When billionaires divorce

When dealing with high net worth and multimillionaires divorce matters a divorce attorney must make sure to employ the best possible experts as part of the legal team, this is especially so if the assets at stake run into millions. I was involved as the divorce attorney of a client in a recent matter where two British citizens divorced in South Africa with assets across the globe that ran into millions of rands. In matters such as these various expert witnesses may be employed to lead evidence on behalf of a party to the divorce proceedings, consisting of forensic auditors, valuers, art experts, industrial psychologists, child psychologists, immigration experts etc.

In this matter I was fortunate to work with one of Britton’s top leading Family Law Barristers Richard Todd QC who rendered an opinion on the division of the matrimonial assets in this divorce case as far as it relates to UK law. Richard is an Oxford scholar who won the Hugh Bellott Prize (Highest Placed in the Oxford University Public International Law Finals) and who obtained the highest awards available to a practising Silk: The Chambers & Partners “Family Law Silk of the Year “ and The Lawyer’s “Hottest Family Law QC”. Richard have given expert evidence of English law to the courts of Australia, Belgium, the Cayman Islands, the Channel Islands, Cyprus, France, Germany, Gibraltar, Hong Kong, India, Italy, New Zealand, South Africa, Spain and the USA and appeared in over 4000 matrimonial cases with a long list of report cases, needless to say the identity of former clients is confidential. However former clients include twelve Billionaires (Sterling) and two Oscar winning actors (plus another three who have been nominated).

In this matter the parties were married in England and subsequently immigrated to South Africa. In such a case the matrimonial property regime of England would apply to their marriage and English law would always apply to their marriage. In a case such as this and where the divorce is contested a South African court could divorce them but, the court would have to apply English Law. It is interesting to note that if a South African couple is on holiday in England and decides to get married, they would automatically marry in community of property and not according to English law.

The test is the husband’s domicile as at the date of the marriage, i.e. what country the husband considered to be his permanent home plus his mental intention to remain there indefinitely. Domicile is defined as the principal place of residence of an individual. This is determined primarily by intent.

Thus, if the husband regarded his place of domicile to be Cape Town at the time of the marriage, the parties would be married according to the laws of South Africa and not England and their type of marriage (matrimonial property regime) would be one in community of property. For the marriage to have been out of community of property, the parties would have had to enter into an antenuptial contract in South Africa before leaving for holiday. If they failed to do so, they would have to apply to court to register an antenuptial contract, postnuptially.

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.

Email: bertus(@)divorceattorney.co.za

Protecting Your Assets in a Divorce

The news of Kim Kardashian divorcing her husband after 72 days of marriage, highlights why it is important for business owners to make sure that their marital regime is governed in terms of an Antenuptial contract .  An  Antenuptial contract is the most cost-efficient and reliable pre-marital contract that can protect business assets in the unlikely event of a divorce.  An Antenuptial contract is a pre-marital contract between two parties entering into a marriage which regulates what happens to a spouse’s assets at the time of a divorce.  It sets forth how marital property will be divided in the event of a divorce.

A well drafted Antenuptial contract can save you time and money on litigation costs during a divorce and prevent a battle over the ownership of a business and other assets.  The more issues covered in the Antenuptial contract, means one less issue to litigate over during a divorce.  Therefore, it is a prudent investment to make prior to getting married.  One of the most important provisions a business owner can have in a Antenuptial contract is a provision addressing the appreciation of individual pre-marital assets (assets you possess prior to entering the marriage).

For example, let’s say your business, an asset, is worth R 6 million prior to getting married.  At the end of your divorce, your asset is worth R 12 million.  Your spouse could be entitled to half or more of the R 12 million appreciation during the marriage.  However, if you have a valid and enforceable Antenuptial contract whereby you and your partner agree that pre-marital property and any growth thereon is excluded at the start of the marriage, then such assets will not be taken into account for purposes of an accrual.

Marrying in terms of an Antenuptial contract (out of community of property) can also help limit your liability for your future spouse’s debts and prevent you from inheriting this debt during the marriage and divorce.  Remember, creditors can go after marital property- i.e., your business if you are married in community of property.

Antenuptial contracts may be unenforceable if certain formalities are not followed. A common attack to a Antenuptial contract is if both spouses were represented by the same attorney or one spouse was forced into the contract and did not really know what the consequences are. It is critical for you and your spouse to have separate attorneys who are independent of one another during the drafting and negotiation of the Antenuptial contract or at least, if you do go to one attorney, make sure that the attorney explains the pro’s and con’s and give the other spouse and option to discuss the agreement with another attorney.

An Antenuptial contract or pre-nuptial agreement must be entered into before marriage through a notary public, if not the marital regime by default will be that you are married in community of property. To change your marital regime later after divorce is costly and can only be accomplished by way of a court application in the High Court.

Another requirement for a valid and enforceable Antenuptial contract agreement includes the use of clear language in the agreement and terms that are fair. It is important both you and your future spouse have sufficient time to review, negotiate and execute the Antenuptial contract.  You and your future spouse want to avoid reviewing and signing the Antenuptial contract six hours before the wedding and while under duress.  Therefore, you should both have sufficient time to review the Antenuptial contract and formally execute it.  By undertaking these measures, you can protect your business and assets with a valid and enforceable Antenuptial contract.

Divorce – Don’t play chess by using your children as pawns

DIVORCE – Don’t play chess by using your children as pawns

This world is rife of parents using their children as pawns in the dirty game of divorce or where children are born out of wedlock. We have all heard of the old saying “no maintenance no kids” or “you left me so you won’t see your kids”. Parents don’t realise the damage they are doing in using their children as a means to get back at the other parent.

By isolating or alienating the children from the other parent is damaging not only to the other parent but even more damaging to the children. As a family law attorney I have seen cases where one parent will go to immeasurable lengths to isolate the other parent from building a parental relationship with his/her children, thereby depriving the children in the process of the only stability they may have left.

So often you hear about the mother that lays sexual molesting charges, with no substance against the father simply in an attempt to isolate the father from having a relationship with the children or a mother obtaining a Domestic Violence interdict against a father simply to interdict the father from having a relationship with his children. Although it seems to be mostly women that play this deadly game, there are also fathers who use their children as pawns against the mother. Unfortunately in battles of this sort there are also attorneys who fuel the battles on behalf of their clients and who somehow lose sight of what the best interests of the child really means. Depriving the other parent of a relationship with his/her children is possibly one of the most devious methods to ruin a solid society.

In terms of section 33 (2) of the Children’s Act parents who experience difficulties in exercising their parental responsibilities and rights in respect of a child must, before seeking the intervention of a court, first seek to agree on a parenting plan. The section discourages co-holders of parental responsibilities and rights from approaching the court as a first resort when they experience difficulties in exercising those rights and responsibilities.  This section does not compel parents to enter into a parenting plan, it simply instructs them to attempt to agree on one. Looking at this section closely it seems that where one parent refuse to engage in such discussions the court may be approached for then an attempt to agree on a plan was made, even if it was doomed from the start.  Section 33(5) instructs a person to seek the assistance of a family advocate, social worker or psychologist, or mediation through a social worker or suitably qualified person in preparing a parenting plan. It is therefore clear that before approaching the court, a person must first seek such assistance. If the other party is not amenable to engage then obviously a court may be approached.

Section 35 of the Act criminalises the refusal to allow someone who has access or holds parental responsibilities and rights in terms of a court order or a parental responsibilities and rights agreement that has taken effect to exercise such access. It also criminalises prevention of the exercise such access. Punishment is either a fine or imprisonment of up to one year.

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.

 

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.”