Cape Town divorce lawyer Bertus Preller writes South Africa’s first Book on Divorce and Separation for the general public, published by Random House Struik

CAPE TOWN, WC, SOUTH AFRICA, August 7, 2013 /EINPresswire.com/ —

Everyone’s Guide to Divorce and Separation by Bertus Preller will help with the following crucial aspects: your rights when you get divorced in South Africa, and the monetary aspects relating to divorce (including the consequences relating to assets and the divisions thereof, spousal maintenance and support, parental rights and responsibilities of children, how to implement a parenting plan, how much child maintenance will likely be required, and how to file for maintenance and child support, the procedures to obtain a protection order when there is domestic violence or abuse, an unmarried father’s rights and how to acquire parental rights and the law on cohabitation, same-sex marriages, and how to draft a proper cohabitation agreement.
In the Foreword of the book, Judge Denis Davis says the following:

“Bertus Preller has filled a very significant gap with this timely book, in that in plain language, he provides a comprehensive guide to the broader community through the thicket of law that now characterises this legal landscape. Having said that, many lawyers, particularly those who do not specialise in the field, will also find great assistance in this work. Early on in the text, Mr Preller makes a vital point – litigation is truly the option of last resort in the event of a matrimonial dispute. The adversarial process which is the manner in which law operates is not at all conducive to a settlement of issues, particularly custody of minor children, which have a long-lasting and vital impact on the lives, not only of the antagonists but also the children who have not, in any way, caused the problem giving rise to the forensic battle. Often in my experience on the Bench, I have wondered how such vicious and counter productive litigation can be allowed to continue. Lawyers will point to clients, whose disappointment in the breakdown of the marriage now powers such adverse feelings to their erstwhile partner, as the core reason for the ‘legal fight to the finish’. Whatever the context, however, it is important that arcane and often incomprehensible legal jargon be made accessible to those affected by the law. In this way, ordinary citizens can ensure that their rights work for them and at the same time they are assisted to grasp fully the implications of the obligations that the law imposes upon them. – Judge Dennis Davis”

The book is on the shelves of all major book stores on and also at Amazon.com

About the Author:

Bertus Preller is a Family and Divorce Law Attorney and Mediator at Bertus Preller & Associates Incoss in Cape Town. He acts in divorce matters across South Africa He matriculated at Grey College, studied at the University of the Free State and the University of Johannesburg and was admitted as an attorney in 1989. He has nearly 25 years of experience in law. He was appointed as a part time mediator and arbitrator in 1996 by the CCMA. He has also been quoted on Family Law issues in various newspapers such as the Sunday Times and Business Times and magazines such as Noseweek, Keur, Living and Loving, Longevity, Woman and Home, Women’s Health, You, Huisgenoot and Fairlady and also appeared on the SABC television show, 3 Talk, Morning Live and on the 5FM Breakfast show with Gareth Cliff. His clients include artists, celebrities, sports people and high net worth 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, child abduction and Hague Convention cases and domestic violence matters and international divorce law. He is also the founder of iDivorce an online uncontested divorce service.

Tel: 021 422 2461

 

Follow Bertus Preller on Twitter: http://www.twitter.com/bertuspreller
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To visit the book’s official website go to: http://www.divorcelaws.co.za

Divorce Attorney Cape Town
Bertus Preller & Associates Inc.
+27214222461

Cohabitation Law in South Africa – if you don’t have an agreement you may leave with nothing

Cohabitation Trends

Patterns of marriage, divorce, and cohabitating without marriage have been changing. The incidences of domestic partnerships are growing throughout the world. In America 45% of all couples living together are unmarried.

In Sweden, 9/10 couples marrying for the first time already live together, while in Denmark, more than 1/3 of women in their early 20’s are living with a partner without the ties of marriage. As a rough estimate, around one million heterosexual couples are living together without being married in Britain, while in France the number has reached 2.5 million.

South Africa

South African statistics demonstrate a rising trend in cohabitation. Somewhat conservative statistics indicate that a very large number of people live in domestic partnerships in South Africa. The census of 1996 found that 1, 268,964 people described themselves as living together with a partner while the 2001 Census estimated that nearly 2.4 million individuals were living in domestic partnerships, almost doubling the figures of 1996.

In South African law, there is no such thing as a Common Law Marriage. There is no common law marriage in South African law and therefore the duration that a couple spend living together does not translate into a default marriage. The consequence is that at the dissolution of the relationship the assets or any obligations are determined or distributed on a basis of the arrangement that parties used during the subsistence of their relationship.  Many people believe that simply living together with another person for a continuous period of time establishes legal rights and duties between them. Some people believe that the duration of the relationship creates legal protection while others think that having children together entitles the cohabitation relationship to legal protection. Many people do not know that there is actually no legal recognition of domestic partnerships.

The lack of awareness of legal rights may be as a result of the still prevalent belief in the existence of common-law marriage, despite the fact that this concept has been abolished worldwide.

In South Africa marriage laws have traditionally provided parties to a marriage with a variety of legal protections. These laws governed what happened to the property of the parties during the marriage and on dissolution, either by divorce or death it also means that many State were automatically acquired, such as membership of medical aid funds, pension funds etc. Married spouses also had a reciprocal duty of support under the common law.

Domestic partnerships have never been prohibited by South African law, but nor have they enjoyed any noteworthy recognition or protection by the law.

The South African Courts have on occasion come to the assistance of formerly married couples and couples in domestic partnerships by deciding that an express or implied universal partnership exists between the couple. The problem is that it is extremely difficult to prove such a partnership in South African Law.

The only way to be protected in our law is to enter into a cohabitation agreement. Such an agreement clarifies the expectations of the partners and it also serve as an early warning of future problems. A cohabitation agreement will determine what would happen to property and assets of the couple if they should decide to separate. The agreement is, however, not enforceable in so far as third parties are concerned.

With regard to children, the Children’s Act 38 of 2005 provides that the father of a child who is not married to the child’s mother acquires responsibilities and rights. These responsibilities and rights include caring for the child, maintaining contact with the child, acting as a guardian of the child, and contributing to the maintenance of the child. Notably, a parent to a child born out of wedlock, regardless of whether he or she lives with that child at the birth of the child, has a duty to maintain that child. Thus there is an absolute legal duty to maintain a child irrespective of their living arrangements.

Cohabitation Agreements

Basically a cohabitation agreement regulates rights and duties between the partners. It could almost be compared to an antenuptial contract entered into prior to the conclusion of a civil marriage. The agreement can provide for the division and distribution of assets upon dissolution, for instance the formal agreement may set out:

  • The rights and obligations towards each other;
  • The respective financial contributions to the joint home;
  • Clarify arrangements regarding ownership of property that they may purchase jointly;
  • The division of their jointly-owned assets should they separate.

An agreement such as this will be legally binding as long as it contains no provisions that are immoral or illegal. If there is no agreement on the dissolution of a domestic partnership agreement, a party would only be entitled to retain those assets which he or she has purchased and owns and further would be entitled to share in the assets proportionately in terms of the contribution which they have made to the partnership.

Problems arise with the enforcement of a domestic partnership agreement – express or implied – where the partner being sued is still legally married to a third party. It has been argued that in such cases domestic partnership agreements violate public policy to the extent that they impair the community of property rights (where applicable) of the lawful married spouse.

Domestic Partnerships Bill of 2008

The Bill is still at its formulation stages and it remains to be seen how it is to be implemented. In the current constitutional dispensation it is unlikely that a partner will be left in despair taking into account the Domestic Partnerships Bill.

Bertus Preller is a Divorce and Family Law Attorney who acts in Divorce matters in Cape Town, Johannesburg, Durban and Pretoria 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.

Children – don’t stop the other parent from having access to his/her child

Refusal of access or refusal to exercise Parental responsibilities and rights

It happen frequently that one party who holds parental rights in terms of a minor child will block the other parent’s access to that child notwithstanding the fact that they have entered into a parental rights and responsibilities agreement. Once such an agreement was a made an order of court or registered at the family advocate’s office violation of rights contained in such an agreement may lead to a criminal offence.

Section 35 of the children’s act criminalizes the refusal to allow someone access or who holds parental responsibilities and rights in terms of a court order or a parental responsibilities and rights agreements that has taken effect, to exercise such access or parental responsibilities and rights. It also criminalizes prevention of the exercise of such access or parental responsibilities and rights. Punishment for any of these offences is a fine or imprisonment for up to one year.

The section further obliges a person who co-holds parental rights and responsibilities with another person in terms of an agreement or court order to notify the other party in writing immediately of any change in his/her residential address. Failure to notify such party will result in an offence.

Bertus Preller is a Divorce and Family Law Attorney who acts in Divorce matters in Cape Town, Johannesburg, Durban and Pretoria 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.