According to the Institute of Race Relations 9 million children in South Africa grow up with absent fathers. One may assume that the majority of these fathers don’t pay any child maintenance and then an alarming number of fathers in South Africa default on their child maintenance payments. It is a novel idea when people and celebrities alike engage in projects such as “Save the Rhino” but don’t we miss the point? Has the time not come to throw our weight behind projects to save the many thousands of children in South Africa who must suffer the consequences of an absent father who don’t pay child maintenance?  With the increase in divorce and the number of children born outside marriage, more and more women find themselves bearing the sole responsibility of caring for their children.

It is generally accepted that children with fathers who default on their maintenance payments grow up with a strong sense of resentment and rejection. When a parent fails to pay maintenance for their child, the child ends up feeling depressed, disadvantaged and unloved. The non-payment of maintenance, results in degeneration of the family unit and the children are sometimes driven to a life of crime.

In 2005 the government launched Operation Isondlo a maintenance defaulter programme with its aims to decrease the backlog of maintenance cases. This was indeed a noble initiative for which government must be applauded but in reality the effectiveness of the programme is doubtful having regard to the many women complaining about the ineffectiveness and inability to bring defaulters to book.

In 2011 the Western Cape Department of Justice and Constitutional Development released a list of 7 084 fathers across the Western Cape who were in arrears with their maintenance payments. The fathers collectively owed close to R16 million to their children in maintenance, with one father owing more than R200 000. Some women don’t even bother to approach the maintenance court because they feel that it is a pointless exercise. But the reality is that it is not only fathers who default in paying their child maintenance and the second biggest maintenance defaulter captured last year in Cape Town was a woman who owed her child R112 000. It was also found that there are mothers who did not collect their child maintenance and in 2011 about R 1 million in maintenance had been allocated for mothers who simply failed to collect it.

Much sterner measures need to be put into place to compel fathers to pay maintenance. In reality many of these father’s also shift the responsibility to the mother’s new husband or partner which is an extra burden in the harsh economic climate that we live in.

Some of the problems in our maintenance system include inadequately trained court staff and insufficient facilities and resources. The problems in our maintenance system cannot be resolved through the process of legislation alone, but by also creating a culture of maintenance payment amongst all those that are legally liable to maintain those in need of maintenance. If there is no respect for the law, the maintenance system will fail. A well functioning and effective maintenance system is critical not only for the children in South Africa.

We need to find measures to expedite maintenance application procedures, application processing, payments and punitive measures for defaulting parents. The possibility of Saturday courts for maintenance and other matters related to family law need to be investigated and the possibility to introducing mediation services in maintenance matters. In order to address the problem the media need to be engaged in creating awareness of the growing problems regarding child maintenance.

Legally, a duty of support exists between people who have a familial bond. A person who owes another person a duty of support may have to pay maintenance for that person, if the person has the means to provide maintenance and if the receiving person is in need of maintenance. The law requires a child to be supported or maintained by both his/her parents, whether married, living together, separated or divorced or by both his/her grandparents, in certain cases. South African law imposes a duty on both maternal and paternal grandparents to contribute towards maintenance if the child’s parents are unable to do so in part or in full. There is a duty of support between siblings, both full and half brothers and sisters where the parents and grandparents are unable to provide support, but the support does not extend to include tertiary education of a major sibling. Effectively this means that a mother in need of maintenance of her child may summons the paternal grandparents to the maintenance court if the father is unable to pay.

Source: http://voices.news24.com/bertus-preller/2012/05/child-maintenance/

Contact details:

Bertus Preller

bertus@divorceattorney.co.za

O: 021 422 1323

Making the decision to divorce is a tough one, and the chances are it’s followed by an even more traumatic lead-up to the divorce, it is like a roller-coaster on an emotional track.

Women are mostly in the dark when it comes to the financial affairs of her husband and women are encouraged to gather as much financial information about their husband’s financial affairs before the divorce proceedings commence, to establish the magnitude of the estate.

It is extremely important for any woman to know what’s going on in her husband’s financial affairs. It’s difficult when you don’t have access to his share portfolio or balance sheet, but one must reasonably expect to get an idea of financial affairs.

An attorney cannot negotiate on behalf of a spouse without knowing in advance what the estate is worth.

In many divorce settlements, the wife ends up seeing what the estate is worth only late in the divorce process.

16 Important points to consider in divorce:

1. Make copies of your husband’s bank statements, credit card statements and get hold of the short-term insurance policies as well as copies of pension funds and retirement funds. This will provide input on the extent of assets available and the value of the estate.
2. If you are married in community of property or out of community of property with the accrual you have to ask your attorney to build a clause into the settlement agreement to say if any assets that come to light after the divorce settlement, you will be entitled to 50% of those assets and the husband will have to pay the legal fees involved in the recovery process of those assets when they do come to light.
3. A more accurate sense of assets will come to light if the divorce is contested as parties are required to disclose any information to do with financial affairs. In terms of the court rules the husband can be required to make full disclosure of his assets and liabilities and you will be able to obtain all financial information spanning over a period of 3 years or more, including bank statements, credit card statements, investments etc.
4. Women are advised not to leave the matrimonial home if there are minor children involved, because it provides a sense of stability for the kids. It’s better for the husband to leave if the husband is not the primary caregiver. If a husband makes himself guilty of abuse, the wife can get a restraining order to evict him from the property under certain circumstances or restrain him to enter certain areas of the house.
5. Where the parties are married in community of property the wife is entitled to half the pension or retirement annuity fund. In a marriage out of community with the accrual, the pension fund will be regarded as part of the husband’s assets for purposes of calculating the accrual that the wife will be entitled to.
6. In terms of the Divorce Act, the wife (if married in community of property) can choose to ask for the pension fund money to be paid in cash, or transferred to a pension fund of her choice.  Normally pension funds pay out the wife’s portion in 3 to 6 months after the divorce.
7. Make a list of your monthly income and expenses, as if you’re going to live on your own with your children. It’s important because you get situations where the wife is not working or earns much less than the husband and doesn’t have the money to fight a divorce battle.  She can bring an application pending a divorce, for interim maintenance, which means contributing maintenance before the divorce is finalised. She can also apply for contribution to her legal expenses. If interim-maintenance is granted and the husband does not comply with the court order, he is in contempt of court.
8. In some instances the wife can apply for emergency monetary relief in the magistrate’s court pending the institution of an application for interim maintenance by utilizing the provisions of the domestic violence act because the husband has blocked the use of credit.
9. Interim maintenance falls away once the divorce order is granted. There have been situations where the wife has been granted very favourable interim maintenance terms, so sometimes a divorce is stalled  in order to continue getting a hearty amount of money each month.
10. The granting of interim maintenance in a Rule 43 application cannot be appealed. The only way the husband can minimize this is if he goes back to court and explains and proves that his financial situation has changed so much that he’s entitled to a reduction. But this does not happen easily.
11. Many battles in a divorce surround the children. Normally the wife is the parent of primary residence and the husband the parent of alternate residence. Increasingly, there’s a shared parenting approach with children staying with the mother for a week and then the father for a week and each party takes care of the children during that period.  I see a lot of children used as a pawn. It is important to get a parenting plan in place as soon as possible, and register that with the family advocate and stipulate that if issues arise with parenting and the children the parties need to go to a psychologist or a social worker to facilitate contact.
12. In matters where money is not fought over, it may make financial sense to go to one lawyer who can work for both parties. But a divorce that is acrimonious requires that each party needs a lawyer to assist.
13. A few mediation organizations exist where people can see a mediator to resolve disputes, to settle with both parties. The mediator doesn’t have the authority to issue and award for damages but he can facilitate the settlement process. If an abusive husband is involved, mediation is unlikely to work.  But it can work if the divorce is not acrimonious. Normally the spouses have to pay the costs of a mediator 50/50. Sometimes this route can be more expensive than an uncontested divorce, depending on the amount of sessions that the parties have to attend.
14. Where a couple owns a property together, they need to decide whether both parties want to keep the interest in the property, sell the property and split the proceeds, or whether one wants to buy out the other. The decision has financial implications because of transfer duties and tax.
15. It’s important to consider instances where the husband has no real assets. An insurance policy should be taken out in the event that the husband passes away and there is no money to help cover maintenance, in case of his death.
16. The decision to divorce is always a business decision. You need to look at what happens until the children turn 21 or becomes self supporting, that there’s maintenance, medical cover for them, a school education and whether it’s government or private school and tertiary education.

Source: http://divorceattorneys.wordpress.com/2012/04/30/divorce-what-every-woman-should-know/

About the Author:

Bertus Preller is a Divorce Attorney at Abrahams and Gross in Cape Town, a law firm that has been in existence since 1935 and has more than 20 years experience in most sectors of the law and 13 years as a practicing attorney. He specializes in Family Law and Divorce Law in and handles divorce and family law matters across South Africa. Bertus is also the Family Law expert on Health24.com, he blogs regularly on news24.com and nuus24.com and has been quoted on Family Law issues in various newspapers such as the Sunday Times and Business Times and magazines such as Noseweek, Keur, Living and Loving, Longevity, You and Huisgenoot, and also appears frequently on the SABC television show 3 Talk. His clients include artists, celebrities, sports people and high net worth individuals. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Parenting Plans, Parental Responsibilities and Rights, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters, international divorce law, digital rights, media law and criminal law.

Contact details

bertus@divorceattorney.co.za or follow him on Twitter: @bertuspreller

O: 021 422 1323

Some time ago I wrote an article about an application argued in the Cape Town High Court in the matter of CM v NG. Judgement in this matter was reserved and handed down by Gangen A J on 26 April 2012. Family Law experts, Adv Julia Anderssen and Adv Retha Maas two Cape Town Advocates argued this matter. The case can be regarded as a watershed case for same sex couples with children and will be a reported judgement.

This was an application in terms of Sections 23 and 24 of the Children’s Act 39 of 2005 (“the Act”) and concerned parties that was involved in a same sex relationship for several years. The parties did not register a marriage. During the relationship, a child was conceived by artificial insemination. The relationship between the parties started in May 2005 ended their relationship in November 2010. The applicant (not the biological mother) lodged an application to court and requested an order granting her full parental rights and responsibilities in respect of the minor child.

When the parties ended their relationship the Applicant still had contact with the minor child until approximately April 2011. During April 2011 the Respondent (biological mother) advised the Applicant that she wanted to stop her contact with the minor child. Her reason was that it was not in the minor child’s best interests. The child was in the biological mother’s care at the time. The applicant then lodged an application to court in April 2011 compelling the biological mother to co-operate with the Family Advocate and an expert identified by the applicant.

The Children’s Act is clear on the point that someone does not have automatic parental rights in terms of Sections 19 and 22 of the Act if there is no biological link to a child and such a person. Furthermore the Applicant does not acquire automatic rights and responsibilities in terms of Section 40 of the Act which deals with children conceived by artificial insemination. Without a parental agreement the Applicant could therefore only apply to the court in terms of Sections 23(2) and 24(2) of the Act. Common to both these Sections is the “best interests” of the child.

The court found that the Applicant did indeed have parental responsibilities and rights as set out in Section 18 as it would be in the best interests of the child to have a relationship with both parents. The court concluded that both parties be co-holders of parental rights and responsibilities in respect of the minor child as contemplated in sections 18(2) (3) (4) and (5) of the 2005 Children’s Act and that the Applicant’s shall be co-guardians of the child.

About the Author:

Bertus Preller is a Divorce Attorney at Abrahams and Gross in Cape Town, a law firm that has been in existence since 1935 and has more than 20 years experience in most sectors of the law and 13 years as a practicing attorney. He specializes in Family Law and Divorce Law in and handles divorce and family law matters across South Africa. Bertus is also the Family Law expert on Health24.com, he blogs regularly on news24.com and nuus24.com and has been quoted on Family Law issues in various newspapers such as the Sunday Times and Business Times and magazines such as Noseweek, Keur, Living and Loving, Longevity, You and Huisgenoot, and also appears frequently on the SABC television show 3 Talk. His clients include artists, celebrities, sports people and high net worth individuals. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Parenting Plans, Parental Responsibilities and Rights, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters, international divorce law, digital rights, media law and criminal law.

Contact details

bertus@divorceattorney.co.za

O: 021 422 1323

Source:

http://divorceattorneys.wordpress.com/2012/04/26/watershed-case-about-parental-rights-and-responsibilities-of-children-from-a-same-sex-relationship/

Some time ago I wrote an article about an application argued in the Cape Town High Court in the matter of CM v NG. Judgement in this matter was reserved and handed down by Gangen A J on 26 April 2012. Family Law experts, Adv Julia Anderssen and Adv Retha Maas two Cape Town Advocates argued this matter. The case can be regarded as a watershed case for same sex couples with children and will be a reported judgement.

This was an application in terms of Sections 23 and 24 of the Children’s Act 39 of 2005 (“the Act”) and concerned parties that was involved in a same sex relationship for several years. The parties did not register a marriage. During the relationship, a child was conceived by artificial insemination.

The relationship between the parties started in May 2005 and ended in November 2010. The applicant (not the biological mother) lodged an application to court and requested an order granting her full parental rights and responsibilities in respect of the minor child.

When the parties ended their relationship the Applicant still had contact with the minor child until approximately April 2011. During April 2011 the Respondent (biological mother) advised the Applicant that she wanted to stop her contact with the minor child. Her reason was that it was not in the minor child’s best interests. The child was in the biological mother’s care at the time. The applicant then lodged an application to court in April 2011 compelling the biological mother to co-operate with the Family Advocate and an expert identified by the applicant.

The South African Children’s Act is clear on the point that someone does not have automatic parental rights in terms of Sections 19 and 22 of the Act if there is no biological link to a child and such a person. Furthermore an Applicant does not acquire automatic rights and responsibilities in terms of Section 40 of the Act which deals with children conceived by artificial insemination. Without a parental agreement an Applicant could therefore only apply to the court in terms of Sections 23(2) and 24(2) of the Act. Common to both these Sections is the “best interests” of the child.

The court found that the Applicant did indeed have parental responsibilities and rights as set out in Section 18 as it would be in the best interests of the child to have a relationship with both parents. The court concluded that both parties be co-holders of parental rights and responsibilities in respect of the minor child as contemplated in sections 18(2) (3) (4) and (5) of the 2005 Children’s Act and that both parties shall be co-guardians of the child.

About the Author:

Bertus Preller is a Divorce Attorney at Abrahams and Gross in Cape Town, a law firm that has been in existence since 1935 and has more than 20 years experience in most sectors of the law and 13 years as a practicing attorney. He specializes in Family Law and Divorce Law in and handles divorce and family law matters across South Africa. Bertus is also the Family Law expert on Health24.com, he blogs regularly on news24.com and nuus24.com and has been quoted on Family Law issues in various newspapers such as the Sunday Times and Business Times and magazines such as Noseweek, Keur, Living and Loving, Longevity, You and Huisgenoot, and also appears frequently on the SABC television show 3 Talk. His clients include artists, celebrities, sports people and high net worth individuals. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Parenting Plans, Parental Responsibilities and Rights, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters, international divorce law, digital rights, media law and criminal law.

Contact details

bertus@divorceattorney.co.za

O: 021 422 1323

Parental alienation involves the systematic brainwashing, poisoning and manipulation of children with the sole purpose of destroying a loving and warm relationship they once shared with a parent.  As everyone knows, divorces can often be acrimonious. Add children to the mix, and the animosity heightens even more, as both parents strive to do what they feel is in the best interests of the children. At times these efforts evolve into accusations that the other parent is “bad” causing the child to side with one parent over his/her dislike for the other. This world is rife of parents using their children as pawns in the dirty game of divorce or where children are born out of wedlock. We have all heard of the old saying “no maintenance no kids” or “you left me so you won’t see your kids”. Parents don’t realise the damage they are doing in using their children as a means to get back at the other parent.

So often you hear about a mother complaining that a father sexually abused a child, with no evidence to substantiate the claim, simply in an attempt to isolate the father from having a relationship with the child or a mother obtaining a restraining order against a father simply to restrain the father from having a relationship with a child. Although it seems to be mostly women that play this deadly game, there are also fathers who use their children as pawns against the mother. Unfortunately in battles of this sort attorneys are sometimes also to blame and fuel the battles on behalf of a client losing sight of what the best interest of a child really means. Depriving the other parent of a relationship with his/her children is possibly one of the most devious methods to ruin a solid society.

“Parental Alienation Syndrome” (PAS), is a term first used by the late child psychiatrist Richard A. Gardner in 1985. Dr. Gardner studied the behaviour of parents involved in child custody disputes. He noted that sometimes the children align themselves with one parent. While this is natural to a degree, Dr. Gardner noticed that in some cases it could be extreme to the point it borders on a physiological disorder. He described the so-called disorder or syndrome as follows:

“Its primary manifestation is the child’s campaign of denigration against the parent, a campaign that has no justification. The disorder results from the combination of [either deliberate or unconscious] indoctrinations by the alienating parent and the child’s own contributions to the vilification of the alienated parent”.

The American Psychiatric Association is contemplating adding PAS to the new edition of the Diagnostic and Statistical Manual of Mental Disorders, scheduled to be published in May 2013. William Bernet, a professor of psychiatry at the Vanderbilt University School of Medicine and an advocate for its inclusion in the Diagnostic and Statistical Manual of Mental Disorders, describes it as “a mental condition in which a child, usually one whose parents are engaged in a high conflict divorce, allies himself or herself strongly with one parent, and rejects a relationship with the other parent, without legitimate justification.”

The form of PAS most experienced is that of negative words by one parent about the other, leading the child’s thoughts and attitudes in the same direction. The alienating parent might also cause the child, through manipulation and access blocking, to unjustifiably fear and/or hate the target parent. The parent with primary residence may engage in direct and indirect methods designed to alienate the child from his or her non-residential parent. As a result the child becomes preoccupied with unjustified criticism and hatred of the non-residential parent. This sometimes lead to brainwashing which result in conscious acts of programming the child against the other parent”. Examples include accusing the father of being an “adulterer” and “deserter.” The father is unjustifiably accused of providing too little maintenance, sometimes to the point that the mother misleads the children to believe that terrible things will happen to them. When a father leaves the home, the mother may make statements such as, “your father has abandoned us,” to teach the child that the rejection extends not only to the mother but to the c. children as well. Minor negative attributes one the father’s side are exaggerated greatly. For example, the father who occasionally has a drink after dinner is described as an alcoholic.

Section 35 of the South African children’s act criminalizes the refusal to allow someone access or who holds parental responsibilities and rights in terms of a court order or a parental responsibilities and rights agreements that has taken effect, to exercise such access or parental responsibilities and rights. It also criminalizes prevention of the exercise of such access or parental responsibilities and rights. Punishment for any of these offences is a fine or imprisonment for up to one year. The section further obliges a person who co-holds parental rights and responsibilities with another person in terms of an agreement or court order to notify the other party in writing immediately of any change in his/her residential address. Failure to notify such party will result in an offence.

Bertus Preller

Family Law Attorney

Abrahams and Gross Inc.

Tel: 021 422 1323

Email: info@divorceattorney.co.za

Follow on Twitter: @bertuspreller

Blog:  http://www.divorceattorneys.wordpress.com

Source: http://voices.news24.com/bertus-preller/2012/04/your-occupation-may-predict-the-length-of-your-marriage/

According to a study done at the Radford University in the United States people who are working in stressful jobs or extrovert environments have a much higher risk of getting divorced. While it is not surprising that marriages fail when spouses have jobs that demand long hours and unpredictable work cycles studies did find that a few occupations carried a higher risk for divorce than what one might expect.

One may assume that people working in extrovert environments like for example in the entertainment or hospitality industries, will obviously meet more people and have more opportunity to develop relationships with them but studies also found that people working in the nursing and caring-type professions have a higher risk of divorce than what one would normally expect.

There are many factors at play in the occupation that a person has. Your occupation defines the amount of hours you work, the mental toll it takes, and also the personality you may develop during the course of your employment and conversely, on may argue that the occupation you choose maybe a reflection of your personality.

It is believed that individuals who are habitually unhappy with their work often those in low-earning, low-skilled professions may transfer this dissatisfaction to their spouse and children. A frustrating job may lead to immature defences such as displacement onto others, especially one’s closest family members.

A recent study by the Florida State University College of Business that questioned 400 working couples on the health of their relationship and how stressful their daily life was found that when work related stress strongly affects a couple, that couple risks a deteriorating relationship unless they are willing to emotionally support each other. When you are still angry or upset from yesterday’s stress, your workday will likely go in only one direction – down. Whenever this type of stress permeates through a relationship, it either brings the couple together or splits it apart.

The study also found that not only does work stress at home affect a relationship, but it also makes spouses less alert and less focused at work.

The jobs with the highest divorce rate

Low divorce rates around 5 to 6% were reported for optometrists and podiatrists. Dancers (including the exotic variety), massage therapists and bartenders still top the list of occupations likely to result in divorce with a 38 – 43% divorce rate. Those who work in the evenings are a distinct disadvantage, because the marital friendship usually suffers, with ensuing significant loneliness.

The table below identifies that the highest divorce rates are for dancers, bartenders, and, all around 40%. The extroverted nature of these jobs may reflect a personality that is unwilling to commit.

The occupations with the lowest divorce rates (of less than 10%) mostly seem to be engineers.

Below is a list of some of the occupations and the corresponding divorce rates:

Parental alienation involves the systematic brainwashing, poisoning and manipulation of children with the sole purpose of destroying a loving and warm relationship they once shared with a parent.  As everyone knows, divorces can often be acrimonious. Add children to the mix, and the animosity heightens even more, as both parents strive to do what they feel is in the best interests of the children. At times these efforts evolve into accusations that the other parent is “bad” causing the child to side with one parent over his/her dislike for the other. This world is rife of parents using their children as pawns in the dirty game of divorce or where children are born out of wedlock. We have all heard of the old saying “no maintenance no kids” or “you left me so you won’t see your kids”. Parents don’t realise the damage they are doing in using their children as a means to get back at the other parent.

So often you hear about a mother complaining that a father sexually abused a child, with no evidence to substantiate the claim, simply in an attempt to isolate the father from having a relationship with the child or a mother obtaining a restraining order against a father simply to restrain the father from having a relationship with a child. Although it seems to be mostly women that play this deadly game, there are also fathers who use their children as pawns against the mother. Unfortunately in battles of this sort attorneys are sometimes also to blame and fuel the battles on behalf of a client losing sight of what the best interest of a child really means. Depriving the other parent of a relationship with his/her children is possibly one of the most devious methods to ruin a solid society.

“Parental Alienation Syndrome” (PAS), is a term first used by the late child psychiatrist Richard A. Gardner in 1985. Dr. Gardner studied the behaviour of parents involved in child custody disputes. He noted that sometimes the children align themselves with one parent. While this is natural to a degree, Dr. Gardner noticed that in some cases it could be extreme to the point it borders on a physiological disorder. He described the so-called disorder or syndrome as follows:

“Its primary manifestation is the child’s campaign of denigration against the parent, a campaign that has no justification. The disorder results from the combination of [either deliberate or unconscious] indoctrinations by the alienating parent and the child’s own contributions to the vilification of the alienated parent”.

The American Psychiatric Association is contemplating adding PAS to the new edition of the Diagnostic and Statistical Manual of Mental Disorders, scheduled to be published in May 2013. William Bernet, a professor of psychiatry at the Vanderbilt University School of Medicine and an advocate for its inclusion in the Diagnostic and Statistical Manual of Mental Disorders, describes it as “a mental condition in which a child, usually one whose parents are engaged in a high conflict divorce, allies himself or herself strongly with one parent, and rejects a relationship with the other parent, without legitimate justification.”

The form of PAS most experienced is that of negative words by one parent about the other, leading the child’s thoughts and attitudes in the same direction. The alienating parent might also cause the child, through manipulation and access blocking, to unjustifiably fear and/or hate the target parent. The parent with primary residence may engage in direct and indirect methods designed to alienate the child from his or her non-residential parent. As a result the child becomes preoccupied with unjustified criticism and hatred of the non-residential parent. This sometimes lead to brainwashing which result in conscious acts of programming the child against the other parent”. Examples include accusing the father of being an “adulterer” and “deserter.” The father is unjustifiably accused of providing too little maintenance, sometimes to the point that the mother misleads the children to believe that terrible things will happen to them. When a father leaves the home, the mother may make statements such as, “your father has abandoned us,” to teach the child that the rejection extends not only to the mother but to the c. children as well. Minor negative attributes one the father’s side are exaggerated greatly. For example, the father who occasionally has a drink after dinner is described as an alcoholic.

Section 35 of the South African children’s act criminalizes the refusal to allow someone access or who holds parental responsibilities and rights in terms of a court order or a parental responsibilities and rights agreements that has taken effect, to exercise such access or parental responsibilities and rights. It also criminalizes prevention of the exercise of such access or parental responsibilities and rights. Punishment for any of these offences is a fine or imprisonment for up to one year. The section further obliges a person who co-holds parental rights and responsibilities with another person in terms of an agreement or court order to notify the other party in writing immediately of any change in his/her residential address. Failure to notify such party will result in an offence.

http://voices.news24.com/bertus-preller/2012/04/children-are-not-pawns-in-the-game-called-divorce/

Many of South African children are growing up in dysfunctional families. Millions of children grow up living without one of their parents. The consequences for young people our country’s future entrepreneurs, workers and leaders may be dire.

More than 20 000 children are affected by divorce each year in South Africa. According to Stats SA, the distribution of the number of children affected by divorce in 2010 shows that 37,9% (7 719) were from the black African population group; 27,6% (5 633) from the white population group, 17,3% (3 529) from the coloured population group and 5,5% (1 113) from the Indian/Asian population group.

According to a 2011 study by the South African Institute of Race Relations only a third of children in South Africa are growing up living with two of their parents, 98 000 children live in child-headed households, 81 percent of whom have a living mother and 9 million children are growing up with absent but living fathers. As in any country, single parenthood arises because of divorce, death or estrangement of a spouse and teenage pregnancy.

According to the study, increasing numbers of fathers are absent, and a ‘crisis of men’ in South Africa seems to be perpetuating patterns of abuse and desertion that will most likely continue with future generations. A racial dimension is also evident in many of the trends associated with family life. African families are more likely to have single parents and absent fathers than other race groups, particularly Indian families.

In South Africa, questions need to be asked about why these trends increase. Issues such as attitudes to parental responsibility and attitudes to monogamy and commitment to relationships need to be publicly discussed, and addressed by broader society. Why do parents, particularly fathers, fail to acknowledge their parental responsibilities? If this is seemingly acceptable to broader society, why is this so? What values are being passed on to our children?

It is not only in South Africa that there seems to be an increase in single-parent families. Also in the UK more couples shun weddings and children are increasingly likely to live with unmarried parents as married ones. In the UK some 8,000 same-sex couples now have children according to the Office for National Statistics, while almost 8million people are living alone.

There is a continuing decline in the popularity of marriage as more relationships break down and fewer couples choose to wed. In the UK over the past decade the number of married couples fell by 262,000 to 12 million, while the number of cohabiting couples rose from 2.1million to 2.9million and there are 1.8 million children living with unmarried partners.

Only 35% of children in South Africa grow up living with both their biological parents. Dysfunctional families are damaging the prospects of younger generations and there is evidence that children from broken families are more likely to have relationship problems and create fractured families themselves in future.

From a marriage point of view people have to rid themselves of the dream that they are going to find a spouse one day who is perfect in every way – physically, emotionally and intellectually, it is simply impossible.

In today’s digital age we live by “remote control”, if we don’t like the channel that we are watching we simply switch channels and watch something more entertaining. Only to find that the new partner is as flawed as the last. Almost like a hydra, cut off one head and get rid of a boring partner but inherit 20 new problems, your new partner’s children, insecurities, family and so on. It may be so that not all second marriages are doomed but the statistics colour a different picture. Family breakdown affects everyone and a break-up shocks the whole foundation of the family and mostly it never recovers.

Source: http://voices.news24.com/bertus-preller/2012/03/single-parent-families-on-the-rise-in-south-africa/

Bertus Preller

Family Law Attorney

Abrahams and Gross Inc.

Tel: 021 422 1323

Email: info(@)divorceattorney.co.za

Follow on Twitter: @bertuspreller

Blog:  http://www.divorceattorneys.wordpress.com

By Lindsey Thorpe

The Regulation of Interception of Communication and Provision of Communication-Related Information Act, 70 of 2002 (“RICA”) has become more commonly associated with cell phone sim card registrations. It is a generally unknown fact that this Act deals extensively with, in addition to the above, communications in the workplace.

The Act regulates an employer’s right to intercept or monitor the communications of the employees in the working environment. It is of paramount importance that the respective rights of the employer and the employees are balanced. The employer has a right to protect his or her proprietary interests while the employees have the right to protect their right to privacy.

In the recent unreported case of Smith and Partners in Sexual Health (Non-Profit) CCMA (WECT 13711-10) the CEO of a company accidently gained access to one of her employee’s email accounts, mistakenly believing it to be the company’s account. In the emails, the employee complained about her job and her employer and informed others about the goings on at the company itself. The employee was dismissed and took her case to the CCMA where it was held that she was unfairly dismissed. The court in this case did not rely on RICA and instead placed more weight on who owned the Gmail account. The Court concluded that the CEO had no right to read the employees emails since it was her personal account (on the employer’s computer).

The Court should have taken into account the several exceptions contained in RICA in coming to its decision. An employer may rely upon these exceptions in order to justify any monitoring or interception of an employee’s communications. An interception, according to the Act, may be ‘authorised’ in various ways, including: if the employer is a party to the communication or if the monitored party has provided written consent.

In addition, RICA provides that the employer will be justified if he or she will be able to prove the communication was intercepted in the course of the carrying on of any business; if that communication relates to that business, or which otherwise takes place in the course of the carrying on of that business .Importantly, the interception must be effected by, or with the express or implied consent of the system controller, for the purposes of monitoring or keeping a record of indirect communications; in order to establish the existence of facts if the telecommunication system concerned is provided for use wholly or partly in connection with that business; and if the system controller has made all reasonable efforts to inform in advance a person who intends to use the telecommunication system concerned that indirect communications transmitted by means thereof may be intercepted.

Therefore, in order to prevent civil litigation by employees should the employer be found to be monitoring or intercepting their communications, employers must ensure that their employees are fully aware of any policies regarding interception or monitoring and these policies should be included and explained in detail in the employment contracts. Should an employer fail to comply with the provisions of the Act, he or she runs the risk of being convicted of a criminal offence, and could be forced to pay a fine not exceeding R2 000 000 or be imprisoned for a period not exceeding 10 years.

LINDSEY THORPE

Candidate Attorney

ABRAHAMS & GROSS INC

Attorneys, Notaries & Conveyancers

1st Floor, 56 Shortmarket Street, Cape Town, 8001

PO Box 1661, Cape Town, 8000

Tel: (021) 422 1323 Ext 243 Fax: (086) 628 3402

Internet: http://www.abgross.co.za

Email: lindseyt@abgross.co.za