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Tag Archive: divorce lawyers

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

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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:, 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.

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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 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


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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 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

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International South African divorce – What you need to know


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




  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)



  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.



  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.



  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.



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.



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.



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

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

Further reading:

“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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International child custody


Moving overseas with a child is subject to certain conditions. Don't fall foul of them.

It is becoming increasingly common for couples to marry across borders. International travel is more accessible and over the past decade there has been an influx of immigration into South Africa, resulting in more marriages between partners of different nationalities. Inevitably, some of these marriages will end in divorce. Equally predictably, some parents will want to return to their country of birth with the children of the marriage…in other words they will seek international child custody.

In this post we will look at 1) how you can do that legally and 2) what to do if the other parent has removed your child to another country without your consent.


South African law does not explicitly govern international child custody, and relocation with children post-divorce. All matters concerning children are legislated by the Children’s Act 2005. This progressive piece of legislation takes the focus away from the rights of the parents and places the child at the heart of all decisions. “In all matters concerning the care, protection and well-being of a child the standard that the child’s best interest is of paramount importance must be applied” (Section 9). The Children’s Act does not directly mention the relocation of one parent or the other, nor does it legislate consent procedures. However, Section 18 stipulates that consent of both parents is needed if one or other wants to emigrate with the child(ren).

The wellbeing of the child extends beyond simple contact with each parent. In some cases the move might be in the child’s best interests. For example, if one parent has an employment opportunity overseas that will significantly enhance the quality of life or environment the child experiences, that situation may be considered as good for the child as remaining near the non-custodial parent. South African law has tended to decide international child custody matters on a case-by-case basis. Furthermore, the views of the children will be considered, though not necessarily accommodated.

While relocating with a child is not as difficult as you might think, it is still a situation that needs to be handled carefully and with due consideration for the law. Failure to follow the correct procedures could have unwelcome consequences down the line. Furthermore, once a child is settled in an environment, even a foreign one, courts are usually reluctant to disrupt the child’s wellbeing by reversing an earlier decision. So if you are considering moving abroad with your child, or if your child’s other parent is relocating with your consent, it is a good idea to take legal advice regarding international child custody. Cape Town family law firm SD Law will ensure your conduct complies with the Children’s Act, in letter and in spirit. We will look after the interests of the child while at the same time respecting your wishes and those of the other parent.


International child abduction is a much more serious matter and is increasingly common globally, as air travel becomes more affordable. The abducting parent may not think of themselves as such or even realise that their behaviour is classed as abduction.

International child abduction is monitored (note – not governed; it is not a piece of legislation) by the Hague Convention on Civil Aspects of International Child Abduction (“the Hague Convention”). The Hague Convention is an international treaty designed to prevent the removal of a child from their home jurisdiction by a parent (or other caregiver) without the consent of the other parent. It also aims to return a child thus illegally removed to their home country. South Africa has been a signatory to the Hague Convention since 1 October 1997 (ratified in 1996).

The Hague Convention defines the removal of a child as improper if it breaches the custody right of anyone based on the laws of the nation where the child was resident prior to their removal. Where two parents have shared (equal) care of a child (i.e. custody), both parents must give consent for a child to be removed, as also required by Section 18 of the Children’s Act. When there is a dispute about a child’s care between countries that are both signatories of the Hague Convention, the courts of the destination country are responsible for returning the child, if appropriate, i.e. unless there is a risk of a human rights violation such as female genital mutilation, and as quickly as possible. Under the Hague Convention, the return should be effected within six weeks.


Unfortunately, only South Africa, Mauritius and Zambia are signatories to the Hague Convention on the African continent. This can make the return of the child more complex, and naturally many  marriages in South Africa are between nationals of African countries. Therefore the Hague Convention does not apply. The Convention only applies to wrongful removals that occur after the treaty comes into effect between two countries.

The return of a child, whether from a Hague Convention signatory country or other, is a matter for the Central Authority in South Africa (the Family Advocate’s Office). You can approach the Central Authority on your own behalf, but it is strongly advised to use the services of capable family law attorneys to lodge an application to court. The Central Authority can be overwhelmed with child abduction applications and a good divorce lawyer, with deep knowledge of child law, can navigate the pathway more expediently than a private individual. The Central Authority will oversee the process. Your legal representative will seek to:

  • Discover the location of the child
  • Secure the voluntary return of the child if possible, or initiate legal proceedings


With luck, and in most cases, the Central Authority and/or your divorce attorney will be able to locate your child and negotiate their return without involving foreign courts. However, if the matter does go to court, there are factors beyond legislation to bear in mind. Has your child been taken to a jurisdiction where cultural or religious beliefs are different to ours? Some countries have a tendency to grant sole custody to mothers. Others may lean toward awarding care to fathers. If a girl child is promised in marriage at a young age, traditional cultures may defend this practice and resist returning the child to the home country. While you can’t change entrenched beliefs in another jurisdiction, the more you are aware of the issues that may impact your case and the better prepared your legal advisers, the greater your chances of success.


In order to begin the proceedings,  for international child custody, that will hopefully result in the return of your child, you need:

  • Completed questionnaire in English
  • Recent photographs of the child and the parent who abducted them
  • Certified copies of birth certificates
  • Proof of parental rights, such as court orders concerning care and contact (custody and access) and/or guardianship
  • Certified copy of marriage certificate, if relevant
  • Last known details of the child and the abducting parent’s possible location
  • Sworn translations in English of all relevant documentation in other languages (e.g. marriage certificates)


At Cape Town family lawyers, we know that being separated from your child is traumatic for you and them. We will work tirelessly to effect a speedy reunion with as little distress for all parties as possible.

If you are relocating with the full consent of the other parent, we will help you revise your parenting plan to reflect the changed circumstances and protect the rights and interests of the child and both parents. Excellent legal advice regarding international child custody will ensure the best outcome in either scenario.

Contact Simon on 086 099 5146 or email to discuss your case in confidence.

Further reading:

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