Attorney Bertus Preller at Abrahams and Gross Inc. publishes book on Divorce and Separation in South Africa
Everyone's Guide to Divorce and Separation
- maintenance issues;
- all factors regarding the children, including how to implement a parenting plan, how much child maintenance will likely be required, and how to file for maintenance and child support;
- the procedures to obtain a protection order when there is domestic violence or abuse;
- an unmarried father’s rights and how to acquire parental rights; and
- the law on cohabitation, same-sex marriages, and how to draft a proper cohabitation agreement.
Bertus Preller specialises in family and divorce law at Abrahams and Gross in Cape Town. He has been quoted on family law issues in various newspapers and magazines and also appears frequently on the SABC television show 3Talk and national radio. His clients include artists, celebrities, sportspeople and high net-worth individuals. His areas of expertise are divorce law, family law, divorce mediation, parenting plans, parental responsibilities and rights, same-sex marriages, unmarried fathers’ rights, domestic violence and abuse, and international divorce law.
The New Companies Act, 71 of 2008 – Memorandum of Incorporation
As you may be aware, the new Companies Act, 71 of 2008 (“the Act”), as amended, provides that all provisions in the Memorandum and Articles of Association (“the Articles”) of any company which existed prior to 1 May 2011 shall remain applicable and enforceable until 30 April 2013 even if these provisions are in conflict with the New Act. Thereafter, the provisions of the Act shall apply, unless the company has replaced its Articles with a new MOI.
The Act introduced new concepts, requirements and procedures which all have a direct effect on companies. If a company does not replace its Articles with a new Memorandum of Incorporation (“MOI”), its shareholders and directors will not know which of the provisions in its Articles shall apply and whether their actions are in compliance with the Act.
The new Act provides, amongst other things, that private companies do not have to be audited. If a private company has not removed the compulsory audit from its Articles nor has it replaced its Articles with a new MOI, such company’s financial statements for the year ending on 28 February 2013 must still be audited.
Companies with par value shares cannot use CIPC’s short MOI to replace their Articles. They will have to use a unique or company specific MOI to ensure that no audit is required. Such MOI should contain substantial provisions to assist shareholders and directors with the executions of their duties and responsibilities and to ensure compliance with all regulations.
It is in the best interests of all companies which existed prior to 1 May 2011, to replace their Articles with a new MOI. Should you have any further queries in this regard, please do not hesitate to liaise with me swiftly bearing in mind the deadline of 30 April 2013.
Juan Smuts
Director: Abrahams and Gross Inc.
021 – 422 1323
Social media sites – how they are influencing the development of the law
The impact and influence of social media sites on our lives is becoming ever more apparent. A topic of constant debate is to what extent these sites and our interaction with them can impact our lives, both private and in the workplace.
A common perception is that what is said on social media sites such as Facebook, Twitter and Youtube is considered, for the most part, private; and that these sites are a simple means for people to express their right to freedom of speech, vent frustrations, make comments and banter among friends, without any ramifications and external effect on their lives. The reality is such that as easily accessible as social media sites are to the individual, they are just as accessible to businesses, companies and firms. It is for this very reason that the world’s professional sectors have had the initiative to join many of these sites as another means to advertise and generate interest around many of the products and services on offer.
The legal profession fell behind the rest of the professional world in terms of putting these social media networks to use. The influence of these networks has however now infiltrated the South African legal profession and system; and our law will hopefully continue to evolve as the world around us becomes smaller due to the influence and accessibility of social media network sites to all.
A recent judgement out of the South Gauteng High Court granted a Facebook user an interdict that the respondent was to remove all postings which she had made to Facebook or any other site in the social media which referred to the applicant, after she insulted him on the site. This judgement sets a precedent which is totally new to our law.
One can be sure that this is just the beginning, and given the ever-increasing popularity, and frequency with which these social media sites are used it is sure to be a good starting point for potential litigants in a similar position. These sites are easily accessible to companies and businesses, which have just as strong a right as you and I, to have their reputation and good name protected.
There have been many instances world-wide where companies have taken disciplinary action against employees and in some cases even dismissed employees for some or other form of libel or defamation towards their employers. The same principles apply, and if a statement or posting adversely affects the interests or reputation of the employer, the author could find themselves in a situation far from the bounds of their expectations at the time of updating a status or posting on a wall.
According to LawSA, the delict of defamation is the unlawful or wrongful publication of a defamatory statement concerning the plaintiff. A statement is defamatory if it has the effect of injuring a plaintiff’s reputation, and this can simply mean any statement that tends to lower the plaintiff in the estimation of right-thinking members of society or what is commonly termed in the eyes of “the reasonable person”.
It is not an element of defamation that the statement should have been false because the defamatory nature of a statement is not dependent on its falsity. Once a plaintiff establishes that a defendant has published a defamatory statement concerning him or herself, it is presumed that the publication was both unlawful and intentional. A defendant wishing to avoid liability for defamation must then raise a defence which rebuts either unlawfulness or intention.
It is therefore not as simple as logging on and venting your frustrations about an employer/colleague/company to a friend on Facebook or Twitter. The individual liability can have consequences unforeseen to the casual social media user. Many companies will do random checks on their employees and an even larger number have taken to pulling up a Facebook profile prior to an interview with a potential candidate for a vacancy. With this is mind it is very clear that that the impact of social media sites is not as private as many of us would hope it to be.
Another striking change came in August 2012 after the Durban High Court judgement in CMC Woodworking Machinery (Pty) Ltd v Peter Odendaal Kitchens, in which Judge Steyn allowed the Plaintiff to serve certain legal documents on the Defendant via the Defendant’s Facebook account.
In terms of the judgement different forms of substituted service are allowed when one is unable to trace a party or unable to communicate with a party. It was said that a private message via a social media network falls in the scope of Rule 4(2) of the Uniform Rules of Court and should therefore be allowed as a valid form of substituted service.
International social media networks are already accepted as valid forums for the service of legal documents and in light of the Durban High Court judgement it is clear that the South African legal system is now also developing accordingly.
Given the ever increasing fact that parties are spread all over the world, the provision for service of legal proceedings according to the traditional methods are no longer, in all matters, reasonable or possible. Because of the change in technology new avenues for service of legal documents have been developed and the legal profession is now in the process of adopting these avenues to enable more effective legal proceedings in the future.
Although there are still some concerns surrounding the new methods, it is now possible for parties to apply to the courts for substituted service by way of a personal message to a party’s Facebook account should the party have an active account.
Abrahams & Gross Inc was recently successful in applying to the Cape Town High Court for an order allowing substituted service of a Divorce Summons via the Defendant’s Facebook account. A first in this court!
Facebook, and other social media networks, are an effective communication tool and can now be used as an accepted alternative to personal service of legal documents. Who could have even conceptualised this when our law was developing all those years ago?
Judge Willis in the Facebook case placed emphasis on the need for the common law to develop in line with changing and advancing technology.
“…The law has to take into account changing realities not only technologically but also socially or else it will lose credibility in the eyes of the people. Without credibility, law loses legitimacy. If law loses legitimacy, it loses acceptance. If it loses acceptance, it loses obedience. It is imperative that the courts respond appropriately to changing times, acting cautiously and with wisdom.”
How to Object Against the Cape Town Property Valuation Roll
The General Valuation Roll (2012) is currently available for inspection by visiting the City of Cape Town’s website and already numerous complaints and objections are streaming in to our office from all over the Cape Peninsula. Legislation allows any person to lodge an objection against the valuation of any property on the valuation roll if they believe that the valuation is incorrect. The Municipal Property Rates Act states that properties must be valued at market value – which it defines as “the amount the property would have realised if sold on the date of valuation in the open market by a willing seller to a willing buyer”.
FREQUENTLY ASKED QUESTIONS
How was my property valued?
The City of Cape Town’s municipal valuers use a programme called CAMA – a computer aided analytical procedure – which estimates the general market value of properties within Cape Town. This system does not into account the different circumstances in the various properties in a given area and may result in some home owners ending up with a higher valuation than deserved.
Why was my property not individually inspected?
There is no duty on the municipality to conduct individual site inspections in terms of the legislation. Only when the information available on the valuations database is unreliable or changes have been made to certain properties, will your property be physically inspected.
How do I object to the valuation of my property?
Should you disagree with the municipal valuation of your property, you must submit the requisite objection form before the end of the official objection period. The objection period is now open and ends on 30 April 2013.
What constitutes an objection?
You may object to any information displayed on the valuation roll, however, you must be able to support your objection with the necessary documentation. The onus is on you to prove that the market value assessment is wrong. If your objection is based on an incorrect valuation, your objection will have to be supported by a sworn appraisal.
Please Note:
Comparing the valuation to those received by your neighbours does not automatically imply that your valuation is incorrect.
Should the address on your valuation notice/roll be missing or incorrect, this does not mean that the incorrect property was valued. The address of the property is not used to identify the property for valuation, its legal description is used to determine its location.
The mere fact that there has been a substantial increase in the value of the property compared to the last valuation in itself does not constitute a valid ground of objection.
What happens after Abrahams & Gross has lodged my objection?
The objection will be submitted to the municipal valuer who assesses the objection and makes a decision . You will be notified in writing of the decision, whether any adjustment has been made to the roll. You may request written reasons from the municipal manager for the decision, within 30 days of being notified of same.
Can I appeal the decision?
You are entitled to appeal against the decision of the municipal valuer should you be able to prove valid grounds on which to base the appeal. You shall need to adhere to the time frames in this regard.
What about rebates?
There are certain instances where rebates may be claimed.
Do I still need to continue paying my current rates account if I do not agree with the value and I have submitted my objection?
You need to pay the rates on your previous valuation until the objection is finalised.
From when will the new rates take effect?
1 July 2013
Should you wish to find out more about how to object to your valuation, please contact either Basil De Sousa, Gary Cox, Lindsey Thorpe or Luzuko Niyabo on 021 422 1323 immediately as the time period in which to lodge your objection expires on 30 April 2013. No late objections will be considered.
Specialist divorce attorneys appointed at Abrahams and Gross
Mariska Taylor
Mariska Taylor joined Abrahams and Gross in Cape Town as a Junior Associate in 2012 and practises in the Family Law Department. Having attended Stellenbosch University she obtained a Bachelor of Laws degree in 2010. Mariska completed her articles at the law firm Van Der Spuy and Partners in Cape Town.
Mariska is regarded as a specialist on unmarried fathers rights and maintenance law and have dealt with numerous child maintenance and spousal maintenance cases before the maintenance court. In addition Mariska also specialises in divorce law, care and contact and parental responsibilities and rights disputes.
Melissa Ellis
Melissa Ellis joined Abrahams and Gross in Cape Town as a Junior Associate in 2013 and practises in the Family Law Department. Having attended Stellenbosch University she obtained a Bachelor of Commerce (BComm (LLB)) degree in 2008 and a Bachelor of Laws (LLB) degree in 2010. Melissa completed her articles at the law firm Heyns and Partners Inc where she worked mainly in the Commercial Law Department, but also gained valuable experience in other areas of law including Family Law. Her areas of expertise are uncontested divorces, international divorce law, unmarried father’s rights, same-sex disputes and domestic violence matters.
The firm’s Divorce Law and Family Law department is headed by Bertus Preller. Bertus 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 child abduction and international divorce law.
Family Law Department Abrahams and Gross
Child Abduction and the Hague Convention
South Africa is a party state of the Hague Convention on Civil Aspects of International child abduction. South Africa ratified the convention in 1996 and it came in operation on 1 October 1997. Emphasis is placed on securing the prompt return of any child wrongfully removed to or retained in a contracting state.
The Hague Convention is a treaty designed to expedite the return of children back to their country of habitual residence, in cases where they have been wrongfully removed. Habitual residence sometimes differs from citizenship and nationality. The Hague convention aims to curb the international abductions of children by providing additional remedies to those seeking the return of the child were a child has been wrongfully removed or retained. It provides a simplified procedure for seeking the return of the child to his/her country of habitual residence.
The purpose for of the speedy return is to place the child in the jurisdiction of a court that is best appraised to deal with the merits of the parental dispute. A child removed from one parent and taken to a country different from that in which the child was habitually resident is then likely to be subject to the concentrated influence of the custodial parents. Unless firm steps are taken to ensure the prompt implementation of the Convention procedures, in a prolonged separation from a parent his or her influence on the child would have a tendency to wane. Time would favour the abductor. The parent remaining in the place of the child’s habitual residence, from which the child is taken, would ordinarily be at a considerable disadvantage in litigating a contested claim for custody and access (or equivalent orders) in the courts of another country rather than those of the place of habitual residence.
Few persons can readily afford litigation in their own jurisdiction, still less contemplate the prospect of participating in courts (or administrative authorities) far away, where the legal system may be different, laws and even language unfamiliar, costs substantial and facilities for legal assistance difficult to obtain or non-existent.
The removal or the retention of a child is to be considered wrongful where -
a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention, and
b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
The rights of custody mentioned in (a) above, may arise in particular by operation of law or by reason of judicial or administrative, or by reason of an agreement having legal affect under the law of that State. The Convention shall apply to any child who was habitually resident in a contracting State immediately before any breach of custody or access rights.
Where a child has been wrongfully retained and, at the date of the commencement of the proceedings before the judicial or administrative authority of the contracting State where the child is, a period of less than one (1) year has elapsed from the date of the wrongful removal of retention, the authority concerned shall order the return of the child forthwith.
In practice, applications are generally heard on an urgent basis or semi-urgent basis by way of notice of motion proceedings. Inevitably, the overriding principle that our courts have regard to is the best interest of the child principle. In South African law the right to consent or refuse the removal of the child from South Africa is entrenched in the concept of guardianship. In terms of section 18 (2)(c) of the Children’s Act, 38 of 2005), a person who has parental responsibilities and rights in respect of a child has the right to act as guardian of the child. In terms of section 18 (3)(c)(iii) of the Act a guardian must consent to the child’s departure or removal from South Africa and where more than one person on has guardianship over a child all of them must consent before the child can be removed.
The role of the Central Authority
A contracting state is bound to set up an administrative body known as a “Central Authority”, which has the duty to trace the child and to take steps to secure a child’s return. In South Africa the Chief Family Advocate is designated as Central Authority.
The Central Authority assists in both “outgoing” cases (when a child has been wrongfully taken from South Africa to a foreign country or retained in a foreign country, as well as “incoming” cases (when a child has been wrongfully brought to, or retained in South Africa). A party may submit an application for the return of a child, or access to a child to the Central Authority.
What does habitual residence mean?
This concept is not defined by the Convention itself. It has been interpreted according to “the ordinary and natural meaning of the two words it contains, as a question of fact, to be decided by reference to all the circumstances of any particular case” The intention thereby is to avoid the development of restrictive rules as to the meaning of habitual residence, so that the facts and circumstances of each can be assessed free of presuppositions and presumptions. However, the fact that there is no “objective temporal baseline” on which to base a definition of habitual residence requires that close attention be paid to the subjective intent when evaluating an individual’s habitual residence. When a child is removed from its habitual environment, the implication is that it is being removed from the family and social environment in which its life has developed, The word “habitual’ implies a stable territorial link, which may be achieved through length of stay, or through evidence of a particularly close tie between the person and the place. A number of reported foreign judgements have established that the possible prerequisite for “habitual residence” is some “degree of settled purpose” or “intention”. A settled intention or settled purpose is clearly one which will not be temporary.
What can South African parents do when a former spouse or partner has abducted a child and taken them abroad?
Establish the details of the departure and destination of the abducting parent and/or the child. The left behind parent has an option of approaching the office of the designated Central Authority for the Republic of South Africa, which is the office of the Chief Family Advocate or the Central Authority of the country where the child has been abducted to. The abducted child must be below 16 years of age. In order to facilitate the processing of the application in the office of the Chief Family Advocate, the left behind parent furnish the following documents:
• Original or certified copies of setting out care and contact (custody) and/or guardianship rights. Examples of these are marriage certificate, court orders granting the alleged rights, unabridged birth certificates, parenting plan or parental rights and responsibilities agreement etc;
• Recent photographs of the abductor as well as the child;
• A detailed sworn statement setting out the exact facts and circumstances that led to the alleged abduction;
• Copies of all pleadings filed in pending litigation in South African courts, where applicable.
If the parent who has taken a child overseas feel that the left behind parent in South Africa is abusive, a danger to the child or cannot provide adequate care for the child, can the parent defend his/her actions, in terms the Hague Convention and SA Children’s Act?
The Hague Convention makes provision for the abducting parent to oppose the application for return of the child. When there is a grave risk that the return of the child will expose the child to physical, psychological harm, or would place the child in intolerable situation, then the court hearing the application is not bound to order the return of the child. Mere allegations of grave risk will not persuade a court to refuse the return; it must be shown that the risk is a serious or that the envisaged harm is of significant proportion.
What countries are subscribed to the Hague Convention?
Most European and Commonwealth countries and the USA are members. On the African continent, only South Africa, Mauritius and Zimbabwe subscribed to the convention. When a child is removed to another country that is not a party state to the convention, the South African High Court, as the upper Guardian of the minor children, will have jurisdiction and the application should be made to such a court for the return of the child.
What are the steps to be taken in recovering an abducted child, in terms of the Hague Convention and SA Children’s Act?
The South African Central Authority (CA) must immediately after receipt of the necessary documents consider the legal aspects of the request as well as the Convention status of the country to which the child has been taken.
If the child has been taken to a contracting country and all legalities have been satisfied, the CA will compile a bundle and forward the application to the foreign CA, requesting prompt return of the child. The procedure does not apply where a child has been taken to a non-Convention country. All CA’s are required by the Convention to take steps to obtain a voluntary return of the child. This is done through cross-border mediation. Litigation is resorted to in the event that the mediation fails. This approach is also consistent with the general principles set out in the Children’s Act, namely, that in any matter concerning a child ‘an approach which is conducive to conciliation and problem-solving should be followed’.
It is however, important that the left-behind parent alert the Central Authority to the possibility of further movement/possible harm to the child, should the abducting parent know of the application for return. In such cases the CA will take steps to obtain an urgent court order to prevent further movement of, or possible harm to the child.
How does the Hague Convention on the Civil Aspects of International Child Abduction relate to care and contact (custody) rulings made in South African civil courts?
An order granting care and contact can be used as proof of the existence of parental rights by the parent seeking return of the abducted child. Where an abductor seeks an order in the South African court, which will have an effect of ratifying the wrongfulness of the removal or retention of the child in South Africa the CA will invoke article 16 of the Convention to stop or suspend the proceedings until a decision has been made on the return of the child to his/her country of habitual residence. The judicial authorities/courts of a contracting state to which a child has been taken or retained are required by the Convention not decide on the merits of custody rights until a determination has been made that the child will not be returned.
There are limitations to the treaty’s application, in that the Convention applies only between countries that have adopted it as “Contracting States.” What are the procedures for recovering a child from a non-Contracting State?
From a South African perspective, it is advisable that the left behind parent obtain an order through the normal civil procedures, which declare the removal/retention of the child unlawful and a breach of their parental rights. Once such an order has been obtained, the left behind parent must obtain a mirror order or an order for enforcement in the foreign jurisdiction which also orders return of the child. This route is very expensive as it involves the instruction of lawyers in foreign countries. For this reason, the Hague Conference on Private International Law is taking steps to encourage other countries to consider contracting under this Convention.
Are there time frames that apply under the Hague Convention on the Civil Aspects of International Child Abduction?
Among the most popular defences that have been raised in return applications is that the child objects to the return. In such instances, an assessment must be made, usually through the assistance of a Family Counsellor or psychologist, whether the child possesses sufficient maturity to form a viewpoint that the court may consider. The child’s reasons for the objection will also be examined in order to exclude possible influence by the abducting parent.
Some of the defences available are that the removal was not wrongful, that the left behind parent was not exercising his/her parental rights at the time of removal or retention, or that the left behind parent had agreed or subsequently acquiesced to the removal/retention:
Where available evidence indicates that the child has become settled in the new environment the court may not necessarily order a return. In cases where a child’s return would be contrary to the South Africa’s fundamental principles relating to protection of human rights and fundamental freedoms, our courts are also under no obligation to order the return of the child.
A court may withhold permission to return the child for the following reasons:
- that the child is above the age of 16 years and therefore not covered by the Convention.
- If a child has been wrongfully removed for less than one year, the child’s removal is to be ordered forthwith under the Convention. The Convention makes it mandatory for the judicial authority to order return.
- If a child has been wrongfully removed for more than one year, the child should still be returned but an exception is allowed -a court may choose not to return the child if there is evidence that the child is settled in his/her new environment. The court has discretion to order/refuse the return.
- Courts and administrative authorities should act quickly in such cases but if one has not reached a decision within six weeks from the date proceedings commenced, an applicant or the Central Authority of the requested State may officially request a reason for the delay.
- The Convention only applies to wrongful removals/retentions occurring after the treaty became effective between the involved countries.
- The Convention requires that countries act without delay in child abduction cases that fall within its parameters. It is one of the objectives of the Convention to protect children internationally from the harmful effects of wrongful removal or retention and to establish procedures of ensuring prompt return of children to their country of habitual residence. The aim is to ensure that a competent court in the country of habitual residence decide on the merits of custody, access and even permanent removal to another country. This is based on the premise that court in the country of habitual residence is better apprised to obtain all relevant evidence regarding the merits of custody, care and contact and in a better position to grant an order that will be in the best interests of and/or least detrimental to the welfare of the child. For this reason, the Hague Convention is deemed to be consistent with our applicable laws and the Constitution, through affording the best interests of the child paramount importance.
Source: http://divorceattorneys.wordpress.com/2012/09/30/international-child-abduction-south-africa/
Compiled by:
Bertus Preller
Family Law Attorney
Abrahams and Gross Inc. Cape Town
A child’s best interests, when parents dictate religion during divorce
Katie Holmes (Cruise) filed for divorce in a New York court last week after being married to Tom for five years, and they are expected to clash about how 6 year old Suri their minor child is brought up, with the 49-year-old actor adamant she remains part of the Scientology religion he is part of. We all know that Tom Cruise is incredibly passionate about Scientology and that this isn’t just some hobby for him. According to reports he truly believes in the church and its teachings and truly believes that it is imperative that his children are raised as Scientologists. Tom believes Scientology changes people’s lives for the better and, obviously, he wants what is best for his children.
The media frenzy about the divorce between Tom Cruise and Katy Holmes prompted two interesting questions in South Africa law, namely what if parents can’t agree on the spiritual upbringing of their child? and what if a child disagree with their parents religion or traditional socio-cultural beliefs?
There has been a dramatic shift during the twentieth century in the law regarding the relationship between parents and their children, both internationally and in South Africa. In the past there was an emphasis on the rights and powers of parents (termed parental authority), but this emphasis moved towards a more child-centred approach with the best interest of children at the forefront. Today parental authority is concerned more with parental responsibilities and duties, which should be exercised in the best interest of children, rather than with parental rights and powers. The Constitution of the Republic of South Africa specifically protects the rights of children in that it recognises that children, as a vulnerable group within society, have specific and unique interests different from those of adults, and that these interests deserve special and separate protection.
The question regarding religion within the family relationship has been dealt with in 2001 in the case of Allsop v McCann. In this matter the custodian parent applied for an interdict to restrict the minor children in certain religious practices whilst in the non-custodian parent’s care. The custodian parent was from the Anglican denomination and the non-custodian parent from the Roman Catholic denomination. The custodian parent sought an interdict from preventing the children from attending the Catholic Church. The court held that the custodian parent (the parent who has primary care of the children) is entitled and required to direct the daily lives of the children and that educational, religious and secular activities fall within that duty. However the court ruled that neither parent may dictate what religion, if any, their children eventually adopt, but each parent is entitled to provide religious instruction. The application was accordingly dismissed.
In 2003 in the case of Kotze v Kotze the court refused to incorporate into a settlement agreement a provision which stated that both parties undertook to educate the child in the Apostolic Faith Church. The court, being the upper guardian in matters involving the best interests of a child, has extremely wide powers in establishing what such interests are. It was held that the clause was not in the best interest of the child as it did not afford him the freedom of religion that he was entitled to.
Recognising that children are the holders of fundamental rights may conflict with the rights of other holders of human rights especially within the family context, where different fundamental rights can come into conflict with one another, for instance between the parents’ right to religious freedom and their children’s rights to life and human dignity. This requires a weighing or balancing act to determine which right must take preference. This balancing of interests often creates tension, which can have serious negative implications for those involved within the family context.
In a ground-breaking case not so long ago the Western Cape High Court was requested for the first time to use its discretion to interfere in the parent-child relationship, due to the “traditional socio-cultural beliefs” of the parents. In what has been described as “every parent’s nightmare; the fancy of many teenagers”, a 16 year-old schoolgirl from the Western Cape asked to be “freed” from her parents to live semi-independently from them because of her unhappiness with the conservative manner in which her parents treated her. According to reports her parents came from a very conservative sector of South African society and kept her under constant supervision, barred her from talking to boys, communicating with friends on her mobile phone, reading what she likes (her parents found Harry Potter inappropriate) or even going out with friends after school.
The court granted her request to live semi-independently with a school friend and her family (referred to by the judge the host family) until she reaches the age of 18 (her majority). It was further ordered that the parents could have contact with her for two to three hours a week at a neutral venue and could phone her between 8:00 and 8:30 pm on a Tuesday and Friday. Holidays were shared between the host family and her parents. Despite the fact that the child no longer resided with her parents, the parents retained their responsibility to contribute to the maintenance of their child.
When parents are acting within the law, even though they are seen to be conservative, and their actions don’t reflect any form of abuse or neglect, their responsibilities and rights must take preference above the rights of their children, for without this kind of recognition the value of the traditional family unit as the natural and fundamental unit of our society will not be recognised. A child’s mere dislike or disapproval and personal preferences in their upbringing cannot alone tip the scales of justice in a child’s favour.
The relationship between parents and their children is very personal in nature. This domain forms part of the world of morality and not even the state should interfere unless the parents’ conduct towards the child is harmful or amounts to unlawfulness. When the conduct is not in the best interests of the child or contravenes constitutional rights, such conduct is inconsistent with the principles of the Constitution and thus invalid.
Bertus Preller
Family Law Attorney
Abrahams and Gross Inc. Cape Town
021 422 1323
Twitter: bertuspreller
Divorce – Separation of Cohabitees
Partners who live together in cohabitation and who are not married or those who have not formed civil unions are presently afforded minimal protection in our law. Cohabitees are advised to draft a cohabitation agreement to regulate the terms of their cohabitation. Such and agreement will determine the division of their property on termination of the relationship, as well as the division of the assets jointly acquired by the parties during the cohabitation.
If a relationship between partners in a cohabitation agreement terminates, and in the absence of agreement between the parties as to the financial and proprietary consequences, each party would walk away with the assets he/she brought into the relationship and with what he/she acquired in his own name, regardless of whether or not the assistance of the other party enabled him to acquire an asset or increase the value of it. The courts have often come to the aid of a disgruntled partner who was left with nothing and in some instances recognised that a universal partnership can come into being between cohabitees. This provides a mechanism whereby assets can be shared. But it is extremely difficult to prove.
A universal partnership will exist if the following essentials are present:
- Each of the partners brings something into the partnership.
- The business is carried on for the joint benefit of the parties.
- The object of the partnership should be to make a profit.
- The contract should be a legitimate one.
It is a question of fact whether a universal partnership can be said to exist in a given set of circumstances. In a recent judgment the Supreme Court of Appeal confirmed the principles relating to universal partnerships in the context of two people cohabiting. In that case the cohabitees lived together for years. The court held that a universal partnership did exist between them as each party brought something into the partnership, the partnership was carried on for their joint benefit and the object was to make a profit. The activities engaged in by the parties were for their joint benefit and they increased their assets thereby.
Other cases held that the evidence did not support the existence of a joint venture formed in the context of a cohabitation relationship.
The contrast between these cases illustrates the importance of the factual matrix in proving the existence of a universal partnership.
The formation of a universal partnership creates a community of property and profit and loss in respect of partnership. On dissolution of this partnership, the partners can share in the partnership assets that are jointly owned, but not necessarily in equal shares. Partnership assets are those assets that were brought into the partnership at inception and also those that were acquired during the existence of the partnership. In the absence of a partnership agreement, evidence must be led as to what the parties’ intention was regarding the assets each was contributing to the partnership.
Should no agreement be reached between the parties on termination of their partnership as to the division of assets of the partnership, a liquidator must be appointed to liquidate the partnership assets.
A cohabitee’s membership of a retirement fund creates unique difficulties within the framework of the dissolution of universal partnerships. Can this fund become a partnership asset available for division on dissolution of the universal partnership, as it does on the dissolution of a marriage?
A universal partnership is not a marriage and accordingly cannot be dissolved by divorce. Therefore the Divorce Act does not apply to its dissolution.
There is no law that deems a member’s pension assets to be transferred into a partnership and be available as a partnership asset to be divided on the dissolution of a universal partnership. A cohabitation agreement would be of no force and affect either as it would not be enforceable against the pension fund.
Cohabitees, even those who are able to prove the existence of a universal partnership and a joint estate between them, cannot share in the pension assets of their partners on termination of the relationship as is the case with people who have registered their unions in terms of the Marriage Act or the Civil Union Act. It still needs to be decided by our courts whether or not this amounts to discrimination on the basis of marital status, it is submitted that it does, especially as cohabitees are able to be awarded these assets on the death of their partners.
Source: De Rebus
Bertus Preller
Family Law Attorney
Tel: 021 422 1323
Can a wife claim maintenance from her husband when she is living with another man?
Adultery Divorce
The Supreme court of appeal recently gave an interesting judgement in the matter of Harlech-Jones v Harlech-Jones [2012] ZASCA 19. The question raised in this matter was inter alia whether it would be against public policy for a man to pay maintenance to his wife while she is living with another man.
The appellant appealed against an order obliging him to pay R2 000 per month to his wife of almost 29 years, upon dissolution of their marriage. His principal objection against the order lied in the fact that for some eight years prior to the divorce his wife had been cohabiting with another man. This, the husband contended, disentitled her from receiving maintenance from him.
The parties were married out of community of property in December 1972. Two sons, both majors and self-supporting, were born from their marriage. After 28 years of marriage, the husband left the matrimonial home in Port Elizabeth as he had formed a relationship with another woman and had decided on a new life. He purchased another residence in the city, but his new relationship also failed and within six months he had formed an intimate relationship with another man with whom he had cohabitated.
The wife was friendly with a married couple, whom she had come to know some years previously when their sons attended the same school. Shortly after the husband had moved out of the common home, the friend’s wife passed away. When her husband was already cohabiting with his male partner a relationship began to blossom between the wife and her new partner. With the passage of time the relationship became more intimate and the wife moved into the home and bedroom of her new partner, and they thereafter cohabited as man and wife. During the first two years that they had lived together the wife’s youngest son, lived with them as well.
Although the evidence established that when the wife initially moved in with her partner it was regarded as a temporary arrangement, the relationship between them matured over the almost eight years that they had lived together before the trial. By then they both regarded their relationship as permanent and neither had any intention of terminating it. The wife’s partner supported her unconditionally and was prepared to continue to do so indefinitely. By the same token, not only was the wife being maintained by him but she, reciprocally, assisted him in his business, for which he paid her a small gratuity.
Relying upon judgments such as Dodo v Dodo 1990 (2) SA 77 (W) at 89G; Carstens v Carstens 1985 (2) SA 351 (SE) at 353F; SP v HP 2009 (5) SA 223 (O) para10 it was argued, both in the high court and in the appellant’s heads of argument, that it would be against public policy for a woman to be supported by two men at the same time. The court was of the opinion that while there are no doubt members of society who would endorse that view, it rather speaks of values from times past and the court was of the opinion that in the modern, more liberal (‘enlightened’) age in which we live, public policy demands that a person who cohabits with another should for that reason alone be barred from claiming maintenance from his or her spouse. Each case must be determined by its own facts,and counsel for the husband did not persuade the court to accept that the mere fact that the wife was living with her new partner operated as an automatic bar to her recovering maintenance from the husband.
Under the common law, the reciprocal duty of support existing between spouses, of which the provision of maintenance is an integral part, terminates upon divorce. This might well cause great hardship and inequity particularly where one spouse, during the subsistence of the marriage, has been unable to build up an estate and has reached an age where he or she is unable to realistically earn an adequate income ─ the classical case being that of a woman who has spent what would otherwise have been her active economic years caring for children and running the joint household. This potentially iniquitous situation is alleviated by s 7 of the Divorce Act 70 of 1979. Section 7(1) which provides for a court on granting a decree of divorce to make a written agreement between the parties in regard to the payment of maintenance by one party to another an order of court ─ while in other cases s 7(2) provides:
‘In the absence of an order made in terms of subsection (1) with regard to the payment of maintenance by the one party to the other, the court may, having regard to the existing or prospective means of each of the parties, their respective earning capacities, financial needs and obligations, the age of each of the parties, the duration of the marriage, the standard of living of the parties prior to the divorce, their conduct in so far as it may be relevant to the break-down of the marriage, an order in terms of subsection (3) and any other factor which in the opinion of the court should be taken into account, make an order which the court finds just in respect of the payment of maintenance by the one party to the other for any period until the death or remarriage of the party in whose favour the order is given, whichever event may first occur.’
It is trite that the person claiming maintenance must establish a need to be supported. If no such need is established, it would not be ‘just’ as required by this section for a maintenance order to be issued. It is on this issue that the wife’s claim failed. Both she and the husband had moved on with their respective lives and had formed intimate and lasting relationships with others.
The wife was therefore being fully maintained by her new partner in life, and had no need for that maintenance to be supplemented in any way. Accordingly, the respondent’s claimed failed at the first hurdle as she failed to show that she actually required maintenance from the husband.
Source: http://divorceattorneys.wordpress.com/2012/05/27/maintenance-divorce-adultery/
For Divorce and Family Law matters contact:
Bertus Preller
021 422 1323
Online Internet Divorce
No one would deny that the world has changed immensely in the past ten years. Today we are doing almost everything online. We shop online, listen to music online, research online, book flights and accommodation online. The internet is growing at a phenomenal rate, especially the sector of online e-commerce. New generations are considering it as the conventional method of purchasing goods and services. Businesses which fail to embrace this large catchment of clients and customers will perish. The legal services profession is one that has already fallen way behind the rest of the business fraternity.
It is a fact that clients and customers can purchase legal document services and templates at certain stationary shops. Contemporary legal customers have an expectation of wanting everything for the cheapest possible price and in the quickest possible time. Online legal services provide instant virtual access to legal support services.
That is exactly what more and more South Africans have been doing since the first online DIY Divorce website eDivorce launched. And it costs only about R950, a fraction of what one usually pays for an uncontested divorce. The service makes South Africa’s divorce system more accessible and affordable to the general public. With people struggling to make ends meet in a volatile economic climate an online Divorce website is a definite alternative for spouses seeking an uncontested divorce.
There is a clearly an increase in Europe and the US in the number of online legal services and in the UK alone online Divorces have increased by over 50% over the past few year. Online divorce has been available in the UK since the late ’90s and it’s a growing trend in South Africa too. But this doesn’t mean you can get divorced with just a click of the mouse. Websites for online divorces handle uncontested cases only and generate the forms needed to conclude the divorce. It is therefore up to the spouses to conclude their own divorce.
Where a divorce is contested, for example where the spouses are not able to agree on how to divide their assets, it will be in their interest to rather consult an attorney who specialises in Family Law and Divorce Law.
Where the divorce is less complicated and the spouses agree on the division of their assets then using an online divorce website makes more sense.
Contact eDivorce at http://www.edivorce.co.za
