Divorce Questions: Interview with Bertus Preller Family Law Attorney
Most couples going through the end of their marriage ask the same divorce questions. Regardless of how long people were married, they still need to find a Family Law Attorney and sort through issues regarding property, finances, children, and emotional trauma. Having accurate information is a crucial part of the divorce and healing process.
Family and Divorce Law Attorney Bertus Preller is a Family Law Specialist. A graduate of the Free State and University of Johannesburg, he represents celebrities and other high-net worth individuals in their divorce proceedings in South Africa.
How does one choose a good divorce lawyer?
Everyone differs in what type of attorneys suits them. For instance, do they want an attorney who will parent them or an attorney who will partner with them? Naturally, there are other variables to consider as well, like reputation, credentials, experience, and background. Getting references from contacts a person knows and trusts, especially from one’s accountant, business attorney, estate planning attorney or therapist, is the best way to find a good divorce attorney.
Does the end of a marriage have to turn into a battle?
“No, it does not,” Bertus Preller said. However, there often is some battle over one issue or another-like the division of property or who gets custody of the children. It is normally the battles over control in one area or another that precipitated the divorce in the first place. If a couple could not get along during the marriage, often the divorce is simply an amplification of those problems. “I tend to try to follow a more collaborative approach in dealing with divorce matters, and consider a number of ways to settle issues, whether through mediation or negotiating the best possible outcome for the client. We tend to see a number of ill experienced mediators offering services such as divorce mediation, offering a quick break with less emotional trauma and less costs. This may be a good option, but the reality is that mediation can be more expensive than an uncontested divorce; the other problem is that some mediators have absolutely no understanding of the legal consequences of the patrimonial issues of the divorce. You simply can’t mediate a divorce with a degree in psychology when there are legal issues involved and it frequently happens that one party is in fact at the end of the day in a much worse position”.
How can parents minimise the affect of divorce on their children?
“They can and should leave the children out of their immediate battles at all times,” Bertus Preller said. “Whether during the divorce process itself or long after it has ended. Spouses have no right bringing children into the differences that they have with each other. They should also give the children support and understanding throughout the divorce trauma and always show the utmost respect to the other spouse no matter how hard that may seem.”
How do courts determine the distribution of assets if one spouse is a stay at home parent or earns substantially less than the other?
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.
We’re getting divorced because my spouse cheated on me. How do I make him/her “pay” for this mistake?
“Seeking vengeance is never the answer,” Bertus Preller said. “There is an old Spanish proverb: ‘Living well is the best revenge,’ is what the injured party should focus on and strive for. There is no win in trying to make someone pay for any betrayal in a marriage. However, in terms of South African law an aggrieved spouse is able to claim compensation against a third party who was the cause of the divorce.
I’m trying to be reasonable, but my spouse and I just can’t agree on major issues like who gets custody of the kids or who should keep the house. What should I do?
“Seek the advice of your attorney,” Bertus Preller said. “A mediation session might help with a respected attorney. This is what you pay your attorney to do: resolve major issues and help you come to reasonable solutions. If all else fails you may have to take your case to court and have the judge decide, but this is not always the best possible way, settlement soon in the proceedings is always the best outcome for everyone”
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 father’s rights, domestic violence matters and international divorce law.
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.
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
- 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.
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
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.
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.
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.
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.
We assist both divorced couples and unmarried couples with formulating parenting plans that is in the best interest of their minor children.
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.
Collaborative Family Law
A fresh new approach to family law
The adversarial court system in South Africa is often not well-suited for resolving family law disputes. For this reason, I often question our ability to help clients heal and move forward with their lives in a productive and constructive manner.
In a court, legal representatives are constrained by the principles and rules of law which are often not well suited to a client’s particular situation and his/her needs. The problem is that the legal community as a whole, our laws, our courts, court rules, and legal institutions – values and rewards ‘victory’ at any cost and this makes it difficult for us to focus on the post-divorce needs of clients.
Despite any intentions to the contrary, a court-sanctioned outcome is very seldom a good fit for families. The issues at stake are way too personal and require a high level of detail that the overburdened South African court system is not able to provide.
The mere fact that the judiciary is not in a position to gain more than a superficial understanding of the dynamics of any family, divorce attorneys find it challenging to maintain a balanced professional relationship with a family law client. The client’s perception is that he/she has few options and very little control over the outcome. When the divorce attorney explains that the courts are subjective, impatient, slow and inconsistent, it undermines the client’s confidence in the legal process during one of the most stressful periods in his life. The attorney has the delicate task of managing the client’s expectations while trying to give the client some confidence that the court process will meet his needs. The result is a difficult dynamic that causes many divorce attorneys to grind their teeth whenever a client call.
Most family law attorneys interact with child experts and other mental health professionals who can assist families in using their resources to create a more stable life for themselves after a separation or divorce. However, in a divorce trial setting, divorce attorneys and advocates are often forced to blindly refute or defend these experts’ recommendations. Often, the information is not used as a guide for the clients but as a weapon against the client’s spouse.
Several years ago, Stuart Webb, a lawyer in the United States of America decided that he wanted to make a positive difference in most cases and pledged to himself and his legal community that he would find a way to practise family law in a principled manner. His commitment resulted in an international movement known as ‘collaborative law’, which is practised in many countries, including the USA, Canada, Australia, New Zealand, the United Kingdom, Ireland, Germany, Austria and the Netherlands.
Webb analysed the court-based system and concluded that, in most instances, if a client resorted to the court or even threatened to do so, it resulted in a powerful disequilibrium. For most clients, the reconstruction of the family after court intervention was at best delayed and at worst unattainable.
Webb bravely decided to make his own practice ‘court-free’ and advised his legal community that any case in which he was involved had to be settled. His idea and its implementation were tactically very astute. When the lawyers and their clients adopt the ‘no court’ rule, any opportunity to strong-arm, bully or pressure is removed because such tactics are no longer effective in the settlement environment. Absent ultimatums, both lawyers and their clients can explore settlement in an atmosphere of cooperation.
Collaborative law is a ‘one-idea’ or ‘one-rule’ process: There is a contractual requirement that the collaborative attorney and all members of his firm must withdraw if the matter goes into litigation. This requirement is set forth in the participation agreement, which is signed by both parties and both attorneys. It provides that the clients must retain new litigation counsel if they decide to terminate the process and litigate. It is substantively different to be contractually bound to non-litigious resolution than to negotiate ‘nicely’ with the threat of court still available.
The lawyers limit the scope of their representation to collaborative law negotiations. The lawyer and client enter into a separate retained agreement wherein the client acknowledges the limited scope of the lawyer’s representation (for settlement purposes only) and acceptance of the waiver of the lawyer/client privilege during settlement meetings. The agreement also contains commitments to voluntary full disclosure.
The process plays out in a series of ‘all party’ meetings with the clients and their collaborative lawyers present. Negotiations are conducted in a principled fashion, exploring interest rather than discussing positions. Negotiations are interest-based rather than positional.
The participation agreement also provides that the substance of all negotiations is confidential and thereby creates a safe environment where clients can freely explore different options to meet their goals and needs.
In the collaborative law process all participants form a team with a common goal: To concentrate all efforts towards reaching a settlement that is acceptable to both parties. As a team, they are less likely to give up. Impasse becomes a challenge rather than an opportunity to assign blame, and successful negotiations are much more likely. The team approach also provides the opportunity for the lawyers to discuss the legal context and its application to the clients and assist in brainstorming options for resolution of the issues.
Collaborative law training assists lawyers in accomplishing the shift from ‘warrior’ to ‘facilitator’. Traditionally, the client provides a set of facts and we rush to reconstruct them into a ‘triable issue’. A collaborative lawyer assists the client in formulating a forward-looking set of goals and understanding the goals of his spouse. A collaborative lawyer does not solicit a recitation of woes, but encourage the client to take a broad view. The lawyer must be vigilant not to raise expectations of a particular outcome. The choice of the collaborative law process provides a framework for the client to work towards his broad goals with the lawyer’s support and assistance.
Collaborative law has been expanded to include financial and mental health professionals as members of the professional team. Financial professionals, such as accountants, financial planners and appraisers assist with the financial details of the settlement. Mental health professionals help design a parenting plan and act as facilitators. Although this team approach may seem costly to the family, the total cost is often the same as in a lawyer-only model because the assistance provided by other professionals results in more efficient, focused negotiations. The allied professionals can help facilitate discussions and formulate options for resolution. Together, the professionals and clients leave behind the troubled history of ‘winning battles but losing wars’ that has left so many families without a road map for rebuilding their lives and those of their children after divorce.
The effect of collaborative law on family Law attorneys is overwhelmingly positive. It dramatically improves the relationship between attorneys and eliminates litigation surprises and stressful relationships with clients resulting from unrealistic expectations. The focus shifts from differences to commonalities. All possible assistance is provided to help formulate a plan for restructuring the post-separation family.
The clients cannot abdicate responsibility to their lawyers and cannot use judicial discretion as a sword or a shield. Planning for the best outcome is their responsibility and requires their full participation. They ultimately decide their own future and the future of their children with the assistance of the professionals.
Collaborative law is different from mediation. In mediation, a neutral mediator assists the parties in reaching a resolution. In collaborative law, each client’s representative is present during negotiations to provide support and legal advice and to manage the process. Legal advice is concurrent with and integrated in negotiations.
The collaborative lawyer meets with his clients between negotiation meetings to prepare for the next meeting. The lawyer also assists the client in expressing his or needs and concerns during the meetings. Many clients prefer to have a representative present during negotiations, particularly where there is a power imbalance between the parties.
A recent study released by the Barna Group—a leading research company focused on the intersection of faith and culture—has been the spark plug for a surge of editorials around the country because of the study’s eye-opening, statistical revelations regarding Christianity and divorce.
Among the findings, divorce rates among conservative Christians are not only counter to Christian ideals, they are significantly higher than that of other faith groups, including atheists and agnostics.
George Barna, the director of the study observed, “There no longer seems to be much of a stigma attached to divorce. (Instead), it is now seen as an unavoidable rite of passage. Interviews with young adults suggest that they want their initial marriage to last, but are not particularly optimistic about that possibility.”
Offering a unique insight into the depths of modern-day Christian marriages is minister and author, Rodney Winters, who’s new book, Go Into the House, much like the Barna study, has Christians talking.
Winters explores a wide range of marital mysteries among Christians, particularly when held up against the chasm between the sexes.
Why do Christian men choose to commit adultery? Why don’t men share their fears and emotions with women? Why do women want and need to hear the man’s perspective on “when a wife cheats”?
Further, Winters writes about the other side of Christian marriage, when a spouse is facing the aftermath of divorce. Barna pointed out in his company’s report that, “(our) research also raises questions regarding the effectiveness of how churches minister to families. The ultimate responsibility for a marriage belongs to the husband and wife, but the high incidence of divorce within the Christian community challenges the idea that churches provide truly practical and life-changing support for marriages.”
Rihanna and her baseball player beau, Matt Kemp, have called it quits, Us Weekly reports.
Rihanna and the L.A. Dodgers outfielder began their romance in early 2010, almost one year after she ended her tumultuous relationship with Chris Brown. Kemp was reportedly an integral part in the ‘Only Girl in the World’ singer’s recovery after being assaulted by Brown.
Only months ago, Rihanna said of Kemp, “I have a boyfriend. I’m so happy. I feel really comfortable, and it’s so easy,” but according to an Us source, “Matt’s sick of always following after her like a puppy dog all over the world. He wants something more normal.”
The singer seems to be coping well with the split. “It was never as serious as it looked. It was always just [about] having fun,” says the source. “She basically was just over it.”
In South Africa it is accepted practice to regulate the consequences of a divorce by means of a Settlement Agreement between the parties. In most divorces the parties enter into a settlement agreement, also called a consent paper or deed of settlement in which they agree on matters such as the division of the assets, payment of maintenance, care of and contact to the children and the payment of costs of the proceedings.
Parties in a divorce matter may include any provision in their deed of settlement which is not impossible, illegal, or contrary to good morals. They may for example agree on a division of their assets that differ completely from the normal rules regarding the matrimonial property system that regulates their marriage. For example the parties may agree that neither will have a claim for the accrual against the other and that each party will simply retain his or her own assets.
In terms of the Divorce Act the court may incorporate the spouses’ settlement into a court order if it is in writing. Once the settlement agreement is made an order of the court a party may only vary or amend it on application to the court. The parties may do so by mutual consent, it is important to note that any amendment to the settlement agreement should be made an order of court.
If one of the parties disagrees to amend or vary the settlement, the aggrieved party may approach the court on application in terms of Section 8 (1) of the Divorce Act for variation or rescission if a particular provision relates to guardianship, custody, access or maintenance. If the dispute relates to maintenance the maintenance court may be approached in terms of the Maintenance Act.
If the settlement agreement is not incorporated into the divorce order it is merely a contract and it can therefore not be enforced in the same way as an order of court.
Family Law Attorney
Abrahams and Gross Inc.
(ArticlesBase SC #3934823)