Is a husband obliged to pay maintenance when his wife lives with another man?

 

A recent judgment concerned the issue whether a husband is obliged to pay maintenance to his former wife, who is involved in a relationship with another man, after divorce. The plaintiff issued summons against the defendant, her husband, during 2003, for a decree of divorce, maintenance for herself and their son and ancillary relief.

The parties had not lived together as man and wife for a continuous period of at least two years prior to the date of the institution of the divorce action. In terms of the provision of s 4(2)(a) of the Divorce Act 70 of 1979 (the Divorce Act), this is proof of the irretrievable break-down of the marriage. The remaining issues were whether the plaintiff is entitled to maintenance, and if so, what such maintenance should be. The defendant’s case in respect of the plaintiff’s entitlement to maintenance was that it is against public policy that a woman should be supported by two men.

The maintenance post-divorce Section 7(1) and (2) of the Act sets out when a court may order the payment of maintenance and the factors that should be taken into account when making such determination.

It provides as follows:

‘7(1) A Court granting a decree of divorce may in accordance with a written agreement between the parties make an order with regard to the division of the assets of the parties or the payment of maintenance by the one party to the other.

(2) In the absence of an order made in terms of subsection (1) with regard to the payment of maintenance by the one party to the other, the Court may, having regard to the existing or prospective means of each of the parties, their respective earning capacities, financial needs and obligations, the age of each of the parties, the duration of the marriage, the standard of living of the parties prior to the divorce, their conduct insofar as it may be relevant to the break-down of the marriage, an order in terms of subsection (3) and any other factor which in the opinion of the court should be taken into account, make an order which the court finds just in respect of the payment of maintenance by the one party to the other for any period until the death or remarriage of the party in whose favour the order is given, whichever event may first occur.’

Through a long line of cases dealing exclusively with maintenance pendente lite, it has become customary not to award maintenance to a spouse who is living in a permanent relationship with another.

In Drummond v Drummond the Appellate Division agreed with the definition of the phrase ‘living as husband and wife’ as stated by the full bench. The parties agreed that the husband would pay maintenance towards the wife and that maintenance would ‘cease should the plaintiff prove that the defendant was living as man and wife with a third person on a permanent basis’. The said phrase has the following meaning: ‘. . . the main components of a modus vivendi akin to that of husband and wife are, firstly, living under the same roof, secondly, establishing, maintaining and contributing to a joint household, and thirdly maintaining an intimate relationship.’ The plaintiff and S clearly live together as husband and wife according to the said definition.

In Cohen v Cohen the parties determined in a deed of settlement that the maintenance payable by the plaintiff (the husband) would cease if the defendant lived with another man as husband and wife for a certain specified period. This order was varied by a maintenance court in respect of the amounts the husband had to pay towards maintenance. In the maintenance court’s order the condition in respect of the cohabitation was left out. In a subsequent action it was decided that, where the magistrate had left out the said clause, the condition was no longer enforceable as it had been substituted by the maintenance court.

In Carstens v Carstens the wife claimed maintenance pendente lite in a rule 43 application while she lived with another man as husband and wife. Mullins J found: ‘It is in my view against public policy that a woman should be entitled to claim maintenance pendente lite from her husband when she is flagrantly and deliberately living as man and wife with another man. Not only is applicant in the present case living in adultery, but she and her lover are maintaining a joint household complete with the addition of an adulterine child. She has by her conduct accepted the support of Clarkson in lieu of that of her husband. The fact that Clarkson is unable to support her to the extent that she may have been accustomed in her matrimonial home with respondent does not appear to me to affect the position.’

In SP v HP (another rule 43 application) it was found, on the strength of Carstens, that ‘(t)he objection is not so much about the moral turpitude attaching to the illicit cohabitation, but more about the notion of a woman being supported by two men at the same time’.

In the unreported judgment of Qonqo v Qonqo dealing with a rule 43 application for maintenance pendente lite, the court, in spite of the fact that the applicant cohabited with her lover, ordered the respondent to pay maintenance pendente lite. The reason for ordering the payment of maintenance was that there was no proof that the lover supported the applicant in that instance.

It is also clear from the wording of s 7(2) of the Divorce Act that the legislature did not determine that maintenance should cease when the person receiving the maintenance is in a relationship akin to a marriage but only on remarriage. It is usually by way of an agreement between the parties that the additional condition relating to the cessation of payment of maintenance on the cohabitation with a third party is added.

Marriage entails that the parties establish and ‘maintain an intimate relationship for the rest of their lives which they acknowledge obliges them to support one another, to live together and to be faithful to one another’. One of the effects of marriage is the reciprocal duty of support. This duty of support does not exist, in circumstances such as these, if there is no marriage.

In Volks NO v Robinson and Others the proceedings had been initiated by Mrs Robinson who had been a partner in a permanent life partnership with Mr Shandling for a period of 16 years until his death in 2001. The couple had not been married, although there was no legal obstacle to their marriage. Following the death of Shandling, Robinson submitted a claim for maintenance against his deceased estate. The executor of the estate, Volks, rejected her claim because she was not ‘a survivor’ as contemplated by the Act. Skweyiya J said at paras 55 – 56: ‘Mrs Robinson never married the late Mr Shandling. There is a fundamental difference between her position and spouses or survivors who are predeceased by their husbands. Her relationship with Mr Shandling is one in which each was free to continue or not, and from which each was free to withdraw at will, without obligation and without legal or other formalities. There are a wide range of legal privileges and obligations that are triggered by the contract of marriage. In a marriage the spouse’s rights are largely fixed by law and not by agreement, unlike in the case of parties who cohabit without being married. The distinction between married and unmarried people cannot be said to be unfair when considered in the larger context of the rights and obligations uniquely attached to marriage. Whilst there is a reciprocal duty of support between married persons, no duty of support arises by operation of law in the case of unmarried cohabitants. The maintenance benefit in section 2(1) of the Act falls within the scope of the maintenance support obligation attached to marriage. The Act applies to persons in respect of whom the deceased person (spouse) would have remained legally liable for maintenance, by operation of law, had he or she not died.’

If regard is had to the decision of Cohen, that it cannot be read into s 7(2) of the Act that the maintenance will cease when the recipient of the maintenance lives as husband and wife with another, as an express agreement to that effect can be amended by the maintenance court. Having regard to the factors that should be taken into account when determining whether the defendant ought to pay maintenance for the plaintiff, in terms of s 7(2) of the Act, the factors mentioned are not exclusive.

When taking into consideration the factors mentioned in s 7(2) of the Act to determine whether the defendant is liable to pay maintenance the following emerge:

(a) The existing and prospective means of each of the parties and the parties’ respective earning capacities.

(b) The financial needs and obligations of the parties. It is clear that neither of the parties can live lavishly, but they are not destitute.

(c) The age of the parties.

(d) The duration of the marriage.

(e) The standard of living of the parties prior to the divorce.

(f) The conduct of the defendant insofar as it may be relevant to the breakdown of the marriage.

The facts of this matter differed materially from Carstens; SP v HP; and Qonqo. It is immaterial whether the defendant was unable to support the plaintiff and their son, or whether he was merely unwilling to do so. Other legislation also makes it clear that the legislature envisaged that a man can be supported by two women. In terms of the provisions s 8(4) of the Recognition of Customary Marriages Act 120 of 1998, a court dissolving a customary marriage has the powers contemplated in ss 7, 8, 9 and 10 of the Act. This has the effect that with polygamous customary marriages a husband will have the right to be supported by more than one wife, post-divorce, if circumstances demand it. Although it might have been a concept that was unacceptable in a previous dispensation, the concept is not unacceptable today. The court was of of the opinion that in the circumstances of this case it could not be said that it is against public policy that the defendant should be liable to pay maintenance to the plaintiff; there is no legislative prohibition and the court found that there was no general public policy to that effect or moral prohibition.

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

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.

Grounds for Divorce in South Africa

GROUNDS FOR DIVORCE IN SOUTH AFRICA

Dissolution of marriage and grounds of divorce

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

Irretrievable break-down of marriage as ground of divorce

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

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

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

Court’s discretion

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

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

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

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

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

Mental illness or continuous unconsciousness as grounds of divorce:

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

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

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

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

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

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

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

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

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

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

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

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

Grounds for Divorce in South Africa

Dissolution of a civil marriage by divorce in South Africa

Three grounds for divorce were introduced by the Divorce Act:

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

Irretrievable breakdown of the marriage

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

(a)   marriage relationship must no longer be normal;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Incurable mental illness or continuous unconsciousness

The criteria

Section 5(1) – mental illness

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

Section 5(2) – continuous unconsciousness

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

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

Special rules which apply in terms of the Divorce Act:

(a)   Section 5(3)

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

(b)   Section 5(4)

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

(c)   Section 9(2)

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

(d)   Maintenance

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

Bertus Preller is a Divorce and Family Law Attorney in Cape Town and has more than 20 years experience in law and 13 years as a practising attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. in Cape Town. Bertus is also the Family Law expert on Health24.com and on the expert panel of Law24.com. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters and international divorce law.

Divorce Questions: Interview with Bertus Preller Family and Divorce Law Attorney Cape Town

Bertus Preller

Divorce Questions: Interview with Bertus Preller Family Law Attorney

Most couples going through the end of their marriage ask the same divorce questions. Regardless of how long people were married, they still need to find a Family Law Attorney and sort through issues regarding property, finances, children, and emotional trauma. Having accurate information is a crucial part of the divorce and healing process.

Family and Divorce Law Attorney Bertus Preller is a Family Law Specialist. A graduate of the Free State and University of Johannesburg, he represents celebrities and other high-net worth individuals in their divorce proceedings in South Africa.

How does one choose a good divorce lawyer?

Everyone differs in what type of attorneys suits them. For instance, do they want an attorney who will parent them or an attorney who will partner with them? Naturally, there are other variables to consider as well, like reputation, credentials, experience, and background. Getting references from contacts a person knows and trusts, especially from one’s accountant, business attorney, estate planning attorney or therapist, is the best way to find a good divorce attorney.

Does the end of a marriage have to turn into a battle?

“No, it does not,” Bertus Preller said. However, there often is some battle over one issue or another-like the division of property or who gets custody of the children. It is normally the battles over control in one area or another that precipitated the divorce in the first place. If a couple could not get along during the marriage, often the divorce is simply an amplification of those problems. “I tend to try to follow a more collaborative approach in dealing with divorce matters, and consider a number of ways to settle issues, whether through mediation or negotiating the best possible outcome for the client. We tend to see a number of ill experienced mediators offering services such as divorce mediation, offering a quick break with less emotional trauma and less costs. This may be a good option, but the reality is that mediation can be more expensive than an uncontested divorce; the other problem is that some mediators have absolutely no understanding of the legal consequences of the patrimonial issues of the divorce. You simply can’t mediate a divorce with a degree in psychology when there are legal issues involved and it frequently happens that one party is in fact at the end of the day in a much worse position”.

How can parents minimise the affect of divorce on their children?

“They can and should leave the children out of their immediate battles at all times,” Bertus Preller said. “Whether during the divorce process itself or long after it has ended. Spouses have no right bringing children into the differences that they have with each other. They should also give the children support and understanding throughout the divorce trauma and always show the utmost respect to the other spouse no matter how hard that may seem.”

How do courts determine the distribution of assets if one spouse is a stay at home parent or earns substantially less than the other?

In a marriage in community of property, it is important to establish the net value of the communal estate at the date of divorce. Then one can establish what each party is entitled to. Often, spouses can’t agree on a division on the joint estate and a Receiver or Liquidator needs to be appointed to divide the assets. When a marriage in community of property dissolves through divorce, each spouse is entitled to 50% of the joint estate, which includes the parties’ pension benefits.

In a marriage out of community with accrual, an auditor often needs to be appointed to determine the accrual. Preller said however he’s been involved in a number of divorce matters where extremely wealthy people were married in community of property. They may not have received the proper legal advice, “or became so focussed on the wedding ceremony that they forget about the consequences of a failed marriage.

We’re getting divorced because my spouse cheated on me. How do I make him/her “pay” for this mistake?

“Seeking vengeance is never the answer,” Bertus Preller said. “There is an old Spanish proverb: ‘Living well is the best revenge,’ is what the injured party should focus on and strive for. There is no win in trying to make someone pay for any betrayal in a marriage. However, in terms of South African law an aggrieved spouse is able to claim compensation against a third party who was the cause of the divorce.

I’m trying to be reasonable, but my spouse and I just can’t agree on major issues like who gets custody of the kids or who should keep the house. What should I do?

“Seek the advice of your attorney,” Bertus Preller said. “A mediation session might help with a respected attorney. This is what you pay your attorney to do: resolve major issues and help you come to reasonable solutions. If all else fails you may have to take your case to court and have the judge decide, but this is not always the best possible way, settlement soon in the proceedings is always the best outcome for everyone”

Bertus Preller is a Divorce and Family Law Attorney in Cape Town and has more than 20 years experience in law and 13 years as a practising attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. in Cape Town. Bertus is also the Family Law expert on Health24.com and on the expert panel of Law24.com. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Custody (care and contact) of children, same sex marriages, unmarried father’s rights, domestic violence matters and international divorce law.

Divorce and Finances some Tips by Divorce Attorney Bertus Preller

You wouldn’t think that a divorce attorney would be the first person to give advice on how best to prevent a divorce, but then, Bertus Preller, Family and Divorce Law Attorney at Abrahams and Gross Inc. in Cape Town isn’t your average divorce attorney. He is one of the most prominent divorce attorneys based in South Africa, having handled many high-profile divorces of television personalities, artists and sportsmen and being the founder of SA’s largest online divorce platform eDivorce, he is certainly in the mix of everything when it comes to Divorce and Family Law in South Africa.

Preller shared some advice when interviewed by newsbreak.

The success or failure of your marriage relationship may hinge on how well you deal with issues such as finances, sexuality, communication, conflict, parenting, in-laws, leisure time, family of origin, spirituality, expectations, and chores.

When exactly is the best time to begin talking seriously about finances with your partner?

To me, the finance talk is a pretty comprehensive discussion about how you and your partner will handle the money that comes in and goes out of your life. If you come from two different “schools” on this topic, it can be a difficult discussion to have. For someone that’s more of a “spender” they may try to deflect having the conversation at all.  You have to talk about finances at two points in the relationship. The first is when you decide to move in together and blend households, and the second is if and when you merge finances. One should never wait when things are starting to get crappy and you’re already bickering about money. When things are harmonious, you sit down and talk about these things; it will engender feelings of love and trust. You just don’t do it when things are in turmoil.

What specifically should be discussed?

If you have credit card debt, what are your thoughts on it?  Is it something you view as a part of life, or is it somewhere in the future to get it paid off? If one has it and one doesn’t, will it be paid off jointly?

How do you feel about purchases that you can’t afford? Do you go into debt to get them or do you wait until you can pay for them?

How will your finances be set up? Will everything become joint, or remain separate?

How does each spouses’ salary come into play? If one makes more than the other, does that change the makeup of the financial relationship? Meaning, will that person have more say in financial decisions, or not?

I recently read an interview with Laura Wasser a prominent Divorce Lawyer in the United States who highlighted a couple of good pointers.

“Family. How much time and money are you going to want to spend on existing family? Do we want to start our own?

Hobbies. What about if he is a golfer and he goes on these extremely expensive golf trips and her hobby is painting and she buys a few oil paints every 3 years. I mean, those are the kind of things that need to be discussed.

Travel. I mean, obviously if you guys have been dating for a while, you’re going to know what each of you likes–is he a backpacker? Are you a spa girl? But at the same time, there are plenty of people who say, ‘look, I’m 40 years old, I don’t ever want to fly anything but business class again.’ That should be discussed.

Shopping. I still know women who have been married for years, but when they come home from a shopping trip they hide their bags in the car until their husband has gone out, and then they kind of bring them in piecemeal, and unwrap them and take tags off because they don’t want their husbands to know what they’ve been purchasing. So shopping–what’s the expectation?

Entertaining and Entertainment. If you’re going to have his work people over, your work people over, are you going to cater? Cook? If you have children, what are their birthday parties going to be like? Is he going to be offended if you want to have the birthday party catered or valet parking? And what are the expectations for spending on entertainment outside the home–concerts, movies, theatre, that sort of thing?

Charitable contributions. This is a big one. People like to be able to do what they want to do with their money. Many people have very strong feelings about what kind of charitable contributions they make. It’s important to have a conversation about how much of your income is going be put in there.

Meals. Are you going to cook at home or eat out most nights? If you’re going out, which caliber (and price range) of restaurant? Are you taking packed lunches to work versus doing expensive work lunches or lunches with the girls?

Savings and investments. How much of your income do you want to put away each year? If one person is spending all of their income on clothes, travel, hobbies, and entertaining, and one person is saving it, that may not be quite fair if and when you guys split up, depending on what the law is and what you decided to do.

Estate planning issues. Wills, life insurance policies. This is definitely more a marriage one–something to talk about a little further down the line. Maybe earlier on, you may want to deal with insurance, like auto and health. You don’t want to move in with someone and find out that they don’t have auto or health insurance. That’s a rude awakening.

Gifts. How much are you spending on gifts?

Home décor and home remodelling. Again, what’s the expectation?”

So your advice is taking this list and going through it, just as you would do with a financial planner?

Almost in the same way. Why wouldn’t you have such a conversation with someone you’re sharing your life with instead of with the person who is just getting paid to take care of you?

Why is it so important to have these conversations at the start of a relationship?

You will be amazed sitting from where I sit at the things I hear from people regarding the arguments that they’ve gotten into about finances. Bottom line, these are things that you don’t want to have resentment about later because they haven’t been discussed.

What if the financial circumstances change during the course of the relationship?

You have to constantly re-evaluate your circumstances. Check in either on an annual basis. It’s very interesting to see couples who have been married for a very long time and when and if they split up, one of them would say ‘I just had no idea that the situation was so dire!’ Whether things go up in terms of household economy or down, if you’re in it for the long haul, then you would tighten your belts together, and if things are good, you splurge together. Usually you here the women saying, ‘I’m so embarrassed but you’d have no idea what we spend, I have no idea what my husband makes. I just don’t know. I never worried about it.’ I think if you are going to be in a relationship with someone, you need to be able to share the responsibilities, the knowledge, and the worry. It’s not like it was when our parents or their parents were having lives where the mom worked in the kitchen and the husband worried about it and the wife didn’t know there was any problem. I mean, you should both be aware of what’s going on.

You need to continue to communicate and work together, always remembering you are working towards the same goal. You can do this by:

  • Communicating. As soon as you start avoiding talking about money with your spouse, or hiding new purchases then you are going to deviate from the plan, and it will be hard to get back on track.
  • Having money discussions. Instead, of ignoring issues with your finances, talk about it with your partner and if something isn’t working, work out why. You’ll then be able to find a solution together, and that is what marriage is all about.
  • Monitoring net worth. Your net worth is a good indicator of how well you are sticking to your budgets and financial plans, and as a couple you should revisit your net worth each month to make sure it is going up and not down.
  • Revisiting your goals and plans. It is all very well to make plans for the future, but we all know that unexpected events can pop up and change these plans. Therefore, make sure you continue to track your progress towards your goals, and readjust your ideas for the future if necessary.

About Bertus Preller

Bertus Preller is a Divorce and Family Law Attorney in Cape Town and has more than 20 years experience in law and 13 years as a practising attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. in Cape Town. Bertus is also the Family Law expert on Health24.com and on the expert panel of Law24.com. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters and international divorce law.

http://www.divorceattorney.co.za