Cape Town divorce lawyer Bertus Preller writes South Africa’s first Book on Divorce and Separation for the general public, published by Random House Struik

CAPE TOWN, WC, SOUTH AFRICA, August 7, 2013 /EINPresswire.com/ —

Everyone’s Guide to Divorce and Separation by Bertus Preller will help with the following crucial aspects: your rights when you get divorced in South Africa, and the monetary aspects relating to divorce (including the consequences relating to assets and the divisions thereof, spousal maintenance and support, parental rights and responsibilities of children, how to implement a parenting plan, how much child maintenance will likely be required, and how to file for maintenance and child support, the procedures to obtain a protection order when there is domestic violence or abuse, an unmarried father’s rights and how to acquire parental rights and the law on cohabitation, same-sex marriages, and how to draft a proper cohabitation agreement.
In the Foreword of the book, Judge Denis Davis says the following:

“Bertus Preller has filled a very significant gap with this timely book, in that in plain language, he provides a comprehensive guide to the broader community through the thicket of law that now characterises this legal landscape. Having said that, many lawyers, particularly those who do not specialise in the field, will also find great assistance in this work. Early on in the text, Mr Preller makes a vital point – litigation is truly the option of last resort in the event of a matrimonial dispute. The adversarial process which is the manner in which law operates is not at all conducive to a settlement of issues, particularly custody of minor children, which have a long-lasting and vital impact on the lives, not only of the antagonists but also the children who have not, in any way, caused the problem giving rise to the forensic battle. Often in my experience on the Bench, I have wondered how such vicious and counter productive litigation can be allowed to continue. Lawyers will point to clients, whose disappointment in the breakdown of the marriage now powers such adverse feelings to their erstwhile partner, as the core reason for the ‘legal fight to the finish’. Whatever the context, however, it is important that arcane and often incomprehensible legal jargon be made accessible to those affected by the law. In this way, ordinary citizens can ensure that their rights work for them and at the same time they are assisted to grasp fully the implications of the obligations that the law imposes upon them. – Judge Dennis Davis”

The book is on the shelves of all major book stores on and also at Amazon.com

About the Author:

Bertus Preller is a Family and Divorce Law Attorney and Mediator at Bertus Preller & Associates Incoss in Cape Town. He acts in divorce matters across South Africa He matriculated at Grey College, studied at the University of the Free State and the University of Johannesburg and was admitted as an attorney in 1989. He has nearly 25 years of experience in law. He was appointed as a part time mediator and arbitrator in 1996 by the CCMA. He has also been quoted on Family Law issues in various newspapers such as the Sunday Times and Business Times and magazines such as Noseweek, Keur, Living and Loving, Longevity, Woman and Home, Women’s Health, You, Huisgenoot and Fairlady and also appeared on the SABC television show, 3 Talk, Morning Live and on the 5FM Breakfast show with Gareth Cliff. His clients include artists, celebrities, sports people and high net worth individuals. 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, child abduction and Hague Convention cases and domestic violence matters and international divorce law. He is also the founder of iDivorce an online uncontested divorce service.

Tel: 021 422 2461

 

Follow Bertus Preller on Twitter: http://www.twitter.com/bertuspreller
Follow Bertus Preller on Facebook: http://www.facebook.com/divorceattorneys
To visit the book’s official website go to: http://www.divorcelaws.co.za

Divorce Attorney Cape Town
Bertus Preller & Associates Inc.
+27214222461

Advertisements

Is a husband obliged to pay maintenance when his wife lives with another man?

 

A recent judgment concerned the issue whether a husband is obliged to pay maintenance to his former wife, who is involved in a relationship with another man, after divorce. The plaintiff issued summons against the defendant, her husband, during 2003, for a decree of divorce, maintenance for herself and their son and ancillary relief.

The parties had not lived together as man and wife for a continuous period of at least two years prior to the date of the institution of the divorce action. In terms of the provision of s 4(2)(a) of the Divorce Act 70 of 1979 (the Divorce Act), this is proof of the irretrievable break-down of the marriage. The remaining issues were whether the plaintiff is entitled to maintenance, and if so, what such maintenance should be. The defendant’s case in respect of the plaintiff’s entitlement to maintenance was that it is against public policy that a woman should be supported by two men.

The maintenance post-divorce Section 7(1) and (2) of the Act sets out when a court may order the payment of maintenance and the factors that should be taken into account when making such determination.

It provides as follows:

‘7(1) A Court granting a decree of divorce may in accordance with a written agreement between the parties make an order with regard to the division of the assets of the parties or the payment of maintenance by the one party to the other.

(2) In the absence of an order made in terms of subsection (1) with regard to the payment of maintenance by the one party to the other, the Court may, having regard to the existing or prospective means of each of the parties, their respective earning capacities, financial needs and obligations, the age of each of the parties, the duration of the marriage, the standard of living of the parties prior to the divorce, their conduct insofar as it may be relevant to the break-down of the marriage, an order in terms of subsection (3) and any other factor which in the opinion of the court should be taken into account, make an order which the court finds just in respect of the payment of maintenance by the one party to the other for any period until the death or remarriage of the party in whose favour the order is given, whichever event may first occur.’

Through a long line of cases dealing exclusively with maintenance pendente lite, it has become customary not to award maintenance to a spouse who is living in a permanent relationship with another.

In Drummond v Drummond the Appellate Division agreed with the definition of the phrase ‘living as husband and wife’ as stated by the full bench. The parties agreed that the husband would pay maintenance towards the wife and that maintenance would ‘cease should the plaintiff prove that the defendant was living as man and wife with a third person on a permanent basis’. The said phrase has the following meaning: ‘. . . the main components of a modus vivendi akin to that of husband and wife are, firstly, living under the same roof, secondly, establishing, maintaining and contributing to a joint household, and thirdly maintaining an intimate relationship.’ The plaintiff and S clearly live together as husband and wife according to the said definition.

In Cohen v Cohen the parties determined in a deed of settlement that the maintenance payable by the plaintiff (the husband) would cease if the defendant lived with another man as husband and wife for a certain specified period. This order was varied by a maintenance court in respect of the amounts the husband had to pay towards maintenance. In the maintenance court’s order the condition in respect of the cohabitation was left out. In a subsequent action it was decided that, where the magistrate had left out the said clause, the condition was no longer enforceable as it had been substituted by the maintenance court.

In Carstens v Carstens the wife claimed maintenance pendente lite in a rule 43 application while she lived with another man as husband and wife. Mullins J found: ‘It is in my view against public policy that a woman should be entitled to claim maintenance pendente lite from her husband when she is flagrantly and deliberately living as man and wife with another man. Not only is applicant in the present case living in adultery, but she and her lover are maintaining a joint household complete with the addition of an adulterine child. She has by her conduct accepted the support of Clarkson in lieu of that of her husband. The fact that Clarkson is unable to support her to the extent that she may have been accustomed in her matrimonial home with respondent does not appear to me to affect the position.’

In SP v HP (another rule 43 application) it was found, on the strength of Carstens, that ‘(t)he objection is not so much about the moral turpitude attaching to the illicit cohabitation, but more about the notion of a woman being supported by two men at the same time’.

In the unreported judgment of Qonqo v Qonqo dealing with a rule 43 application for maintenance pendente lite, the court, in spite of the fact that the applicant cohabited with her lover, ordered the respondent to pay maintenance pendente lite. The reason for ordering the payment of maintenance was that there was no proof that the lover supported the applicant in that instance.

It is also clear from the wording of s 7(2) of the Divorce Act that the legislature did not determine that maintenance should cease when the person receiving the maintenance is in a relationship akin to a marriage but only on remarriage. It is usually by way of an agreement between the parties that the additional condition relating to the cessation of payment of maintenance on the cohabitation with a third party is added.

Marriage entails that the parties establish and ‘maintain an intimate relationship for the rest of their lives which they acknowledge obliges them to support one another, to live together and to be faithful to one another’. One of the effects of marriage is the reciprocal duty of support. This duty of support does not exist, in circumstances such as these, if there is no marriage.

In Volks NO v Robinson and Others the proceedings had been initiated by Mrs Robinson who had been a partner in a permanent life partnership with Mr Shandling for a period of 16 years until his death in 2001. The couple had not been married, although there was no legal obstacle to their marriage. Following the death of Shandling, Robinson submitted a claim for maintenance against his deceased estate. The executor of the estate, Volks, rejected her claim because she was not ‘a survivor’ as contemplated by the Act. Skweyiya J said at paras 55 – 56: ‘Mrs Robinson never married the late Mr Shandling. There is a fundamental difference between her position and spouses or survivors who are predeceased by their husbands. Her relationship with Mr Shandling is one in which each was free to continue or not, and from which each was free to withdraw at will, without obligation and without legal or other formalities. There are a wide range of legal privileges and obligations that are triggered by the contract of marriage. In a marriage the spouse’s rights are largely fixed by law and not by agreement, unlike in the case of parties who cohabit without being married. The distinction between married and unmarried people cannot be said to be unfair when considered in the larger context of the rights and obligations uniquely attached to marriage. Whilst there is a reciprocal duty of support between married persons, no duty of support arises by operation of law in the case of unmarried cohabitants. The maintenance benefit in section 2(1) of the Act falls within the scope of the maintenance support obligation attached to marriage. The Act applies to persons in respect of whom the deceased person (spouse) would have remained legally liable for maintenance, by operation of law, had he or she not died.’

If regard is had to the decision of Cohen, that it cannot be read into s 7(2) of the Act that the maintenance will cease when the recipient of the maintenance lives as husband and wife with another, as an express agreement to that effect can be amended by the maintenance court. Having regard to the factors that should be taken into account when determining whether the defendant ought to pay maintenance for the plaintiff, in terms of s 7(2) of the Act, the factors mentioned are not exclusive.

When taking into consideration the factors mentioned in s 7(2) of the Act to determine whether the defendant is liable to pay maintenance the following emerge:

(a) The existing and prospective means of each of the parties and the parties’ respective earning capacities.

(b) The financial needs and obligations of the parties. It is clear that neither of the parties can live lavishly, but they are not destitute.

(c) The age of the parties.

(d) The duration of the marriage.

(e) The standard of living of the parties prior to the divorce.

(f) The conduct of the defendant insofar as it may be relevant to the breakdown of the marriage.

The facts of this matter differed materially from Carstens; SP v HP; and Qonqo. It is immaterial whether the defendant was unable to support the plaintiff and their son, or whether he was merely unwilling to do so. Other legislation also makes it clear that the legislature envisaged that a man can be supported by two women. In terms of the provisions s 8(4) of the Recognition of Customary Marriages Act 120 of 1998, a court dissolving a customary marriage has the powers contemplated in ss 7, 8, 9 and 10 of the Act. This has the effect that with polygamous customary marriages a husband will have the right to be supported by more than one wife, post-divorce, if circumstances demand it. Although it might have been a concept that was unacceptable in a previous dispensation, the concept is not unacceptable today. The court was of of the opinion that in the circumstances of this case it could not be said that it is against public policy that the defendant should be liable to pay maintenance to the plaintiff; there is no legislative prohibition and the court found that there was no general public policy to that effect or moral prohibition.

Bekende Egskeidings Prokureur Gee Raad

Dit is belangrik om die implikasies van die wyse waarop jy getroud is te verstaan, en as jy dit nie verstaan nie, vind dan uit by iemand wat aan jou kan verduidelik sodat jy dit behoorlik kan verstaan. Is jy getroud binne of buite gemeenskap van goedere? As jy is getroud binne gemeenskap van goedere, sal jy geregtig wees op 50% van die gemeenskaplike boedel en as jy is getroud buite gemeenskap van goedere met die aanwasbedeling, is jy geregtig op die helfte van die verskil van jou en jou gade se aanwas. As jy getroud is buite gemeenskap van goedere sonder die aanwasbedeling voor 1 November 1984, sal jy geregtig wees om te vra vir ‘n herverdeling van die bates, wat behels dat jy dalk in staat sal wees om 50% van die gesamentlike bates te eis, maar as jy getroud buite gemeenskap van goedere sonder die aanwasbedeling na 1 November 1984 sal jy net ‘n eis vir onderhoud kan instel onder sekere omstandighede.

  • Jy kan onder sekere omstandighede eis vir rehabiliterende onderhoud. Rehabiliterende onderhoud is waar een gade die ander vir ‘n vasgestelde tydperk maandeliks betaal, bv vir twee jaar of langer.
  • Onthou dat jy kan ‘n aansoek loods hangende die egskeiding om onderhoud, terwyl die egskeiding nog nie afgehandel is nie, in so ‘n aansoek kan jy ook eis dat jou gade ‘n bydrae maak tot jou regskoste.
  • Kry soveel finansiële inligting oor jou eggenoot moontlik, maak afskrifte van alle bankstate, kredietkaart state en maak ‘n lys van al die bates en laste, bronne van inkomste, ens.
  • Stel ‘n volledige begroting op van jou huidige maandelikse uitgawes en inkomste van jou en jou kinders. Dit kan die moeite werd wees om voorsiening te maak vir toekomstige uitgawes.
  • Jy kan ook aandring op die sessie van ‘n lewenspolis van jou gade om die betaling van maandelikse onderhoud te verseker.
  • Probeer om aan te bly in die gesamentlike woning vir solank as jy kan huis (as dit naby aan jou kinders se skool of werk is). Daar is ‘n gesegde in ons reg, dat besit 9 / 10 van die reg is. Om in die gesamentlike woning aan te bly, sal ook die situasie van die kinders stabiliseer, aangesien ‘n trek na ‘n nuwe bestemming ‘n baie traumatiese ervaring vir die kinders kan wees.
  • Onthou dat jy nie noodwendig die oordragkoste hoef te betaal vir ‘n eiendom wat aan jou oorgedra word in jou egskeiding nie. Daar is verskeie opsies met betrekking tot eiendom wat aan beide van julle behoort, byvoorbeeld deur dit te behou of te verkoop of die netto wins verdeel.
  • Sien toe dat die Skikkingsooreenkoms so opgestel word dat jy kan aandring op ‘n aftrekking van jou gade se salaris indien hy nie betaal nie.
  • Sorg dat jou egskeiding Skikkingsooreenkoms sou opgestel word om ‘n deel van enige bates wat jou eggenoot wegsteek en waarvan jy nie bewus is op datum van die egskeiding nie te bekom wanneer jy later daarvan uitvind.
  • Moet nie minder tevrede wees nie, baie vroue loop eenvoudig as gevolg van die emosionele druk met minder as waarop hulle geregtig is. Onthou dat egskeiding altyd ‘n sake-besluit is en die besluite wat jy maak nou ‘n definitiewe impak sal hê later in jou lewe.
  • Egskeiding kan ‘n langdurige proses wees en dit kan baie frustrerend en emosioneel dreinerend wees, dit neem tyd en strategiese beplanning.
  • Moenie verander prokureurs in die proses bloot as gevolg van jou eie frustrasie nie, soos hulle sê, die spel van ‘n egskeiding is soos’ n skaakspel.
  • Onthou dat jou eggenoot se bates sluit ook in aandeelhoudings in maatskappye, aftreefondse, pensioenfondse en selfs belasting terugbetalings.
  • Dink met jou kop en nie met jou hart.
  • Onthou om jou testament te verander.

Egskeidings Prokureur gee raad oor egskeidings

Egskeiding Prokureur Kaapstad – Abrahams en Gross Inc.

Bertus Preller is in beheer van die Egskeiding en Familiereg Afdelings by  Abrahams en Gross ‘ n regsfirma in Kaapstad. Die firma is reeds in 1935 gestig. Hy word beskou as een van die top egskeiding prokureurs in Kaapstad en hanteer egskeidings en familie reg sake regoor Suid Afrika.

Wat is belangrik in ‘n egskeiding saak?

Wat belangrik is in enige egskeiding saak is strategie. My benadering tot enige egskeiding of familiereg dispuut is om dit so gou as moontlik te skik, in my klient se guns natuurlik of tot voordeel van beide partye waar ek namens beide van hulle optree. Die voordeel is dat dit dan koste-effektief is en minder emosionele letsels laat. Egskeiding, ongeag hoe vriendskaplik dit is, is altyd vol emosie en nooit maklik nie. Waar daar wel ‘n geleentheid is om te rekonsilieer moet beide partye dit ten alle koste probeer. ‘n Gesonde samelewing is die gevolg van ‘n stabiele gesinslewe en daarom is egskeiding nie altyd die uitweg nie. Ek glo dat baie egskeidings in die eerste plek nooit moes plaasvind nie.

Wat is die koste verbonde aan ‘n egskeiding?

Dit is belangrik om te onderskei tussen “vriendskaplike of onbestrede egskeidings” en “vyandige of bestrede egskeidings”. Waar die partye wel kan ooreenkom oor die verdeling van die bates, onderhoud en by wie die kinders gaan woon na egskeiding en watter vorm van toegang die ander ouer gaan kry is dit soms beter om gebruik te maak van ‘n selfdoen of DIY egskeidingsdiens soos eDivorce. In ‘n Onbestrede egskeiding kan die koste tot so min as R 950 wees indien beide partye gebruik maak van’ n aanlyn-doen-dit-self, of DIY egskeidingsdiens soos eDivorce, http://www.edivorce.co.za.  Wanneer partye gebruik maak van ‘n prokureur kan dit enigiets van R4500 af kos. Regskoste kan wissel na gelang van die kompleksiteit van ‘n egskeiding saak.

Hoe lank neem ‘n onbestrede egskeiding?

‘n Onbestrede egskeiding kan gefinaliseer word binne ‘n paar weke. Afhangende van jou prokureur kan dit enigiets neem van 3 tot 6 weke. In die hantering van egskeidingsaangeleenthede, doen ons gewoonlik ons bes om dit te probeer afhandel sou gou moontlik en benader ons elke saak om die bes moontlike resultaat tot verkry. Groot omstrede egskeiding aangeleenthede, waar meer bates op die spel is, kos ongetwyfeld meer en kan baie tydrowend wees.

Hoe lank neem ‘n bestrede egskeiding?

‘n Bestrede egskeiding kan tot 3 jaar of selfs langer neem om af te handel en die koste daaraan verbonde kan honderde duisende rande beloop.

Waarop is jy geregtig as jy binne gemeenskap of buite gemeenskap van goedere getroud is?

Indien jy getroud is binne gemeenskap van goedere, is jy geregtig op 50% van die gemeenskaplike boedel en as jy getroud is buite gemeenskap van goedere met die aanwasbedeling, is jy geregtig op die helfte van die verskil van jou en jou gade se aanwas, indien sy aanwas groter was as joune. As jy getroud is buite gemeenskap van goedere sonder die aanwasbedeling voor 1 November 1984, sal jy geregtig wees om te vra vir ‘n herverdeling van bates, wat behels dat jy in staat kan wees om 50% van die gesamentlike bates op te eis, maar indien jy getroud is buite gemeenskap van goedere sonder die aanwasbedeling na 1 November 1984 sal jy slegs kan eis vir onderhoud.

Wanneer is jy geregtig op onderhoud?

Daar is verskeie faktore wat in aanmerking geneem moet word om te bepaal of jy geregtig sal wees op lewenslange onderhoud. Jy kan onder sekere omstandighede ook rehabiliterende onderhoud eis. Rehabiliterende onderhoud is waar een gade die ander vir ‘n tydperk betaal, bv. vir drie jaar of meer.

Ek het nie geld om te skei nie, wat nou?

Jy kan ‘n hof aansoek bring hangende die finalisering van die egskeiding om tussentydse onderhoud te verkry, terwyl die egskeiding in die proses is, jy kan jy ook in so’ n aansoek eis dat jou gade ‘n bydrae maak aan jou regskoste.

Watter raad kan jy vir vrouens gee wat wil skei?

  • Kry soveel finansiële inligting oor jou eggenoot moontlik, maak afskrifte van al die bankstate, kredietkaart state, sowel as ‘n skedule van al die bates en laste, bronne van inkomste, ens.
  • Stel ‘n gedetailleerde begroting van jou huidige maandelikse uitgawes en inkomste op. Vir jou en jou kinders maak voorsiening vir toekomstige uitgawes.
  • Jy kan selfs aandring op die sessie van’ n versekeringspolis op jou gade se lewe in die geval dat hy/sy gestremd raak of sterf om jou onderhoud te verseker.
  • Poog te alle tye om aan te bly in die gesamentlike woning (as dit naby aan die kinders se skool of jou werk is). Die feit dat die kinders bly in die omgewing waaraan hulle gewoont is sal meer stabiliteit teweeg bring.
  • Onthou dat jy nie noodwendig altyd die oordragkoste hoef te betaal vir ‘n eiendom wat aan jou oorgedra word tydens jou egskeiding nie. Jy kan verskeie opsies met betrekking tot die eiendom uit oefen, byvoorbeeld deur dit te behou en jou gade se gedeelte oor te dra op jou naam of dit te verkoop en die netto wins te verdeel ens.
  • Maak seker dat jou egskeiding Skikkingsooreenkoms ‘n bepaling het wat tot gevolg het dat jy beslag kan le op jou eggenote se salaris in geval hy nie onderhoud betaal nie.
  • Sorg dat jou egskeiding Skikkingsooreenkoms so opgestel word om ‘n deel van enige bates te bekom in die toekoms wat jou eggenoot dalk weggesteek het, en waarvan jy nie bewus is op datum van egskeiding nie.
  • Moenie skik vir minder as waarop jy geregtig is nie, baie vroue neem eenvoudig die pad uit as gevolg van emosionele druk. Onthou dat egskeiding altyd ‘n sake-besluit is en die besluite wat jy nou maak sal ‘n impak jare later in jou lewe he.
  • Egskeiding kan baie frustrerend en emosioneel wees en dit neem tyd en strategiese beplanning. Moenie van prokureurs verander in die proses bloot as gevolg van jou eie frustrasie nie.
  • Onthou dat jou ex se bates ook insluit aandeelhoudings in maatskappye, aftree-fondse, pensioenfondse en selfs belasting terugbetalings.
  • Dink met jou kop en nie met jou hart nie.
  • Onthou om jou testament te verander binnekort na die egskeiding.

Bertus Preller is ‘n egskeidings prokureur in Kaapstad. Hy spesialiseer in egskeidings en familiereg sake by Abrahams en Gross Ing en is ook die Familiereg kenner by die Health24.com forum, Co-Parenting forum en op die deskundiges paneel van Law24.com. Hy word dikwels aangehaal in koerante soos die Sunday Times, Sunday Tribune, Business Times, asook tydskrifte soos Noseweek, Huisgenoot en You aangehaal oor familiereg en egskeidings. Hy spesialiseer in egskeiding, familiereg, mediasie, ouerskap planne, ouerlike verantwoordelikhede, bewaring sorg en kontak van kinders, ongetroude vader regte, huishoudelike geweld sake, interdikte en internasionale egskeidings.

Kontakbesonderhede
E-pos adres :bertus@divorceattorney.co.za
Hotline Nommer: 083 5334428
021 422 1323

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 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.

Divorce Settlement Agreements – can they be varied without a formal court application?

It happens frequently that the circumstances change years after a divorce Settlement Agreement was concluded. For example, as in the case of GF v SH and Others 2011 (3) SA 25 (GNP). In this case, the ex  husband and ex wife agreed amongst themselves with the intervention of a mediator that their children would spend more time at the ex husband’s house and adopted a shared parenting approach. Necessarily the new arrangement had a bearing on the maintenance that the ex husband paid to his ex wife for the children as the children spent more time in the ex husband’s care. The mediated agreement was never signed between the parties, or the original Settlement Agreement varied, but the ex husband paid the reduced maintenance. After some time the wife, probably acting out of scorn issued a warrant of execution for the non payment of maintenance as per the original court order. The facts appear below.

In terms of the settlement agreement custody of the minor children was awarded to the wife, subject to the applicant’s reasonable rights of access. In addition the settlement agreement provided that the applicant was to pay maintenance at the rate of R5000 per month per child, escalating annually at the consumer price index rate. In addition the applicant was to pay for all the educational and medical expenses incurred in respect of the minor children.

Following the divorce, the parties appeared to have had ongoing problems and disputes that related to the payment of maintenance, timeousness and the adequacy of such payments, as well as issues relevant to the parenting of the children, including decisions related to their upbringing and well being.

On 15 April 2010 the wife caused a warrant of execution in the sum of R303 154,62, plus interest and costs, to be issued at court for arrear maintenance and non-compliance with their divorce order. Following the issuing of the warrant the wife attached certain goods from the home of the ex husband and belonging to him.

The ex husband’s case was based on the fact that changes were made by himself and the wife to the residency arrangements in respect of the minor children, which changes became operative from March 2008 until about June 2009 and as such his liability to pay the maintenance provided for in the court order of 27 August 2002 had been varied by agreement between himself and the wife. He further contended that, in terms of the change of residency arrangements reached in March 2008, the parties agreed to have the minor children with them for alternate weeks. In addition there was a further mediated agreement with regard to a new payment regime, insofar as it related to the payment of maintenance, in terms of which regime the applicant would not be required to pay any maintenance directly to the wife, but instead would cover all expenses incurred in respect of the maintenance of the minor children and make such payments directly to third parties or, in appropriate instances, to service providers and the children. In this regard it appeared that the parties were assisted by one Charles Cohen, a mediator with expertise in the area of family law.

The wife’s contention was that even though there may have been changes to the residency arrangements insofar as these related to the minor children, it did not absolve the husband from complying with the express provisions of the court order and settlement agreement of 27 August 2002 relating to maintenance payments. In this regard it was the wife’s stance that since the written agreement of settlement provided that ‘save for the above, the provisions of this agreement shall not be capable of being varied (save by a court of competent jurisdiction), amended, added to, supplemented, novated or cancelled unless this is contained in writing and signed by both parties’, any oral or informal arrangement was of no force or effect and not binding on the parties. Alternatively the wife contended that even if there was a variation, it only applied in respect of a trial period from August 2008 to November 2008, and that at best her ex husband would be absolved from paying maintenance for three months (August 2008 to October 2008), and the warrant of execution, if incorrectly issued, was incorrect to that extent, and that extent only.

The agreement was never signed by the parties and the question that the court had to pronounce was whether a Settlement Agreement in a divorce action could be varied by mutual agreement, without resorting to court to vary the Agreement formally.

The principle of non-variation of a written agreement in the context of a non-variation-except-in-writing clause was firmly established in the matter of Shifren and Others v SA Sentrale Ko-op Graanmaatskappy Bpk 1964 (2) SA 343 (O). The stance, which essentially proceeds from the premise that any attempt to agree informally to vary a contract containing a non-variation clause, except in writing, must fail, was affirmed by the Supreme Court of Appeal in Brisley v Drostky 2002 (4) SA 1 (SCA) (2002 (12) BCLR 1229; [2002] 3 All SA 363). The court however found that there must be instances where public policy may justify a departure from the Shifren principle in the area of family law. Without suggesting that such departure should be easily justified or readily countenanced, there must be due regard to the context within which parenting takes place, and within which decisions that may on the face of it vary an express obligation, are arrived at to attain some other socially desirable objective — the best interests of the child. In all the circumstances the demands and the consideration of public policy, in the context of ensuring the development of family law, that are consistent with the values of the Constitution, including the values of equality and non-discrimination, as well as ensuring the advancement of the best interests of the child, would in the court’s view, in appropriate instances and where a proper case is made out, certainly justify a departure from what has become known as the Shifren principle.

The court further noted that if indeed the Shifren principle were entrenched and did not apply in the context of family law, it may well have the effect of achieving all kinds of unintended consequences that may well militate against the development of a public policy consistent with the norms and values of our Constitution. In particular, a strict adherence to those principles may well mean that parents become saddled with a disproportionate share of their responsibility in respect of the maintenance and upbringing of a minor child. It may well have the effect of restricting the ability of parents to do that which the best interests of the child demand, as opposed to that which they are obliged to do in terms of an agreement of settlement, which terms and provisions may well not have kept in touch with the changing times and developments relevant to the context.

From the above it is clear that a Settlement Agreement in a divorce, that was not varied by a formal application to court, may be varied by agreement between the parties, without formally applying to the court to vary such order. It is however of utmost importance that agreements that vary an existing Settlement Agreement be reduced to writing and signed by both parties.

About the Author

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