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Divorce Attorney Cape Town
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Simon Dippenaar
Admitted Attorney of the High Court of South Africa.
B.Bus.Sci (UCT), LLB (UCT), PDLP (UCT)
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Parenting Coordination – When parents can’t agree, on anything

Parenting Coordination – In a high-conflict divorce, children are the unintended victims. However much the divorcing couple may claim to put the interests of their offspring first, very often children as used as pawns or bargaining tools between warring parents. Depending on the age and mental constitution of the children…and the severity of the conflict, this can have lasting psychological consequences for the young people involved.

Parenting coordination - Facilitation

How parenting coordination (facilitation) can help children in an acrimonious divorce

Parenting coordination

One solution is facilitation (as it is known in the Western Cape, and called “case management” in Gauteng and “parenting coordination” internationally). Facilitation is a narrow term that only captures a portion of what a parenting coordinator does, hence the legal profession is moving towards adoption of “parenting coordination”, which, according to legal expert Madeleine de Jong, is “a child-focused alternative dispute resolution process in which a mental health or legal professional with mediation training and experience assists high-conflict parties in implementing parenting plans and resolving pre- and post-divorce parenting disputes in an immediate, non-adversarial, court-sanctioned, private forum.”[1] – link

Parenting coordination aims to remove the children from the divorce equation and ensure their welfare is prioritised, regardless of the financial and emotional chaos that may surround the divorce proceedings of their parents.

When is parenting coordination used?

Although there are exceptions, generally a parenting coordinator is appointed by the court in situations where divorcing parents are highly litigious and where it appears that the process is going to be lengthy. While most people want to get the divorce behind them as quickly as possible, some high-conflict couples find compromise difficult and, either unwittingly or intentionally, seek to prolong the process. Some individuals are addicted to emotional upheaval and unconsciously thrive on the discord. Children of these parents need the protection of the courts.

A coordinator is appointed where there is clear evidence of an inability or unwillingness on the part of the parents to make healthy parenting decisions, to comply with official parenting agreements, to reduce their child-related enmity, and to protect their children from the fall-out of their disagreements.

What is the process?

A parenting coordinator is either appointed by court order (this can be with or without the consent of the parents), or is part of a parenting plan agreed between divorcing parents that has been made an order of the court. The court order or parenting plan should spell out the extent of the parenting coordinator’s authority. In some cases, the coordinator is granted decision-making powers. Where that is the case, the nature of the decisions the coordinator is empowered to make must be clearly articulated, i.e., are they minor issues such as timetabling or major issues such as relocation? In other cases the role of the coordinator is simply to assist with the implementation and monitoring of the parenting plan between the parties.

Can either party refuse parenting coordination?

Because a parenting coordinator is only appointed when all attempts at reasonable dialogue between the parents have failed, and the parenting coordination is part of a court-imposed arrangement, parents cannot refuse the involvement of a parenting coordinator. The court has the power to appoint a parenting coordinator without the consent of the parents, if the welfare of the child or children is a matter for concern.

When it comes to the choice of professional, the parents may have the option of appointing a coordinator by agreement, but if they can’t agree on the individual, the court may step in and select a coordinator on their behalf. Alternatively, a local mediation organisation might be authorised to choose one. Even where the parenting coordinator is “imposed” on a couple, it is very important that the selection be made with sensitivity for all the personalities involved.

Who can be a parenting coordinator?

A parenting coordinator should be suitably qualified in terms of training, experience and education. A coordinator should have completed a basic 40-hour mediation training programme and be accredited by the National Accreditation Board for Family Mediators (NABFAM) through a local mediation organisation such as FAMAC, the South African Association of Mediators (SAAM) or the KwaZulu-Natal Association of Family Mediators (KAFAM). In addition, a coordinator needs to have worked extensively with high-conflict families. Most coordinators are psychologists, social workers, mediators, family law attorneys or retired judges.

We can help

SD Law & Associates are experts in divorce and family law and have dealt with many high-conflict divorce cases. We have experience in working with parenting coordinators and ensuring the interests of children are protected. In many cases, we can help you resolve your conflict without resorting to parenting coordination. Where a parenting agreement and the appointment of a parenting coordinator are necessary, we can guide you through the process. If you are considering divorce and are worried that your partner may be obstructive, or just want to discuss your options, contact us on 087 550 2740 or 076 116 0623 or contact us. Your enquiry will be dealt with in the utmost confidence.

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Married abroad? Make sure your marriage is legal in South Africa.

Married abroad? South Africa is a popular wedding destination, and it’s not hard to see why. Many of our beautiful wine estates offer wedding packages and our climate means that northern hemisphere couples have a much bigger “window” for a summer ceremony.

Our foreign newlyweds will immediately be supplied with an Abridged Marriage Certificate, to be followed by an Unabridged Marriage Certificate when the marriage is registered with Home Affairs. The Unabridged Marriage Certificate is used to register the marriage back home.

Married Abroad South Africa

Be sure your marriage is legal back home

South African, married abroad

If you’re reading this you are probably residing in South Africa. You may or may not be a South African citizen, and/or you and your spouse were married abroad. How do you know if your marriage is recognised here in South Africa? What happens if things don’t work out?

Apostille

You may have heard this term and wondered what it means. Take the case of our visiting bride and groom above. Their Unabridged Marriage Certificate will be “apostilled” by Pretoria before being sent to them. This makes it legal in their home country and anywhere else in the world (almost).

The principle of apostille is a pillar of the Hague Conference on International Private Law (HCCH). The HCCH has 83 member states (of which South Africa is one) – 82 countries plus the whole of the European Union, which is classified as one member state.

The Apostille Convention (or Treaty), part of the HCCH, allows a document issued in one of the signatory countries to be certified for legal purposes in all the other signatory states. It is like notarisation here in South Africa, and is often applied to a document that has been notarised locally. As long as both countries involved are member states, there is no need for “legalisation”, which involves dual certification – by the originating country and the receiving country.

What this means for your marriage certificate

If you get married abroad, you will need to show certain documents to the local authorities, usually your full birth certificate; valid 10-year passport with at least six months’ validity remaining; proof of any name changes (other than through marriage); and proof that any previous marriages are no longer valid – either the decree absolute in the case of divorce or the marriage and death certificates of the deceased spouse if one of you is widowed.

When you get married you will be issued with a marriage certificate. Be sure to have it apostilled (this is likely to be done automatically for you as foreigners but play safe – double check). Then when you return home you simply register the marriage at Home Affairs using your apostilled marriage certificate and you will be issued with a South African marriage certificate.

Although many popular wedding destinations are part of the HCCH, it’s worth noting that on the African continent only South Africa, Zambia, Burkina Faso, Morocco, Egypt and Mauritius are members. So if you are planning to get married in Zanzibar, for instance, you will need to have your marriage certificate legalised in both Tanzania and South Africa. You can find the full list of member states here.

When will it matter?

Happily married couples rarely have cause to dig out their marriage certificate. There is no legal requirement to be married to take out a bond on a house together, for example. You do need to show your marriage certificate when registering the birth of a baby, but generally the validity of a marriage is only put to the test when there is a legal claim. This might be:

  • Divorce
  • A claim against an antenuptial contract
  • A claim for inheritance in the event of intestacy
  • A custody claim for children of the marriage
  • A charge of bigamy (if the foreign marriage was not disclosed at the time of a domestic marriage)

So whether you are a South African couple planning the wedding of your dreams abroad, or you met and married your spouse overseas and returned here, it’s a good idea to check the status of the country of marriage and make sure your documents are in order. You may save yourself a lot of heartache later.

We can help

If you are not sure whether your foreign marriage certificate is legal in South Africa, contact us on 087 550 2740 or 076 116 0623. Or contact us. We’ll investigate and help you put things right if there are any irregularities. Learn more about SD Law.

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Muslim Marriages – Judgement a victory for women married under Sharia law

Muslim marriages – In 2005, when the Constitutional Court ruled that same-sex marriages should have the same rights, responsibilities and legal consequences as any other civil marriage or union, customary marriages also gained full recognition. Muslim and Hindu marriages, unfortunately, did not as they are not governed by civil law.

Muslim marriages in South Africa

Muslim marriages

This situation is set to change following a judgement by the Western Cape High Court in the Women’s Legal Centre Trust v President of the Republic of South Africa & Others. The State was found to have failed its constitutional duties to recognise, respect and protect the rights of women in Muslim marriages, and the Court ruled that legislation recognising Muslim marriages and providing Muslim women and their children with legal protection in the event of a divorce must be introduced within 24 months. If this deadline is not met, these marriages could ‘be dissolved in accordance with the Divorce Act 70 of 1979’.

The current state of affairs

The contentious Muslim Marriages Bill, published in 2000, has not yet been passed and there is much dispute about removing provisions such as the need for theologically trained judges or Muslim assessors. The legislation could also be deemed optional and this will, no doubt, raise a multitude of problems. In the meantime, couples who marry under Islamic law will only be protected under South African law if they also register a civil marriage.

Greater protection, recognition and rights in Muslim marriages

Several cases over the last few years have, however, greatly advanced the protection, recognition and rights of Muslim marriages. We highlight just a few below.

Interestingly, most cases of this nature have been brought by Muslim women, although the judgements extend to Hindu marriages as well.

Rights of a spouse to succession

A spouse in either a monogamous or polygamous Muslim religious marriage is now also able to inherit from the intestate estate of a deceased spouse and claim maintenance from the estate (Hassam v Jacobs NO and Others 2009). Prior to this, legislation only granted rights to spouses in monogamous marriages. This was found to be inconsistent with the spirit of the Wills Act and deemed invalid.

In the case of Khan v Kahn 2005 , the Court  ruled that a couple married under Sharia law have a duty of support towards each other and are entitled to claim maintenance under the Maintenance Act 99 of 1998.

The rights of children

Although Muslim and Hindu marriages are not legally recognised, children born of a Muslim or Hindu marriage are not considered illegitimate, and the father automatically acquires parental rights and responsibilities. Despite this, children born to Muslim marriages currently do not have the same protection as those born in civil or customary marriages, particularly in the event of divorce.

A share in property

Muslim marriages are regarded as being out of community of property, excluding the accrual system. This contrasts with civil unions where community of property is the default marital regime. Where both parties have contributed assets to the marriage, ownership lies in the hands of the individual and do not form part of a single estate.

As far as immovable property is concerned, if a couple get divorced, the wife is not automatically entitled to claim a share of property registered in her husband’s name. It is therefore prudent to register property 50-50 in the names of both spouses.

Women remain vulnerable

The Women’s Legal Centre Trust judgement is a significant win for women, who are still among the most vulnerable in society. The underlying message of the judgement is evident: we need clear and comprehensive legislation that protects and upholds the rights of women in Muslim marriages.

Equality is not only a fundamental right, it is a central part of our Constitution. We look forward to the new legislation.

We can help

SD Law & Associates are experts in divorce and family law. If you need advice about legislation on Muslim or Hindu religious marriages or divorce, we can help. Contact us or call 087 550 2740 or email sdippenaar@sdlaw.co.za

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Civil union divorce explained – Same-sex marriage divorce

Divorce is divorce – no matter the type of union

Civil union – In 2006, South Africa became the fifth country in the world and the first in Africa to legalise same-sex marriages. The Civil Union Act of 2006 determined that two people of the same or opposite sex who are older than 18, could marry or enter into a civil partnership.

Civil union divorce South Africa

Although some countries restrict same-sex unions to civil partnerships and forbid marriage, in South Africa couples can choose either option. Simply put, the Civil Union Act allowed people (irrespective of gender) to formalise their relationship and ensure that it had legal recognition even if they did not want to marry.

Unfortunately, only 27 countries around the world recognise same-sex marriages at this stage.

 

Landmark decision – equal rights for cival union same-sex marriages

In a landmark decision in 2005, in the case of the Minister of Home Affairs and Another v Fourie and Another (CCT 60/04), the Constitutional Court ruled that same-sex marriages should be entitled to the same rights, responsibilities and legal consequences as any other marriage or union entered into under the Marriage Act of 1961. Their decision was guided by Section 9 of the Constitution and the Promotion of Equality and Prevention of Unfair Discrimination Act of 2000 which states that you cannot discriminate against same-sex individuals and couples.

Customary marriages too gained full legal recognition, but Muslim (Nikah) and Hindu marriages sadly did not. The underlying message is that religious marriages are somehow inferior and less deserving of legal protection. This infringes people’s rights to dignity, freedom of religion and equality of spouses in religious marriages and children born from those marriages.

However, last year, the Women’s Legal Centre Trust applied to the Western Cape High Court asking it to compel government to recognise Muslim marriages and provide Muslim women and their children with legal protection in the event of divorce. On 31 August 2018 the Court ruled in favour of the applicants and ordered the State to introduce legislation to recognise Muslim marriages as valid, and to regulate the consequences of these unions within 24 months. (Women’s Legal Centre Trust v President of the Republic of South Africa and Others).

Common law marriages where two people (regardless of whether they are of the same or opposite sex) live together but are not married under the Civil Union Act are not regulated by law at all. This leaves the legal status of common law partners uncertain until such time as legislation is promulgated.

 

Same rights, same responsibilities and same legal consequences

We’ve mentioned that same-sex marriages and civil unions are recognised as partnerships under the law and bear the same rights, responsibilities and legal consequences as marriages under the Marriage Act. The same goes for same-sex and civil union divorces. Same-sex couples seeking a divorce are subject to the same legal processes and have the same right to a share in the assets.

Although the divorce process in South Africa is relatively straightforward, the financial burden can be quite steep, as all marriages, civil partnerships or unions can only be dissolved by the Court.

 

Consider an antenuptial contract

Settlement will be determined by whether you are married in community of property, with or without accrual, or have an antenuptial contract (ANC).  If you are in a civil union and do not draw up an antenuptial contract, your marriage is automatically regarded as being in community of property and the provisions of the Matrimonial Property Act 88 of 1984 will apply.

It’s generally a good idea to draw up an ANC that sets out how you will divide your assets if you ever get divorced. Granted this is not an easy or comfortable topic to discuss when you’re planning on living happily ever after, but it does make it easier if you ever need it.  Read more about ANCs here. [link to previous blog]

There is no doubt that divorce is one of the most stressful events that we can experience. Whether it is a same-sex or opposite-sex marriage or civil union, the breakdown of a life partnership is hard and painful.

 

Civil union divorce – We can help

If you need legal advice about a civil union divorce, SD Law & Associates are divorce and family law experts. We can help you reach the best possible settlement in terms of property, family structure and emotional stability. Contact us or call 087 550 2740.

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Interim maintenance – how to use Rule 43 in divorce proceedings

Interim maintenance can be a saving grace. Don’t let it become a weapon.

Have you heard of a Rule 43 application? If you’re going through a divorce, chances are that you have. Divorce proceedings don’t always go smoothly, and sometimes the process can go on for a considerable length of time. However, certain issues often can’t wait for the decree nisi and need immediate attention. For example, there may be disputes regarding access to minor children. Or a non-earning spouse may require interim maintenance when no longer in receipt of a joint household income. The lower- or non-earning spouse may also require financial assistance with legal costs, to ensure fair and equitable access to due process of law.

Interim Maintenance contract - Man signing a contract

The downside of interim maintenance

A Rule 43 order can be a lifesaver for many. Unfortunately, it can also be used as a weapon. Because it is an interim measure, the courts tend to deal with Rule 43 applications rather quickly, allowing injustices to arise.

A maintenance order, particularly if hastily calculated, can exhaust the payer financially. A Rule 43 order cannot be appealed because it is an interim measure, and can only be altered if a substantial change in financial circumstances can be demonstrated. Occasionally a spouse in receipt of maintenance may try to prolong the divorce process unnecessarily to enjoy the benefits for as long as possible. In particularly acrimonious divorces, the recipient of maintenance may delay proceedings to wear the other party down until they give in to all demands in an effort to escape the Rule 43 order.

Therefore, if faced with a Rule 43 application, it is important to consider the response carefully to mitigate the possibility of an adverse order being granted. An interim order is often unpredictable in its application and can wind up being unfair to one or both parties.

Impact on subsequent negotiations

It can sometimes take a very long time for an opposed divorce to come to trial, for a variety of reasons. The delay may be due to the resources available to the court; the offices of the Family Advocate are often over-stretched and the number of divorce cases being heard by the High Court is on the increase. But the litigants themselves, i.e. one or other of the divorcing couple, may find their interests served by prolonging the time it takes to conclude the divorce; they may wish to uphold an inequitable status quo, either with regard to finances or parental access to minor children. A Rule 43 application is designed to address inequity but can in fact exacerbate it; and may in practice be the only contested hearing of the divorce, particularly as one or both parties realise the cost of taking litigation to trial.

This places a disproportionate importance on the interim maintenance order and it may be used – rightly or wrongly – to establish a precedent.  A Rule 43 order, although intended to be only temporary, will cast a shadow over any negotiations subsequently conducted between the parties. Therefore the fairness of the eventual settlement may be influenced by the terms of the interim maintenance order.

Start as you mean to go on

Furthermore, if the case cannot be settled, the beneficiary of a Rule 43 application in the High Court (or a rule 58 in the Magistrates’ Court) could be at an advantage, as the order may be relied upon by the court in the divorce trial and effectively carried through to the settlement. The risk is that a “reverse onus” may rest with the other party to prove the error of the order.

Modern relationships are complex

In the not-so-distant past, it was common for the man to be the breadwinner and the woman to be the homemaker, particularly where there were children. Now it is normal for both spouses to be working, but there may be significant differences in income. This may lead to one party having the means to afford “luxurious litigation” while the other must make do with a more frugal legal representation.

It is also not unusual for the woman to be the main earner or for both spouses to be of the same sex. This introduces new complexity into the unravelling of a marriage and may find either party making a Rule 43 application for a range of reasons, including the cost of litigation. Furthermore, the financial affairs of one or the other may be intertwined with family trusts or businesses in South Africa or offshore in which they are beneficiaries.  

Therefore interim maintenance, or any other terms of a Rule 43 order, must be carefully considered to avoid either party suffering a severe disadvantage, which may haunt them long after the divorce is finalised.

Children and Rule 43/Rule 58

Financial considerations are not the only motives for making a Rule 43 application. An interim order can be used to safeguard access to minor children until the divorce proceedings are concluded. The rights of children in any parental dispute have always been uppermost in the eyes of the courts, which have a role to play as upper guardian; but the Children’s Act 38 of 2005, incorporating Section 28 of the Constitution, reinforces these powers.

A Rule 43 order impacts on the relationships of the family unit. It influences parental care and contact arrangements and may result in one parent having greater control over the child’s upbringing, regardless of the views of the other parent. The rule 43 order also impacts on the level of support provided to a child, affecting not only quality of education provided but also the child’s general quality of life and access to opportunities. Therefore both parties must be frank about the financial resources available to enable the children to attain their full potential. Where both parents are income earners, a Rule 43 order in respect of child support imposes financial obligations on each of them. An unintended consequence is that the financial security and long-term wellbeing of one party may be compromised to the unfair benefit of the other.

Rule 43 – no ordinary interim order

A Rule 43 order is not the same as interim orders in commercial or other fields. Emotions are volatile in any divorce scenario and the stakes, whether financial or otherwise, are high. An interim order as per Rule 43 is not a holding position. A rule 43 order concerning children impacts fundamentally on their rights; and where spousal maintenance is concerned other rights may also be involved. It is crucial to ensure the position of either party is not impaired by an injudicious and ill-advised interim order.

SD Law can help

If you are in need of a Rule 43 order for interim maintenance or access to your children, or if you feel you have been treated unfairly by the Rule 43 order mandated by your spouse, SD Law can help. Call Simon on 087 550 2740 or contact us and we will look at your case in detail and advise you on the best way forward – to protect the interests of all parties.

For more, visit: sdlaw.co.za/divorce-attorney

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Antenuptial Contract (ANC) – What is an Antenuptial Contract?

Why you might enter into an antenuptial contract

Antenuptial Contract – Two people planning a wedding think their love will last forever. Why else would they be intending to marry, if not to live happily ever after? Unfortunately, statistics prove that this does not always happen. In fact, according to Stats SA, roughly four in 10 marriages end in divorce within the first 10 years.

Antenuptial Contract - What is an ANC?

While it can be problematic to discuss an antenuptial contract as part of the wedding plans, indicating that one or other partner doubts the potential of the marriage to last, this document can prevent a lot of heartache later on. Not dissimilar to a will (except that everyone dies, whereas not everyone divorces), it is unpleasant to think about but, once done, can be forgotten until it is needed. And if it is ever needed, it can make life a lot easier for everyone involved.

Some couples find that an ANC actually contributes to a more harmonious marriage, as many of the financial disputes that can damage an otherwise healthy relationship are mitigated by the terms of the contract.

What is an ANC or antenuptial contract?

An antenuptial contract sets out the rules and conditions that will govern the division of assets, both during the marriage and on its dissolution. ANCs don’t apply to marriages in community of property, because in this type of marriage both parties are the owners of the joint estate. Marriages without community of property may be with or without accrual.

Marriage out of community of property, without accrual:

In this situation, each person retains ownership of the property they owned prior to the marriage, as well as all property accumulated during the marriage. They also hold sole responsibility for any debts incurred before or during the marriage. Each party may dispose of their estate in a will as they choose.

Marriage out of community of property with accrual:

This scenario is a bit more complex than marriage without accrual and really only becomes significant if the marriage is dissolved. When that happens, the difference between the net increases in the respective estates during the marriage is divided equally between the two parties, according to a standard calculation. Certain assets are excluded, according to the terms of the Matrimonial Property Act. Both parties are free to make their own wills, but either party may have a claim that may need to be settled, according to the accrual system, before any distribution can take place.

What an ANC might look like

Antenuptial contracts are quite straightforward. There is no need for a long itemisation of assets. The contract for a marriage out of community of property with accrual includes the following (e.g.):

  • There will be no community of property between the parties
  • There will be no community of profit or loss between the parties
  • The accrual system referred to in the Matrimonial Property Act will apply to the intended marriage between the parties
  • The net values of the estates of the parties at the commencement of their intended marriage are included
  • Exclusions (as per Matrimonial Property Act) are noted
  • Calculation of accrual is given
  • Any other conditions that may impact the accrual, such as insolvency, are noted
  • Both parties declare their intention to solemnise the marriage and promise each other the full force of their legal obligations with respect to the marriage and property

The contract for marriage without accrual is even simpler. It states (e.g):

  • There will be no community of property between the parties
  • There will be no community of profit or loss between the parties
  • The accrual system referred to in the Matrimonial Property Act is expressly excluded
  • Both parties declare their intention to solemnise the marriage and promise each other the full force of their legal obligations with respect to the marriage and property

Need help with your ANC?

Simon Dippenaar and Associates are experts in family law. We can help you decide which type of marriage is best for you, and draft an ANC that is appropriate for your needs. If you choose marriage out of community of property with accrual, we can assist with the valuation of your respective estates prior to the marriage, and draw up the corresponding contract. If you would like to discuss your options in confidence, call Simon today.

At SD Law, you are assured of discretion and sensitivity. Contact Simon on 087 550 2740 or contact us here.

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After Divorce – Can you still be friends with your ex?

After divorce, two people discuss their future. Can they still be friends?

 

Getting to friends after divorce.

After divorce, is it possible to be friends? As family law practitioners, we see every kind of divorce imaginable, from amicable to acrimonious and everything in between.

Unsurprisingly, the nature of the divorce often corresponds to the tenor of the relationship: couples who had a harmonious marriage and simply fell out of love tend to navigate a relatively civil break-up. At the other end of the scale, partners whose marriages were characterised by blazing rows and/or chilly silences are more likely to continue the pattern of conflict into the divorce proceedings. When there has been violence, infidelity or deceit a friendly end to the marriage is unlikely.

While divorce, however civil, is a painful experience and not the best time to renegotiate the relationship, for many couples there does come a time when their friendship is stronger than ever – they just don’t want to be married to each other anymore.

We were curious about why some couples become friends…sometimes very good friends…after divorce, while others never move past bitterness and recriminations. We spoke to someone who divorced when her children were small, having been married for eight years, and whose own parents divorced after 32 years of marriage. Mother and daughter had very different post-divorce relationships with their ex-husbands, and we wanted to know why. This is their story, told to us by the daughter.

 

My mother

You could say divorce runs in our family. My parents split up, after 32 years of marriage, when their first grandchild (my son) was three months old. There was another woman involved, but my father was quick to deny this was the reason for the divorce – saying it was a symptom rather than a cause. The onset of grandparenthood may have triggered a mid-life crisis, but the affair had been going on long before the baby entered the scene. My mother, typical of women of her generation, had given up work to raise a family and so was financially dependent on my father.

 

Myself after divorce

My own divorce came later, after my second child. My son and daughter were five and three when my marriage reached the state of irretrievable breakdown, though we had separated briefly before. In hindsight, we should have stayed apart then, but we felt we owed it to the children to try to put things right. The divorce was not finalised until three years after our separation. We lived in Scotland, where the law allows for “no-fault” divorce if both parties agree to the divorce and live apart for two years. We had nothing in the way of assets, so the financial division of spoils was irrelevant, and my husband did not contest my claim for custody. Those three years were not easy – far from it. But by the time we were no longer legally husband and wife, we had passed the stage of thinking of ourselves in those terms. We were simply the parents of our children. And without ever voicing it, we knew we had to treat each other decently to avoid causing those children harm. Things were ugly when we first split and I wanted to spare them further trauma.

 

My mother, by contrast…

In my mother’s case, things couldn’t have been more different. Custody of children was irrelevant as my sister and I were adults. The financial aspect of the divorce, however, was about as messy as it gets. Although my father had been unfaithful and had initiated the divorce proceedings, for reasons I will never understand he treated my mother as if she were to blame, possibly driven by his own guilt. Negotiations were protracted, vicious and spiteful. My mother was, understandably, fighting for her future livelihood; as a woman in her mid-50s in the 1980s, who hadn’t worked in 30 years, she was unlikely to enter the job market and earn enough to support herself, let alone maintain her lifestyle, which was not extravagant. My father was determined to give her as little as legally permissible, while she was resolute in her claim to compensation for having raised his family and advanced his career in her role as wife and social partner.

The divorce took a very long time to settle, with many cruel and hurtful exchanges between lawyers and the estranged couple, so that by the time the decree came through, my mother was drained of all respect and compassion for my father and unable to remember why she had once loved him. Sadly, despite the passage of 30 years and the death of my father three years ago, she is still tormented by bitterness and hurt.

 

As for me…

My children are grown and my ex-husband has remarried twice and is now alone again. He has been in and out of our children’s lives and in recent years has drifted away, and we no longer have any contact with him. My ex and I are not the best friends that some divorced couples are, but, importantly, we managed to maintain a healthy relationship while the children were growing up. Our contact was limited to the children’s activities and didn’t extend to social interaction beyond that; but we often reminisced about fun things we had done together as a family and occasionally teased each other about particular traits or habits. Contact was genial, although I wouldn’t have chosen to spend time with him under any other circumstances.

I know of some couples who remain genuine friends, but my situation is probably the most typical of divorced couples. One friend, who regularly travels overseas with her eight-year-old daughter to visit family, can count on her ex to take them to the airport, and hosts play-dates with the child of the ex and his new partner. The journey to reach that cordial state was not a smooth one, but their daughter is infinitely better off for it, as are both parents. Living in a constant state of anger and resentment takes its toll on one’s mental health; it is not only the children who suffer.

 

How to “get to friends” after divorce

Having experienced divorce personally and vicariously through my mother, and having watched a number of friends go through the process, I can offer the following tips, with the caveat that I am not a professional psychologist or counsellor. After divorce, I strongly recommend seeking professional therapeutic support if you are finding it difficult to cope during or after divorce.

  • Firstly, don’t try to be friends right away. Let the dust settle. While you are in the throes of ending the most important relationship of your life, you are in no emotional position to foresee how your bond might evolve into something else. All you want (and need) to do at this stage is unravel it and find your own identity again.
  • That said, your behaviour and that of your partner during the divorce sets the scene for your future relationship. The more you treat each other with respect and dignity, the less you will breed hurt and resentment. As in my mother’s case, the damage caused by a nasty divorce can be irreparable.
  • If you have children, getting to friendship is vital. Remember, the child is the product of both of you, and when you berate the other parent, children feel it personally. To them, it is as if you are criticising a part of them (and in a sense you are). Set your own issues aside and treat your ex-partner with politeness, if you can’t stretch to kindness. Let your children see mutual respect; otherwise you may cause them to feel conflicted and torn between you. You are their parents and they love you both; don’t make them choose.
  • However, if there has been violence or emotional abuse, friendship is likely to be impossible. Access visits may need to take place under professional supervision. If this is your situation, follow the advice of your lawyer and make sure you seek counselling to help you deal with the trauma you and your children have undergone. If you have direct contact with an abusive ex-partner, reaching a point of cool civility in front of the children is all you can reasonably aim for.
  • If your children are grown, don’t underestimate the impact of your post-divorce relationship on them. Grown children can be just as traumatised by parental acrimony as younger children. A friend of mine didn’t speak to his father for six years when his parents split up, following his father’s relationship with another woman. My friend felt hurt and betrayed and it was long time before he was able to forgive his father. He was in his 20s at the time.
  • If you have no children, you may be able (and prefer) to make a clean break. However, some people find that the friendship that led to marriage is still there underneath; and with the demands of a marital relationship out of the way, they are able to be good friends. I know one couple that has formed a friendship with the husband’s ex-wife and her second husband; the four of them socialise regularly.
  • Every divorce is different, just as every marriage is different. Don’t measure yourself against anyone else. If you don’t feel comfortable being friends with your ex, you don’t have to be (subject to the caveat to be polite in front of the children). And what feels impossible right now may feel different in a few years. Don’t rush it.

 

We’re here to help even after divorce

If your relationship has reached the end of the line and you would like to discuss your options, we’re here to help. Contact Simon or call on 087 550 2740 or 076 116 0623 or email sdippenaar@sdlaw.co.za. SD Law & Associates are experts in divorce and family law. You are assured of absolute confidentiality.

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Moving with children post-divorce? What you need to know.

Relocating with children post-divorce

It’s natural to want to make a fresh start after divorce. Inevitably, at least one party must move out of the marital home. Where there are children involved, it is often the father who moves, to minimise disruption to the daily life of the children. Sometimes both parties move, often for financial reasons. Generally, when there are children, parents will remain in close vicinity to each other. But some choose to move away from painful memories and physically relocate much farther afield. This can cause challenges for access if the non-custodial parent moves, but he (usually ‘he’) does not face any legal issues in doing so.

However, what happens when the primary caregiver parent (let’s use ‘she’ for the sake of convenience, as it is usually the mother) wants to move across or even out of the country? What is the legal position and what consent does she need to obtain?

 

Children’s Act

The primary piece of legislation for all matters concerning children is the Children’s Act 38 of 2008. The guiding principle underpinning all the provisions of the Children’s Act is: “in all matters concerning the care, protection and well-being of a child the standard that the child’s best interest is of paramount importance must be applied” (Section 9). However, the Children’s Act does not make specific reference to the relocation of one parent or the other, nor does it legislate consent procedures. Section 18 makes it clear that if one parent wants to emigrate outside of South Africa the consent of both parents is needed. For relocation within South Africa, the situation is less well defined.

In the absence of legislative controls, decisions coming before the courts have been decided on a case-by-case basis, and case law is now brought to bear in new court hearings on the matter.

 

Parents have rights too

An interesting feature of the Children’s Act is the provision (in section 18(4)) for parents with shared guardian responsibility to act independently without the other’s consent, including relocation within the country. However, the Act, with its overarching concern for the rights and interests of the child, also allows for the child, depending on age and maturity, to be informed and consulted on any decision (such as relocation) that significantly affects the child. It also allows for the other parent to be informed (Section 6(5)).

Furthermore, the Act provides for the views of the other (non-custodial) parent to be taken into consideration in any decision that may impact on his rights, such as right of access. But the primary caregiver need not accommodate the other’s views, and even a failure to inform the non-custodial parent does not automatically invalidate the decision. It would, however, cause the decision to be reviewed.

 

A practical example

What does this mean in practice? Let’s say John and Mary are divorced and live in Durbanville and the child of their marriage, Sarah, who is eight, lives with Mary the majority of the time. Mary is considered the primary caregiver. John sees Sarah every other weekend and takes her to school on Wednesdays. Mary is offered a promotion which will significantly advance her career and render her able to provide Sarah with a better quality of life. The job is in Johannesburg. Because Mary is choosing to relocate for a ‘reasonable and bona fide’ reason (and not deliberately or spitefully seeking to remove Sarah from John’s range), it can be assumed that the move is in the interests of the child. Sarah, being eight, may or may not have the developmental maturity to be part of the decision, but is certainly old enough to be informed. Mary should consult with John, but he does not have authority to refuse permission for the move. Should Mary go ahead and relocate without telling John, he would be entitled to ask for the decision to be reviewed, but he is not automatically guaranteed a mandate to keep Mary in Durbanville.

South African courts have tended to favour a ‘pro-relocation’ approach. In Godbeer v Godbeer in 2000, the court upheld the view that if the decision to move is made maturely and rationally, it can be presumed that the relocation is in the best interests of the child. This principle was reinforced in Jackson v Jackson in 2002, where the relocation in question was international. The court decided: “…even if the access by the non-custodian parent would be materially affected, it would not be in the interest of the children that the custodian parent be thwarted in his or her endeavour to emigrate in pursuance of a decision reasonably and genuinely taken.” The opinion went on to state: “The reason why a Court is reluctant to interfere with the decisions of a custodian parent is not only because the custodian parent may, as a matter of fact, be in a better position than the non-custodian parent in some cases to evaluate what is in the best interests of a child but, more importantly, because the parent who bears the primary responsibility of bringing up the child should as far as possible be left to do just that.” However, it was unequivocally stated that the interests of the child must be the primary consideration.

 

Neutrality rules

Other cases have taken a more neutral approach and given more equal weighting to the views of both parents. It is worth noting, however, that in one neutral approach case law example the children of the marriage were 11 and 14, and so their views (on a move to Dubai to marry a Dubai resident, out of a complex where both parents lived separately and the children could spend time with both on a regular basis) were much more seriously considered.

 

Factors to consider

  • Hopefully, divorced parents can resolve issues of location and access amicably and without resort to the courts. However, if legal intervention is required, the courts will consider:
  • The reason for the relocation
  • The interests of the relocating parent
  • The interests of the non-relocating parent
  • The relationship between the child or children and the parents
  • The gendered nature of the roles in the family post-divorce (i.e. is the mother the primary caregiver? Would a decision to restrict the primary caregiver’s movements have a more detrimental effect on women than men and thus be discriminatory?)
  • The wishes/views of the child or children

 

Relocation Act?

Currently, as we have shown, relocation is not explicitly legislated in the Children’s Act. There are calls for a Relocation Act. Until then, we must continue to consider each case on its merits and rely on case law for guidance.

 

We’re here to help

Are you a primary caregiver who wants to relocate, or a non-custodial parent concerned about the relocation of your children? We can advise you on your situation. Contact Simon or call on 087 550 2740 or 076 116 0623 or email sdippenaar@sdlaw.co.za. SD Law & Associates are experts in divorce and family law. You are assured of absolute confidentiality.

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