International Divorce – can I divorce my spouse living overseas?

If you are living in South Africa and your spouse overseas, you are able to institute divorce proceedings against your spouse through a South African. The same applies when you are a South African citizen that lives overseas and one spouse resides in South Africa.  Also foreigners living in South Africa may approach a South African court to institute divorce proceedings. A South African court has jurisdiction where the parties or either of the parties are domiciled in the area of the court’s jurisdiction on the date on which the action is instituted or ordinarily resident in the area of jurisdiction of the court on the date on which the action is instituted or has been ordinarily resident in the Republic for a period of not less than one year immediately prior to that date. Domicile is a matter of choice and although a person might work overseas a South African court may still have jurisdiction to entertain the matter.

The person instituting the divorce proceedings are called the Plaintiff. Where the parties reached a settlement, only the Plaintiff appears in Court. So, if a Plaintiff  works or lives overseas he/she will have to appear in a South African court once the matter is placed on the Court roll. The same applies if the Plaintiff resides in South Africa. It is not necessary for the Defendant to appear in court where the parties have reached a settlement and the divorce is uncontested.

Where a Defendant (the person against whom the divorce is instituted) lives in another country, a Plaintiff must first approach the court by way of what is known in law as an Edictal Citation application, a Defendant may direct in an appropriate way acceptance of the Summons at an address in South Africa. This affords permission to a Plaintiff to serve the divorce documents on a spouse living in a  foreign country by way of local service.

The proprietary consequences of a marriage are governed by the lex domicilii matrimonii, that is the laws of the place where the husband was domiciled when the marriage was concluded. The law of the husband’s domicile at the time of the marriage governs the matrimonial property regime of the spouses even if the husband subsequently acquires a new domicile.

If for example the husband was domiciled in England at the time of the marriage and no Antenuptial contract was entered into in South Africa, the marriage will be out of community and in terms of English law. Should the parties later emigrate to SA, the marriage would remain out of community of property. Thus in a contested divorce where the husband was domiciled in England at the time of the marriage, a South African court is obliged to apply English law in respect of the patrimonial consequences of the divorce, i.e the division of the estate. Maintenance however and the aspects surrounding the children, like maintenance, care and contact will be dealt with in terms of South African law.

We have been dealing with numerous international divorce matters in South Africa matters concerning South African citizens and has acted in matters for South Africans living in countries such as Australia, United Kingdom, USA, Indonesia, The United Emirates, Germany, New Zeeland, Namibia to mention but a few and have been able to finalise some of these matter in as little as three weeks.

For further information email: info@divorceattorney.co.za

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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.

The Long Term Effects of Divorce on Children

More and more scientific information is being accumulated about the long-term effects that a divorce has on children. Until quite recently, most of what we knew was about the immediate or the so-called short-term effects of divorce, but long-term studies are providing more insights about the effects of divorce on the formation of intimate relationships and marriages in adulthood.

The major finding that gets the most attention is the slightly increased likelihood that children of a divorce will also divorce one day.

One interesting new report on the long-term effects of divorce on intimate relationships was conducted in Finland and reported in the Journal of Family Psychology (2011). A group of scientists at the National Institute for Health and Welfare and the University of Helsinki conducted a 16-year follow-up study of 1471 teenagers in one Finnish community. Ulla Mustonen and colleagues were surveyed the intimate relationships of these adults at 32 years of age and the role that parent-child relationships may have played in their adult relationships.

In keeping with past research, they found that children with divorced parents were somewhat more likely to be separated or divorced in young adulthood. Additionally, young women whose parents divorced were also less likely to have been married. Surprisingly, parental divorce showed no predictive relationship with divorce for young men.

On the other hand, there were a number of important findings about the ways in which parental divorce really affected young women. Though parental divorce itself did have a direct effect on young women’s chances of divorce, the major effect of divorce on young women was the mother-daughter relationship in adolescence. Parental divorce tended to undermine the mother-daughter relationship; however, when a positive relationship was maintained, this resulted in better self-esteem and satisfaction with social support in young adulthood, which contributed to better intimate relationships.

This finding means that one of the key factors in fostering the long-term well-being of children of divorce is through strengthening positive parent-child relationships. For this study, a positive parent-child relationship was more important for women than men, but the importance of these adolescent relationships should not be overlooked as we think about programs and policies to foster the long-term health of children.

These findings highlight a key direction for future research on the effects of divorce on children. The mere finding that these children may be more at-risk of difficulties should no longer occupy so much of our attention. The important work is understanding the factors within relationships and family process that contribute to these outcomes and identifying opportunities to buffer the negative effects while building on the positive factors. Much progress in improving children’s well-being is possible and deserving of more attention.

Article appeared in Huffington Post

Going through a Divorce? The 10 Things A Woman Should Do

Going through a Divorce? The 10 Things A Woman Should Do

Divorce shakes life’s foundations. Suddenly, high stakes issues exist in almost every arena: financial, legal and emotional. This creates the “perfect storm” that causes the couple’s conflict to rage completely out of control. During divorce it becomes difficult to make the rational decisions that are the heart of a carefully crafted settlement. Women who are understandably uncomfortable with the stress and tension of divorce may sometimes rush into a settlement only to reduce the conflict. Eventually, however, in future, they may live to regret their hastily made decisions.

If you are like many women facing divorce, you hope to reach an amicable settlement and avoid bitter and costly legal battles. Your divorce settlement, however, will impact your financial well-being and that of your children for many years to come. Therefore, you must achieve not just any settlement but one that truly meets your needs and that of your children.

If you are the wife in a marriage where your husband is the breadwinner and/or controls the family finances, the situation could get especially difficult.

Ten important things that you should do:

  1. Gather as much financial information as possible.
  2. Change your email passwords.
  3. Start putting money away for legal fees. If you don’t have access to your own funds your attorney can claim a contribution from your spouse to pay your legal fees.
  4. Make a list of your monthly income and expenses as well as the expenses of your children.
  5.  Open a new checking and savings account.
  6. Open new credit cards in your name only.
  7. Change your Will, if you are married out of community of property, get a copy of your antenuptial contract.
  8. Change beneficiaries on life insurance policies.
  9. Take an inventory of all personal (non-marital) property, take an inventory of all marital property.
  10. Decide who will be the primary caregiver of the minor children and where they shall live.

Domestic Violence cause migraines

During the last decade, there was an increased interest in the possible link between Domestic Violence and migraines.

Domestic Violence is a pattern of abusive behaviours by one or both partners in a relationship. Domestic violence is a serious and preventable public health problem that affects thousands of South Africans.

In the February 2011 issue of the journal Headache, a magazine in the USA researchers studied a group of young women with migraine in Lima, Peru. Among those women, 47% had been victims of some sort of physical or sexual violence by their spouse or intimate partner, compared with 36% of young women without migraine. After adjusting for other potentially confounding factors, this study found that having been the victim of abuse increased your risk for having migraine by over 40%. If abused women also experienced symptoms of depression, they had over double the risk of having migraine.

What does this study tell us:

  • Nearly 2 of 5 women in this study had been abused by an intimate partner.
  • Having been abused makes it more likely that you will experience migraines.
  • Having been abused and having problems with depression more than doubles your risk of having migraines.

People who were maltreated as children, physically, emotionally, or both also have a higher prevalence of migraine, researchers say. Gretchen E. Tietjen, MD, of the University of Toledo in Ohio, and colleagues reported in three studies in the January issue of Headache: Journal of Head and Face Pain.

“Childhood maltreatment, in particular emotional abuse, is a risk factor for chronic migraine,” the researchers wrote, and the associations between maltreatment and pain “were independent of depression and anxiety, both of which are highly prevalent in this population.”

There is accumulating evidence that childhood maltreatment may lead to a host of chronic conditions and the researchers conducted a cross-sectional survey of headache clinic patients with diagnosed migraine from 11 outpatient centers.

They assessed childhood maltreatment via the Childhood Trauma Questionnaire and took a history of comorbid pain conditions including irritable bowel syndrome, chronic fatigue syndrome, fibromyalgia, interstitial cystitis, and arthritis.

The researchers also assessed depression and anxiety.

A total of 1,348 patients completed the surveys: 88% were women, with a mean age of 41.

In the first of the three studies, the researchers confirmed that childhood maltreatment was prevalent in migraineurs.

The prevalence among abuse types was as follows:

  • Physical abuse: 21%
  • Sexual abuse: 25%
  • Emotional abuse: 38%
  • Physical neglect: 22%
  • Emotional neglect: 38%

In terms of our law a protection order can be obtained at any Magistrates Court, you can get an interim protection order quite quickly by filling in certain forms, and that interim order will specify a date at which the final order will be considered (a return date). Once a final order is made, it is permanent and can only be changed by applying to the courts.

The kinds of protection you can get in a protection order include conditions that:

  • Your abuser must not commit any act of domestic abuse.
  • Your abuser must pay you rent, mortgage payments or other emergency money.
  • The police must seize any firearms or dangerous weapons in your abuser’s possession.
  • The police must go with you and help you to collect your personal property.
  • Your address must not be given anywhere on the protection order

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 and magazines such as Noseweek, You and Huisgenoot, and also appeared on SABC television on the 3 Talk TV show. His clients include artists, celebrities, sports people and high networth 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, domestic violence matters, international divorce law, digital rights, media law and criminal law.

Contact details

bertus@divorceattorney.co.za

O: 021 422 1323

Beware the love tweet

Social networking tools such as Facebook, Twitter and MXit are becoming the easiest way to prove marriages have irretrievably broken down in contested divorces.

NIVASHNI NAIR | 10 October, 2011 00:44 – Times Live

A wealthy Durban doctor created a fake Facebook profile as a “hot young thing” to gather evidence against her husband in their divorce battle.

A Johannesburg businessman installed cameras in the study where his wife logged on to social networking sites so he could capture her “wild affairs”.

Cape Town divorce lawyer Bertus Preller said it would be wise for unhappy couples to watch what they post because it could come back to haunt them.

“Posting status updates and uploading photos of otherwise fun-filled events on social networks have led to an overabundance of evidence in divorce cases,” he said.

“According to the American Academy of Matrimonial Lawyers, 81% of its members have used or faced evidence plucked from Facebook, MySpace, Twitter and other social networking sites, including YouTube and LinkedIn, over the past five years. In South Africa, the situation is the same.”

Preller said almost one-third of his caseload involved contested divorces in which evidence from Facebook, MXit and Twitter was used to prove that the marriages were over.

“Although adultery is grounds for divorce, one must show that there has been an irretrievable breakdown of the marriage. But in contested divorces, one party will want to show otherwise, therefore evidence needs to be brought in to show that the marriage is over,” he said.

“These days, the first thing that clients do is go to Facebook or Twitter to get evidence. Often people do not log off their profiles or delete their inbox messages, making it easier for their spouses to gather evidence.

“So if you forgot to de-friend your wife on Facebook while posting vacation shots of your mistress, her divorce attorney may just be thrilled about you doing that.”

He said betrayed spouses went to great lengths to source evidence.

“Some have downloaded technology surveillance software to obtain information that will otherwise not be obtainable.”

A Durban doctor and mother of two, who spoke on condition of anonymity, wanted to catch her husband “in the act” to show the court that their marriage was “definitely over”.

“I created a profile and became his friend. We exchanged inbox messages three times and, on all three occasions, as he tried to convince me to go out to supper with him, he repeatedly said he was not married.

“He even said he didn’t believe in marriage and was not ready to settle down,” she said.

Although her divorce has not yet been finalised, the woman is confident that her “investigative skills will nail him”.

“I don’t think any judge would want me to stay with a man who said he doesn’t believe in marriage and is not ready to settle down.

“It hurt me at first because we have been married for 18 years, and have teenage sons, but I got over it when I saw the look on his face when I produced evidence.”

Antenuptial Contracts – The most important contract in your lifetime

The Antenuptial or Prenuptial Contract is certainly one of the most important documents that any person will sign in his/her lifetime, well that is if you decide to tie the knot and get married.  Antenuptial agreements are often seen as a cold, harsh and unromantic sign that one’s partner is planning on the relationship ending in doom. Some people have no issues with them and see them as valuable protection for both parties while others might go as far as to call of their wedding if the idea surfaces.

A major problem however is that people somehow disregard the importance of the Antenuptial Contract and many embark on a marriage without due cognisance of the repercussions that might follow at a later stage, especially when the marriage end in the big D – divorce. Somehow many people merely see the Antenuptial Contract as a formality, something that needs to be signed prior to the wedding day, without realising the consequences of such an important legal instrument. The problem is that the Bride and Groom, concentrates more on the wedding ceremony, the dress, the honeymoon etc. and leaves the Antenuptial contract for that late minute meeting with an attorney just before the wedding day.

No one goes into a marriage contemplating a divorce but when you consider that the Antenuptial Contract governs what will happen to your assets and liabilities on divorce or death, it makes lots of sense that considerable thought should be given to concluding it and that its contents should be fully understood by all parties concerned. Unfortunately many people are more drawn into the eyes of their spouse prior to the marriage than to the importance of the wording of a proper Antenuptial Contract.

Marriage in Community of Property

Where you did not conclude an Ante nuptial Contract prior to your wedding day, you will automatically marry in community of property. ‘In community of property’ means that everything the couple own, and their debts, from before their marriage are put together in a joint estate. And everything they earn or buy after their marriage is also part of this joint estate. Any money or possessions belonging to either of the spouses at the time of the marriage, or acquired by them at any time thereafter, cease to be the private property of the one person and become part of a joint estate in which each of the partners has an equal, undivided share.

On termination of the marriage, the husband and wife are each entitled to a half-share of the joint estate and they are jointly liable for any liabilities. A major disadvantage is that if one partner becomes insolvent, the other is protected only if he or she owns property that does not form part of the joint estate. Everything in the joint estate will be attached and sold off to pay any creditors.

Marriage out of Community of Property

Each spouse retains his or her own assets and liabilities whether acquired before or during marriage. There is no sharing of profits and losses. Both spouses have full and independent contractual capacity. Upon death or divorce, each spouse keeps control over their own assets.

This clearly gives parties absolute independence of contractual capacity and protects the estates of each party against claims by the other party’s creditors. There is no provision for any sharing whatsoever.  A party who contributed to the other party’s estate whether in cash or otherwise would have a heavy onus to prove that he or she was entitled to anything from that party’s estate on dissolution of the marriage.

Where one party stays at home to raise children and does not contribute financially towards the marriage and the other spouse works and accumulates assets, the former may find herself with nothing and no claim to the assets of the latter.

The marriage is governed by a contract known as an ante nuptial contract which is concluded by the parties before the marriage. If the marriage occurred after 1 November 1984, the contract had to specifically exclude the system of accrual. In the absence of this exclusion the rules of accrual will automatically apply.

Marriage out of Community of Property with Inclusion of the Accrual System

In most cases the accrual system is, perhaps, the fairest marriage system for the majority of couples. Before the introduction of the accrual system in 1984, if prospective spouses chose to be married out of community of property, there was no form of sharing between them of what was built up during the marriage. The accrual system was introduced to remedy this.

The Matrimonial Property Act 88 of 1984 brought with it the “accrual” system which permits a form of sharing, consistent with a primary objective of marriage, but permitting retention of each party’s independence of contract and ability to retain their own unique separate estates.

“Accrual” means increase. The accrual system is a form of sharing of the assets that are built up during the marriage. The underlying philosophy in respect of the accrual system is that each party is entitled to take out the asset value that he or she brought into the marriage, and then they share what they have built up together. One spouse’s property cannot be sold to pay the other’s creditors if the other becomes insolvent – in contrast to the case where the parties are married in community of property.

It is of utmost importance that a party wishing to enter into an Ante Nuptial Contract must fully understand what it is they are signing. It is for this reason that a standard form contract cannot be used, that consultations cannot be held over the phone or by means of email and that, unfortunately.

The important features of an accrual marriage are in essence the following:

  • Each party retains his or her own estate. Each party may accumulate assets and incur liabilities without interference from or assistance of the other spouse.  The estate of each party is determinable separately.
  • The monetary value of the smaller estate is subtracted from the monetary value of the larger estate, the difference is split, and the party having the larger estate pays half of the difference between the two estates to the party with the smaller estate.
  • At dissolution of the marriage, the estate of each party is calculated by listing all assets, listing all liabilities, subtracting liabilities from assets and arriving at a net asset value.
  • In practical terms this amounts to a similar division to a marriage in community of property.  However there are certain crucial factors of an accrual marriage which add complexity and much more freedom of choice. When drafting the Ante Nuptial Contract, the parties can each decide to exclude certain assets.  The effect of excluding an asset will be that it does not feature on the asset statement at dissolution of the marriage and is completely excluded from the calculation. Assets which are not properly described can cause huge problems when the executor or the divorce attorney tries to decide what to do with it in calculating the net accrual value.
  • To exclude either a specific asset, or a commencement value, or both (which must be separate and not derived from the same asset), can effectively ensure that couples share only what they choose to share and keep separate any item or items, or values, which they do not believe it fair to share (for example something acquired before the relationship commenced).Parties not wishing to exclude specific assets may exclude a certain sum of money which is the agreed equivalent of assets which they do not wish to share, and which is termed a “commencement value”.

Excluded from the Accrual

Certain property belonging to either the husband or the wife may not be taken into account when the accruals are worked out:

  • Any damages awarded to either spouse for defamation or for pain and suffering;Any inheritances, legacies or gifts that either spouse has received during the marriage, unless the parties have agreed in their antenuptial contract to include these or the donor has stipulated their inclusion;
  • A donation made by one spouse to the other. This is not taken into account as part of either the giver’s or the receiver’s estate, with the result that the giver cannot recover part of what he or she gave and the receiver need not return any of it.

Calculating the Accrual

The accrual is calculated by subtracting the net asset value of his/her estate at the commencement of marriage from the net asset value of his/her estate at dissolution of the marriage.

Example:

If spouse C had a net asset value of R10 000.00 at the commencement of the marriage (his/her “initial value”) and a net asset value of R100 000.00 at dissolution of marriage (his/her “end value”) then the accrual to his/her estate is R90 000.00. If the initial value of the other spouse B was R20 000.00 and hi/her end value R200 000.00, it follows that the accrual to his/her estate is R180 000.00.

Net accrual is calculated by subtracting the “smaller” accrual from the “larger” accrual. In the above example: R180 000-00 – R90 000-00 = R90 000-00. In accordance with the Act, C (the spouse with the smaller accrual) acquires a claim against B (the spouse with the larger accrual) for one half of the net accrual, namely – R45 000.00.

If you do intend to get married, it is well worth your while to consult a reputable attorney, to discuss your particular requirements and ensure that you fully understand the application of the accrual system to your particular situation.

Conclusion

An Ante Nuptial Contract must be signed before the marriage and must be signed in the presence of a notary and two competent witnesses. The notary will then register the contract in the local registry of deeds.  If parties wish to conclude an Ante Nuptial Contract after their marriage it is necessary to launch an application to the High Court.

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 and magazines such as Noseweek, You and Huisgenoot. His clients include artists, celebrities, sports people and high networth 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, domestic violence matters, international divorce law, digital rights, media law and criminal law.