AREAS OF EXPERTISE
· Divorce Law and Family Law (contested and uncontested divorces)
· Divorce Mediation
· Parenting Plans
· Care (custody) and contact of minor children
· Parental rights and responsibilities
· Same sex marriages / partnerships
· Rights of unmarried fathers
· Domestic Violence / Protection Orders
· Antenuptial and Postnuptial Contracts
An uncontested divorce is one in which you and your spouse work together to agree on the terms of your divorce. The best option is to do your divorce in an uncontested manner if possible. This is also the least expensive type of divorce. So when both parties agree prior to the divorce on how to divide their assets and, if there are children involved, which parent will be the custodian parent and which parent will enjoy contact rights, then both parties consult with us together. We will then draft a settlement agreement which will be signed by both parties. Only one party appears in Court and no formal trial is needed.
In the event where the parties cannot agree on the division of their assets and, when minor children are involved, cannot agree who will have primary care and residency of the minor children and what the amount maintenance will be paid to the spouse and/or the minor children, then a divorce is contested. It is then left to the Court to decide how to deal with the issues in dispute. A contested divorce may take anywhere between 6 (six) months to 2 (two) years to finalize depending of the parties can settle in the meantime or not. A contested divorce can become very costly.
A divorce action is instituted by the issuing of a Summons at Court where after it needs to be served PERSONALLY by the Sheriff on the Defendant. After the Summons was served on the Defendant, then the Defendant has 10 (TEN) days to defend the matter. If the matter is not defended then the Plaintiff can continue to enroll the matter on the unopposed divorce role and continue to finalize the matter in Court.
If the parties cannot settle the divorce then the matter will proceed on a contested basis which consists of the various stages:
· Summons will be served on Defendant personally
· Defendant needs to give notice that he/she will defend the matter
· Defendant must then file a Plea and Counterclaim
· Plaintiff must then file a Plea on the Counterclaim
· Plaintiff can proceed to apply for a trial date
· Both parties have to make discovery of the documents that they intend to use as the trial
· Pre – trial conference will be held between the legal representatives
· Trial proceeds in Court
· Judgment is given in the matter
Attorneys may engage the services of various experts in contested divorce proceedings. These experts will be questioned in an open Court under oath. Expert witnesses come at huge costs and can include the following:
· Child – care experts and psychologists to assist with who the minor children should live with;
· Forensic accountants who examine the assets of the parties;
· Actuaries assist to determine the quantum and duration of maintenance contributions; and
· Industrial psychologists help to determine the employability of a party for the purpose of spousal maintenance.
Divorce mediation entitles both parties to attend a session of sessions with an independent third party who assists the parties to reach a settlement agreement. The mediator will advise the parties on the various scenarios that they could face if the matter proceeds to go to court on a contested basis. A mediator is a neutral third party who cannot decide the case, nor does he/she have the authority to make any decisions or force any decisions onto the parties. The mediator guides the parties in making reasonable decisions with regards to division of assets, parental rights and responsibilities, maintenance, etc. The decision-making power remains with both parties and the mediation process is without prejudice. One the parties reached an agreement then the mediator assists them in the drafting of a settlement agreement. Once a settlement agreement has been drafted then one of the parties or both parties can approach an attorney of their choice to review the agreement and proceed with the divorce action.
A parenting plan is a written agreement between co-holders of parental rights and responsibilities that deals in detail with their respective rights and responsibilities, care, contact and guardianship of the minor child as well as maintenance for the minor child.
The Children’s Act 38 of 2005 makes provision for two situations in which a parenting plan come into play, namely:
· Optional situation – this situation would apply where parties want to have a structured parental plan but where none of them has any intention of going to Court on any issues. One could say that the parties are not experiencing much difficulty in exercising their rights and responsibilities but that they prefer to have an agreement in a formalized structure and on paper; and
· Mandatory situation – where parties are experiencing difficulties in exercising their rights and responsibilities, then they must first seek to agree on a parenting plan before seeking the intervention of a Court. Therefore parties should first try to agree on a parenting plan before approaching the Court.
Bearing in mind the child’s age, maturity and stage of development, such a child must be consulted during the development of a parenting plan and must be granted an opportunity to express his/her views which should enjoy due consideration. When a parenting plan has been agreed on…bearing in mind the child’s age, maturity and stage of development…the child must be informed of the contents of the parenting plan.
The parenting plan must be signed by both parties and may be registered with the office of the Family Advocate or it can be made an order of Court.
CARE (CUSTODY) AND CONTACT WITH MINOR CHILDREN
When parties separate but were never married, or when parties get divorced, then they have to decide on the future care of their minor children and determine who will have primary care and residency of the minor children and what the contact rights will be that the other parent will be able to exercise. The office of the Family Advocate, a social worker, a psychologist, etc. can assist the parties herein.
PARENTAL RIGHTS AND RESPONSIBILITIES
Parental responsibility is the responsibility to care for your child, to maintain contact with your child, to act as guardian of your child and to contribute to the maintenance of your child. Whenever more than one person has guardianship of a child, then each person is allowed to exercise independently and without the consent of the other, any right or responsibility arising from such guardianship, unless any other law or competent Court orders otherwise, and in which case the consent of all persons who have guardianship will be necessary.
The Children’s Act 38 of 2005 governs both the acquisition and loss of parental rights and responsibilities not only by the parents of the children involved but also in respect of other persons. There are a number of ways in which a person may acquire parental rights and responsibilities, depending on the circumstances:
· By way of an agreement;
· By way of a will; or
· In terms of a Court order.
Biological parents acquire parental rights and responsibilities in terms of the Children’s Act 38 of 2005 as follows:
· Biological mother – whether married or not, she has full parental rights and responsibilities in respect of her child. She attains these rights solely on the fact that she has given birth to the child.
· Married biological father – he has full parental rights and responsibilities in respect of the child if:
- he was married to the child’s mother at the time of the child’s conception and birth;
- he is married to the child’s mother; or
- they are or were married at any time after the child’s birth.
· Unmarried biological fathers – despite the increased recognition of the beneficial role that fathers can play in the lives of their children, the Children’s Act still does not confer automatic inherent parental rights on biological fathers in the same way as it does for mothers. Unmarried biological fathers will have automatic parental rights and responsibilities only if:
- at the time of the child’s birth, he was living together with the biological mother in a de facto husband and wife relationship and chose not to get married;
- regardless of whether he was living with the mother or not, he consented to be identified as the father of the minor child or applied for an amendment to be effected on the birth certificate that he be registered as the biological father of the child or if he pays damages in terms of customary law; and
- he contributes or has attempted to contribute in good faith to the upbringing of the minor child within a reasonable period and has paid or attempted to pay maintenance.
SAME SEX PARTNERSHIPS
There is no law that regulates same – sex relationships and legal consequences only become applicable when:
· a same – sex relationship becomes more permanent and develops into a same – sex life partnership, not formalized through the Civil Union Act;
· the parties in a same – sex relationship get married in terms of the provisions of the Civil Union Act; or
· the parties in a same – sex relationship formalizes their relationship as one of a civil partnership in terms of the provisions of the Civil Union Act.
When a same – sex couple marries or registers their union in terms of the Civil Union Act, then the same principles will apply to the dissolution of their marriage or union as if they were married under the Marriage Act and divorced.
When same – sex couples does not marry or register their union in terms of the Civil Union Act, the same principles will apply to the termination of their relationship as if they were living in cohabitation.
There are certain legal consequences attributed to a same – sex life partnership as follows:
· A partner can obtain protection in terms of the Domestic Violence Act;
· A same – sex or heterosexual permanent life partner qualifies as an “interested person” for the purposes of Chapter 5 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007;
· The partners can jointly adopt a child;
· A partner may adopt a child of the other partner;
· In the event that a female same – sex life partnership no longer exists, and one of the partners gave birth to a child as a result of artificial insemination, the partners may be co-holders of parental rights and responsibilities in respect of such a child, providing that it is in the child’s best interests;
· A partner qualifies as a spouse for the purposes of the Immigration Act 13 of 2002;
· A partner qualifies as a dependent in terms of the Compensation for Occupational Injuries and Diseases Act, 130 of 1993; and
· A partner may be, upon death of the other partner, entitled to the pension fund benefits of the late partner.
In addition to the legal consequences as set out above, the following additional legal consequences are attributed when partners have assumed a responsibility to maintain each other:
· A partner may be registered as a dependent on the other partner’s medical aid scheme; and
· A partner qualifies as a spouse in terms of the Intestate Succession Act 81 of 1987.
A same – sex life partnership may be terminated by either partner, or by agreement between the partners or in the event of a partner's death.
DOMESTIC VIOLENCE / PROTECTION ORDERS
A protection order is a Court order that informs an abuser to stop the abuse and sets certain conditions preventing the abuser from harassing or abusing the victim again. It may also help to ensure that the abuser continues to pay rent or a bond or interim maintenance. The protection order may also prevent the abuser from getting help from a third party to commit abusive acts.
There are not costs involved in applying for a protection order unless that person make use of the services of an attorney.
The victim can apply for a protection order at the Domestic Violence Court on any day of the week, but for after-hour applications they must go to the police station and the police must then contact a Magistrate of clerk.
The Domestic Violence Act further states that a person may apply for a protection order on behalf of a minor child. In the case of a minor, the consent of the minor child’s parent(s) or guardian is not needed. Furthermore, any minor child who is in the care of a complainant will be included will be included as a complainant in the protection order.
A Magistrate will first grant an interim protection order and the Respondent will then be informed of a date to appear in Court to give reasons why the Interim Order should not be made a Final Order. In the meantime the Interim Order stays intact to protect the victim(s) and prohibiting the Respondent from committing any acts as specified in the Interim Order.
ANTENUPTIAL AND POSTNUPTIAL CONTRACTS
A marriage out of community of property is achieved by drawing up an antenuptial contract and this will be the most important contract that a married couple will sign. The purpose of an antenuptial contract is to change some or all of the automatic financial consequences of their marriage and the parties have to finalize their antenuptial contract before marriage. The parties can include any provision that they like in their antenuptial contract as long as the provisions are not against the law, good morals or the nature of marriage.
The parties may enter into one of two types of antenuptial contracts:
· an antenuptial contract that excludes community of property, community of profit and loss as well as the accrual system; or
· an antenuptial contract that excludes community of property and community of profit and loss, but INCLUDES the accrual system.
Only an attorney who is a notary public may execute an antenuprial contract. Both parties should consult with their attorney beforehand and request an explanation as to the various marital regimes and the implications of each on a divorce.
Once the antenuptial contract is drafted then both parties, two witnesses and the notary public must sign the antenuptial contract in duplicate PRIOR to the marriage and where after it will be registered in the deeds office in the area where the parties reside. The registration must be affected within three months of the date it was signed by the notary public.
In the event where the antenuptial contract is not signed or registered timeously, the couple can approach the High Court in terms of the Deeds Registries Act 47 of 1937 by means of a joint application to grant condonation for the late signing and/or registration of the antenuptial contract after the conclusion of the marriage.
One of the basic principles of child maintenance is that the extent of the obligation is based on the standard of living, income and means of the person(s) obliged to pay. The obligation of maintenance does not rest solely on one parent, but on BOTH parents in accordance to their respective means. The fact that one parent can adequately support the child on his/her own, does not mean that the other parent can avoid contributing.
Once a child has reached the age of 18, a parent cannot claim maintenance on their behalf. The child must then institute action in his/her personal capacity. The fact that a child is visiting a parent during holidays (temporarily), does not entitle that parent to suspend or reduce his/her maintenance during that period, unless a Court order contains a specific provision to the effect that this may happen.
A parent’s duty to support his/her child is not affected in any way by remarriage and a step-parent is under no obligation to support a stepchild. Similarly, a child from a first marriage does not have priority over a child from a second marriage when it comes to maintenance obligations.
The refusal to allow a parent contact does not entitle that parent to stop paying maintenance.
An order granted by the Maintenance Court is not cast in stone. An application for an increase or reduction in maintenance can be made when a party can prove changed circumstances.
Parents must use both their incomes and, if necessary, their capital, in order to fulfil their maintenance obligations. Therefore, if a parent has no income but assets, then that parent will not be able to avoid paying maintenance. A Court may order for the assets to be sold to satisfy the maintenance obligations and this also prevents a parent from evading his/her duty to pay maintenance by giving up his/her work.
The ordinary rules relating to parents’ duty to support also applies in respect of children born out of wedlock.