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
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To visit the book’s official website go to: http://www.divorcelaws.co.za

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

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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.

Financial Tips for Women Facing Divorce

Financial Tips for Women Facing Divorce

Financial Tips for Women Facing Divorce

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

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

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

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

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

1.         Business

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

How can a divorce ruin your business? Consider this:

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

2.         Retirement funds

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

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

3.         Insurance

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

4.         Short-term and long-term financial stability

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

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

5.         Assets that he concealed

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

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

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

About the author:

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

Grounds for Divorce in South Africa

GROUNDS FOR DIVORCE IN SOUTH AFRICA

Dissolution of marriage and grounds of divorce

A marriage may be dissolved by a court by a decree of divorce and the only grounds on which such a decree may be granted are the irretrievable break-down of the marriage as contemplated in section 4; the mental illness or the continuous unconsciousness, as contemplated in section 5, of a party to the marriage.

Irretrievable break-down of marriage as ground of divorce

A court may grant a decree of divorce on the ground of the irretrievable break-down of a marriage if it is satisfied that the marriage relationship between the parties to the marriage has reached such a state of disintegration that there is no reasonable prospect of the restoration of a normal marriage relationship between them.

Section 4 (2) of the Divorce Act lays down three circumstances which a Court may accept as evidence of irretrievable breakdown of a marriage and these are that:- the parties have not lived together as husband and wife for a continuous period of at least one year immediately prior to the date of the institution of the divorce action. The Defendant has committed adultery and that the Plaintiff finds it irreconcilable with a continued marriage relationship the Defendant has in terms of a sentence of a Court been declared a habitual criminal and is undergoing imprisonment as a result of such sentence.

This does not mean however that:- the man and wife have to live in separate buildings but the Courts are in general not willing to (even on a undisputed basis), hear the case if the parties are still living in the same house on the date of the application. There must be a reasonable explanation, but even then some judges have refused to grant a decree of divorce. if the Plaintiff is a party to an adulterous relationship it is not fatal for a final divorce order and it may be proof of a real break-down of the marriage. It is correct to disclose the adulterous relationship to the Court. if irretrievable breakdown has been proved, that the court still has discretion to refuse the divorce. See Levy v Levy 1991 (1) SA 614 A where the Appeal Court had decided that a court had no discretion to deny a divorce where the irretrievable breakdown of the marriage has been proved.

Court’s discretion

In terms of section 4(3) of the Divorce Act the Court still has discretion not to grant a divorce order but postpone the proceedings sine die or even dismiss the claim if it appears to the Court that there is a reasonable possibility that the parties may become reconciled through marriage counselling, treatment or reflection. The Summons also usually contains the averment that further marriage counselling and/or treatment will not lead to any reconciliation. This evidence must also be tendered to the Court even on an unopposed basis.

The Court must therefore be satisfied that the marriage has really irretrievably broken down and that there is no possibility of the continuation of a normal marriage, before a final divorce order will be granted.

The court may postpone the proceedings in order that the parties may attempt reconciliation if it appears to the court that there is a reasonable possibility that the parties may become reconciled through marriage counselling, treatment or reflection.

Where the parties live together again after the issue of Summons, it does not necessarily end the underlying cause of the action. If the reconciliation after a few months is seemingly unsuccessful, they can proceed on the same Summons. It is now confirmed that the marriage has really broken-down irretrievably even after the parties have tried a final time to become reconciled. Where a divorce action which is not defended is postponed in order to afford the parties an opportunity to attempt reconciliation, the court may direct that the action be tried de novo, on the date of resumption thereof, by any other magistrate/ judge of the court concerned in terms of section 4(4) of the Divorce Act. The notice of set down should be served on the defendant.

A customary marriage may be dissolved only on account of an irretrievable breakdown in the marriage and only if the High, Family or Divorce Court is satisfied that the marriage relationship between the parties has reached such a state of disintegration that there is no reasonable prospect of the restoration of a normal marriage relationship between them.

Mental illness or continuous unconsciousness as grounds of divorce:

A court may grant a decree of divorce on the ground of the mental illness of the defendant if it is satisfied that the defendant, in terms of the Mental

Health Act 18 of 1973; has been admitted as a patient to an institution in terms of a reception order; is being detained as a State patient at an institution or other place specified by the Minister of Correctional Services; or is being detained as a mentally ill convicted prisoner at an institution.

A divorce order may also be granted if such defendant has also for a continuous period of at least two years immediately prior to the institution of the divorce action, not been discharged unconditionally as such a patient,

State patient or mentally ill prisoner; and the court has heard evidence of at least two psychiatrists, of whom one shall have been appointed by the court, that the defendant is mentally ill and that there is no reasonable prospect that he will be cured of his mental illness.

A court may grant a decree of divorce on the ground that the defendant is by reason of a physical disorder in a state of continuous unconsciousness, if it is satisfied that the defendant’s unconsciousness has lasted for a continuous period of at least six months immediately prior to the institution of the divorce action; and after having heard the evidence of at least two medical practitioners, of whom one shall be a neurologist or a neurosurgeon appointed by the court, that there is no reasonable prospect that the defendant will regain consciousness.

The court may appoint a legal practitioner to represent the defendant at proceedings under this section and order the plaintiff to pay the costs of such representation.

The court may make any order it may deem fit with regard to the furnishing of security by the plaintiff in respect of any patrimonial benefits to which the defendant may be entitled by reason of the dissolution of the marriage.

For the purposes of this section the expressions ‘institution’, ‘mental illness’, ‘patient’, ‘State patient’ and ‘reception order’ shall bear the meaning assigned to them in the Mental Health Act, 1973.

The circumstances under which a court may grant a divorce order on the basis of mental illness or continuous unconsciousness is as follows:-

  •  In the case of mental illness the Defendant must have been admitted, in terms of the Mental Health Act, 1973 (Act No 18 of 1973), as a patient to an institution in terms of a reception order, for a period of at least two years and in any case two psychiatrists (one appointed by the Court) must satisfy the Court that there is no reasonable prospect that he will be cured of his mental illness.
  • In the case of unconsciousness the Court will only grant the order if the Defendant was unconscious for a continuous period of at least six months immediately prior to the institution of the action and also after hearing the evidence of two medical practitioners of whom one shall be a neurologist or a neuro-surgeon appointed by the Court who must declare that there is no reasonable prospect that the Defendant will regain consciousness.

In such cases a curator ad litem must be appointed to protect the interests of the Defendant (patient) and to assist the Court.

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.

Online Divorce in South Africa

In today’s society, with the constraints and pressures of everyday life why should obtaining a divorce have to make everything grind to a halt? The answer is simply it shouldn’t and doesn’t have to. Hundreds of people every month throughout South Africa are seeking ways to reduce the amount of time it takes and the costs involved in obtaining a divorce and turn to online divorce services such as eDivorce to assist them in this process.

By using an online divorce service the average divorce can be completed in just 4 weeks and cost (excluding sheriff fees) from as little as R 950.00 in comparison to Attorney fees that can be in excess of R 10 000.00.

To start the divorce process is easy, if you are involved in an uncontested divorce. Simply go to http://www.edivorce.co.za and register. Then fill in a questionnaire that will take about 20 minutes and your divorce documents will be generated in less than 24 hours.

The system generates the following documents:

  • Combined Summons
  • Particulars of Claim
  • Consent Paper – Settlement Agreement
  • Parenting Plan
  • Annexure A for the Family Advocate
  • Government Statistics Form (Form 07 – 04)
  • Step-by-Step letter, explaining the process

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 -Written in plain English and easy to follow.
  • Fast Service – Documents delivered within 24 – 36 hours guaranteed.

The Gold Plan – Managed Divorce Service – R 5 000 all inclusive:

  • The price you pay is fixed from the start of your case and includes everything you will need.
  • 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 with you on your behalf with you at Court.
  • Professional and Trustworthy.
  • Save over R 3000 – Fixed fee for all the work.

eDivorce is a technology platform enabling members of the public to draft their own legal documentation for purposes of initiating and concluding uncontested divorce proceedings through either the High Courts or Divorce Courts in South Africa.

In matters where there is disputes over the children, it will be better to see an attorney.

The Department of Justice and Constitutional Development has amended the Magistrate’s Courts Act of 1944 giving powers to Regional Courts to now deal with divorce cases as well. President Jacob Zuma announced the commencement of the Jurisdiction of Regional Courts Amendment Act which came into effect on 9th August 2010, the National Woman’s Day. The Regional Courts were established in 1952 to deal with divorces, serious criminal offences and mete out harsher penalties. The amendments increase access to justice to members of the public, in particular, women and children who go to courts daily for the resolution of family related disputes relating to divorce; maintenance; adoption; and matters relating to custody of minor children.

These amendments are good news for people utilising the eDivorce process, a DIY online divorce service at http://www.edivorce.co.za for the mere reason that it offers parties in a divorce action the opportunity to conclude their divorce in their area of residence, faster and with wider access to the courts. Previously divorces in South Africa were handled by just a few Family Courts and the High Court and through the implementation of the new system; it will be not only more cost effective but also quicker as a result of the spread in the workload.

  • There are now 62 more Regional courts to deal with same workload that the 3 former divorce courts.
  • This will assist in reducing case backlogs both at the High Courts and Magistrates Courts.
  • Proceedings in the High Courts are complex to the extent that attorneys and advocates are usually instructed resulting in high litigation costs.
  • Regional courts have a reduced scale of costs in relation to the High Court, and simplified proceedings which include the use of mediation in resolving civil disputes.
  • Registrars and assistant registrars appointed at each regional court to provide assistance to member of the public.

The Courts are located in the diagram below:

Province New seat of civilRegional Court Areas in respect of which the civil Regional Court has jurisdiction
EasternCape East London East London, Komgha and Mdantsane
Grahamstown Albany, Adelaide, Alexandria, Bathurst, Bedford and Somerset East.
Graaff-Reinet Graaff-Reinet, Aberdeen, Cradock, Hofmeyr, Jansenville, Middelburg, Pearston and Willowmore.
King William’sTown King William’s Town, Cathcart, Fort Beaufort, Keiskammahoek, Middledrift, Peddie, Stutterheim, Victoria East andZwelitsha.
Mthatha Umtata, Bizana, Butterworth (Gcuwa), Elliot, Elliotdale (Xhora), Engcobo, Flagstaff (Siphaqeni) , Idutywa, Kentani (Centane), Libode, Lusikisiki, Maclear, Matatiele, Mount Ayliff (Maxesibeni), Mount Fletcher, Mount Frere (Kwabacha) , Mqanduli, Nqamakwe, Ngqeleni, Port St Johns (Umzimvubu), Qumbu, Tabankulu, Tsolo, Tsomo and Willowvale (Gatyana)
Port Elizabeth Port Elizabeth, Kirkwood, Motherwell and Uitenhage.
Queenstown Queenstown, Albert, Aliwal North, Barkley East, Glen Grey (Cacadu) (Lady Frere), Herschel, Hewu, Indwe, Lady Grey, Mo;teno, Mpofu (Seymor) (Stockentrom), Ntabethemba, Sterkstroom, Steynsburg, St Marks (Cofimvaba), Tarka, Venterstad, Wodehouse and Xalanga (Cala).
Humansdorp Humansdorp, Hankey, Joubertina, and Steytlerville.
Free State Bethlehem Bethlehem, Ficksburg, Fouriesburg, Frankfort, Harrismith, Lindley, Reitz, Senekal, Villiers, Vrede and Witsieshoek.
Bloemfontein Bloemfontein , Bethulie, Boshof, Botshabelo, Brandfort, Clocolan, Dewetsdorp, Edenburg, Excelsior , Fauresmith, Jacobsdal, Jagersfontein, Koffirfontein, Ladybrand, Marquard, Petrusburg, Philippolis, Reddersburg, Rouxville, Smithfield, Trompsburg, Thaba Nchu, Wepener and Zastron
Kroonstad Kroonstad, Heilbron, Koppies, Parys, Sasolburg, Viljoenskroon and Vredefort.
Welkom Welkom, Bothaville, Bultfontein, Hennenman, Hoopstad, Odendaalsrus, Theunissen, Ventersburg, Virginia, Wesselsbron and Winburg.
Gauteng Ekangala Ekangala, Bronkhorstspruit and Cullinan.
Johannesburg Johannesburg. [Can also go to Kliptown Regional Court]
Kempton Park Kempton Park, Benoni, Boksburg, Daveyton and Tembisa.
Kliptown (Canalso go to JohannesburgRegionalCourt) Armadale, Chiawelo, Comptonville, Devland, Dhlamini, Diepkloof, Dobsonville, Dobsonville Gardens, Doornkop, Dube, Emdeni, Jabavu, Jabavu Central Western, Jabulani, Klipriviersoog, Klipspruit, Klipspruit West, Lenaron, A.H., Lougherin A.H., Lufhereng, Mapetla, Meadowlands, Meredale, Mofolo Central, Mofolo North, Mofolo South, Molapo, Moletsane, Moroka, Moroka North, Naledi, Naturena, Nomzamo, Noordgesig, Orlando, Orlando East, Orlando Ekhaya, Orlando West, Phiri, Pimville Ext & Zones, Power Park, Protea City, Protea Glen, Protea North, Protea North Ext.1, Protea North Ext.9, Protea South Ext.1, Racecourse, Riversdale, Senaoane, Stesa A.H, Slovoville, Slovoville Ext.1, Tladi, Zola, Zola Ext.1 and Zondi.
Oberholzer Oberholzer and Westonaria.
Pretoria Pretoria, Atteridgeville, Mamelodi, Soshanguve and Wonderboom.
Randburg Randburg and Alexandra.
Roodepoort Roodepoort, Krugersdorp and Randfontein.
Germiston Germiston and Alberton.
Vereeniging Vereeniging, Meyerton and Vanderbijlpark.
Springs Springs, Brakpan, Heidelberg and Nigel.
KwaZulu-Natal Durban Durban, Chatsworth, Inanda, Lower Tugela, Ndwedwe, Pinetown, Umbumbulu, Umlazi and Ntuzuma.
Empangeni Empangeni (Lower Umfolozi), Eshowe, Hlabisa, Kranskop, Mahlabatini, Mapumulo, Mtonjaneni,Mtunzini and Nkandhla.
Newcastle Newcastle, Dannhauser, Dundee, Estcourt, Glencoe, Klip River, Madadeni, Msinga, Utrecht and Weenen.
Vryheid Vryheid, Babanango, Ingwavuma, Ngotshe, Nongoma, Nqutu, Paulpietersburg, Piet Retief and Ubombo.
Pietermaritzburg Pietermaritzburg, Bergville, Camperdown, Impendle, Lion’s River, Mooi River, New Hanover, Polela, Richmond, Umvoti and Underberg.
Port Shepstone Port Shepstone, Alfred, Ixopo, Mount Currie, Umzimkulu and Umzinto.
Limpopo Giyani Giyani, Bolobedu, Malamulele, Sekgosese, Tshitale and Vuwani.
Lebowakgomo Thabamoopo.
Sekhukhune Sekhukhuneland, Nebo and Praktiseer
Modimolle Waterberg, Ellisras, Northam, Phalala, Thabazimbi and Warmbaths.
Polokwane Pietersburg, Bochum, Mankweng, Mokerong, Potgietersrus and Seshego.
Tzaneen Letaba, Lulekani, Namakgale, Naphuno, Ritavi and Phalaborwa.
Thohoyandou Thohoyandou, Dzanani, Hlanganani, Messina, Mutale, Sibasa, Soutpansberg, Tiyani and Tshilwavhisiku.
Mpumalanga Eerstehoek (Elukwatini) Eerstehoek, Carolina, Ermelo, Piet Retief and Wakkerstroom.
Evander Highveld Ridge, Amersfoort, Balfour, Bethal, Delmas, Standerton and Volksrust.
KwaMhlanga Kwamhlanga, Mathanjana, Mbibana, Mdutjana and Mkobola.
Middelburg Middelburg, Groblersdal, Kriel, Moutse and Witbank.
Mbombela Nelspruit, Barberton, Belfast, Lydenburg, Mapulaneng, Mhala, Nkomazi, Nsikazi, Pilgrim’s Rest, Waterval-Boven and White River.
Northern Cape De Aar De Aar, Britstown, Carnarvon, Colesberg, Hanover, Noupoort, Philipstown, Richmond and Victoria West.
Kimberley Kimberley, Barkly West, Hartswater, Douglas, Hopetown, Jan Kempdorp and Warrenton.
Springbok Calvinia, Fraserburg, Garies, Namaqualand, Port Nolloth, Sutherland and Williston.
Upington Gordonia, Groblershoop, Hay, Kakamas, Kathu, Keimoes, Kenhardt, Kuruman, Olifantshoek, Pofadder, Postmasburg and Prieska.
North West Brits Brits and Warmbaths.
Ga-Rankuwa Odi and Pretoria.
Klerksdorp Klerksdorp, Bloemhof, Christiana, Schweizer-Reneke and Wolmaransstad.
Mmabatho Molopo (Mafikeng), Atamelang, Ditsobotla, Mafeking, Lehurutshe, Lichtenburg, Mafeking, Ottosdal and Zeerust
Potchefstroom Potchefstroom, Coligny and Ventersdorp.
Rustenburg Rustenburg, Bafokeng, Koster, Madikwe, Mankwe, Marico and Swartruggens.
Temba Moretele
Vryburg Vryburg, Delareyville, Ganyesa, Kudumane (Tlhaping-Tlharo), Kuruman and Taung.
Western Cape Atlantis Atlantis, Clanwilliam, Hopefield, Malmesbury, Moorreesburg, Piketberg, Van Rhynsdorp, Vredenburg and Vredendal.
Bellville Bellville, Bluedowns and Kuils River.
Cape Town Cape and Goodwood.
George George, Heidelberg, Knysna, Mossel Bay, Riversdale, Thembaletu and Uniondale.
Mitchells Plain Mitchells Plain and Khayelitsha.
Oudtshoorn Oudtshoorn, Beaufort West, Calitzdorp, Ladismith, Murraysburg and Prince Albert.
Somerset West Somerset West, Bredasdorp, Caledon, Grabouw, Hermanus, Paarl, Stellenbosch, Strand,Tulbagh, Wellington and Wolseley.
Worcester Worcester, Bonnievale, Ceres, Laingsburg, Montagu, Robertson and Swellendam.
Wynberg Wynberg, Athlone, Phillipi and Simon’s Town.

For further info and how to conclude your divorce through the online eDivorce process at a fraction of the normal cost, visit http://www.edivorce.co.za or email info@edivorce.co.za, you can also call the eDivorce hotline on 0835334428

Shared Parenting

What is Shared Parenting?

“An arrangement whereby children freely enjoy the love and nurture of both parents and their wider family following separation or divorce …it does mean that sufficient time is spent with each parent for the child to view each parent as a parent rather than an aunty or uncle.”

(ASP definition of Shared Parenting as adopted by CAFCASS in 2004)

Shared parenting is an arrangement after divorce wherein both parents continue to have a strong positive presence in their children’s lives. Shared parenting entails that a child spend equal or significant amounts of time with each parent.

As a divorce and family law attorney I see a huge shift towards a more collaborative approach between parents to share equal time with their children after divorce.

Shared parenting arrangements may differ to suit various situations. Time between each parent may be split 50/50 or the children may live with one parent for example, four days every week and the rest of the week with another parent.

After divorce, shared parenting is a preferred alternative to asking the children to choose where they want to live. Many children prefer shared parenting rather than the traditional arrangements. With shared parenting, the children still has the chance to have a meaningful relationship with both of their parents.

There are many benefits to shared parenting. It allows a child to have both his/her parents present in his/her life and although the child has to switch between two homes, shared parenting reassures the child that both parents care for them. This arrangement is more beneficial to a child than when they live with only one parent because often the latter creates a distance both physical and emotional between the child and the “absent” parent.

Studies show that children of divorced couples who retain meaningful relationships with each parent are the ones who find it easier to deal with the breakup of their parents. Research also shows shared parenting is possible despite intense conflict between parents if the parents focus on what is best for their children.

Almost half of the children in the U.S. are deprived of the lifelong benefits of two parents who share the parenting throughout the first 18 years of their children’s lives.

The Benefits of Shared Residence and Shared Parenting

  • Removes the need for a child to choose between the parents
  • Allows both parents to love and nurture the child in much the same way as they did prior to parental separation and therefore promotes the continuation of family life
  • The child does not feel rejected by the non-resident parent and does not blame himself
  • Confirms to the child that he still has two parents who love and wish to care for him
  • The child derives emotional and psychological security from having two fully engaged parents
  • The child is no longer brought up to believe that the resident parent is the real, better or main parent and that the non-resident parent is a lesser parent or to be rejected
  • Re-affirms the responsibility of each parent to care and provide for the child
  • Sends a clear message to the resident parent, schools, doctors and the courts that both parents are equal and that all decisions relating to the child should be based on this principle
  • The child is more likely to grow up in a well-adjusted manner
  • Reduces parental hostility as it requires both parents to negotiate and make joint decisions

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.

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

Grounds for Divorce in South Africa

Dissolution of a civil marriage by divorce in South Africa

Three grounds for divorce were introduced by the Divorce Act:

  1.  irretrievable breakdown of the marriage (section 4);
  2. mental illness of a party to the marriage (section 5);
  3. continuous unconsciousness of a party to the marriage (section 3).

Irretrievable breakdown of the marriage

Section 4(1) – court may only grant a decree of divorce on the ground of the irretrievable breakdown of a marriage if it is satisfied that the marriage relationship between the parties to the marriage has reached such a state of disintegration that there is no reasonable prospect of the restoration of a normal marriage relationship between them.  There are thus 2 requirements:

(a)   marriage relationship must no longer be normal;

(b)   there must be no prospect of the restoration of a normal marriage relationship between the spouses.

The legal definition of “normal marital relationship” should be sought in the concept of consortium omnis vitae.  When either spouse or both of them behave in such a way that the consortium omnis vitae is terminated or seriously disrupted, it can be said that a normal marriage relationship no longer exists between the spouses.

Schwartz v Schwartz:  in determining whether a marriage has reached such a state of disintegration that there is no reasonable prospect of the restoration of a normal marriage relationship between the parties it is important to have regard to what has happened in the past, that is, history of the relationship up to the date of trial, and also to the present attitude of the parties to the marriage relationship as revealed by the evidence at the trial.

Swart v Swart:  a marriage has broken down if one spouse no longer wishes to continue with the marriage.  The formation of an intention to sue for divorce is the subjective element in the method of determining marriage breakdown.  However, in order to assess the probability of a successful reconciliation being effected, the court also has to consider the reasons that prompted the plaintiff to sue for divorce, and the parties’ conduct.  Only when the court has determined that there is no reasonable prospect of reconciliation, will it find that the marriage has broken down irretrievably and grant a decree of divorce.  The court looks at the objective scantiness and surmountability of the reasons why a divorce was applied for to ascertain whether the marriage in question can still be saved.

Coetzee v Coetzee:  in order to succeed in a divorce action based on irretrievable breakdown, the plaintiff must prove that there has been a change in the pattern of the marriage from which breakdown can be deduced.  The inherent problem in this conception is that a divorce cannot be obtained in a marriage which was unhappy from the start and remained unhappy throughout.

Guidelines for irretrievable breakdown of marriage (section 4(2))

The guidelines are merely examples of instances where the probability is high that a normal marriage relationship no longer exists and that there is no reasonable prospect for the restoration of a normal marriage relationship.  However, these guidelines are neither exhaustive nor conclusive.

(1)   parties have not lived together as husband and wife for a continuous period of at least one year immediately prior to the date of the institution of the divorce action

Since the legislator requires an unbroken period of at least one year, it is clear that if the period was interrupted by periods of resumed cohabitation, the plaintiff would have to present more evidence to the court than the mere fact that they have lived apart for a year.

The consortium between the spouses must have been terminated. Even if the spouses have continued living together under the same roof there is no reason why the plaintiff cannot show that the consortium between them has been terminated.

If the plaintiff wishes to rely only on the spouses having lived apart for a year without adducing any further evidence in support of the divorce action, he or she would have to produce proof that the full period of a year has elapsed.  If the spouses still share the same dwelling, the plaintiff would have to prove the particular point in time at which the consortium came to an end.

(2)   The defendant has committed adultery and the plaintiff finds it irreconcilable with a continued marriage relationship

The test to determine whether the plaintiff considers the defendant’s adultery irreconcilable with the continuation of the marriage is clearly subjective.  If the plaintiff alleges that he or she cannot continue with the marriage, there is no way in which this allegation can be refuted.  There is support for the contention that it is not necessary to convince the court on a balance of probabilities that adultery was committed.  The plaintiff should however place some evidence of the adultery before the court.  A mere allegation that the defendant committed adultery would not be sufficient to ensure the success of the divorce action.

(3)   A court has declared the defendant a habitual criminal and the defendant is undergoing imprisonment as a result of that sentence

If the defendant has not been declared an habitual criminal, the plaintiff would have to adduce evidence other than the mere fact of the defendant’s imprisonment to prove that the marriage has broken down irretrievably.  In any event, in terms of section 4(2), a plaintiff may sue for divorce after a year’s separation, regardless of whether or not the separation resulted from imprisonment.

Incurable mental illness or continuous unconsciousness

The criteria

Section 5(1) – mental illness

  1. The defendant has been admitted to an institution as a patient in terms of a reception order under the Mental health Act, or is being detained as a state patient or mentally ill convicted prisoner at an institution;
  2. The defendant has not been unconditionally discharged from the institution or place of detention for a continuous period of at least two years immediately prior to the institution of the divorce action;
  3. There is no reasonable prospect that the defendant will be cured of his or her mental illness.  This fact must be proved by the evidence of at least two psychiatrists, one of whom must be appointed by the court.

Section 5(2) – continuous unconsciousness

  1.  The defendant must be in a state of continuous unconsciousness caused by a physical disorder;
  2. The defendant’s unconscious state must have lasted for a period of at least six months immediately prior to the institution of the divorce action;
  3. There must be no reasonable prospect that the defendant will regain consciousness.  This fact must be proved by the evidence of at least two doctors, one of whom must be a neurologist or neurosurgeon appointed by the court.

The requirements of section 5 need not be complied with in order to obtain a divorce order against a mentally ill or unconscious spouse.  A decree of divorce can be granted under section 4 if the plaintiff can prove that the marriage has broken down irretrievably.  Only in the most exceptional circumstances will a court make a forfeiture order against a defendant whose mental illness or unconsciousness is the reason for a divorce which is granted in terms of section 4.

Special rules which apply in terms of the Divorce Act:

(a)   Section 5(3)

The court is empowered to appoint a legal practitioner to represent the defendant at the court proceedings, and to order the plaintiff to bear the costs of the defendant’s legal representation.

(b)   Section 5(4)

The court may make any order it deems ft in respect of requiring the plaintiff to furnish security for any patrimonial benefits to which the defendant may be entitled as a result of the divorce.

(c)   Section 9(2)

Forfeiture of patrimonial benefits may not be ordered against a defendant if the marriage is dissolved on the ground of the defendant’s incurable mental illness or continuous unconsciousness.

(d)   Maintenance

The plaintiff may indeed claim maintenance from the mentally ill or unconscious defendant if he or she qualifies for maintenance in terms of section 7(2) of the Act.

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.