Interview with Bertus Preller, a celebrity divorce attorney based in Cape Town

Business Times Interview – by Adele Shevel

Maria Shriver’s doing it; Tiger Wood’s wife did it. Making the decision to terminate a marriage is a tough one, and the chances are it’s followed by an even more traumatic lead-up to the divorce.

Shriver and Woods are very wealthy, their husbands hugely successful, and high profile infidelity was peppered into the mix. But it’s not only the rich who need to ascertain the financial situation of their husbands.

Women are encouraged to gather as much financial information about their husband’s financial affairs before the divorce proceedings commence, to establish the magnitude of the estate.

Bertus Preller, a celebrity divorce attorney at Abrahams and Gross in Cape Town provides guidance as to how to get your affairs in order before making that final call.

“It’s extremely important for any woman to know what’s going on in her husband’s financial affairs. It’s difficult when you don’t have access to his share portfolio or balance sheet, but one must reasonably expect to get an idea of financial affairs.”

An attorney cannot negotiate on behalf of a client without knowing in advance what the estate is worth.

In many divorce settlements, the wife ends up seeing what the estate is worth after it takes place.

  • Make copies of your husband’s bank statements, credit card statements and get hold of the short-term insurance policies as well as copies of pension funds and retirement funds. This will provide input on the extent of assets available and the value of the estate.
  • Build a clause into the settlement agreement to say if any assets that come to light after the divorce settlement, the wife is entitled to 50% of those assets and the husband will have to pay the legal fees involved in this process.
  • A more accurate sense of assets will come to light if the divorce is contested as parties are required to disclose any information to do with financial affairs. The husband can be required under oath to make full disclosure of his assets, and it is perjury if he doesn’t.
  • Women are advised not to leave the matrimonial home if children are involved, because it provides a sense of stability for the kids. It’s better for the husband to leave. If he makes himself guilty of abuse, the wife can get a restraining order to evict him from the property. In some instances, the husband can be restricted from accessing certain parts of the home.
  • Where the parties are married in community of property the wife is entitled to half the pension or retirement annuity fund. In a marriage out of community with the accrual, the pension fund will be regarded as part of the husband’s assets for purposes of calculating the accrual.
  • In terms of the Divorce Act, the wife (if married in community of property) can choose to ask for the pension fund money to be paid in cash, or transferred to a pension fund of her choice.  Normally pension funds pay out the wife’s portion in 3 to 6 months after the divorce. Wives of employees for the SA government have had to wait for her husband to resign or die before she could access her portion of his pension. But this might change — a judgement issued this month said it was unconstitutional for the wife of a government employee not to be allowed to access his pension following a divorce.
  • Make a list of your monthly income and expenses, as if you’re going to live on your own with your children. It’s important because you get situations where the wife is not working or earns much less than the husband and doesn’t have the money to fight a divorce battle.  She can bring an application pending a divorce, for interim maintenance, which means contributing maintenance before the divorce is finalised. She can also apply for contribution to her legal expenses. If interim-maintenance is granted and the husband does not comply with the court order, he is in contempt of court.
  • In some instances the wife can apply for emergency monetary relief in the magistrate’s court pending the institution of an application for interim maintenance by utilizing the provisions of the domestic violence act because the husband has blocked the use of credit.
  • Interim maintenance falls away once the divorce order is granted. There have been situations where the wife has been granted very favourable interim maintenance terms, so she stalls the divorce in order to continue getting a hearty amount of money each month.
  • The granting of interim maintenance divorce cannot be appealed. The only way the husband can minimize this is if he goes back to court and explains and proves that his financial situation has changed so much that he’s entitled to a reduction. But this does not happen easily.
  • Many battles in a divorce surround the children. Normally the wife is the parent of primary residence and the husband the parent of alternate residence. Increasingly, there’s a shared parenting approach with children staying with the mother for a week and then the father for a week and each party takes care of the children during that period.  “We see a lot of children used as a weapon. I tend to immediately get a parenting plan in place, and register that with the family advocate and stipulate that if issues arise with parenting and the children they need to go to a psychologist or a social worker”.
  • In matters where money is not fought over, it may make financial sense to go to one lawyer who can work for both parties. But a divorce that is acrimonious requires that each party needs a lawyer to assist.
  • A few mediation organizations exist where people can see a mediator to resolve disputes, to settle with both parties. The mediator doesn’t have the authority to issue and award damages but he can facilitate the process. If an abusive husband is involved, mediation is unlikely to work.  But it can work if the divorce is not acrimonious. Parties have to pay. “Sometimes this route can be more expensive than an uncontested divorce, depending on the amount of sessions that the parties have to attend” says Preller.
  • Where a couple owns a property together, they need to decide whether both parties want to keep the interest in the property, sell the property and split the proceeds, or whether one wants to buy out the other. The decision has financial implications because of transfer duties and tax.
  • It’s important to consider instances where the husband has no assets. A policy should be taken out in the event that the husband passes away and there is no money to help cover maintenance, in case of his death.

“The decision to divorce is a business decision. You need to look at what happens until the children turn 21, that there’s maintenance, medical cover for them, a school education and whether it’s government or private school and tertiary education,” says Preller.

About Bertus Preller

Bertus Preller is a Family Law and Divorce 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 deals with Family and Divorce matters across the country.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 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 also has a passion for gadgets and technology and he 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.

He specializes in 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 – the role of the Police

The role of the police in fighting acts of domestic violence

Domestic violence and abuse can occur among heterosexual couples, same-sex couples, as well as any people living together in the same household. It is important to note that while women and children are the most victimized, men are also abused, especially verbally and emotionally, although sometimes physically too. Domestic violence occurs in all age ranges, ethnic groups, and class levels.

In the past, the police have been criticized for not responding adequately to cases of domestic violence. In an attempt to rectify this, the legislature enacted the Domestic Violence Act 116 of 1998 (the Act). Legislators placed particular obligations on the police in the Act in an effort to challenge their long history of neglect of domestic violence cases (Lisa Vetten ‘Addressing domestic violence in South Africa: Reflections on strategy and practice’ www.un.org/womenwatch/daw/egm/vaw-gp-2005/docs/experts/vetten.vaw.pdf). This article takes a look at the role that police officials should play in domestic violence cases.

The Domestic Violence Act

The aim of the Act, as stated in its preamble, is

‘to afford the victims of domestic violence the maximum protection from domestic abuse that the law can provide; and to introduce measures which seek to ensure that the relevant organs of state give full effect to the provisions of this Act’.

This legislative intervention was seen as progressive and necessary to protect mostly the rights of women and children. However, the Act has not brought about the expected results as acts of domestic violence continue to occur. Domestic violence is defined in the Act as

‘physical abuse, sexual abuse, emotional, verbal and psychological abuse, economic abuse, intimidation, harassment, stalking, damage to property, entry into the complainant’s residence without consent where the parties do not share the same residence, or any other controlling or abusive behaviour towards a complainant, where such conduct harms, or may cause imminent harm to, the safety, health or well-being of the complainant’.

Domestic violence is defined broadly in the Act in order to capture the most common abusive behaviours that victims are exposed to on an almost daily basis in South Africa. Domestic violence cases are regarded as civil cases, hence domestic violence is not defined as a crime in the Act. This means that there is no specific crime of domestic violence in South Africa. Such a criminal case will be conducted separately from the civil proceedings in the domestic violence case.

The role of the police

To ensure that cases of domestic violence are taken seriously, the Act places an obligation on members of the South African Police Service (SAPS) to monitor, enforce and oversee the implementation of the requirements of the Act. In terms of s 2 of the Act, any member of the SAPS at the scene of an incident of domestic violence or as soon thereafter as is reasonably possible, or when the incident of domestic violence is reported, must –

  • assist or make arrangements for the complainant to find a suitable shelter and obtain medical treatment;
  • hand a notice containing information as prescribed to the complainant in his official language; and
  • if it is reasonably possible, to explain the contents of such notice as well as the remedies that are at the disposal of the complainant, and the right to lodge a criminal complaint if applicable.

Section 2 requires police officers to make an immediate assessment of the need for first aid or other medical assistance. This implies that there must be cooperation between the police and the Department of Health to make ambulances available. This section does not, however, give clear directives on how the police should go about ensuring that the victim does obtain medical attention. It might also be desirable for the police official to accompany the victim to get medical attention in order to ensure that the continuity and integrity of the evidence is maintained.

Furthermore, the police have a duty to explain the investigation processes and procedures to the complainant and make it clear to the complainant that domestic violence cases are taken seriously. They should also emphasise the importance of the complainant being truthful and forthcoming with relevant information that may assist the police in protecting his rights. The police officials are also obliged in terms of s 2(c) to explain to the complainant –

  • the possible remedies that are open to the complainant;
  • that the complainant has the right to apply for a protection order in terms of s 4 of the Act; and
  • the right to lay criminal charges if the domestic violence act concerned constitutes a crime.

If it is reasonably possible, the police official handling a domestic violence case must assist the complainant in his language in terms of s 2(b) and (c) of the Act. It would be difficult, if not impossible, for the police to carry out the requirements of s 2 if they are not adequately trained to deal with domestic violence cases. It is doubtful whether members of SAPS are sufficiently trained to carry out their duties as required by the Act.

It is important that police officials entrusted with dealing with domestic violence cases receive special training to enable them to carry out their obligations as required by the Act. The police should also be adequately trained to conduct domestic violence cases efficiently. It has been recommended that when an incident of domestic violence is reported to SAPS, the statement-taking should include five essential questions on –

  • the history of the abuse;
  • a description of the most recent incidence of domestic violence;
  • any medical attention sought by the complainant as a result of the current incident or previous incidents or any other evidence to show that an act of domestic violence has taken place;
  • the complainant’s knowledge of any previous criminal records of the accused; and
  • the complainant’s knowledge of any orders against the accused, including protection orders, interdicts and maintenance orders (see Lillian Artz ‘Better safe than sorry: Magistrates’ views on the Domestic Violence Act’ Crime Quarterly No 7 2004).

Furthermore, s 3 of the Act empowers police officials to arrest at the scene of domestic violence without a warrant if there is a reasonable suspicion that an offence committed has elements of violence.

Failure to comply with [the requirements of s 2] constitutes misconduct and the National Commissioner of the SAPS is required to submit six-monthly reports to parliament detailing the number and nature of complaints against the police for failing to adhere to these statutory obligations; disciplinary proceedings instituted and steps taken as a result of recommendations made by the Independent Complaints Directorate’ (Vetten).

State’s obligation to protect against domestic violence

In terms of s 12(1)(c) of the Constitution, everyone has the right to freedom and security of the person, which includes the right to be free from all forms of violence from either public or private sources. The Constitutional Court in S v Baloyi (Minister of Justice and Another Intervening) 2000 (2) SA 425 (CC) para 11 has held that:

‘Read with s 7(2), s 12(1) has to be understood as obliging the state directly to protect the right of everyone to be free from private or domestic violence. Indeed, the state is under a series of constitutional mandates which include the obligation to deal with domestic violence: To protect both the rights of everyone to enjoy freedom and security of the person and to bodily and psychological integrity, and the right to have their dignity respected and protected, as well as the defensive rights of everyone not to be subjected to torture in any way and not to be treated or punished in a cruel, inhuman or degrading way’.

By promulgating the Act, the state was conscious of the fact that domestic and family violence is a pervasive and frequently lethal problem that challenges society at every level. The importance of eradicating domestic violence and abuse in our society cannot be overstated. In order to comply with its constitutional mandate, the state entrusted the police with the duty to protect victims of domestic violence.

‘[SAPS] is one of the primary agencies of the state responsible for the protection of the public in general, and women and children in particular, against the invasion of their fundamental rights by perpetrators of violent crime’ (Carmichele v Minister of Safety and Security and Another (Centre for Applied Legal Studies Intervening) 2001 (4) SA 938 (CC)).

Conclusion

Domestic violence remains a major social ill in South Africa and requires law enforcement agencies to work aggressively to prevent it. The Act is an expression of the state’s commitment to eliminate domestic violence. However, in order for the implementation of the Act to be successful, police officials must be trained to enable them to make informed decisions that best protect victims of domestic violence and abuse. In order for police officials to be able to adequately inform victims of their rights in terms of the Act and to explain certain information, they need detailed understanding of the issues involved and an ability to put information across in a clear and simple manner. Domestic violence cases involve particular investigative skills, which the state must ensure that members of the police are equipped with.

Article by Clement Marumoagae LLB (Wits) LLM (NWU) who is a candidate attorney at the Wits Law Clinic – De Rebus.

Compiled by Bertus Preller a Divorce and Family Law Attorney in Cape Town who 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.

Bertus Preller

B.Proc; AD Dip L Law

Family Law Attorney

A:1st Floor, 56 Shortmarket Street, Cape Town, 8000

O: +27 (0) 21 422 1323

F: 086 572 8373

C: +27 (0) 83 443 9838

E: bertus@divorceattorney.co.za; W:  www.divorceattorney.co.za; Twitter: www.twitter.com/edivorce;

Facebook: www.facebook.com/divorceattorneys; Skype: divorceattorney

Children Custody Matters, what we can learn from Charlie Sheen

As an attorney I often advise clients regarding what they should and should not do during a contested divorce where care and contact of the children or custody as we know it is at stake. Here are some important lessons learned from the hours of Charlie Sheen interviews attracting media attention the past few weeks.

Call me old fashioned, but a judge typically do not let 2-year-old twins return to a house where the dad is having a 2 ½ -some.

If you are going to partake in “extracurricular activities” during a custody dispute, at least find a hotel, there are lots of these in South Africa. It is much easier explaining to a judge this charge on a credit card, as opposed to justifying why this behaviour is appropriate in the home.

When determining child custody issues, South African courts have accepted through the years the “Best Interest of the Child” standard. This means that courts are free to consider whatever facts they believe to be relevant when making a child custody determination. This standard is based upon the legal theory “in loco parentis,” which basically means that the court stands “in the place of the parent” when asked to determine a child custody matter. Accordingly, the court takes the place of both the parents when determining what is best for the children in the circumstances.

In the Sheen matter, the analysis will be slightly more complicated. Sheen and Brooke Mueller recently signed a custody agreement or as we know it in South Africa a parenting plan. By signing this document, both the parents essentially stated that they believed the terms of the agreement will be in the best interest of the children. Mueller has asked the court to set aside the recent custody agreement because of a change of circumstances (e.g. Sheen’s recent strange and disturbing behaviour), and because the change would be in the best interest of the children. Because of all the interviews that Sheen has given, there is no shortage of proof that Sheen has new or exasperated issues (whether it be manic episodes, bipolar symptoms, drug use or just poor parenting decisions), and that the agreement granting Sheen unsupervised visitation rights should be re-examined.

At the very least, Sheen’s decision to expose the two-year-old twins to his two so-called “goddesses” will be seen as an important change of circumstances to cause the court to make a thorough analysis of what future care and contact arrangements is in the best interest of the children.

A Porn star is not a qualification to be a nanny.

If you are wealthy and fighting custody battles rather hire someone akin to Mary Poppins. She would be a great witness at trial and people may even love the accent.

Admitting taking substantial amounts of cocaine in the past months, when you claim that your wife has a sobriety problem; it’s almost like the pot calling the kettle “Charlie Sheen.”

Courts appreciate when a parent admits that there is a problem and attempts to get help for that problem and Judges will recognize that people are fallible. If a parent, such as in Sheen’s case goes on national television to proclaim that he is not fallible and in fact has tiger blood, he has not helped his case.

If you have already shot your fiancé and threatened your second wife, been arrested on a violent charge, you probably shouldn’t threaten to kill your current wife during a custody case.

Violence against the other parent will be considered when determining custody and visitation arrangements. This is because courts do recognize that a child’s psyche is significantly affected when watching or learning that there have been acts of domestic violence between his or her parents. If a parent threatens (or is violent against) the other parent, courts may surmise that this parent may threaten (or become violent against) the child in the future.

If we have learned nothing else from Napoleon, you probably shouldn’t fight a two-front war at the same time.

If you have your hands full with a custody battle with wife number three, maybe now is not the time to make threatening and derogatory statements against wife number two. I know it is a recession, but your divorce attorneys may not be that hard up for work.

So what should Sheen do now? The answer is clear….do what is in the best interest of the children.

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

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

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

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

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

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

DIVORCE

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

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

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

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

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

Uncontested Divorces

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

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

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

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

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

DIVORCE MEDIATION

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

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

MAINTENANCE

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

RULE 43 APPLICATIONS

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

MATRIMONIAL PROPERTY & PROPRIETARY CLAIMS

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

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

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

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

FAMILY – DOMESTIC VIOLENCE AND ABUSE INTERDICTS

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

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

VISITATION – CUSTODY AND ACCESS

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

ADOPTION

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

COHABITATION AGREEMENTS

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

PARENTING PLANS

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

PRIVATE INVESTIGATIONS

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

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

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

Divorce and the obstacles facing matrimony in South Africa

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

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

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

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

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

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

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

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

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

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

Source Sunday Times – Business Times Interview by Adele Shevel

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

Contact Bertus at info@divorceattorney.co.za

http://www.divorceattorney.co.za

Parental Alienation Disorder

Father’s Rights activists in the USA have been attempting to have Parental Alienation Disorder added to the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM V), the American Psychiatric Association’s “bible” of diagnoses.

Parental Alienation Syndrome explains a child’s estrangement from one parent or allegations of abuse at the hands of one parent by blaming the other. The theory, developed by the late Richard A. Gardner, M.D., portrays the preferred parent as an evil “alienator” who is virtually solely responsible for turning a vulnerable child against their estranged parent. Parental alienation syndrome occurs when one parent’s efforts to consciously or unconsciously brainwash a child combine with the child’s own bad-mouthing of the other parent. In severe cases, the child won’t want to see or talk to the alienated parent.

Parental Alienation Syndrome is a disturbance in the child who, in the context of divorce, becomes preoccupied with deprecation and criticism of one parent, which designation is unjustified or exaggerated or both. Parental Alienation Syndrome arises primarily from a combination of parental influence and a child’s active contribution to the campaign of deprecation, factors which may mutually reinforce one another.

Parental Alienation Syndrome may be divided into three categories – severe, moderate and mild. Although there is actually a continuum, and many cases do not fit neatly into one of the three classifications, the differentiation is important. The alienation of the child is gradual and consistent. It becomes worse if the child has no time with the targeted parent. Time is on the side of the alienating parent. Children who are exposed to Parental Alienation Syndrome may develop mental illnesses; it can have profound long-term consequences. Studies of adults who had been victims of Parental Alienation Syndrome when they were young showed that the Parental Alienation Syndrome impacted on their ability to trust and to believe in things like honesty and openness and those relationships with members of the opposite sex can work. Parents should be able to trust each other but children who had been victims of Parental Alienation Syndrome believed that the alienated parent could not be trusted. The studies showed that, as the persons concerned had grown up and severed ties with the alienating parent, they discovered that many of the things that they had been told by that parent were not true. They discovered that the targeted parent was not as bad as they had been led to believe and, in some cases, that he was in fact ‘a good guy’. The young person then found himself or herself in the position that he or she could no longer trust the alienating parent but at the same time could not trust the targeted parent. In many of the cases, the studies showed that the person concerned was maladjusted and failed in inter-personal relationships. Typically, when a child is aware of the alienation it is not happy.

Parental alienation syndrome is not a gender specific issue. It was once believed women were the main perpetrators of parental alienation, but no longer almost 50% are men. Perpetrators who are men tend to be narcissistic, characterized by a sense of entitlement, arrogance and low empathy. Female alienators often have borderline personalities, marked by insecurities, neediness, a strong fear of abandonment and chronic emptiness.

When it comes to parental alienation the focus should be on the child who has a right to equal time with both father and mother.

Making parental alienation a disorder instead of a syndrome has nothing to do with whether or not you have a “uterus, divorce papers and bruises.” Most mothers put their children’s needs first. Most fathers do the same.

It is trite in family law that the ‘best interests’ of each child is paramount in determining the contact and care of and access arrangements to such child. Such interests have been described as ‘an elusive concept’.

In determining what is in the best interests of the child, the Court must decide which of the parents is better able to promote and ensure his physical, moral, emotional and spiritual welfare. This can be assessed by reference to certain factors or criteria which are set out hereunder, not in order of importance, and also bearing in mind that there is a measure of unavoidable overlapping and that some of the listed criteria may differ only as to nuance. The criteria are the following:

  • the love, affection and other emotional ties which exist between parent and child and the parent’s compatibility with the child;
  • the capabilities, character and temperament of the parent and the impact thereof on the child’s needs and desires;
  • the ability of the parent to communicate with the child and the parent’s insight into, understanding of and sensitivity to the child’s feelings;
  • the capacity and disposition of the parent to give the child the guidance which he requires;
  • the ability of the parent to provide for the basic physical needs of the child, the so-called ‘creature comforts’, such as food, clothing, housing and the other material needs – generally speaking, the provision of economic security;
  • the ability of the parent to provide for the educational well-being and security of the child, both religious and secular;
  • the ability of the parent to provide for the child’s emotional, psychological, cultural and environmental development;
  • the mental and physical health and moral fitness of the parent;
  • the stability or otherwise of the child’s existing environment, having regard to the desirability of maintaining the status quo;
  • the desirability or otherwise of keeping siblings together;
  • the child’s preference, if the Court is satisfied that in the particular circumstances the child’s preference should be taken into consideration;
  • the desirability or otherwise of applying the doctrine of same sex matching;
  • any other factor which is relevant to the particular case with which the Court is concerned.

Compiled by: Bertus Preller

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

http://www.divorceattorney.co.za

Domestic Violence

Domestic Violence

It happens frequently that one parent of a child would abuse the provisions of the Domestic Violence Act to block the contact that the other parent have towards their child. This was an issue that was dealt with in the case of Narodien v Andrews 2002 (3) SA 500 (C).

The matter came before the Court for review at the request of one of the magistrates of the Cape Town magistrate’s court. The applicant and respondent were the biological parents of a boy, L, aged five, born out of wedlock. The applicant father had applied to the magistrate’s court in terms of the Domestic Violence Act 116 of 1998 (the Act) for an interim protection order against the respondent mother. The affidavit accompanying the application had, however, contained no details of any ‘acts of domestic violence’ committed by the respondent. The parties were embroiled in a dispute concerning the applicant’s access to his son. The respondent had allegedly agreed on various occasions to allow the applicant to see the child but would not allow the child to spend an entire weekend with his father. The applicant wanted L to spend every second weekend with him from Friday 6 pm to Sunday 6 pm. The relief applied for by the applicant in the magistrate’s court was that he be granted ‘access to his son’ as stipulated.

The magistrate hearing the matter had issued an ‘interim protection order’ against the respondent. The order did not mention any acts of domestic violence but simply ordered the respondent not to prevent the applicant from having contact with his son. On the return date of the ‘interim protection order’ the respondent opposed the issuing of a ‘final protection order’. It appeared from the evidence that the respondent was unwilling to allow the child to remain with his father for an entire weekend because this would mean that he would miss out on the Sunday morning church service to which his mother habitually took him and, further, that the respondent would be unable to limit the opportunities which the child had to interact with the applicant’s family. The magistrate hearing the matter, however, confirmed the ‘interim protection order’, ordering the respondent to allow the applicant access to his son from Friday 7 pm to Sunday 4 pm every alternate weekend.

The respondent subsequently applied for the setting aside of the ‘protection order’. The magistrate hearing that application varied the previous order made by granting the applicant access to the child from 7 pm Friday to 7 pm Saturday and from 11 am Sunday to 5 pm Sunday every alternate weekend until such time as access could be determined by the High Court. The applicant had been present at court but, due to a misunderstanding, was not in court when the matter was heard. The ‘variation order’ was accordingly granted in his absence. The magistrate subsequently requested the High Court to set aside the ‘variation order’ on the grounds that the order had been incorrectly granted in the absence of one of the parties. Following upon queries by the Court as to the legitimacy of the ‘protection order’, the magistrate referring the matter for review stated that the definition of ‘domestic violence’ in the Act included any controlling or abusive behaviour towards the complainant where such conduct harmed or could cause imminent harm to the safety, health and well-being of the complainant and that the conduct complained of by the applicant in the instant matter had fallen within this definition. The magistrate stated further that the court had been satisfied that undue emotional hardship would be suffered by the applicant if a protection order were not issued immediately.

The court found that the High Court in its capacity as upper guardian of all minor children within its area of jurisdiction, however, had an inherent common-law jurisdiction mero motu to review the so-called ‘protection orders’ granted by the magistrate’s court in the instant matter, as such orders directly concerned the interests of a minor child within its area of jurisdiction.

While the concept of ‘domestic violence’ was defined very broadly in s 1 of the Act, such definition had to be placed within the context of the Act as a whole and not be viewed in isolation.

An interpretation of s 7(6) of the Act which would empower a magistrate’s court to make ‘stand-alone’ orders concerning access to a minor child in cases where the parents were embroiled in a dispute about access amounted to a radical departure from the relevant common-law principles and statutory provisions relating to child welfare and statutory interpretation. Such interpretation of s 7(6) of the Act could even mean, theoretically, that the magistrate’s court would have territorial jurisdiction to make orders concerning access where the High Court would have no such jurisdiction. This construction offended against the tenet of statutory interpretation that, as far as possible, statutes had to be interpreted so as not to give rise to absurd, anomalous or unreasonable results.

The mischief which s 7(6) of the Act had been meant to address was a lack of an express provision in other family violence legislation for the courts granting family violence interdicts to make ancillary orders relating to contact with minor children, so ensuring that children at risk were protected from domestic violence and that the protection of the adult applicant was not compromised by arrangements relating to contact between the respondent and any children living with the applicant. This purpose was a far cry from an interpretation of s 7(6) which would empower the magistrate’s court to make a ‘protection order’ under the Act which consisted solely of an order granting access to a minor child or regulating the exercise of such access. Orders concerning access made in terms of s 7(6) had to be ancillary to a ‘protection order’ of the kind envisaged in s 7(1) of the Act. A stand alone order as to access could not legitimately be regarded as falling within the powers vested in the magistrate’s court by s 7(1) (h).

As such it should be noted that a Domestic Violence order may be taken on review to the High Court if there are grounds to do so. To use the provisions of the Domestic Violence Act simply as a measure to block the contact of the other parent is wrong and may therefore be set aside.

Bertus Preller

Family Law Attorney

Abrahams and Gross Inc.

http://www.divorceattorney.co.za