Latest Divorce Statistics South Africa

2015-07-14-1436888220-3351696-marriagedivorcesign (1)

The 2015 divorce data reported were based on 25 260 completed divorce forms that Stats SA received and processed by the end of December 2016.

In 2015, 25 260 completed divorce forms were processed indicating an increase of 2,3% processed in 2014. There were more female than male plaintiffs. The median ages at divorce in 2015 were 44 years for men and 40 years for women. About 45,4% of the 2015 divorces came from marriages that lasted less than 10 years. In 2015, there were 14 045 (55,6%) divorces with children aged less than 18 years affected. Couples from the white population group dominated the number of divorces from 2003 to 2007; thereafter, black African couples had the highest number of divorces up until 2015. In 2003, 40,0% of the divorcees were from the white population group whereas 24,3% came from the black African population group. By 2015, 42,9% of the divorcees were from the black African population group and 26,1% from the white population group. The proportions of the divorcees from the coloured and the Indian/Asian population groups were quite invariable during the thirteen-year period.

Characteristics of plaintiffs

The 2015 data presented show that more wives than husbands, 13 038 (51,6%) women compared to 8 538 (33,8%) initiated divorce and 2 171 (8,6%) divorces were initiated by both husband and wife.

Except for women from the black African population who had a lower proportion of plaintiffs (45,3%), the proportion of women plaintiffs from the other population groups was above 50,0%. The proportion of women plaintiffs for the white population group, Indian/Asian population group and coloured population group were 58,8%, 55,7% and 54,1% respectively.

The provincial distribution indicates that more people from Gauteng divorced followed by the Western Cape and KwaZulu-Natal. In total, 61,5% of divorces granted in 2015 were from these three provinces.

Number of times married

The 2015 divorce cases for both men and women were mainly from individuals who had married once. More than 80,0% of divorces for men and women were from first-time marriages compared to 12,0% of men and 10,2% of women from second-time marriages. Almost 2,0% of men and women were getting divorced for at least the third time.

Age at the time of divorce

The median ages at the time of divorce in 2015 were 44 years for males and 40 years for females, indicating that generally, divorced males were older than divorced females, with a difference of about four years. The pattern of median ages in 2015 by population group shows that the highest median age of 44 years occurred among black African and white males, while the lowest median ages occurred among females from the Indian/Asian and ‘other’ population groups, at 39 and 36 years respectively. The difference in the median ages at the time of divorce between males and females was greater in the ‘other’ population group (six years) compared to the black African, coloured, Indian/Asian and white population groups. Although there were differences in the ages at which most men and women from the various population groups divorced, the age patterns were quite similar. The data reveal that there were fewer divorces among the younger (less than 25 years old) and the older (65 years and older) divorcees. For males, the peak age group at divorce was 40 to 44 for all population groups, except for the coloured population group where the highest peak was from the age group 45 to 49 years. In the case of females, the peak age group for coloured and white population groups was 40 to 44 years and the peak for black African and Indian/Asian population groups was 35 to 39 years.

Duration of marriage of divorcing couples

27,6% of divorces among males were for marriages that lasted between five and nine years. This group is followed by marriages that lasted between ten and fourteen years 18,8% and marriages that lasted for less than five years 17,8%. Thus 45,4% of the divorces in 2015 were marriages that lasted for less than 10 years. According to the results, irrespective of the population group, the highest proportion of divorces occurred to couples who had been married for five to nine years. Thus 32,3% of divorces from the black African; 26,1% from white; 24,9% from coloured and 23,7% from Indian/Asian population groups were marriages that lasted between five and nine years. The white population had the highest proportion 23,6% of divorces that occurred in the first five years. The proportion of divorces in all population groups declined as the duration of marriage increased, with a significant decline being observed after nine years of marriage.

Divorces involving couples with minor children

In 2015, 55,6% of the divorces had children younger than 18 years. The coloured and the white population groups had the highest and lowest proportion of divorces involving couples with children with 63,1% and the 47,2% respectively. 45,6% of children affected by divorce were from the black African population group; 21,6% from the white population group; 20,1% from the coloured population group and 5,9% from the Indian/Asian population group.

Compiled by: Bertus Preller – Family Law Attorney
Bertus Preller & Associates Inc.
10 Pepper Street, Cape Town, 8000
Telephone: +27 21 422-2461
E-mail: info(@)preller.co.za
Twitter: @bertuspreller

International abduction of minor children a South African Law Perspective

International abduction of minors a South African Perspective

Article 3(b) of the Hague Convention on the Civil Aspects of International Child Abduction (1980), which is incorporated into South African law by the Hague Convention on the Civil Aspects of International Child Abduction Act 72 of 1996 (the Act), provides that the removal or retention of a child is to be considered wrongful if, among others, at the time of the removal or retention, the rights of custody were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

In terms of article 13(b), the authority of the requested state is not bound to order the return of the child if the person, institution or other body in the other state that opposes the return or retention establishes that there is a grave risk that his return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. In Central Authority of the Republic of South Africa and Another v LG 2011 (2) SA 386 (GNP) the second applicant, the father, and the respondent, the mother, were married and living together with their minor child in the United Kingdom (UK). After several heated arguments the parties agreed to divorce and that the respondent would return to her native South Africa with the child. Alleging that the respondent agreed to return with the minor child to the UK after attending a wedding in South Africa and as she failed to do so she had unlawfully retained the child in this country, the second applicant (with the help of the first applicant, the Central Authority of South Africa) applied for a court order for the return of the child to the UK. The application was dismissed with costs.

Molopa-Sethosa J said the fact that the second applicant was prepared to stay away from the minor child, who was only 17-months-old at the time, for at least six months when the child was in South Africa with the respondent (who was during that time considering whether reconciliation with the second applicant was possible) was not indicative of a close bond between the second applicant and the child. Furthermore, the child would be exposed to the risk of psychological harm if he were to be returned to the second applicant who did not have the best interests of the child at heart. The fact that since the child had been in South Africa his health improved tremendously was of the utmost importance and could not be ignored.

Best interests and views of a child in international abduction matters:

In Central Authority v MR (LS Intervening) 2011 (2) SA 428 (GNP) the court dealt with the best interests of a minor child and her views in an international child abduction matter. After the death of her mother the minor child of some nine years lived with her biological father in Belgium. Subsequently the two relocated to Los Angeles, in the United States of America (USA), because of the father’s professional commitments.

There the two lived with the father’s new wife. After the child visited her maternal grandmother in Hoedspruit, Limpopo, the grandmother prevented the minor child returning to the father in Los Angeles and instituted an ex parte application to keep the child in this country. She sought, pending the final outcome of the family advocate’s investigation, full parental rights and responsibilities in respect of the minor. Meanwhile, the father sought the return of the child to the USA. The court dismissed the father’s application, but ordered the grandmother to pay costs because of the unacceptable way she instituted ex parte proceedings and for not being candid with the court.

Seven Big Post-Divorce Money Mistakes Women Make

The Seven Big Post-Divorce Money Mistakes Women Make

Breaking up is not only hard to do, it can be brutal on your finances.

Legal fees and creating and running two households from one are just the initial costs of separation process. And while some expenditure is necessary, others can be emotionally charged and careless and can lead to serious debt.

Here are seven common ways divorced couples can get into big financial trouble after a split:

1.            Ignorance

While a divorce Settlement Agreement may specify who is to pay what account, it carries little weight with creditors.

The most frequent mistake of all after divorce is assuming that because the ex spouse has been the one ordered to pay back the debt in the divorce, they are off the hook for it.  Most people do not realise that courts do not have the authority to make creditors abide by a judge’s orders in divorce. A spouse may have recourse to re-claim a debt from the other spouse who assumed the debt, but it does not nullify liability towards the creditor where the debt was a joint debt of the parties.

2.         Delusion

If you relied on the other person’s income during the marriage, your cash flow may take a serious dip. As it constricts, so must your budget. Unfortunately, many who are accustomed to abundance deny reality and continue to shop till they drop. The bills, however, wind up on the cards.

The most important thing most parents want is for their child’s lifestyle to continue, be conscious of your current circumstances and spend accordingly.

3.         Neglect

Own a home together? Make sure that your share in the property is transferred, especially if you are married in community of property. There are many cases where one party was awarded the other spouse’s share in the home, but neglected to transfer it. If your ex lands in financial trouble after divorce, creditors may still attach his/her share in the property, so make sure it is transferred.

4.         Revenge.

Wanting to ruin your ex by charging up the cards is a frequent response to betrayal; it is what one call ‘the saboteur spouse’. Squelch this desire, though. While big balances may result in the hoped-for fury, you too could be held responsible for the balance.

5.         Beauty

If you’ve been dumped for a younger model and want to make yourself feel better by looking better with the hope of attracting a new mate, you may be considering splurging on a beautification procedure.

Be careful, though it usually translates into little more than added liabilities. Some people spend thousands on plastic surgery after discovering the husband’s affair. It may be money that one could not afford to spend, it was more important to paying off credit cards. Worse, those nips and tucks normally has no positive impact on the soon-to-be ex. Delay any major decisions — financial and cosmetic — for at least six months to a year after a divorce is finalized.

6.         Competition

What happens when one parent can afford more and better things for the children post-separation? The less wealthy partner sometimes attempts to keep up with or even outdo the other.

Oftentimes, there is a pre-divorce battle for the children’s love and affection by purchasing gifts for kids or taking them to concerts or cruises in order to gain their affection over the other spouse. Question your motivation for purchasing certain items for the kids. If it’s to prove your love, stash the cards.

7.         New love

Getting sucked into a fresh romance when a marriage falls apart can be seductive. It can also be pricey. One of the most common post-divorce credit issues are loans people make for new partners. In some cases, it may be thousands to fix a broken car, but in others, it is tens of thousands to help a new lover with a business, or hundreds of thousands to put towards an ‘investment’ that was really a scam. Avoid lending or giving money to anyone for at least a year after divorce.

Almost everyone has regrets about a broken relationship. Don’t make needless, emotion-based liabilities one of them. Divorce your mate, not common sense.

About the author:

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

Bertus other passion is technology and he also co-pioneered the development of technology in which the first book in the world was delivered to a mobile phone utilizing sms and java technology and also advised a number of South African book publishers on the Google Book settlement class action and negotiated contracts with the likes of Google and Amazon.com.

Divorce Checklist, what women should know

Divorce, what women need to know?

  1. You have to understand your marriage regime, and if you don’t, then find someone who can explain it properly to you. Are you married in or out of community of property? If you are married in community of property, you will by law be entitled to 50% of the communal estate and if you are married out of community of property with the accrual system, you are entitled to half of the difference of you and your spouse’s accruals. If you are married out of community of property without the accrual prior to 1 November 1984, you will be entitled to ask for a redistribution of assets, which can entail that you may be able to claim 50% of the joint assets, but if you married out of community of property without the accrual after 1 November 1984 you will only have a claim for maintenance under certain circumstances.
  2. You can under certain circumstances claim rehabilitative maintenance. Rehabilitative maintenance is where one spouse pays the other for a period of time, say for two years, so that the ex-spouse can study, for example, to get a job or search for employment. Rehabilitative maintenance can also be used in setting up house again, relocation costs, utility bills, etc.
  3. Remember that you can lodge an application pending divorce to obtain maintenance while the divorce is in the process, you can also claim in such an application that your spouse makes a contribution to your legal expenses.
  4. Obtain as much financial information on your spouse; make copies of all bank statements, credit card statements and the like as well as a schedule of all the assets and liabilities, sources of income etc.
  5. Draft a detailed budget of your current monthly expenses and income. For you and your children. It may be worthwhile to cater for future expenses like. Secure the monthly maintenance with a cession of an insurance policy on your ex-spouses life in case he/she is disabled or dies.
  6. Try to stay in the family house (if it’s close to your school or work). There is a saying in our law, that possession is 9 tenths of the law. Remaining in the communal home will also stabilise the situation of the children, as it is proven the relocation can be a very traumatic experience for the children.
  7. Remember that you shouldn’t necessarily have to pay transfer duties for a property transferred to you during your divorce. You may have various options relating to the property that both of you own, for example by retaining it or selling it and divide the net profits.
  8. See to it that your Divorce Settlement Agreement is drafted in such a way that that you can enforce a garnishing order on your ex-spouse’s salary should he/she default on payments, in any event, non-payment of maintenance after divorce may result in a contempt of court application.
  9. See to it that your Divorce Settlement Agreement is drafted to obtain a share of any assets that your spouse has hidden and what you are not aware of at the time of divorce in that event that you are married in community of property or out of community of property with the Accrual system.
  10. Don’t settle for less to get out, many women simply walk out due to the emotional pressure. Remember that divorce is always a business decision and the decisions that you make now will have an impact only years later in your life. Divorce is a legal process, it can be very frustrating and emotional draining that takes time and strategic planning. Don’t change attorneys in the process simply because of your own frustration, as they say, the battle of divorce is like a chess game.
  11. Remember that your ex-spouse’s assets also include shareholdings in companies, retirement funds, pension funds and even tax refunds.
  12. Think with your head and not with your heart.
  13. Remember to change your Will soon after the divorce.

For legal advice contact: info@divorceattorney.co.za

About the author:

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

Grounds for Divorce in South Africa

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.

Co-Parenting after Divorce, Tips from a Family Law Attorney

Co-parenting tips

Basic Conflict Resolution for Co-Parents

It’s hard enough as a married couple to keep lines of good communication open and flowing. It can seem like an insurmountable problem if you are divorced. Your old ways of nitpicking at each other, anger and frustration will crop up again. After all, if you and your former spouse don’t know each other’s hot buttons, who does?

If you find yourself in conflict with your co-parent, here are some tips:

You are Divorced Now

You are no longer a couple who is trying to stay together and work on your marital relationship. The focus of your relationship must now shift from being about the two of you to being about two separate individuals doing your best to raise your children in the most amicable, cooperative way possible.

Make a Resolution to Start Fresh

A very effective way to move into a new relationship as co-parents rather than spouses is to give each other a chance to start anew. Give each other a clean slate and an opportunity to build a new and different relationship, leaving past arguments behind you.

Demonstrate Respect

You’re a role model, and your children are watching you very, very closely. Showing your children that mom and dad can respect each other and resolve conflict respectfully will give them a good foundation for the conflict that arises in their own lives. Demonstrating respect involves a lot of non-verbal communication. Do your best to remain relaxed and focused, use a calm tone of voice and a concerned facial expression when tensions rise.

Don’t Put it Off

If conflict arises, meet it head on and deal with it immediately. If you sweep it under the rug, it could add to your stress level and grow from a small issue to a large resentment. If it is a major concern, discuss it in private, away from the children. Be hard on the problem, not on the people. Focus on solutions rather than guilt, shame and blame. Make sure you are listening to your former spouse as you brainstorm for solution. It is tempting to hear everything your ex says as “yadda yadda yadda,” so try to listen actively even though it may seem you’ve heard it all before.

Take the High Road

Once your children are grown, you won’t have to parent together any more in terms of caretaking, discipline, school, health issues, etc. and you’ll be out of the day-to-day contact which might be challenging you now. But keep an eye toward the future—it will be fun to be grandparents, and it will be easier if you can get along well enough to dance at your child’s wedding and not make them choose where the grandkids spend Thanksgiving. If you want your children to have a good relationship with both you AND your former spouse, there will be times when you may have to put your own feelings aside temporarily. Keep in mind that you only have the power to change the things you can, and the rest is just something you’ll have to let go.

Homes Sweet Homes

Your children now have two homes. To avoid conflict around custody and visitation schedules, be flexible, prompt and respectful. Also, don’t use transfer time to discuss problems. Put agenda items in writing for a meeting later.

Extracurricular Activities

There will be many school and sporting events that your children will have that they will want you both to attend. Be on your best behavior at these times and as polite and nice to your former spouse as possible. Even making subtle jabs at each other in front of the kids’ friends is humiliating and distracting. And no screwing around with coming late to practice, or skipping it altogether. Let your kids have a childhood.

Ask any adult child of divorce if this is good advice. I know it’s tempting to take the low road during your divorce (I am divorced and remarried myself). But the short run rush you get from that biting comment or throwing a monkey wrench into your co-parent’s plans is short lived, while the fall out may be permanent. Make your divorce easier on yourself by making it easier for your co-parent, not to mention your kids.

Compiled by Bertus Preller – Family and Divorce Law Attorney at Abrahams and Gross Attorneys in Cape Town, South Africa.

Source: Diana Mercer is the co-author of Making Divorce Work: 8 Essential Keys to Resolving Conflict and Rebuilding Your Life (Penguin 2010), and Your Divorce Advisor (Simon & Schuster 2001) and a mediator at Peace Talks Mediation Services, Inc.

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.