to abduct her.

Chaplin’s retort: “What am I supposed to do with her, once I’ve abducted her? It is becoming increasingly clear that in order to justify what she did last year, she has attacked my character by spreading rumours and lies about me. I have now been accused by Lauren of being a liar, capable of irrational behaviour, an alcoholic, a cheating bastard and most recently an abductor. The last is just ludicrous.”

And what about Danielle Vermaas? Noseweek asks Fine.

“She contacted me on Facebook and we arranged to meet. We compared notes and worked out that Colin had been cross-dating us. She told me Colin had sent her a “weird” sms threatening that if she did not leave me alone, I [Lauren] was going to bring court applications against her. [Vermaas has not produced any evidence to support this allegation. – Ed.]

“I told her, if he threatens you like that, rather phone and ask me what the true position is.”

Fine explained her involvement in Vermaas’s protection order. “Danielle called me on my cell phone when I was in the car rushing to Rondebosch to attend the HPCSA hearing of Sylvia Ireland’s former psychiatrist, Dr Berrard. She told me that Colin had threatened her – I wasn’t interested how – and that she was really frightened. She asked if she could get a restraining order. I said yes, if you’re scared. She asked if I could help her, but I said no, I don’t practise criminal law and I don’t want to get involved. I wouldn’t know where to start. I suggested she go to the police. It’s the advice I would have given to anyone.”

That was it? All on the spur of the moment?

“That was it.”

Surely the evidence suggests Vermaas had been “stalking” Chaplin, rather than the other way around? “Yes, they’re both weird. I want nothing more to do with either of them.”

Hold that thought for a moment. Because this is when the local version of WikiLeaks – an anonymous website hacker of sorts – steps in to really stir things up. Immediately after the restraining order was served on him, Chaplin spent many evenings at his favourite pub mulling over the mysteries of the case with his friends. Somebody obviously knew somebody, because three months after the event, says Chaplin, a parcel of web printouts appeared in his postbox. They were of Facebook messages that Vermaas had sent to various friends in a plot to cause trouble between Chaplin and Fine.

It transpires Chaplin was right in suspecting that something fishy was up early in August 2010. The printouts show that on 5 August she sent a note to her friend Rasheda Samuels: “I see you are friends with Miss Fine whahahahaha” and she asks Rasheda: “so tell me – are they still a married couple ?????”.

On 9 August she writes to her friend Gustav Louw who has also befriended Fine on Facebook: “My fuck Gustav, I see you are friends with Lauren Fine!!!! This calls for an evening of champagne and snooping on her Facebook site!!!!”

The proposed evening of champagne and snooping appears to have paid off. Next day she was writing to Fine:

“I would normally not email someone I don’t know, but I had a very strange email from your boyfriend Colin tonight. He seems upset about mutual people we know on Facebook and implies that I have got something to do with this… [Chaplin found she was approaching Facebook friends he had in common with Fine and told her to lay off, or he’d unfriend her. – Ed.]

“What you do, your relationship and friends have nothing to do with me. I have no issues with you being his girlfriend now.

“I suppose this is as strange for you as it is for me. Good luck! Danielle.”

Every line was a lie, but Lauren took the bait.

Fine’s reply: “Dear Danielle, Colin is not my boyfriend and has not been for a while. Whilst we were together he did tell me that you wanted him back but I never commented. I would like to meet for a coffee. There is much I would like to discuss.”

Danielle’s happy reply: “I should also like to meet up with you for a chat. I am rather shocked now, but we can discuss everything when we meet.

Lauren’s reply: “Cool, Friday after work.”

That weekend Fine “unfriended” Chaplin on Facebook.

Also amongst the “hacker’s” printouts is the anxious message sent by Fine to Vermaas on 27 September: “Need to chat urgently.”

Two hours later Vermaas writes: “Thanks for calling me…I would like to discuss with you sometime what the procedure is with regards to getting a restraining order. I think it would be better if I get it, before he does something…I had a bad feeling ever since I met him. Let me know when you will be available to discuss the restraining order, as I am very serious about it. Perhaps it would be in your best interests to get one too!”

Fine’s reply: “I have no idea how to get a restraining order, but will find out. Let’s do coffee.”

So, not quite the rushed conversation while driving, then.

Fine told Noseweek that Chaplin had given lawyer Mia Gordon copies of several of these illicitly obtained Facebook printouts. But, she said, she was not at liberty to show them to us as they were the subject of a police investigation. The police, she added ominously, believe they know the address from which the Facebook interloper operated.

Matters get stranger still: between February and May this year, Fine’s Facebook friends started receiving abusive messages about her, all emanating from Vermaas’s Facebook address. A sample: “How’s your stupid Jewish friend now. She’s a loser.”

She addressed a lawyer’s letter to Vermaas demanding that she immediately stop sending these messages and threatening court action.

Vermaas’s lawyers responded by saying that someone had pirated Vermaas’s Facebook site and that her friends, too, had been receiving abusive messages. And that she had already reported the matter to the police.

So who’s up to no good now? And who’s trying to mislead whom?

Copyright © 2011 www.noseweek.co.za

Bertus Preller is a Divorce Attorney in Cape Town and has more than 21 years experience in most sectors of the law and 14 years as a practicing attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. 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, Sunday Tribune and Business Times as well as magazines such as Noseweek, You and Huisgenoot. 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 father’s rights, domestic violence matters, international divorce law, digital rights, media law and criminal law.

Divorce and Parenting Plans

The Children’s Act offers parenting plans as a method to regulate and assist parents to agree how to exercise their parental responsibilities and rights.

Section 33(1) of the Children’s Act provides that co-holders of parental rights and responsibilities may agree on a parenting plan that sets out the method and mode of how each parent will exercise his/her rights over the children. Parenting Plans must comply with the best interests of the child standard.

It frequently happens that one parent will experience difficulties in exercising his/her parental rights, with the other parent deliberately blocking contact or frustrating it where no parenting plan exist or where a court order was made years ago that did not keep track or became outdated with the changes in our family law over the years. Where parents do struggle or where they experience difficulties to exercise these rights, mediation in terms of the Children’s Act is a prerequisite. The Act stipulates that an aggrieved parent must first seek the assistance of the Family Advocate, social worker or psychologist. Alternatively they must go to mediation facilitated by a social worker or other suitably qualified person.

The Children’s Act discourages parents from approaching the court as a first resort when they experience difficulties in exercising their rights and responsibilities.  The Act use the word “must” in section 33(5) which means that parties’ are compelled to refer to seek assistance or mediation prior to embarking on court action. The Act also lays down certain guidelines concerning parenting plans, for example that it must be in writing and that it must be registered with a Family Advocate Office or made an order of court. To register a parenting plan at the office of the Family Advocate a prescribed form must be used.

Once a parenting plan is in place it may be amended, suspended or terminated. Where a plan was registered at the office of the Family Advocate the parties must apply to the Family Advocate Office to amend, suspend or terminate the plan and in the event that it was made an order of court an application should be made to court to vary the plan.

One must distinguish between Parental Responsibilities and Rights Agreements (PRR) made in terms of section 22 and Parenting Plans in terms of section 33 of the Act. PRR plans are usually entered into where a mother or other person comes to an agreement with the biological father of the child and encompass an agreement with a party that did not have rights in terms of section 21.  Such an agreement confers rights and the agreement is typically between unmarried parents.

Parenting Plans on the other hand are usually entered into by co-holders of PRR Plans, the agreement delineates existing rights and an attempt to agree is a prerequisite in going to court. Typically, such a plan is entered into by divorcing parents and an unmarried father who does qualify in terms of the Act.

Section 35 of the Act contains a provision with its aim to prevent a parent from frustrating the other parent’s rights. If a person under whose care a child is refuse contact with the other parent who is also a co-holder and do so contrary to a court order or registered plan, such person could be found guilty of a criminal offence. Such person can be liable on conviction to a fine or imprisonment for a period not exceeding one year. A person, with whom a child lives, must also notify the other parent of a change of address. Failure could result in a criminal offence.

About Divorce Attorney Cape Town:

Bertus Preller is a Divorce 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 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 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.

Domestic violence and Facebook

Domestic violence and Facebook

I recently acted in a matter wherein I defended a client on a domestic violence charge who “un-friended” an ex-girlfriend on his facebook profile. After informing his ex that he was going to “delete” her as a friend she approached the magistrate’s court in Cape Town and obtained a restraining order against my client.  She worded her affidavit in support of the interim protection order in such a “creative” fashion that the Magistrate assumed that “delete” actually meant something more serious, possibly a threat to her life. In Domestic Violence cases an applicant usually obtains an interim interdict (without the other party being at court) with a return date upon which the Respondent is called upon to give reasons why the interdict should not be made final. The problem with such orders are that any violation of the order may result in a Respondent being arrested by the South African Police. In my client’s opposing affidavit on the return I stated the following:

The application is… ill-fated and amounts to a mockery of the true objectives of the Domestic Violence Act…Applicant and I (Respondent) never lived together in a relationship or partnership of any sort. [She] was merely a friend like all the other male and female friends that I have… [If] the scope of the Domestic Violence Act were to extend to an area as in this case…any confrontation in the normal scope of a friendship could be construed as domestic violence, with absurd consequences.

Needless to say the ex had to withdraw the application due to the fact that there were simply no grounds to obtain a final order. The case triggered media attention in Noseweek and the editor noted the below.  The full article appear in the September issue of Noseweek and will meet the reader with a shocking example of the trivialisation of domestic violence as you’re likely to find – not to speak of the terrors that lurk on Facebook!

Noseweek Issue #143, 1st September 2011

In considering why a man accused of domestic violence might be stripped of his constitutional right to be presumed innocent until proved guilty at a fair trial, Judge Albie Sachs (in a 1999 Constitutional Court judgment) sought guidance from various authorities on the subject. It is clear from the authorities he quoted that what they all have in mind, when speaking of domestic violence, is ongoing, serious violence – or the threat of it – in the intimate, often hidden context of a “domestic relationship”.

So American authority Donna Wills states that “domestic violence is the leading cause of injury to women, a major factor in female homicide, a contributing factor to female suicide, a major risk for child abuse, and a major precursor for future batterers and violent youth offenders”.

South African author Joanne Fedler talks of “intra-family” offences, that include arson, assault,  threats to do bodily injury, obstructing justice, cruelty to children, incest, kidnapping, murder, culpable homicide, rape, forced prostitution, unlawful entry on to property, malicious damage to property, stalking, theft, robbery, unlawful possession of a firearm, involuntary sodomy, extortion, blackmail and sexual assault.

Any magistrate or legal practitioner that rates a man threatening to “unfriend” an interfering ex-girlfriend from his Facebook page on the same scale as the offences listed above is exposing himself and the law to ridicule.

Judge Sachs’s understanding of the nature of domestic violence is fairly mirrored in public perception: when most people hear that a man has been served with a “restraining” or “protection” order in terms of the Domestic Violence Act, they immediately visualise a pathetic woman bruised and beaten to within an inch of her life, surrounded by weeping, traumatised children – and somewhere skulking in the shameful shadows, an out-of-control, violent, probably drunken brute.

The stigma that attaches to such an order is probably only paralleled by a charge of paedophilia.

The law was designed to provide emergency relief to women in imminent danger of life-threatening physical or ongoing emotional abuse by someone with whom they are, or have been in a “domestic” relationship. Police and magistrates are empowered to come to the immediate aid of such women by issuing interim protection orders without prior notice to the accused person.

Interim orders in terms of the Act are,  therefore, issued pretty much on the woman’s say-so. Which is all the more reason why those entrusted with carrying out the law must do so sensibly and with great care.  Inter alia they must take care to ensure that the reasons advanced by the applicant are not frivolous, and that the problem, if there is one, might not be solved in a way less prejudicial to the accused.

It has been disconcerting to discover that there are a growing number of cases where the legal “short cuts” provided by the Domestic Violence Act, and the stigma that a domestic violence order carries, have been abused by unscrupulous lawyers and vengeful, “scorned” women to punish or blackmail their ex-lovers or, more often, as a cheap and nasty way to gain leverage in a divorce action.

The weakness in the system that unscrupulous lawyers have found and are exploiting is really a failure in the administration of justice: too often the police charged with processing these charges, have so little interest in them that they simply rubber stamp any statement that is handed in by a woman who alleges she is “fearful” because she has been “threatened”, without making any attempt to establish the nature and seriousness of the threat, or to establish just how real and imminent the danger might be.

Too many magistrates are in turn  routinely endorsing the applications by issuing “interim” protection orders – the interim nature of the order offering them an “out”: why, a man wrongfully restrained need simply come to court on the return date and have the order set aside! Never mind the scandal and reputational damage he will undoubtedly have suffered in the meantime. And the legal costs involved. And all the postponements in a congested court system, so that, in the real world, it could be months before he gets his day in court.

Even more serious: in the process they are trivialising domestic violence and, ultimately, undermining public confidence in a law that was enacted to deal with a really terrifying and all too pervasive social problem. Our cover story on page 10 is, in my view, as shocking an example of the trivialisation of domestic violence as you’re likely to find – not to speak of the terrors that lurk on Facebook!

The Editor

Copyright © 2011 www.noseweek.co.za

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 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 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.

Adultery, Infidelity, Extra-marital Affairs and Divorce

From a moral, ethical and religious view adultery is a sin and an act contrary to the basis of trust between married spouses and so is the behaviour of that a third party that break up the marriage seen as immoral.  This article is purely focussed on the law and not the public view or for that matter any moral or religious viewpoint.

Adultery may be defined as extramarital sex that wilfully and maliciously interferes with marriage relations which renders the irretrievable breakdown of the marriage relationship. It is often cited as grounds for divorce. In our law, both the married person and the lover will be regarded as adulterers.

South African law has recognised  claims for damages that can be instituted by an aggrieved spouse against a mistress, but is our law not evolving away from the historic public and religious views? Damages may still be awarded on the basis of the insult caused to the innocent party and of the loss of consortium. Compensation can be claimed for financial loss caused by break-up of the marriage, as well as for the loss of the affection. A court will consider the spouse’s financial and social situation, their moral reputation and the state of the relationship before the adultery was committed. When an innocent spouse’s behaviour was partly responsible for driving his or her partner into another person’s arms, the damages awarded can be considerably lower.

It can however be argued that the South African common law on which a Plaintiff’s claim is predicated for damages against a spouse who committed adultery in a marriage must be developed to promote the spirit, purport and objective of the Bill of Rights contained in Chapter 2 of the Constitution of South Africa, 1996 (“the Constitution”) and the interests of justice (under Section 39 (2) and section 173 of the Constitution).

According to the view expressed above it is argued that the time has come to develop the common law so as to remove or curtail claims for damages by a married person, utilising the actio iniuriarum, against a person involved in an intimate relationship with the married person’s spouse. The actio iniuriarum is used to claim for the impairment of one’s personality.  The purpose of this action is to compensate for the intentional injury to one’s mental integrity.

The argument against such a claim is that it breaches the right to human dignity (of the adulterer and mistress) under Section 10 of the Constitution, in that:

  • The relationship and love between the adulterer and mistress is treated as morally reprehensible or without opprobrium;
  • The mistress is held wholly responsible for damage caused to an aggrieved spouse by the other spouse’s marital infidelity; and
  • The mistress is treated as an instrument, in that her human relationship with the adulterer is used as a means to express condemnation for the adulterer’s marital infidelity, and/or to generate sympathy for the aggrieved spouse.

It is further argued that such a claim breach the adulterer and mistress’s rights to equality and freedom from discrimination under Section 9 of the Constitution on basis of marital status, conscience and belief in that:

  • No similar claim for damages is possible against a person who begins an intimate relationship with a man or a woman involved in a long-term homosexual or heterosexual relationship, customary law marriage or religious union;
  • The emotional consequences and loss for the aggrieved partner (i.e the person who learns of the infidelity of his or her partner with a third person) in all of the above relationships may be no more or less serious than a spouse in a marital relationship;
  • The law accordingly differentiates between a person who enters a relationship with a married person; and a person who enters a relationship with a person in other types of committed, long-term relationships;
  • The differentiation amounts to unfair discrimination on the basis of marital status and on the basis that it impairs, or has the potential to impair, the fundamental human dignity of an adulterer and a mistress.

It can further be argued that an adulterer and mistress’ right to privacy under Section 14 of the Constitution is violated in that it causes a public inquiry into the details of their relationship, how it formed and its strength.

Furthermore it seems that an adulterer and mistress’ rights to freedom of conscience, thought, belief and opinion under Section 15 of the Constitution, expression under Section 16 (1) of the Constitution and freedom of association under Section 18 of the Constitution also come into play for the following reasons:

  • Burdening people such as the mistress with damages will have a detrimental effect on her ability to honestly and openly express her emotions and love for another person;
  • The expression of emotions and love between the adulterer and mistress will be treated as morally reprehensible or tainted with moral opprobrium.

Therefore it seems that the common law must be developed in the interests of justice taking in to account the recognition that both parties contribute to the breakdown of the marriage relationship, which is inherent in the ground for divorce introduced in Section 4 of the Divorce Act 70 of 1979, namely “the irretrievable breakdown of the marriage”.

It is so that many foreign jurisdictions don’t tolerate such claims anymore and that there seems to be developments in South African case law to that effect. The historic view in our law that damages are awarded on the basis of the insult caused to the innocent party and of the loss of consortium seems to be outdated and time will tell on how our courts will develop the common law.

About the Author

Bertus Preller is a Divorce 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 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 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.



Spousal Maintenance in a Divorce

Maintenance of spouses in divorce

There are basically two options regarding spousal maintenance:

  • Where there is an agreement between the parties
  • Where there is no agreement but where the court makes an order for spousal maintenance

Where the parties agree on the maintenance

Parties in a divorce may enter into a settlement agreement regarding the maintenance that the once spouse will pay to the other. Where the parties only reach an informal agreement without making their agreement an order of court, the agreement remains unenforceable.

Maintenance order in the absence of an agreement

In terms of section 7(2) of the Divorce Act, a court may make a maintenance order in the absence of a written agreement between the parties. Such an order can apply until death or remarriage. The basic principal that will apply is that the party who applies for maintenance must show a need for it and the party against whom the order is made must be able to provide for it.

The court will consider a wide range of factors when it decides on giving the other party maintenance and in section 7(2) of the Divorce Act various factors should be taken into account, these are:

  • The existing and prospective means of the parties
  • The respective earning capacities of the parties
  • The financial needs and obligations of the parties
  • The age of each party
  • The duration of the marriage
  • The standard of living of the parties prior to the divorce
  • The conduct of each of the parties in relation to the breakdown of the marriage
  • Any order in terms of section 7(3) of the Divorce Act (a redistribution order)
  • Any other factor that the court may take into consideration

There are basically three types of maintenance orders:

  • Rehabilitative Maintenance – Where a maintenance order applies for a specific period of time, it is called a rehabilitative maintenance order. This is normally awarded to younger or middle-aged women who have for years devoted themselves to the upbringing of the children and who were full time involved in the household. The purpose of this kind of maintenance is to tie them over to be trained or retrained to find suitable employment.
  • Permanent Maintenance – The court may award lifelong maintenance to a woman that is too old to find a job.
  • Token Maintenance – Token maintenance is an order for a minimal amount. The court will make such an order if there is no reason to grant maintenance at the time of the divorce, but foresees that the spouse may in future need maintenance. The court would then be able to increase the amount in future should the need arise.

It is clear from the wording of section 7 (2) of the Divorce Act that a maintenance order can be made against a husband or a wife. It is also important to note that a court may not consider all the factors listed above before it makes a maintenance order and that a party is not as of right entitled to maintenance.  The factors are not exhausted and one does not have preference over the other. Therefore each case must be considered on its own merits in light of the circumstances and facts peculiar to it and with regard to those factors set out in the Divorce Act.

About the Author

Bertus Preller is a Divorce Attorney in Cape Town and has more than 20 years experience. 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 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.

Divorce and Child Abduction in South Africa


As a divorce attorney I frequently get instructions to assist a parent whose child has been abducted by the other parent to another country. Frequently it happens that a child visits the other parent in a foreign country by consent between the parents only to find when the child has to return that the other parent wrongfully keeps the child there. International child abduction also happens when one parent takes a child from the country where he or she usually lives to another country without the consent of the other parent.

The Hague Convention on International Child Abduction is applicable to matters because of its definition of “rights of custody”. The Hague Convention is broadly worded to also cover for situations where the child has been abducted by a person other than his/her parent.

The Hague Convention only applies if countries ratified the convention. South Africa ratified the Hague Convention and as such it is part of our domestic law. Also section 275 of the South African Children’s Act proclaims that the Hague Convention is part of South African law. The Hague Convention is only applicable to children under the age of 16 years.

The removal or retention of child is unlawful where it breaches the right of contact (custody) that a person obtained in terms of a court order in the area where the child was habitually resident. In order to succeed with an application under the Hague Convention a party must be able to show that a parent is exercising the custody rights at the time of removal or retention of a minor child. When it comes to making a decision to remove a child from the country where he is usually habitant both guardians (parents) must consent, thus if one parent removes a child without the consent of the other parent, the Hague Convention will apply.

If there is a delay in the proceedings of returning the child back to the country where he is usually habitant for more than a year after the proceedings have been lodged, the court is not bound to return the child if he or she has settled into a new environment. In such a case the court will consider the best interests of the child; although a court under a Hague Convention application does not do so. Regulations in the Hague Convention determine that such a matter must be concluded within 6 weeks after commencement of the court proceedings.

There are also exceptions to the rule of peremptory return of a child, namely:

  • Where the person does not have rights to custody or if the parent had consented in the removal of the child.
  •  Where there is a grave risk that the child would be exposed to psychological or physical harm if being returned.
  •  If the child objects being returned and is of such an age and maturity that it is inappropriate to take account of his/her views.

About the Author

Bertus Preller is a Divorce 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 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 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 father’s rights, domestic violence matters, international divorce law, digital rights, media law and criminal law.

Relocation of parents with children, you need the consent of the other parent

Relocation of parents to another province, town or country

Relocation disputes between parents are frequent in our courts. Relocation can involve relocation to another town, province or country.  Where both parents have guardianship it necessarily follows that consent from both parents will be needed when one parent decide to relocate with a minor child. It is important to note that there is no section in the Children’s Act that deals specifically with relocation.  The closest that the Children’s Act gets to relocation is section 45 that deals with the jurisdiction of the court in matters where a child is removed from the Republic of South Africa.

Typically a relocation dispute will arise where one parent, normally the parent of primary residence and with whom the child usually resides decides to leave the country or the province to live elsewhere. It then usually follows that the parent who is left behind refuses or disagrees to give consent that the child leaves with the other parent. Once the other parent disagrees or refuses to give consent, the primary caregiver can approach the High Court for an order dispensing with the other parent’s consent and remove the child to another country or province. It must be noted that it is not a given that the court will automatically give its consent.  The reason therefore is that the Children’s Act does not set criteria and our courts have to consider various facts and case law before it will grant an order to the other parent to move the child.

If one has regards to previous case law it is clear that our courts will only grant permission based on the best interests of the child. An important factor that the court will take into consideration is whether the decision by the parent to relocate is reasonable and bona fide and this will be part of the valuation whether the move will be in the child’s best interests. If the court does find that the plan is reasonable then obviously the court will allow the parent to move the child.  It is evident to note that our courts have taken a pragmatic approach and although the move may be to the detriment of the other parent who will have less contact with the child, life must go on.  Another issue that comes into play is the fact that our courts have to respect the freedom of movement of family life of relocating parents.

The following passage from the case F v F 2006 (3) SA 42 (CA) is of importance:

It is an unfortunate reality of marital breakdown that the former spouses must go their separate ways and reconstruct their lives in a manner that each chooses alone

 A court must however also consider the impact that the relocation will have on the other parent who will be left behind. In looking at what is in the best interests of the child, a court should also look at whether relocation will be compatible with the child’s welfare. In F v F as sited above the court stressed the importance that it had to evaluate, weigh and balance a myriad of competing factors, including the child’s wishes in appropriate cases. In this matter the court rejected the mother’s application to relocate with her daughter despite finding that the decision to leave was bona fide. What the court found was that the practicalities of her decision to move were ill-researched and were outweighed by the child’s need not to be separated from either parent.

In the case of MK v RK case number 17189/08 in the South Gauteng High Court, the court followed a similar approach as in F v F. In this matter the child was living with the father. Here the court found that the father was thwarting attempts by the mother to rebuild her relationship with her daughter. The issues between the parties were acrimonious and the father alleged that the mother sexually abused the daughter years ago, based on these and various other factors, the court awarded custody to the father at the time the parties divorced and the child lived for several years with her father. The father then sought to relocate to Israel, although the mother initially gave her consent because she believed that she would be allowed contact with her child. She did however later withdraw her consent when she realised that this will never materialise. The court refused the relocation based on the fact that the father could not provide sufficient information when and where he would be employed, where the child would be going to school and how she would be assisted to learn Hebrew. The court also placed emphasis on the fact that it was important for the child to re-establish her relationship with her mother. What was also interesting in this case was that the court criticized the experts (psychologists) who recommended the relocation based on the fact that they did not considered all the facts and moreover that they did not considered all the evidence in making such far-reaching recommendations.

Another interesting case was that of HG v CG 2010 (3) SA 352 (ECP). This matter concerned four children whose parents were divorced. The eldest was then aged eleven and his siblings, a set of eight year old triplets, comprising two boys and a girl. In terms of the settlement agreement the parents were awarded joint custody. The intention being that the children would spend an equal amount of time with each parent and the children were spending alternate weeks with each parent.

Three years after the divorce the wife approached the High Court by way of an urgent application for variation of the custody order. In the application she sought an order declaring her the primary care provider of the children as well as the authority to permanently remove them from South Africa to Dubai to live with a new man whom she planned to marry.

Experts commissioned by the applicant, being a social worker and clinical psychologist, recommended that the applicant be the primary care provider and that she relocate with the children to Dubai as proposed. Experts not commissioned by her held a different view, finding that relocation would not be in the best interest of the children as they would miss their father, school friends and the city of Port Elizabeth to which they were accustomed. The mother’s application was dismissed and the court did not consent to the relocation as it found that it was not in the best interests of the children.

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 father’s rights, domestic violence matters, international divorce law, digital rights, media law and criminal law.

Divorce Ends Marriages…But Families Endure…

Divorce Ends Marriages…But Families Endure…

“Children need and deserve the love, care,
and support of both their parents”

Divorce is said to be one of the most traumatic experiences in the life of a person. Not only is it traumatic for the spouses but also for the children. In our current society it is not difficult see what the effects of divorce have on spouses, families and children. The ripple effect of a divorce rolls into the lives of most of the extended family members and close friends. As a family law attorney I see the effects of divorce every day. What parents should realise is that although the spousal relationship may end at divorce, the parental relationship will endure for a lifetime. The more acrimonious the break-up the more difficult will it be for the parents to parent their children in future. It is therefore of utmost importance that spousal conflict should bow for the sake of the best interests of the children, sooner rather than later. As a matter of fact, all that children want is to be happy. Unfortunately in many divorces it is the parents that act like children.
Here are some pointers for parents:

  1. Try to resolve your conflicts without putting your kids in the middle. Be objective about your children’s needs (do not confuse them with your own). Resolve a conflict sooner rather than later.
  2. Treat the other parent with respect, like you want to be treated. Set an example for your children. Our children imitate our behaviour. The disrespect that you show toward the other parent will be played out by the child in his own life. It’s extremely important for a child’s healthy development to have respect for authority figures, including both parents.
  3. Know your boundaries. When it comes to your children, it’s sometimes very difficult to tell yourself what they’ are doing while they are with the other parent, well it is actually none of your business, unless they will be physically or psychologically harmed, it probably is none of your business.
  4. Communicate regularly about the children with the other parent. There are lots to share. When children are still small, the other parent needs to know the basics when parenting responsibilities are being transferred. The worst-possible scenario is that a lack of communication may lead to a child not being picked up after school or day care, or important medical treatment being disrupted.
  5. Demonstrate positive conflict resolution to your children. You can use conflict as an opportunity to show your children how to resolve issues in a responsible manner.
  6. Do not allow all of the parenting tasks to fall on one parent. Things that are out of balance usually don’t work well. Don’t expect the other parent to be in charge of all of the communicating, extra purchases for your child or all of the discipline that needs to be done.
  7. Be a consistent parent – in disciplining, feeding and caring for your children. It really makes transitions from one household to the other easier, it minimizes the outbursts from children after visits at the other parent. Respect the other parent’s parenting approaches, and do recognize that while consistency is optimal, differences are okay. Children can distinguish that something that’s okay at Dad’s house may not be okay at Morn’s house.

The various ages and how children react to divorce:

Zero to One Year

Babies at this age begin to form attachments, so it is important to minimize changes and disruptions in their lives and show them love and affection. It’s important that they spend time with both parents so they can form attachments with both. Signs of distress can be excessive crying, problems with feeding or sleeping, and withdrawal.

One to Three Years

At this age children become more mobile and gaining communication skills. They are also able to recognize close adults, so they are sensitive to separation. These kids need consistency in routine and patience from their parents to safely explore their environment. Signs of distress are nightmares, mood changes, and changes in toileting.

Three to Five Years

Kids at this age believe they are the center of the universe, and so they feel responsible for the family split. Parents need to be positive during exchanges, keep a consistent schedule, and tell the kids that the divorce or split is not their fault. Signs of distress include toileting and sleep problems.

Five to Ten Years

Kids at this age are entering school and forming relationships outside the family. They may try to reunite parents and may feel and act out intense anger. Parents should develop a schedule that allows for consistency with school and extracurricular activities, and support their kids’ interests and friendships. Signs of distress at this age include expressions of anger, drop in school performance, sleep problems, and physical complaints.

Ten to Twelve Years

Pre-teens tend to see things in black and white terms, and so may align themselves with one parent. Parents should encourage these kids to love both parents and support their kids’ school and other activities. Signs of distress in pre-teens may include loss of interest in friends, becoming a perfectionist, depression, and isolation.

Early Adolescence (Thirteen to Fifteen Years)

Teens will often prefer to spend more time with friends than family, so allow room in the parenting plan for this. These teens need firm but fair guidelines and positive role models. They may also want to be included in creating the parenting plan. Signs of distress in this age group may include excessive anger or isolation, difficulty with school or peers, alcohol and drug use, and sexual acting out.

Late Adolescence (Sixteen to Eighteen Years)

Teens in this age group are learning to be independent to prepare for the separation from their parents, but they still need support and rules. These teens may also want to be included in creating the parenting plan. Watch for signs of distress, including reduction in school performance, difficulty with peers, alcohol and drug use, and sexual acting out. If parents aren’t able to talk, your teen can say, “I’m spending tonight at mom’s (dad’s) house,” and you won’t know if they’re really there.