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Category Archive: Divorce

“I co-parent with my ex, but he threatens me and expects sex”

It’s time to free yourself from your manipulative former husband, says Mariella Frostrup

Reprinted from the Guardian – 2020-09-06

This reader’s dilemma from the UK’s Guardian newspaper caught our eye. It is not uncommon for divorced co-parents to continue in an emotionally dependent and unhealthy relationship. The constant contact of raising children can make it hard to sever the ties completely. This counsellor gives sound advice.

co-parenting with a manipulative ex
‘Our son is tired of the situation and so am I, but I can’t see a way out.’ Photograph: Azat_ajphotos/Getty Images/iStockphoto

 

The dilemma I split with my husband when my son was three – he was selfish and did not enjoy being a father. But we parted amicably and agreed to co-parent our son. I hoped for another relationship and another child.

Twelve years later and I have had one relationship, which caused my ex-husband to threaten suicide. He has constantly been in and out of my life – at first I thought he wanted to reconcile, but I realised he wants to cherry-pick the parts of marriage that suit him (mostly sex) and then go to his own house when he “needs space”. Whenever I put my foot down he threatens to take our son away. Even going to a solicitor didn’t help.

 

I feel like his mother. He turns up whenever he wants advice, and I help him (to my own detriment, as he is very depressive and pessimistic). He is on the autism spectrum and his family really don’t care about him. Other times he turns up for the evening with alcohol, wanting to stay the night and I let him, to save another argument. Our son is now 15 and my ex is still trying to get him to live with him, despite the fact that he works shifts and is out of the house for hours. Our son is tired of the situation and so am I, but I can’t see a way out. How will I ever have my own life?

Mariella replies It sounds simplistic, but where many of us go wrong is in refusing to take agency of our own lives – instead allowing others to make subservient our personal desires. It’s very hard, stuck in one form of reality, to conceive and create another, but it’s important that you dream up a vision for the future that’s realistic and achievable.

Your husband has maintained control over both you and his son for more than a decade, cynically placing his emotional needs and desires above both of yours. As you observe, it’s high time that you freed yourself from that bind, but this sense that you are doing it for your son is really a cover for your fear of taking your life in your own hands. Desperately holding on to your boy is neither necessary nor the answer. And I can reassure you that no court is going to significantly alter custody arrangements just because you put your foot down about your ex-husband’s overnight stays. Any fears over the custody of your son can be addressed through family mediation (try the Family Mediation Council or National Family Mediation).

I’m sad to hear that you haven’t found another partner or had the second child you desired, but you have to see how the perpetual helicoptering presence of your ex will have put people off.

While this situation continues you’re not free or available. Instead, you’re enabling your husband to stay in the driving seat of your life. I’m glad that you’ve managed to co-parent with him amicably, but at what cost? It really does sound as if your husband is a manipulative presence who has ensured that you’ve never enjoyed the freedom that should have been yours when you made the hard choice to move out.

Up until now he seems very much to have had his cake and eaten it with little opposition from you. He can’t take your boy away – that is an empty threat – and, very shortly, your son will be able to make his own choice. If he decides to hang out with his dad through his A-levels, good luck to him! You need to stop loading the responsibility for your entrapment on the fragile shoulders of your teenage son. What will make him want to stick around is the sight of you grasping your life with both hands and freeing him from his confusing position as a prize in a competition between his parents. You can get help in escaping from your husband’s manipulative behaviour – organisations such as Women’s Aid (womensaid.org.uk) or Refuge (refuge.org.uk; 0808 2000 247) can advise you over what is, essentially, a kind of coercive control. And it goes without saying that if you are concerned about his threats of suicide, start a dialogue with him and suggest he seeks help (stayingsafe.net).

Your ex has used you as an emotional crutch, handy booty-call and as a way to access his son without any responsibilities. Why would you give so much away for so little return? These are questions you need to ask yourself because, without understanding your impulses, you are unlikely to be able to change them.

The bargaining chip in all this seems to be your son, and your ex will have been aware of that. In three years he will be free to strike out on his own and if you and his father are still locked in this dance, he’ll want to put as much distance between himself and both of you as possible.

Now is your last chance to enhance his still formative life experience by making some adult choices – ideally together with his father. A clear position and a voice at the table are the least he should be equipped with as he steps towards his own destiny.

 

We can help

SD Law & Associates are experts in divorce and family law and have dealt with many types of parenting issues. If your ex makes contact visits difficult, we can help you manage the situation, with a protection order, parenting plan, or other relevant intervention. Contact us on 086 099 5146 or 076 116 0623 or email simon@sdlaw.co.za. Your enquiry will be dealt with in the utmost confidence.

Further reading:

Contact numbers:

  • GBV Command Centre: 0800 428 428 / *120*7867# from any cell phone
  • Persons with disabilities, SMS ‘help’ to 31531
  • Women Abuse Helpline: 0800 150 150
  • Childline: 0800 055 555
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Online petition on evicting domestic abusers got court ruling wrong

Judges emphasise that procedural fairness must be upheld

Reprinted from groundup.org.za, by Tania Broughton – 2020-09-04

eviction orders and domestic abusers

Three appeal judges in the Western Cape provincial division have laid down guidelines on how eviction orders, in domestic violence matters, should be dealt with. Photo: Brian Turner via Flickr (CC BY 2.0)
  • A magistrate ruled that a husband accused of abuse by his wife must leave the family home.
  • The Western Cape High Court overturned the magistrate’s ruling.
  • When evicting an alleged abuser in a case of domestic violence an informed assessment must be made and basic fairness applied, the judges ruled in the appeal.
  • The judges laid down guidelines that magistrates need to consider.

Three appeal judges in the Western Cape High Court have laid down guidelines on how eviction orders, in domestic violence matters, should be dealt with.

An online petition, created after the ruling by Judges Owen Rogers, Robert Henney and Acting Judge Bernard Martin, assumed that they laid down in law that domestic violence abusers cannot be evicted from their homes if they cannot afford to live elsewhere.

But the judges did not take it that far. What they said was that a magistrate’s court dealing with eviction orders in terms of the Domestic Violence Act, must first make an “informed assessment”. And in the appeal matter before them, this had not happened.

“The court should elicit information about the potential prejudice, the person’s ability, including financial resources, to obtain alternative accommodation and access to children.

“An eviction impacts on a person’s right to adequate housing and right to property in terms of the Constitution.

“The procedure in this case fell short of the requirements of basic fairness. Such an (eviction) order may be justified, but the magistrate did not make an informed assessment.

“There was also no inquiry into the effect, if any, the interim interdict had had on the husband’s behaviour up to that point,” Judge Rogers said, writing for the court.

The appeal has had a rocky path. It was first set down in December last year before Judge Rogers and another acting judge who disagreed on the outcome. It was postponed several times for different reasons and the court then asked the Cape Bar Council to appoint an advocate to represent the wife.

Judges Henney and Acting Judge Martin were then added to the panel to ensure that there would be a majority judgment in the event of judicial disagreement.

The wife, in her application for a protection order last year, said the family home was hers and had been bought by her father. However, because they were married in community of property, they both owned it in equal shares.

She alleged her husband was emotionally and verbally abusing her. She obtained an interim interdict ex parte (without notice to the other side) with a return date. While at that time, she also asked for an eviction order, this was not granted.

The husband then also brought a domestic violence application against her and one of their sons. The magistrate hearing the matter decided to consolidate both applications and ordered the husband to leave the house within a week. She said, “Even though you are married in community of property, it is clear to me from the evidence that this is not your house. You met her. She had a house. You stayed with her.”

The magistrate said the issue of the home ownership could be finally resolved during their divorce.

Judge Rogers said it appeared that the couple had not initiated divorce proceedings although they did not love each other and slept in separate rooms.

Turning to procedural fairness, Judge Rogers said on the day the matter was heard the husband had been unrepresented and would have been taken by surprise when the magistrate, midway through hearing his application, caused his wife’s application to be placed on the court roll.

It was possible that he may also not have known at that stage that she was seeking his eviction, because he would only have been served with the interim order, which would not have warned him of that.

“An order interdicting someone from committing acts of domestic violence effectively prevents them from doing that which is unlawful. By contrast, an eviction order prevents them from doing what would otherwise be lawful,” the judge said.

The judges referred the issue of the eviction order back to the magistrate directing that the parties be given a fair opportunity to present evidence and make submissions.

“Given the lapse of time, it would be appropriate for the court to also find out what has been happening in the home since June 2019 (when the interim protection order was granted).”

Links added by SD Law.

Let Divorce Attorney Cape Town help

We can support you through divorce proceedings and help you move on to the next stage of your life as quickly as possible. If you would like to talk to someone in confidence, give Simon a call on +27 (0) 86 099 5146 or email  simon@sdlaw.co.za.  Simon Dippenaar & Associates Inc. are experts in divorce and family law. We now offer online consultations. We’ll call you back and schedule a meeting at a time that suits you, on the platform of your choosing.

Further reading:

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South African Court awards maintenance and legal costs to abused wife in a Rule 43

We’ve all heard about the long arm of the law.

While that arm may be long, it’s not always very strong.

I have been embroiled in a particularly emotional matter.

My client had been struggling under the pressure of her narcissistic husband for years.

Eventually, she could take it no more and found temporary accommodation and moved out.

He was not prepared to allow her to try to regain her life and, as is often the case, he used he financial predicament as a way to try to force her to return to him.

She had to be strong and had to resist moving back to a life of emotional exploitation and abuse.

She weathered the storm while a Rule 43 was being brought for interim maintenance by borrowing money to survive.

Her husband pleaded poverty and used a temporary salary cut to justify offering her absolutely no maintenance.

On the day of the hearing, we tried to settle but her husband’s attorney said they his client could offer absolutely nothing because he did not earn enough.

Settlement was impossible so the matter had to be heard by a judge.

My client won maintenance and legal costs, and it seemed that the law indeed had come to the aid of my client.

But the law can be weak in certain cases.

I have others similar to this where the spouse tries at all costs to circumvent the law.

In this case, the husband now claims he is medically unfit to work and has booked himself into hospital for depression.

So, while there is an order in her favour, he will try to find a way to circumvent paying her maintenance even if it means hurting himself.

Unfortunately, there are instances where the law is weak and where the conniving try to escape the net.

If you need help with spousal and/or child maintenance and legal costs, contact Simon today by email at simon@sdlaw.co.za.

Related reading:

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Average retainer fee for a divorce lawyer?

Generally, the average retainer fee for a divorce lawyer should cover a number of hours so that the law firm can schedule and prioritise a new case.

We recommend that you budget 10 to 20 hours as a start.

The actual hourly rate will depend on a number of factors.

Remember that divorce law services are a life-changing service.

A successful divorce is one which saves you from financial and emotional turmoil, putting the future of the family first.

Your divorce lawyer is your guide, and can either champion your position, saving you time, money, and emotional fallout; or achieve the opposite.

After attending to 100s of divorce cases, we recommend you consider this list of factors, before appointing a divorce lawyer:-

  1. the reputation of the firm, as well as the individual professional;
  2. the values of both;
  3. the strategic approach, especially to conflict resolution;
  4. the experience and specialisation;
  5. the appreciation of psychology and pathology;
  6. being a skilled negotiator; diplomatic, yet appropriately assertive (never aggressive);
  7. the level of emotional intelligence;
  8. familiarity of the local court system, and role players;
  9. the complexity of the matter;
  10. the urgency;
  11. the value of the assets and debts;
  12. whether there are any minor children;
  13. whether it is a high conflict divorce;
  14. your spouse’s attorney and advocate;
  15. any personality disorders; and
  16. criminal and abusive elements.

When one appreciates that a divorce case can involve a multifaceted list of fundamental, delicate issues, one appreciates that the divorce lawyer may be an investment in a potentially life changing service.

If you want to stand the best chance of not only surviving the divorce process, but thrive through it, interview a divorce lawyer first.

Go through the above factors with them, and satisfy yourself that the relevant attorney ticks all the relevant boxes. Some may be more relevant than others.

Ultimately, we recommend that you find a divorce attorney who strives to achieve a fair, family first, and future focussed outcome.

Know that a divorce attorney is in a special and privileged position – he or she is your guide through a major emotional and financial life transition.

They need to deserve this responsibility by being qualified to deal with the issues in the best possible way.

When one understand the purpose of divorce law, in that it is a set of rules, to help protect the best interests of the family unit moving from moving one home in to two, you begin to appreciate that the divorce lawyer, and his or her approach, can be a major positive or negative influence on any successful conclusion.

The world needs to move away from turning away from one another, and turn towards one another, and continue to engage, so that resolutions can be reached. A divorce lawyer needs to facilitate this through strategic, and emotionally intelligent management of your case.

At the end of the day, all divorce clients need a champion, like a knight: a ‘gentleman’ who believes in justice, but who can also fight for what is fair.

If you would like to interview us, Call Simon on 086 099 5146 today, or email: Sdippenaar@sdlaw.co.za, and we will arrange a time to talk within the next day or two.

We’d be happy to share more about our approach, and what makes our way of managing divorce matters unique and valuable.

Related reading:

Source: by Divorce Attorney Cape Town

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Divorce and your will

A little-known section of the Wills Act can have serious consequences

divorce and your will

The High Court of the Western Cape recently heard a case challenging the constitutionality of Section 2B of the Wills Act. The wording of the Act itself is confusing, so we’ll try to explain it in simple terms. If you are going through a divorce, it’s very important you not overlook or neglect to change your will.

What Section 2B says

Section 2B of the Wills Act provides that “if a person dies within three months after they were divorced or their marriage was annulled, any will which they executed prior to such divorce or annulment must be given effect to as if their former spouse had died before such dissolution, unless it appears from the will that they intended their spouse to benefit notwithstanding it.”

Section 2B in plain English

This clause effectively gives divorcing spouses a three-month grace period to change their wills. It acknowledges that in the upheaval of divorce – both emotional and practical, wills may be forgotten. It allows for a calm, considered change of testation post-divorce. If one spouse dies within three months of the official date of divorce, the law acts as if the surviving spouse had in fact died before the divorce. In other words, their entitlement to inherit from the deceased spouse is null and void unless there is clear, unambiguous wording in the will indicating a wish for the other spouse to inherit regardless of any eventual dissolution of the marriage. 

However, if the will is not changed within the three-month grace period, the courts will assume that the intentions in the will are meant to remain valid. After all, some marriages end harmoniously and, for whatever reason, the spouse or spouses still wish the other to inherit some or all of their property. 

JW v Williams-Ashman NO and Others

In the case of JW v Williams-Ashman, the couple (NW and JW) divorced, and NW did indeed die before three months had elapsed. There was nothing in the will explicitly stating that an inheritance to JW would stand regardless of divorce. Therefore JW was not entitled to inherit anything, and because there were no children of the marriage, NW’s parents were the sole heirs. JW challenged this and attempted to prove that Section 2B infringed the Constitution because it “arbitrarily deprived NW of her testamentary right to dispose of her property in accordance with her express wishes and arbitrarily deprived him of his right to receive it.”

We won’t go into detail of the court proceedings (you can read the full case report here), but, in summary, the judge dismissed the case on the grounds that Section 2B serves a legitimate and compelling social purpose and the deprivation it affects is not arbitrary, and there is sufficient reason for it. 

What this means for you

While this case does not change a law that is already in existence, it serves as an important reminder to anyone contemplating or going through divorce. If you already have a will, remember to amend it as part of your divorce process. If you don’t manage before your divorce is granted, you have three months in which to do so. Three months passes quickly, particularly if you have to relocate or make other post-divorce changes in your life, so prioritise your will

If you don’t have a will, you will die intestate. In that case, once you are divorced, your spouse will not inherit from you. However, should you pass away before the divorce is finalised, by the laws of intestacy, your estate will be divided amongst your surviving spouse, children, parents or siblings according to a set formula. Pre-divorce, your spouse is still your spouse, regardless of your intention to end the marriage. For this and many other reasons, it is always a good idea to have a will. 

Talk to us about your will today

Whether you are getting married, starting a family, contemplating divorce, or just planning for the future, you should make a will. We are family lawyers with expertise in wills and estate planning and we can help you draft a will that reflects your wishes and looks after your loved ones. We now offer online consultations. Contact Simon on 086 099 5146 or email simon@sdlaw.co.za today, and we’ll call you back to schedule a meeting at a time that suits you, on the platform of your choosing.

Further reading:

Three surprising ways divorce can affect your will

Last will and testament

Video:

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Stop Press! Child contact visits now allowed during lockdown

NEW DIRECTIVE ISSUED PERMITTING TRAVEL BETWEEN CO-PARENTS

Child contact visits now permitted during lockdown

We are past the halfway point of lockdown. I doubt anyone would say it is flying by. For most, the lack of exercise, the absence of social contact, and the sheer monotony of staring at the same four walls every day is making the time drag. For single parents stuck at home with no respite, it’s bound to be an even more testing time. But it may also be difficult for the children who are deprived of the right to see their other parent or caregiver. And the prohibition against moving a child between parental homes may go against the principle of “the best interests of the child”.

7 APRIL – INSTRUCTIONS REGARDING CHILD CONTACT VISITS

When the initial directives regarding lockdown came out, there was some ambiguity as to the transport of children between the homes of co-parents. We originally wrote on 24 March that there was no specific mention of child contact with a parent in a different location. The situation was vague and we urged parents to proceed with caution.

On 30 March, the Minister of Social Development issued new directives (GG 43182, NO. R.430 – the R430 SD directives) which explicitly stated: “Movement of children between co-holders of parental responsibilities during the lockdown period is prohibited. This is to ensure that the child is not exposed to any possible infection whilst moving from the primary caregiver premises to the other; (ii) The child must remain in the custody of the parent with whom the child was with, when lockdown period started.”

Yesterday, Minister of Social Development, Lindiwe Zulu, signed an updated directive, (GG 43213, NO. R.455) reversing that prohibition. It is now permitted, as long as certain conditions are in place:

Movement of children between co-holders of parental responsibilities and rights or a caregiver, as defined in Section 1(1) of the Children’s Act 2005 (Act No. 38 of 2005) is prohibited, except where arrangements are in place for a parent to move from one parent to another, in terms of:

  • (aa) a court order; or
  • (bb) where a parental responsibilities and right agreement or parenting plan, registered with the family advocate, is in existence.
  • Provided that, in the household to which the child is to move, there is no person who is known to have come into contact with, or is reasonably suspected to have come into contact with, a person known to have contracted, or reasonably suspected to have contracted, COVID-19.

The parent or caregiver transporting the child concerned must have in his or her possession the court order or the agreement referred to [above]…or a certified copy thereof.

Emphasis ours.

LOCKDOWN CHILD CONTACT VISITS – IN PLAIN ENGLISH

What this means is that, so long as a court order or parenting plan is in place, it is permitted to transport your child to the home of the other parent, and vice versa. However, if you do not have a formal arrangement, then unfortunately you are not covered by this directive. This might be because you and the other parent of your child were never married, or your divorce was amicable and you did not require a parenting plan. We’ve written before about the usefulness of a parenting plan even when it is not mandated by the courts. We could not have foreseen the current circumstances, but this directive is an (admittedly extraordinary) example of why it is always wise to have a plan in place.

If you filed your parenting plan away with your divorce papers, now is the time to dig it out. You must carry it with you when travelling with your child to the home of the other parent. Given that it is permitted to go to the shops for essential items, and if you are a single parent you must of course take your child with you, it’s hard to know how the police will determine your destination and enforce this condition. But our advice is to comply with the directive and follow the laws of the land.

LEGAL CHALLENGE

We are pleased to see the relaxation of a harsh legal position, which seemed to completely ignore the emotional needs of the child and was so out of line with other countries in similar circumstances. It was challenged by senior counsel and family law expert Janet McCurdie, who is also an advocate and admitted member of the Cape Bar. In a cogently argued comment paper, McCurdie said that for  some children, and some parents, the enforced separation – or enforced confinement with one parent – could in fact be detrimental to their well-being and even harmful. The Children’s Act, not to mention the Constitution, puts the interests of the child first. But it may not be in the child’s interests to be with a particular parent or without a particular parent for the period of the lockdown. She also made the point that, in following the directive, parents could be in contempt of court if they fail to adhere to the terms of a court order.

Lastly, she questioned the authority of the Minister of Social Development to “issue regulations or directives regarding the exercise by parents of their rights in terms of a parenting plans / court orders… Similarly, the Minister of Social Development is not authorised in terms of any Regulation issued in terms of the [Children’s] Act, to issue directives pertaining to the exercise by parents of their rights of care and contact to their children.”

TIME TO UPDATE THAT PARENTING PLAN?

Right now the priority is getting through the lockdown, looking after our children, families and neighbours, and staying well. However, if you have dusted off your parenting plan and realised that it no longer reflects your current situation, this might be a good time to think about reviewing and updating it. Should another emergency occur, you want to be sure your legal position is watertight. And in the course of normal life, a parenting plan can help you and your co-parent navigate the issues that arise in raising children with minimal conflict and antagonism, thus ensuring the best interests of the child always come first, and your own mental health doesn’t suffer in the process.

CONTACT DIVORCE ATTORNEY CAPE TOWNFOR HELP

If you have any questions regarding the directive or your co-parenting arrangement, now or at any time, contact Simon at Cape Town Divorce Attorneys on 086 099 5146 or email  simon@sdlaw.co.za.

FURTHER READING:

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How to start a divorce

You want to get a divorce but aren’t sure where to start or what to do

 

How to start a divorce, divorce lawyers

 

You want to start a divorce. It’s a frightening prospect. You entered married life full of hope, and the breakdown of your marriage is inevitably sad and disappointing. But ending it and starting again is daunting, which may be why people stay in marriages long after the relationship has soured. You may also be wondering which way to turn when it comes to starting divorce proceedings. Do you need a divorce attorney? Can you do it yourself? How much does a divorce cost?How do you deal with parenting arrangements?

Let’s look at how to get a divorce step by step.

Step 1 – Can you do it yourself?

It is possible to handle your divorce yourself, without legal advice. This is often called a “DIY divorce” or sometimes an “online divorce”(it is not). We don’t advise it, because there are many details you may not be aware of, and a good divorce lawyer will make sure your interests are properly protected. However, there are some circumstances when you can get a divorce yourself and it makes financial sense, for example – if you have no children, are married out of community of property without accrual, and do not have a shared asset such as a house you purchased jointly. If you can make a clean financial break and you both agree on the terms of your divorce, then a DIY divorce can save you a lot of money.

If you choose this route, you must still go to court. All divorces in South Africa are granted either in the High Court or the Divorce Court, as a division of the Magistrate’s Court. A judge must grant a divorce order. The procedure is as follows:

  • Sign the Deed of Settlement
  • Make copies of all documents
  • Go to court and issue your summons and annexures at the Registrar of Court
  • Take the documents to the Sheriff of the Court to serve on the defendant. To speed up the process, you can go together
  • If you have minor children, go to the Family Advocate
  • Go back to court to get a date for the hearing
  • Appear in court on that date

But unless your split is very amicable and you are confident of 100% agreement, you would be wise to appoint a good family lawyer to get a divorce.

Step 2 – consult a family lawyer

If you are married out of community of property with accrual, or in community of property, then there is a financial settlement to work out. If one of you has a pension fund, your finances are even more complicated. At this stage you must decide if your divorce will be uncontested, contested or mediated.

The easy way – uncontested divorce

An uncontested divorce is the quickest and least costly option and is generally less stressful than other types of divorce.

If you both agree divorce terms, such as maintenance, division of assets, and child care and contact, you can appoint an impartial attorney who will represent both spouses. The divorce attorney will draft the official settlement agreement, you both sign it, and it is made an order of the court. An uncontested divorce is often finalised in weeks, not months.

An uncontested divorce will cost anywhere from R7 500 to R15 000, depending on the complexity of the divorce.

The hard way – contested divorce

A divorce is contested when there is great animosity between the spouses and they cannot agree the terms and conditions of their divorce. A contested divorce can lead to multiple court appearances, and ultimately the court decides the terms of the divorce. Legal costs can spiral, the emotional impact can be severe, and it may take three years or longer to get a divorce.

Contested divorces are to be avoided if at all possible. Because a contested divorce can drag on for years, it is not possible to give an indication of cost. In a contested divorce the attorney will usually charge an hourly rate and will be unlikely to quote you a fixed fee. You may be asked to pay a retainer, which your family lawyer will deposit in a trust account and draw on as costs are incurred. You will receive a monthly statement of the lawyer’s time and the services of any experts consulted. If the case goes to trial or is even prepared for trial, you can expect considerable hours involved and associated high costs.

The third way – mediated divorce

Provided you and your spouse can be in the same room together, even if you don’t agree on everything, a mediated divorce can be the middle ground between the harmony of an uncontested divorce and the acrimony of a contested one. In a mediated divorce, an attorney and/or a professional mediator will help you negotiate and reach agreement.

A mediator is an impartial trained professional who will help you reach a settlement that lets both of you move on. Mediators are usually appointed by the attorney who provides the legal advice.

Once agreement is reached through mediation, the attorney can draft the official settlement agreement, which you both sign, as per an uncontested divorce. It takes around three months to get a mediated divorce.

A mediated divorce will incur mediator’s fees in addition to the divorce lawyer’s fees. The total cost will be between R10 000  and R30 000.

Step 3 – Go to court

The procedure for mediated and contested divorces is roughly the same as for an uncontested divorce, but is usually more complex:

  • A divorce summons is drafted.
  • The summons is issued by the court on behalf of the person launching the divorce action (called the plaintiff). It includes details of both parties, date and place of marriage, and what the plaintiff wants the divorce order to determine.
  • The summons is delivered by the Sheriff to the other spouse (called the defendant).
  • The defendant responds to the divorce summons. This is called a plea.
  • Together with the plea, the defendant delivers a counterclaim document, which sets out what the defendant wants the divorce order to determine. Or the defendant does not contest the divorce and the plaintiff’s terms are met without amendment.
  • If the defendant makes a response, the plaintiff may make a plea to the defendant’s counterclaim.
  • This is usually the end of the plea process. The documents are known as the pleadings.
  • The plaintiff applies to the court for a trial date.
  • Under South African law, all documents to be used by either party in a trial must be revealed to the other party before the court date. This is called a discovery process.
  • After the pleadings close each party’s divorce lawyer will request the other party to disclose and provide copies of all documents they intend to use to support their arguments in court, such as bank and credit card statements, share certificates, documents proving ownership of assets or debt, etc.
  • If the spouses do not manage to reach a divorce settlement agreement, the divorce will go to trial and the court will decide who gets what.

Stumbling blocks along the way

Child care and contact

When you get a divorce, custody (“care”) of any children of the union is normally granted to a single parent, with reasonable access (“contact”) awarded to the other parent. Or the parents may opt for joint (shared) custody. If parents cannot agree on the care arrangements for children, the court may insist on a parenting plan. A parenting plan is a good idea even in an amicable divorce because it defines the roles and powers of each parent. The plan also sets out the parenting time schedule and other details, such as holiday arrangements.

Family Advocate

Where there is an irresolvable dispute, the Family Advocate may be called in. The Family Advocate is a state official who assists divorcing parties to reach an agreement on issues such as care, contact and guardianship. In the absence of parental agreement, the Family Advocate makes a recommendation to the court with the best interests of the child uppermost in their guidance.

Spousal maintenance

In South African law, no one with the ability to support themselves is entitled to maintenance. However, a court may order rehabilitative maintenance, after considering the couple’s current and potential future financial means, earning capacities, financial needs and obligations, the length of the marriage, and other factors. With rehabilitative maintenance, the court will estimate how much time it will take for the relevant spouse to gain the skills to re-enter the job market.

Step 4 – Self-care

When you get a divorce it is more than the dismantling of a legal union. It is the unravelling of a binding thread that, at one time, seemed permanent. The emotional consequences, even of an uncontested divorce, must not be overlooked. Sadness, depression, anxiety, anger, and a sense of failure are very common and normal responses to the divorce process, and they may persist long after the divorce is granted.

If you are feeling overwhelmed by the emotional impact of your divorce, or are struggling to build your post-divorce life, don’t be afraid to seek help. A professional counsellor, psychologist or therapist can help you come to terms with your loss (for divorce is a form of loss) and explore strategies for moving on.

Consult a good family lawyer

If you want to get a divorce and need help to get started, talk to our divorce attorneys. We’ll help you explore your options. At SD Law we are known for our EQ and our sensitive approach to family law. We’ll handle your case with compassion without sacrificing efficiency. Contact Simon on 086 099 5146 or email simon@sdlaw.co.za for a discussion in complete confidence.

For more detailed information on how to get a divorce, download our Guide to Divorce.

Source: Divorce Attorney Cape Town

Further reading:

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International South African divorce – What you need to know

HOW TO DIVORCE FROM ABROAD IF MARRIED IN SOUTH AFRICA OR MARRIED TO A SOUTH AFRICAN 

International South African divorce is more common than many people realise. Perhaps you went on holiday abroad. You met the love of your life. You married and settled down in a foreign country. Only things didn’t quite go according to plan and now you are seeking divorce. Or maybe you are a non-South African married to a South African. You live overseas and want to start divorce proceedings against your South African spouse. Or you are in South Africa but your spouse is not. In all these situations, you can divorce from abroad in South Africa or divorce a foreign spouse from here. Cape Town divorce attorneys Simon Dippenaar & Associates, Inc. in Cape Town can help you.

International divorce made simple

SEVEN THINGS ABOUT INTERNATIONAL SOUTH AFRICAN DIVORCE YOU MIGHT NOT KNOW:

 

FOREIGN DIVORCE IN SOUTH AFRICA

  1. You can divorce in South Africa if you are abroad.
  2. You can divorce in South Africa if your spouse is abroad.
  3. You can make child care and contact arrangements (previously called custody and access) in South Africa from abroad, if the child is in South Africa. This is called the forum non conveniens doctrine or “court of most convenience”, which allows the interests of justice to be served in a court (with proper jurisdiction) in another location, if that is more convenient for the parties involved.
  4. You can divorce in South Africa if you are domiciled or ordinarily resident here, even if you are not a South African citizen and both spouses agree to the jurisdiction by consent (see Section 45)

 

INTERNATIONAL DIVORCE WHEN YOUR SPOUSE IS MISSING

  1. If you don’t know where your spouse is, you can still start divorce proceedings. If you believe your spouse is in South Africa but their whereabouts are unknown, you can apply for substituted service. This allows the court to issue a summons by an appropriate method, such as advertising in a newspaper published where the defendant is believed to be living.

 

DIVORCE IF YOUR SPOUSE IS ABROAD

  1. If your spouse is abroad and you want to start divorce proceedings here in South Africa, you can use a legal process called edictal citation. An edictal citation is a summons served by a sheriff (who may be called a “service processor”) or a solicitor in a different country.

 

IF YOUR SPOUSE IS ABROAD AND MISSING

  1. In this case the substituted service and edictal citation processes can be combined. You will have to use the means available in the country where you believe your spouse resides to locate them. This can now include social media and email. The processes are not interchangeable. The edictal citation allows the summons to be served in another country. Substituted service makes provision for the divorce to go ahead if the defendant (the spouse) cannot be found, but every effort has been made to find them.

 

CONTESTED VS. UNCONTESTED DIVORCE

An uncontested divorce is relatively straightforward. The person who brings the divorce proceedings is known as the plaintiff. Conversely, the person on whom the summons is served is the defendant. If the plaintiff lives abroad and the defendant is in South Africa, and agrees to receive the summons from the South African sheriff and appear in court, the divorce can be finalised in approximately four weeks.

Similarly, if the plaintiff is in South Africa and the defendant lives abroad, and both agree to co-operate, the divorce is also considered uncontested and can proceed quickly in the South African courts.

However, divorcing in South Africa is more complex if either spouse is abroad and the divorce is contested – that is the two parties can’t agree on the terms of the divorce. If the party living abroad refuses to act as plaintiff, or the spouse in South Africa refuses to accept service and appear as the defendant in court, the divorce proceedings can take up to three months and the costs will be considerably higher than for an uncontested divorce.

 

COST OF AN INTERNATIONAL SOUTH AFRICAN DIVORCE

With Simon Dippenaar & Associates, Inc., an uncontested international divorce, where all parties give consent and co-operate fully, costs R15 000 excluding VAT.

If an edictal citation is required, the cost is c. R30 000, excluding VAT, plus the cost of the international correspondent. Contact Divorce Attorney Cape Town to discuss your specific circumstances.

 

WHAT MAKES US DIFFERENT? 

There are many divorce lawyers in Cape Town. Why should you use Simon Dippenaar & Associates Inc.? Simon and his team are experts in divorce, both domestic and foreign. With international correspondents in all major jurisdictions and access to online systems the world over, the professionals at Simon Dippenaar & Associates Inc. will ensure your international divorce is handled efficiently and sensitively.

Cape Town Family Lawyers, Simon Dippenaar & Associates, Inc. has a reputation for empathy and professionalism, with a personal touch. Every client is an individual, and every divorce is handled with dignity and respect, no matter the circumstances.

Call Simon on 086 099 5146 or email simon@sdlaw.co.za.

Read what satisfied clients have to say about Simon Dippenaar & Associates, Inc.

Further reading:

REEVA STEENKAMP FOUNDATION ENDORSEMENT 
“On behalf of all abused woman and children The Reeva Rebecca Steenkamp Foundation would like to thank Simon Dippenaar from SD Law South Africa for going beyond and assisting our client with a very difficult case.
Family Law requires a very special person, just being a good lawyer is not enough.”

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Unmerging your money after a divorce

How to set yourself up for independent financial security.

Your matrimonial property regime forms the basis of how your assets will be divided in the event of divorce. However, once your divorce has been finalised by the courts, you will need to unpick what was once your merged finances and set yourself up for independent financial security. In the process, it is likely you will need to consider:

A new budget

Once your divorce has been finalised, you will have a clearer picture of your income including any maintenance income payable by your ex-spouse. This is an appropriate time to draw up a post-divorce budget so that you can set up the financial mechanics of your new life. Your budget will give you guidance as to how much you can afford to spend on accommodation, groceries, vehicles, domestic help and insurances, so be as thorough and realistic as possible in detailing your budget.

The marital home

If you were awarded the marital home as part of the divorce order, you will need to ensure that the property is transferred into your name. Bear in mind that in these circumstances, the Transfer Duty Act exempts you from paying transfer duty. As the sole owner of the property, you will need to change your municipal accounts and related to your name.

Short-term insurance

During separation and before the divorce is finalised, many couples give little thought to their short-term insurance. Once your divorce is finalised and the division of assets has taken place, it is advisable for each party to take out a separate insurance policy to cover their short-term insurance needs. Keeping a single insurance policy for your respective belongings can lead to complications, arguments and the risk of underinsurance. The divorce settlement should provide clarity on which party owns what, and this can form the basis of setting out a new insurance policy for each person. Rather than amend an old policy, this is an opportune time to review your short-term insurance, rework your inventory of assets, and look for more cost-effective options.

Life cover

Being divorced from your partner, your priorities in respect to providing for him/her in the event of your death are likely to have changed. While married, your quantum of life cover will have been calculated by taking into account the extent to which you wanted to provide financially for your partner if you passed away. Your assets and liabilities would also have been taken into account when calculating your life cover needs. After your divorce, the value of your assets and liabilities are likely to change and you will not want to provide financially for your ex-spouse should something happen to you. This is, therefore, the perfect opportunity to reassess your life cover to ensure you are not over-insured and paying for cover you no longer need. If you have maintenance obligations towards your children, bear in mind that you may want to put sufficient life cover in place so that you can honour these obligations in the event of your death or disability.

Beneficiary nominations

While you are reassessing your life cover, take time to review the beneficiaries that you have nominated on your various policies and investments, including any retirement funds that you have in place. If you and your ex-spouse had life policies in place, it is likely that you had nominated each other as the beneficiaries on your policies. Once you have adjusted the level of your life cover, ensure that the proceeds of the policy will be paid to the correct person/people should you die. If you do not nominate any beneficiary on your life policy, the proceeds will be paid directly into your estate and will be wound up as part of your estate. Remember that, while you can nominate beneficiaries on your retirement fund, the allocation of your retirement fund interest is at the discretion of the fund trustees. When determining who will receive these benefits, the trustees will take into account those people who are financially dependent on you including your children, aged parents and/or live-in partner.

Debt

The terms of your divorce order will also specify who is responsible for any debt that you and your ex-spouse had. Be sure to make a list of all the debt you are responsible for paying and ensure that the service provider has your correct contact details. Don’t forget to account for these repayments in your budgeting process and, if necessary, put a debt reduction plan in place to help manage the repayments.

Cellphones

If your cellphone is registered in the name of your ex-spouse, you may want to move the account into your name to ensure that you are able to transact independently going forward. If your account is registered in your ex’s name, you may need his/her permission when upgrading or doing a SIM swap, so rather ensure that the account is moved into your own name.

Set up new debit orders

The terms of your divorce order will set out who is responsible for the payment of expenses such as school fees, medical aid premiums, tutors and other ongoing services. Use this opportunity to set up your debit orders correctly and update your beneficiary details on your online banking portal.

Separate joint bank accounts

If you and your ex-spouse had any joint bank accounts and/or credit cards, you will no doubt want to separate these accounts accordingly. If you and your ex shared login credentials, don’t forget to reset your username and passwords as further protection. The same applies to any joint retail accounts you may have held together.

Medical aid

Depending on the terms of the divorce order, you may need to move off your ex-spouse’s medical aid and register as the principal member of your medical aid. This may be a good time to completely reassess your healthcare needs in terms of your own health status, chronic conditions, affordability and accessibility to networks. Your post-divorce budget may be tight but resist the temptation of coming off your medical aid. Most medical schemes offer affordable network options that will at least provide you with basic hospital cover, ensuring that your membership is uninterrupted and you will not be penalised later on in life. If you and your ex-spouse had a gap cover policy, you may need to come off his/her policy and take out a policy in your name. Once again, try to avoid an interruption in membership as this can result in waiting periods being imposed if and when you want to join later on.

Domestic worker contracts

If you are retaining the services of your domestic worker and/or gardener, remember to change the signatories to the contract depending on who is responsible for paying their salary or wages. With changes to your living arrangements, your domestic worker may need to travel further to get to work or work longer hours to assist with child-minding, so be sure to adjust his/her salary accordingly. Your changed circumstances may impact on his/her travel costs and childcare arrangements, so be sure to have these discussions with your employees.

Will

One of the most important documents you will need to update after your divorce is your will. Section 2B of the Wills Act provides divorcees with a three-month grace period in which to amend their wills following a divorce. In essence, this means that if you die within three months of the date of your divorce and your ex-spouse is a nominated beneficiary, your assets will be distributed as if your ex-spouse had predeceased you. After the three-month period, if you have not amended your will, the courts will assume that you intended your ex-spouse to inherit from your estate. 

Other legacy documents

If you have a living will in place which was kept by your ex-spouse, you may want to consider updating this document and giving it to a close friend or family member for safekeeping. Similarly, if your ex-spouse had access to the login credentials and PIN numbers for your digital world – including retail accounts, social media accounts and online subscriptions – you may want to consider updating these details and giving them to a friend or family member for safe-keeping.

Other bills

Whatever other expenses and bills you are responsible for paying in terms of the divorce order, be sure to communicate your changed status with each service provider, including any change in your residential address or contact details. This includes services providers such as your GP, vet, dentist, garden services and optometrist.

Filing

Over the years of your marriage, you will probably have built up a joint filing system for all accounts, legal documents, school reports, invoices and bank statements. Separating the documents between you and your ex-spouse might be a difficult task, and it may make sense to make copies and/or scan the filing system so that you each have access to the documentation. You will both always require access to legal documentation such as birth and marriage certificates, identity documents and passports, academic records, marriage and divorce certificates, title deeds, lease agreements, and so on, so it makes sense to give each party access. 

Investments

Following the redistribution of assets in terms of your divorce order, you may receive a lump sum or severe instalments from your ex-spouse. Before making decisions with these funds, be sure to seek financial and tax advice so that you fully understand the implications of your choices. To protect your future, appropriately structured reinvestment of this money is of great importance. You will want to reinvest your capital in the most tax-efficient manner to ensure that it can achieve adequate investment growth over your specific timeline.

Retirement funds

If you were awarded a portion of your ex-spouse’s retirement fund interest, you can elect to either withdraw the funds or transfer the funds into a retirement or preservation fund of your own. Bear in mind that any withdrawals will be taxed whereas a transfer to another approved fund will take place tax-free. Being solely responsible for your retirement funding is a huge undertaking, so be sure to get independent financial advice before making any withdrawals. In general, a divorce sets both parties back financially and it is of the utmost importance to start planning for your financial future as soon as possible after the divorce. 

Change your marital status

It is important to ensure that the change in your marital status is registered with Home Affairs as this may impact on your ability to marry in the future. If your status remains recorded as ‘married’ on the system, you may have difficulties later on in life if you want to remarry. It usually takes around three months to register this change. 

Change your surname

If you took your husband’s surname when you got married and it is reflected as such in your ID book, you can apply through Home Affairs to revert to your maiden name.

Develop your own financial plan

The most important step you can take to fortify your finances after a divorce is to develop a financial plan. Divorces are expensive and it is likely that you have been set back financially. Before making any major financial decisions such as buying property, travelling overseas or reinvesting capital, be sure to partner with a trusted adviser who can map a financial plan for your independent future.

Source: MoneyWeb (emphasis by SDLAW*)

*SDLaw, otherwise known as Simon Dippenaar & Associates Inc., is a law firm of Cape Town lawyers, and specialist Divorce Attorneys. Contact us for legal advice or representation with the divorce process at simon@sdlaw.co.za or +27 (0) 86 099 5146.

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Parental Alienation and the Child

Deliberate parental alienation harms the child more than the parent

When divorcing or divorced parents engage in tactics that give rise to parental alienation, the individual who suffers the most is the child. It may be tempting for an aggrieved parent suffering through an acrimonious divorce to want to portray the other parent in the worst possible light. Hurt and anger can cause a parent to denigrate the partner in front of the child, causing parental alienation or its more severe sibling, Parental Alienation Syndrome. If one parent feels isolated and betrayed, it’s a natural response to want the child or children “on side”. However, whether the other parent deserves the label of villain or not, this behaviour is extremely harmful to the mental health of the child.

A parent-child pair experiencing parental alienation can rebuild a trusting relationship. It takes time and patience but is important for mental wellbeing.

No one is innocent – except the child

According to Cafcass, the UK’s Children and Family Court Advisory and Support Service, parental alienation is rarely one-directional, i.e. aimed at one parent by the other. More commonly, it is a complex set of behaviours that may impact on every transaction within the family. The post-separation environment is a high-conflict zone. Rarely is one parent entirely the victim and the other solely the perpetrator of emotional punishment. When parents are at war, the child becomes collateral damage.

Impact of parental alienation on a child

Parental alienation is emotional child abuse and should be treated as seriously as any other form of abuse. Despite this, it is often not recognised or acknowledged in child custody disputes. The alienated child often feels insecure, anxious and overwhelmed, experiencing feelings of guilt and confusion.

The alienated child may be confused as to the adult-child role, particularly if they are older, i.e. pre-teen or teenage. Triangulation, the emotional manipulation of the child to create an emotional partner, is a common feature of parental alienation. In this scenario the child feels responsible and obliged to step in and protect and care for the victim-parent. The child is robbed of the ability to form trust (the cornerstone of relationships) in intimate relationships and lacks confidence in forming and maintaining healthy relationships. The child may also display clinging behaviour and separation anxiety. They may develop anxiety and have poor peer relationships and other mental health issues. The alienated child suffers from a loss of a sense of self and is placed within a situation that is emotionally beyond their coping ability.

Anyone working with the child or the family should be alert to these symptoms and prepared to step in.

What can be done?

As per the philosophy behind the Children’s Act, the interests of the alienated child must come first. Whether parent, grandparent, caregiver or professional mediator, anyone playing a role in the child’s life must view every family interaction through the lens of the child. The focus should be firmly on the alienated child and the factors that have contributed to the alienation. Then it is critical that steps are taken to rectify the situation. There is no evidence to show that waiting for alienation to resolve itself is effective, nor should children be allowed to decide which parent they should live with.

Rebuilding trust step by step

There are many instances of adults who were permanently alienated from one parent as children and have suffered life-long emotional consequences. To prevent this long-term outcome, there are ways to rebuild trust and re-establish a loving parental relationship. The child and alienated parent need to be assisted in the process of re-attachment, which must be sensitively phased and take account of the child’s developmental level, maturity and emotional resilience.

Here in South Africa and in other countries there are various psycho-educational and family therapy programmes that attempt to help severely alienated children of divorce rebuild the damaged relationship with the alienated parent. These programmes aim:

  • To initiate contact between the alienated parent and child
  • To provide psycho-educational training to the parents
  • To develop child-focused parental involvement
  • To re-establish reality and correct distorted perceptions of the self, both by the child and by the parents
  • To relieve the burden on the child and distance them from the conflict of loyalties between the parents
  • To rebuild the fractured emotional relationship by creating new shared experiences in a structured, safe and relaxed environment
  • To restore communication
  • To improve conflict management and family dynamics

Through these programmes children re-learn a healthy and balanced view of both parents and gradually renewed and happy parent-child relationships can develop. But it takes time. However hard it may be, the alienated parent must be patient.

Is this you?

Have you experienced parental alienation? Are you estranged from your child or is your contact with your child traumatic due to symptoms of parental alienation? Cape Town Divorce Attorneys, Simon Dippenaar & Associates Inc. is an established Cape Town family lawyer with extensive expertise in divorce and family law. We will ensure your legal rights are upheld and can link you to the appropriate support that will enable you to restore your relationship with your child.

Cape Town Attorneys and Lawyers,  Simon Dippenaar & Associates Inc. has a reputation for empathy and professionalism, with a personal touch. We will listen to you and help you find a solution that is in the best interests of all parties – most importantly the child.

Call Simon on 086 099 5146 or email simon@sdlaw.co.za.

Read what satisfied clients have to say about Simon Dippenaar & Associates, Inc.

 

Further reading:

 

 

REEVA STEENKAMP FOUNDATION ENDORSEMENT 
“On behalf of all abused woman and children The Reeva Rebecca Steenkamp Foundation would like to thank Simon Dippenaar from SD Law South Africa for going beyond and assisting our client with a very difficult case.
Family Law requires a very special person, just being a good lawyer is not enough.”

 

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