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.

 

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.

Divorce and Child Abduction in South Africa

DIVORCE AND CHILD ABDUCTION

As a divorce attorney I frequently get instructions to assist a parent whose child has been abducted by the other parent to another country. Frequently it happens that a child visits the other parent in a foreign country by consent between the parents only to find when the child has to return that the other parent wrongfully keeps the child there. International child abduction also happens when one parent takes a child from the country where he or she usually lives to another country without the consent of the other parent.

The Hague Convention on International Child Abduction is applicable to matters because of its definition of “rights of custody”. The Hague Convention is broadly worded to also cover for situations where the child has been abducted by a person other than his/her parent.

The Hague Convention only applies if countries ratified the convention. South Africa ratified the Hague Convention and as such it is part of our domestic law. Also section 275 of the South African Children’s Act proclaims that the Hague Convention is part of South African law. The Hague Convention is only applicable to children under the age of 16 years.

The removal or retention of child is unlawful where it breaches the right of contact (custody) that a person obtained in terms of a court order in the area where the child was habitually resident. In order to succeed with an application under the Hague Convention a party must be able to show that a parent is exercising the custody rights at the time of removal or retention of a minor child. When it comes to making a decision to remove a child from the country where he is usually habitant both guardians (parents) must consent, thus if one parent removes a child without the consent of the other parent, the Hague Convention will apply.

If there is a delay in the proceedings of returning the child back to the country where he is usually habitant for more than a year after the proceedings have been lodged, the court is not bound to return the child if he or she has settled into a new environment. In such a case the court will consider the best interests of the child; although a court under a Hague Convention application does not do so. Regulations in the Hague Convention determine that such a matter must be concluded within 6 weeks after commencement of the court proceedings.

There are also exceptions to the rule of peremptory return of a child, namely:

  • Where the person does not have rights to custody or if the parent had consented in the removal of the child.
  •  Where there is a grave risk that the child would be exposed to psychological or physical harm if being returned.
  •  If the child objects being returned and is of such an age and maturity that it is inappropriate to take account of his/her views.

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 Bertus Preller & Associates 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 father’s rights, domestic violence matters, international divorce law, digital rights, media law and criminal law.

The Effects of Divorce on Children

The Effects of Divorce on Children

As a family law attorney I am involved on a daily basis in stories about divorce or care and contact issues between parents and children and many times I see how the loss of a parent has affected the lives of children. Although my approach is  always clinical, I’m often saddened by these stories, but in awe as to how many of these adult children have risen above their loss to develop an emotionally healthy outlook on life.

It was with great interest that I watched psychotherapist, Gary Neuman, who appeared on one of Oprah’s shows. Gary interviewed two young children, a brother and sister; they were abandoned by their mother when she divorced her husband, their father. Both children were crying, and yet were remarkably articulate in their description of their thoughts and feelings regarding their mother’s abandonment of them due to divorce. While parents do divorce each other, they don’t divorce their children.

Children nonetheless are the ones who live out the divorce because their day-to-day routines, not to mention their emotional lives, are so deeply affected by it. And of course, the impact of being estranged or abandoned by a parent as a result of divorce can have far reaching and long lasting consequences on their lives. A number of experts on children of divorce question whether the abandonment or estrangement necessarily leads to lifelong behavioural and emotional scarring. What they do find is that one parent’s love, nurturing, and support, can go a long way to helping a child overcome many of the emotional and behavioural issues that otherwise could ensue.

It is a fact that divorce can affect the closeness of the parent versus child relationship for a number for reasons and can take a serious emotional toll on the child. Joan Kelly, one of the America’s foremost experts on children of divorce, defines an estranged relationship between a parent and child as a diminished, thinned out, and less meaningful bond. She says that 24% of children in the United States from divorced families are seeing a parent once a year, if at all and one may assume that this figure is even bigger in South Africa.

In his research, Robert Emery Director of the Centre for Children, Families, and the Law at the University of Virginia, found that non-residential fathers saw their children only 4 times per month following divorce, and about 20% of children had no contact at all with their fathers 2-3 years after divorce. Other research have concluded that, many students of divorced parents who had a limited relationship with their fathers while growing up stated that they would have liked more contact with their fathers during their adolescence, would have liked to have been closer, and wanted more time together. It is a fact that a parent’s rejection of a child or a parent’s inconsistent presence could drastically affect a child’s self esteem.

One good parent who is loving and nurturing can overcome the negative effects of losing the relationship with the other parent. While the emotional impact on a child resulting from the loss of a parent’s relationship could be significant, it doesn’t have to be disastrous.

The following advice should be considered:

  • Family is not a just about biology. Find role models who will support and care about you. Be there for your kids.
  • Be reliable, pay maintenance, show your love, and do what you say you are going to do.
  • Provide help. Initiate the conversation about their loss of the relationship with their other parent.
  • Lend an understanding ear. Don’t lecture, and don’t feel you have to have the perfect answer.
  • Honesty. Find help for what to say to your children if you don’t know what to say. Children need to be heard.
  • You can’t control what the other parent does; you can only control yourself.
  • To help your children get through their pain, ensure that they feel heard and listened to –that gives them value.

You want your children to perceive themselves with their own goals and aspirations, independent of their status as the children of divorce.

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.

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Financial Tips for Women Facing Divorce

Financial Tips for Women Facing Divorce

Financial Tips for Women Facing Divorce

While neither gender has an exclusive lock on money management skills, the financial deck is stacked against women. Women earn about three-quarters of what men earn. In a divorce, they get less of the assets and more of the children. They live longer, and one in eight elderly women lives in poverty, compared to one in 12 men, according to  figures from the U.S. Department of Health and Human Services, the same may apply in South Africa. Unfortunately, many women view money and money-related tasks as necessary evils, not opportunities to even the odds.

The divorce rate is beginning to tick upward for couples who have been married for several years, decades or longer.

Recent media reports tell the tale, and it’s easy to point to the divorces of long-time couples like Arnold Schwarzenegger and Maria Shriver, Al and Tipper Gore and others for evidence of what many now consider a growing trend across the world.

Older women who have been in long-term marriages must nowadays confront unique financial issues when they’re facing divorce. Just as younger brides have their own set of concerns to mull over; older women have to pay special attention to a number of financial matters specific to their age and the often sizeable assets that have accumulated over the course of a lengthy marriage.

For example, women who have been married for some time and facing divorce must be particularly vigilant about protecting their:

1.         Business

Even though it may seem incredibly unfair, a divorce can ruin your business –unless you have taken the appropriate steps to “divorce-proof” it (ideally while you were still single).

How can a divorce ruin your business? Consider this:

If you nurtured a business, and it increased in value while you were married, the amount of increased value must usually be included as part of the marital assets that will be divided between you and your husband, unless of course if you got married out of community of property without the accrual. It doesn’t matter who operated the business or how it’s titled.

2.         Retirement funds

Divorce requires the careful scrutiny of all retirement annuities and pension funds. It’s essential for your divorce settlement agreement to clearly spell out how these assets will be split and how those funds will be transferred.

Many women often make the mistake of assuming that a divorce order will fully protect their rights to their portion of their husband’s retirement annuity or pension fund. This is usually not the case, and the settlement agreement need to be drafted in a particular way to include these assets.

3.         Insurance

Most women pay careful attention to their health insurance needs. But, don’t forget: In your new role as a single woman, you’ll need to consider life, property/casualty and disability insurance, as well. What’s more, if you will be receiving child maintenance you will want an insurance policy that protects you financially in the event something happens to your ex-husband.

4.         Short-term and long-term financial stability

Following your divorce, you’ll need financial stability in the short-term, and you’ll have to take the right steps to plan for financial security into your retirement years.  For starters, you must create a budget that will allow you to maintain your lifestyle, pay off debt and increase your savings.

But, what happens if the divorce settlement doesn’t provide enough income to pay your expenses? In that case, you will need to start immediately liquidating assets to maintain your lifestyle.

5.         Assets that he concealed

What happens when you find out 2 years after the divorce of certain assets that your husband did not disclose and which would have had an impact on your initial divorce settlement? A good divorce attorney will know how to deal with issues such as these in a divorce settlement agreement, to allow a claw back to claim any assets that your ex might have hide.

The following steps may be recommended for women in a divorce:

  1. Set a financial goal — be as diligent about money as you are about fitness or your career or about anything else.
  2. Train yourself to be financially independent — don’t allow yourself to become reliant upon your partner’s decisions, and become involved in long-term financial planning.
  3. Buy your own home — don’t wait for Prince Charming to come along and do it for you.
  4. Fund your retirement annuity — an important step for everyone, not just young women.
  5. Opt for long-term planning over crisis management — get serious about money now; don’t wait for trouble to strike.
  6. Start investing — do it now, and don’t be afraid to make mistakes.
  7. Don’t fear risk — women are especially prone to conservative investments; be willing to seek aggressive growth when appropriate.
  8. Don’t go it alone — work with a financial planner to educate yourself and to feel more secure in your decisions.
  9. Know that it’s never too late — remember that you can start late and finish rich.

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.

Paternity Fraud

Paternity Fraud

by Bertus Preller, Family Law Attorney, Abrahams and Gross Inc Cape Town.

Paternity fraud refers to a paternal discrepancy, in which a mother names a man to be the biological father of a child, particularly for self-interest, when she knows or suspects that he is indeed not the biological father.

Fathers’ rights activists’ state that in cases of paternity fraud, there are many potential victims: the non-biological father who pays erroneously maintenance, the child deprived of a relationship with his/her biological father, and the biological father who is deprived of his relationship with his child. Other victims include the child’s and the non-biological father’s families. In particular, financial hardship may have resulted for the non-biological father’s due to the maintenance and child support that he has to pay and his other children and spouse in cases in which the man was forced to make maintenance payments for another man’s child.

Foreign Jurisdictions

In Australia, mothers are being forced to pay back thousands of dollars to men they wrongly claimed fathered their children following a contentious reform of child support laws. The Australian face of paternity fraud is a Melbourne man named Liam Magill. In 2002, Magill’s ex-wife Meredith was ordered to pay him $70,000 for general damages and the economic loss he suffered as a consequence of her false declaration that he was, as one newspaper report put it, the biological father of “her lover’s children”.

In the UK, single mothers are deliberately naming the wrong man as the father of their children when making maintenance claims. Child Support Agency figures show that nearly one in five of the contested paternity claims it handled last year cleared the man originally named as the father. These are the actual figures. Its figures for 2007-2008, obtained under freedom of information rules, show that out of 3,474 DNA paternity tests ordered, 661 – 19 per cent – named the wrong man. It is the highest proportion since the agency started collating figures nationally. Government-approved DNA testing kits, deemed 99.99 per cent accurate, have exposed 4,854 false paternity claims since records began in 1998-99.

In the United States it is estimated that almost 30% of DNA paternity tests, excluded the man as the father of the child in question. Of the 353,387 cases in 2003, 99,174 (28.06%) were reported as exclusions.

South Africa 

Issues regarding paternity have been dealt with in a number of cases in the South African Courts.

Presumption of Paternity

The South African Children’s Act confirms in Section 36 a presumption in respect of a child born out of wedlock (parties who were not married to each other). The presumption is that the person whom had sexual intercourse with the mother at any time when that child could have been conceived will be presumed to be the biological father of the child in the absence of evidence to the contrary which raises reasonable doubt.

In the case of S v L 1992 (3) SA 713 (E) it was held that the phrase “in the absence of evidence to the contrary which raises reasonable doubt” means that whenever there is evidence to the contrary, the presumption does not operate or ceases to operate.

This is also in line with the court’s decision in R v Epstein 1951 (1) SA 278 (O), where it was held that a presumption operating “in the absence of evidence to the contrary” only requires evidence, not proof, to counteract the presumption. The Children’s Act does not define the word “evidence”, thus any acceptable evidence suffices, regardless of whether it is direct or circumstantial, however, it must raise reasonable doubt.

Compelling a person to undergo a paternity test

Most recently in YM v LB 2010 ZASCA 106 the Supreme Court of Appeal had been given an opportunity to provide judicial clarity on the law relating to court-ordered blood testing of potential parents refusing to voluntary submit themselves (and/or the minor child) to such testing, but the Court most unfortunately elected to side-step the issue based on the facts of the matter. It is not suggested that the court was necessarily wrong in its final decision, but it was hoped that it would provide guidelines as to this issue of compelling adults and children to undergo blood tests to determine paternity. In this case the court of first instance ordered the parents and child to undergo paternity testing, the decision of the court was then taken on appeal.

The issue had been unclear for about 30 years and certainty regarding the obligation and power of the court to order such tests against the wishes of one of the parties would have been valuable. It was indeed a missed opportunity to clarify the law once and for all.

The true biological paternity of a child is of the utmost importance in South Africa as it determines the parental responsibilities and rights of parties, including contact, care and the duty to maintain the child until the child becomes self-supporting. The

South African law remains rooted in biology. Unfortunately, it is not unknown for a woman to lie about whom she had intercourse with, resulting in two legal consequences:

(a)   the husband is legally regarded as the father of the child with the accompanying rights and obligations; and

(b)  the biological father is denied his parental rights and responsibilities that he may have had or have obtained automatically vis-à-vis his biological child.

The first principle has its roots in Roman law. I can’t imagine that it was ever the aim of the Roman law principles to force the husband of a wife to support another man’s child without his knowledge. The common law principle of stuprum after all made provision for the annulment of a marriage where a husband discovers that his wife was pregnant with the child of another man at the time of the marriage.

With DNA testing becoming more common and now being done for a variety of reasons, including medical testing for potential illnesses, this has resulted in a spate of paternity fraud cases making headline news worldwide. In these cases the husband and the child discover years later that the paternity was based on a lie and that the husband had supported the child for years as a result of this fraud (see inter alia the facts of Johncom Media Investments v M 2009 4 SA 7 (CC) (South Africa); Magill v Magill [2005] VSCA 51 (17 March 2005) (Australia), supra and the allegations of the horror film director Andrew Douglas against his ex-wife Ameena Meer (USA). This trend is unlikely to end.

In YM v LB, supra, the Supreme Court of Appeal (SCA) found that where the paternity of the child has been shown on a balance of probabilities, as was the case in casu, scientific tests on a child should not be ordered. In this matter paternity was not really in dispute as both parties (at various times before the attorneys joined the show) believed that the man in question was the father of the child. The mother’s maternity was obviously never in doubt.

The court made the following observations:

(a)          that as paternity is determined on a balance of probabilities, the man is not entitled to demand scientific proof;

(b)          that in relevant instances, the court has the inherent power as upper guardian of all minor children to order such tests if it is in the best interests of the child;

(c)          the SCA referred to the observations of the court a quo regarding truth as a primary value in the administration of justice, but by implication disagree with the statement.

The SCA did note that the rights of privacy and bodily integrity may be infringed if it is in the best interests of the child. However, it confirmed the statement made by Judge Didcott in an earlier case that it may not be in an individual’s best interest to know the truth. The court noted that in some cases it may be justified to order tests, but that the discovery of the truth should not be generalized. With these comments, the appeal was upheld.

The basis of a paternity matter is that the applicant will have to show that such a test would be in the best interest of the child. This in itself is extremely difficult as there seems to be no research done in South Africa as to the impact on a child that learns, at a much later stage, that his/her presumed father was not the biological father. One may argue that paternity testing may have a negative short-term impact on the family as it may reveal relationships that were previously unknown. After all, it has been acknowledged that from a broader family perspective, family genes are considered to be a valued possession passed down in a family through succeeding generations. Personally I am yet to be convinced by our courts that it would be better not to know the truth or to keep the truth from a child at any age and I ponder whether this is indeed in the interests of a child. In disputed paternity claims the emotional trauma of uncertainty definitely taints the relationships between the parents and sometimes also the relationships between the probable father and the child. Trauma such as this can be easily be resolved through testing. For the SCA to note that the man is not entitled to scientific proof when the reality is that it can readily be done seems to unnecessarily muddle such an important issue with legalities.

In O v O, Friedman JP stated that there is no statutory or common-law power enabling the court to order an adult to allow a blood sample to be taken for the purpose of establishing paternity. Although there is still no such power it is submitted that Section 37 of the Children’s Act does not bring certainty. The section states that if a person in proceedings in which paternity of a child is challenged refuses to submit him/herself, or the child, to take blood samples in order to carry out a scientific test to prove the paternity of the child, then a presumption in our law exists in which the failure of such a party to agree to such a test may be used as evidence to prove the contrary. The effect of this section is that it compels a court to warn the person who has refused to have his/her or the child’s blood sample taken ‘of the effect’ which such refusal might have on his/her credibility. The problem is that the section does not go far enough and does not resolve the main issue, namely the truth about the paternity of the child.

Although the SCA overturned the initial decision of the High Court, namely to force the parents and the child to undergo DNA testing, it is submitted that certain statements of the original decision remains quite valid. The court of first instance confirmed that judicial notice may be taken of the existence of these tests and that it is unnecessary for medical evidence to be adduced regarding the nature and accuracy of these tests before and that this does not exclude any challenge to the reliability of any particular test in litigation once the test had been performed. There is however no guidance as to the most important question: whether or not it will be in the best interests of the minor child to determine paternity with certainty.

A number of questions still remain, most importantly what weight our courts in future will place on the argument that concealing the truth from a child might have the supposed advantage of not ‘bastardising’ the child or cutting it off from an established source of maintenance? It surely creates an inherent and inescapable injustice in compelling a person to assume obligations not rightfully his.

The father in the YM v LB matter did agree to a marriage, but not to raise another man’s child. What is also important is that a child of the age of 18 has the right to the medical information of his genetic parents in instances of artificial fertilisation and surrogacy which is recognised by section 41(1) of the Children’s Act. One may argue that by refusing the compelling of blood tests for paternity disputes in instances of natural conception would result in denying these children of their right to information of their genetic parents.

It is my respectful view that the court of first instance was correct when it concluded that it will be in the best interests of the child that paternity be scientifically determined and it is unfortunate that the SCA did not provide the legal fraternity with their wisdom.

Another recent decision, this time by the High Court in the Western Cape in the matter of N v J Case Number A653/2009 are of importance. This case concerned an appeal from the Magistrates Court. The Appellant (the Defendant in the court a quo) and the Respondent (the Plaintiff a quo) were married to each other on 25 February 1989.  Their union bore a daughter, who was born in June 1990.  For the sake of convenience I shall refer to the parties as in the court a quo. On 3 February 1995 the parties were divorced and pursuant thereto the Plaintiff was directed to maintain the child by effecting payment of the sum of R350,00 per month and to retain her on his medical aid fund.

It was common cause that during the period February 1995 to June 2006 the Plaintiff paid to the Defendant the sum of R50050,00 in respect of maintenance for  the child.  The said sum included payment of an amount of R1000,00 to a Primary School in January 2000. In June 2006 the child underwent a paternity test which showed conclusively that the Plaintiff was not her natural father. On 30 July 2007, pursuant to an application brought by the Plaintiff an order was granted declaring that the Plaintiff was not the natural father of The child and, inter alia, varying the divorce order in terms of Section 8 of the Divorce Act, 70 of 1979, by the deletion of the Plaintiff’s maintenance obligations towards The child. At the same time the Plaintiff instituted action in the Magistrate’s Court for recovery of the sum of R50050,00 that he paid in maintenance. His claim was upheld and the Defendant appealed against the order of the magistrate.

It was common cause that the parties were married on 25 February 1989 and that the child was born on 12 June 1990.  Assuming a normal pregnancy of nine months, this would mean that the Defendant committed an act of adultery around September/October 1989 during which the child would have been conceived.

The Plaintiff testified that he had always believed that he was the natural father of the girl and that he raised her as such with the Defendant until they were divorced in February 1995. The Plaintiff further testified that he did not oppose his wife’s claims at divorce because he regarded the marriage as irretrievably broken down and because he believed that he was obliged to maintain the child whom he regarded as his daughter. After the divorce the Plaintiff maintained the child for more than ten years.  He testified that he later became resentful about the Defendant’s persistent claims for maintenance increases and eventually decided to ask for a paternity test.  The Plaintiff also testified that he was urged by certain family members to go for such tests.  They evidently had reason to suspect that the Plaintiff was not the father and eventually he succumbed to their entreaties.

The Plaintiff stated that the Defendant never confessed her adultery to him and that his impression was that she never had any idea of who the real father of the child was. Under cross-examination the Plaintiff accepted that he had defaulted on his maintenance obligations over the years but said that he had then paid up in full from time to time. He confirmed that he had paid the maintenance because he was obliged to do so in terms of the divorce order. Unfortunately the Defendant did not testify and so one does not know the circumstances surrounding her pregnancy.  Importantly, there was no evidence to suggest that she knew that her adultery had resulted in the birth of the child and that she intentionally withheld that information from the Plaintiff.  Had that been the case her claim in the divorce action for maintenance for the child would have been fraudulent and would have afforded the Plaintiff a different cause of action.

The Plaintiff’s legal obligation to pay the maintenance in respect of the child arises directly from an order of Court and was accordingly an obligation he could not avoid.  The basis therefore was his assumption that a child born during the subsistence of the marriage was fathered by him.  This is in accordance with the rebuttable common law presumption: pater est quem nuptiae demonstrant.

While it cannot be contended that the Plaintiff laboured under a mistake of law, the divorce order was underpinned by an erroneous factual assumption, (paternity) either by the parties jointly or, at least, by the Plaintiff.  The Judge demonstrated that the SCA has disregarded any notional distinction between mistakes of law and fact:  the focus is essentially on whether the payment was made indebitum i.e. without legal ground. While the parties were still married the Plaintiff maintained the child as a member of the household, believing that she was his child and that he was duty bound to do so.  When the Defendant issued the divorce summons and claimed payment of maintenance for the child, the Plaintiff still believed that the child was his daughter.  As stated, by not contesting the divorce action, he effectively consented to the Defendant’s claims, which included claims in compliance with the provisions of Section 6 of the Divorce Act which preclude the granting of a decree of divorce until the Court is satisfied that adequate provision has been made for the care and maintenance of any child born of the marriage.

Given the findings which the Judge made, it was not necessary to come to a final decision on this aspect of the case, save to state the father’s claim to re-claim the maintenance that he paid over the years did not succeed.  Our courts may in the future be wary of recognising claims in circumstances such as the present which necessitate an enquiry into paternity and which may have the tendency to destroy an otherwise loving and caring parental relationship with a child whose rights to family and parental care are protected under section 28 of the Constitution.

Conclusion

What is disturbing is the fact that it is impossible to accurately estimate just how widespread paternity fraud is. One may assume that there are a plethora of men in South Africa who are currently raising another man’s child; blissfully unaware of the devastating truth. For each of these men, the truth will only be revealed if the woman who duped them decides to confess, or for some reason, a paternity test is taken. A real problem however is to compel someone to undergo such a test in legal terms as evidenced by the cases dealt with above. It remains to be seen how our courts will deal with this issue in future. Fact is that naming the wrong father, could result in criminal prosecution, if proven that the mother concealed the truth deliberately.

About the Author:

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 and deals with Family Law cases on a national basis. 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.

Contact: 021 422 1323