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.”

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.

What Divorced Parents Can Learn From Their Children

As a divorce and family law attorney I am mostly involved in the relationships of my clients, whether during the divorce process or thereafter, when the spousal role evolve into a pure parental role. Although the spousal role comes to an end, the parental role of parents last for as long as the children are there. A recent article in the Huffington Post, written by Linda Lipshutz that was quite interesting, the story is below.

“Greg” knew he was in for it when he saw Susan standing at the front door, glaring at him. It was wishful thinking to believe he would come home to peace and quiet. The disagreements between Susan and his daughter, Lindsey had become quite ugly. The two hadn’t liked each other from the start. However, he and Susan had thought that once they were officially married, things would settle down. Sadly, the situation had deteriorated. Lindsey had made it clear she wasn’t interested in meeting her stepmother, even halfway. Susan was hurt and frustrated that her efforts to reach out to Lindsey had not been successful.

Ironically, our children are often more realistic about the challenges facing the remarriage than we are.

Young people may have no qualms about letting us know their objections. In many cases, they’re not happy about all the life changes they’ve endured and have no interest in making things work.

From the young people’s point of view, they didn’t have any say when their parents ended the marriage, and they certainly don’t feel any obligation to happily endorse a parent’s new romance and eventual nuptials. They may believe their feelings have not been sufficiently considered, and are understandably resentful.

Remarrying couples are often so eager for their children to embrace their new lives they become impatient and annoyed when their families don’t jump onboard with enthusiasm. They may push way too hard, further compounding the conflicts. There are many steps, however, that can be taken to ease the adjustment and head off irreparable damage.

The stepfamily is a new entity, which must incorporate the memories and experiences of the prior family constellations. Children, still reeling from the loss of comfort, familiarity and sense of security they may have felt in the original family, will often magnify the upheaval when they enter the new blended family unit.

After a divorce, grieving single parents often reach out to their children in a unique and powerful way. A child might bask in getting his parent’s undivided attention and may develop an elevated sense of importance and control. He may not want to relinquish this exalted position or give the new stepparent any clout.

The children often struggle to sort out a host of conflicting emotions — jealousy that their parent has feelings for this stranger, worry that the original family closeness might be compromised, and concern that accepting the stepparent would be disloyal. And, of course, accepting the new stepparent would require them to relinquish any remaining fantasies of reconciliation.

Now, more than ever, is the time for the adults to remind themselves that they are the adults, and that it will be important for them to take the high road, approaching the situation with empathy and a sense of humor. It is critically important to send a clear, but sensitive message to the young people that they are not being forced to like the new family members. They still remain in control of their feelings but, hopefully, will come to enjoy these relationships in time.

It should be clearly emphasized that the new family must be treated with respect and consideration. If the children sense their parents’ insecurities, they might be tempted to use this discomfort to their advantage. Consciously, or unconsciously, they may try to put a wedge in the new couple’s relationship. It must be crystal clear that they don’t have the power to sabotage the adult relationship.

Although challenging, it’s possible for parents to take the upper hand in rocky situations. First, they must pay attention to their moods and attitudes. Defensiveness and resentment could exacerbate an already tense environment. It takes maturity and inner strength to not take sarcasm and slights personally. Avoiding an edge at stressful times, and steering clear of power struggles can head off misunderstandings. That’s not to say that any form of abuse should be tolerated. Excessive, ugly behavior must be addressed immediately and firmly.

The smart parent will look for opportunities for the children to have relaxed, one-on-one time with the new family members, so they can form relationships, on their own, at their own pace.

It’s not uncommon for a parent to feel guilty that openly relating to the new spouse in a close, loving way will be construed as a betrayal. The self-esteem of the parents and their sense of security with each other will markedly affect their ability to face the challenges. If the new stepparents trust they truly have their partner’s unwavering love and support, it may provide the strength to withstand the hurts, and the motivation to persevere.

Most of us have room in our hearts to simultaneously love different people, in different ways. It is important to remember, though, that the scars are often deep. It can take months and years for the hurts to soften. When adults respond with sensitivity and emotional support, they have taken critical steps to help young people process their losses and become receptive to the changes around them.

Compiled by:

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.

Domestic Violence – abuse may lead to murder

Domestic Violence, a threat to our society

The You and Huisgenoot Magazines recently asked my opinion and comment about a tragic murder that took place, when an ex-boyfriend killed his ex-girlfriend.  The story appears in the latest You and Huisgenoot magazines.

Catherine Krog (28) had overcome her addiction to drugs and turned over a new leaf for her three-year-old daughter, Bella.

She seemed confident and successful, had her own staff recruitment agency and tried to help friends who were addicts.

But the young mother knew that her ex-husband, Clint Walley (50), was stalking her and it was only a matter of time before he killed her, because no one could stop him.

Her body was found on 8 September in her Durban home. Next to her lay Walley’s body. He’d shot her in front of their daughter and killed himself.

So many people saw it coming, Cat’s parents, the mother and sister that she adopted, her private investigator, the police, friends, neighbours and relatives. Her ex-boyfriend was threatening and stalking her and facing charges for an unlicensed firearm, kidnapping their child and the court released him on bail of R 2000. The full story can be read in the YOU and Huisgenoot magazines of 16 September 2011.

Many abused women might feel they have no one to turn to for help, but divorce attorney Bertus Preller disagrees. “The law is there to protect you. There are many different legal avenues for victims of abuse to explore. Running away or continuing to endure the pain by staying in an abusive relationship are not the only problems. A restraining order is a court order designed to stop harassment. As a court order it prevents the abuser from contacting you or approaching you in any way. “If the abuser breaks the stipulations they can face a penalty or even jail time”. While the stipulations and restrictions in any order are different, violating it puts the culprit in contempt of court which means immediate arrest and the offender could be fined or sent to jail. “Usually the perpetrator will be arrested, taken into custody and will have to appear in court to explain why the order was violated. A suitable punishment, either a fine or prison sentence, will then be decided on”, Preller says.

Domestic violence and abuse can happen to anyone, regardless of gender yet the problem is often overlooked, excused, or denied. This is especially true when the abuse is psychological, rather than physical. Emotional abuse is often minimized, yet it can leave deep and lasting scars.

What is a domestic relationship?

You can have a domestic relationship with – someone you are or were married to; your parents or guardian; any family member(s); including your own child(ren); anyone you have lived with, whether you were married to that person or not; your life partner of the same sex; someone you went out with, even for a short time, or had sex with; or someone with whom you share a child.

What is domestic violence?

The following may be regarded as domestic violence:

  • sexual abuse (whether you are married or not);
  • physical abuse or assault (slapping, biting, kicking, and threats of physical violence);
  • damage to property or anything you value;
  • stalking (when the person follows or approaches you or your children repeatedly);
  • economic abuse, that is, when the other person keeps money to which you are legally entitled from you in
    an unreasonable manner by –
    • refusing to pay or share the rent or mortgage bond for the home you share; or
    • disposing of any property (household goods) in which you have interest, without your permission;
  • emotional abuse (that is, degrading or humiliating behaviour, including repeated insults, belittling, cursing and threats);
  • any other controlling or abusive behaviour which poses a threat to your safety, health or well-being.

What are my options if I am being abused?

You have the right to –

  • apply for a protection order at the nearest police station or
  • magistrate’s court; or
  • lay a criminal charge at the police station and apply for a protection order.

What is a protection order?

It is an order issued by a court at your request, ordering a person with whom you have or had a domestic relationship, to stop abusing you. It may also prevent the person from getting help from any other person to commit such acts. An interim protection order can also be issued at any time of the day or night for your protection.

Who can apply for a protection order?

Any victim of domestic violence may apply. Children, and if they are too young, a parent or guardian, or any person acting on behalf of someone who is responsible for them, but with their permission.

What can I do if an abuser disobeys a protection order?

Phone the South African Police Service. Thereafter a statement will be taken from you. Provide the police with the warrant of arrest you received together with the protection order (if you have lost it, apply at the court for another one). If you are in immediate danger the abuser will be arrested, otherwise the abuser will be given a notice to appear in court the next day.

About Bertus Preller

Tel: 021 422 1323

email: bertus(@)divorceattorney.co.za

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