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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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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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Divorcing with dignity: is there such a thing as a peaceful divorce?

Divorce with Dignity

Divorce…dignity…peaceful…three words that rarely appear in the same sentence. Divorce is anything but peaceful and even the most graceful of us can behave in very undignified ways when we are hurt and angry, two emotions that characterise divorcing or separating couples. But it IS possible to divorce peacefully, and you’ll find that all parties benefit from an amicable process.

In my experience as a divorce lawyer I have observed and supported many couples through the trauma of divorce. Without exception contested divorces, or those that are acrimonious and hostile, leave the deepest scars, not only on the couple involved but also on any children of the union and even on other family members. While you may be filled with anger, resentment and pain, allowing those feelings to dictate your behaviour will only exacerbate and prolong the agony.

 

Why divorce with dignity?

Quite apart from sparing yourself as much emotional turmoil as possible (the whole event is emotionally turbulent, but a protracted settlement makes it infinitely worse), there are very tangible reasons for effecting an amicable split.

Most importantly, if you have children, you will safeguard their wellbeing. Hostilities between parents are very difficult for children to process, because they love you both. Even if one partner has wronged the other (e.g. been unfaithful), children won’t understand these adult issues and will only be confused by the antagonism between you. And they are very likely to misinterpret the situation and think they are somehow to blame. A spin-off benefit is that your children will learn from your example how to manage anger and treat others kindly, even in the face of conflict.
In a non-contested divorce you and your spouse have control over the terms of your settlement. While you may prefer to let the court decree the stipulations of the divorce, feeling that your spouse will be more likely to adhere to the conditions, in the long run you will both be better off with a mediated, agreed resolution.
If you value your privacy, you certainly don’t want your personal affairs and intimate details dragged through the mud of the courts.
It’s cheaper! And it’s faster, so you are able to get on with the rest of your life sooner.

 

How?

Divorcing peacefully when you really want to cut your spouse’s heart out with a spoon is easier said than done. It requires maturity and self-control; but often the easiest way is to keep the bigger picture in mind. If you have children, constantly remind yourself of benefit no. 1 above. With every conflict that arises, ask yourself what resolution is in the best interests of the children. If you don’t have children, remind yourself that every hurt you inflict on your partner will rebound on you. If you want to emerge from the divorce relatively unscathed, it’s important that your partner do so as well.

 

That said…

Peaceful does not mean pushover. Dignity does not mean doing whatever it takes at your own expense to avoid confrontation or conflict. There is nothing dignified in demeaning yourself and nothing peaceful about feeling you have compromised on your own needs and rights. You and your spouse may disagree on the best approach to childcare or the division of assets; and you may not necessarily reach a stage of friendly agreement. Hopefully you will one day be friends, but that may never happen. Divorcing with dignity means calmly asserting your position on the issues, being prepared to listen to the other, and reaching a mutually acceptable solution as adults. It means being prepared to put the past behind you, hurts included, both of you moving forward with your self-respect intact.

 

Take care

Don’t underestimate the impact of divorce on your emotional state, and on that of your partner. Many recently divorced people experience sadness and depression both during and after the divorce proceedings. This is a natural response to an emotionally traumatic experience. Your lawyer will assist you through the legal process and may well be a key source of support to you, but if you are feeling overwhelmed by the feelings associated with your divorce, seek out a professional counsellor, psychologist or therapist to help you come to terms with the grief and anger you are experiencing. Divorce is a form of loss, and grief is a normal reaction to loss.

If you can view each other as two individuals who are hurting, regardless of who caused the pain, you will be able to act with much more empathy and benevolence than if you adopt the role of the wounded, wronged party. Ultimately, your generosity of spirit will inspire your spouse to treat you similarly.

 

We’re here to help

We can support you through divorce proceedings and help you move on to the next stage of your life as quickly as possible. If you would like to talk to someone in confidence, give Simon a 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. For more information on divorce in South Africa, see Types of Divorce in South Africa and for more information on mediation, see Divorce Mediation on our website.

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Out of Control? End Domestic Violence

Domestic violence - we can help

Understanding domestic violence

At Simon Dippenaar and Associates we feel strongly about domestic abuse and gender-based violence (GBV). We know that domestic violence is not perpetrated exclusively by men against women, and there are men who suffer emotional and even physical abuse at the hands of female partners. Intimate violence also happens in same-sex relationships. But in our society, the vast majority of abuse is gender-related and involves women suffering at the hands of male partners. We speak out regularly against GBV and vehemently defend the rights of women to live free of fear and abuse.

Many women suffer violence at the hands of partners every day. Because physical abuse is so widespread, other forms of abuse are often overlooked or ignored; and they are certainly much harder to prove in a court of law. But coercive or controlling behaviour towards a partner is a form of abuse as serious as physical abuse, one that can often leave invisible scars that last much longer than bodily ones. Ironically, because GBV is endemic in our country, women who experience coercive control or emotional abuse may feel they have no right to complain. If they haven’t been beaten, they should be grateful, they may think.

 

What is coercive control?

Coercive control often starts as apparent adoration. The controlling partner is charming, loving, seemingly in thrall to the other. But gradually adulation turns to possessiveness and control. Bit by bit the controlled partner is stripped of their independence, their sense of self, and their basic rights, such as the right to make decisions about their time, the people they see and how they dress or wear their hair or make-up.

 

Examples of controlling behaviour

There are many controlling behaviours and it is not possible to provide an exhaustive list in an article of this length. Tactics may be physical, sexual, economic, psychological, legal, institutional or all of the above. They may include (but are by no means limited to):

 

  • Making unreasonable or unfair demands on the other person
  • Conducting surveillance, for example the partner’s cell phone or email account may be monitored
  • Gradually separating the partner from friends and family, for example by criticising choice of friends or making visitors feel unwelcome in the home. Contact with certain individuals may actually be forbidden
  • Restricting daily activities, for example not allowing the partner to drive or to work
  • 
Controlling the partner’s access to information and services
  • Coercing the partner into having sex or even having children, for example the controlling male partner may insist the woman discontinue contraception
  • Monitoring or manipulating finances or restricting the partner’s economic independence. This could involve reading bank statements or, if the partner doesn’t have her own income, withholding cash as ‘punishment’ or using it as ‘reward’ for good behaviour
  • Accusing the partner of infidelity or inappropriate behaviour
 or objecting to the wearing of attractive clothing. Displaying extreme or unreasonable jealousy or possessiveness

 

The law and why it is so hard to prosecute

In some countries coercive or controlling behaviour is a distinct offence enshrined in legislation. In South Africa we do not have a discrete law criminalising coercive control, but it is covered by the Domestic Violence Act 116 of 1998 (the DVA), which, in addition to defining physical abuse, describes non-physical abuse:

Coercive control is most likely to be considered a form of psychological abuse, though it could contain elements of emotional and verbal abuse as well. But proving control can be problematic, because coercive control involves micro-regulation of daily activities that are commonly associated with the conventional role of women, particularly in our society – wives and female partners are expected to be homemakers and sexual partners and to provide for their male partners’ needs. In a culture such as ours that still holds many gendered stereotypes of both men’s and women’s conduct, particularly in relationships, separating the reasonable expectation or performance of one’s role from excessively controlling behaviour by the other can be difficult. The controlling manner may even…or at first…be interpreted as a sign of love and the woman may feel flattered, e.g. by jealousy or restrictions on how she may dress.

 

Recognising controlling behaviour

 

As a result, it is hard to both recognise and prosecute controlling behaviour. The partner herself or those around her may not acknowledge the control as such, seeing it as a ‘normal’ or even affectionate influence. The problem may only be identified when serious threats to autonomy begin to emerge, or when the personality starts to become altered (a best friend may remark, “she never used to behave like that”). But how likely is a woman in those circumstances to bring a charge against her partner? She already believes she has no right to independent thought. Sadly, coercive control often only surfaces in the wake of physical violence. Women may only escape the situation or lay a charge when reach breaking point is reached.

 

Prosecution

Coercive control is hard to prosecute because a judge may not be able to objectively assess whether such control has taken place, particularly if the actions undertaken by the ‘victim’ appear voluntary. Cooking a meal in a certain way, at a certain time may well be an activity a wife is perfectly happy to engage in. Or it may have been mandated under threat from the husband. There are very unlikely to be witnesses to the ‘contract’, so whom do the courts believe? A woman who has been systematically oppressed may also not be a convincing witness, particularly in contrast to her charming, confident partner. Furthermore, the very act of giving evidence in court may be unbearably traumatic for someone who has already been traumatised, rendering them confused or disorientated and their testimony unconvincing. They may not remember events clearly and may not give coherent evidence, negatively impacting their credibility.

 

New laws…or change of attitudes?

Arguably, a discrete piece of legislation defining coercive control, such as that introduced recently in the UK, could help to bring more cases to justice here in South Africa. But there would still be a need to educate the public to recognise controlling behaviour, and training of judges to understand the impact of trauma on witnesses so that their evidence is considered reliable.

 

Need help

Such a law is a long way off. Meanwhile we have the DVA to protect victims of intimate violence and psychological abuse. If you recognise your situation or that of someone you know in the information above and would like to talk to someone in confidence, give Simon a 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. If you are suffering at the hands of a controlling partner and need help to bring him…or her…to justice, we can use the full force of the DVA to prosecute your case. You can rest assured your query will be handled with discretion and sensitivity.

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Women in the workplace: How equal is equal?

Womens Day 2016
It’s hard to believe, but it has been 60 years since that famous march on the Union Buildings by women protesting against unjust pass laws. So much has changed for the better in our society since then. We have one of the most progressive constitutions in the world, enshrining equal rights and justice for all in law, regardless of gender, race, sexual preference, etc.

But what is the lived reality for South African women in 2016? The fact remains that women are still excluded from many opportunities available to their male counterparts. Poor education, lack of confidence and structural barriers keep them out of the workplace or in low-paid jobs. 84 per cent of female employment is in the services sector and women dominate lower earnings categories. Given that many women are sole breadwinners for their families, this is a serious situation.

Why are women often paid less than their male counterparts? The legislation is in place to protect all workers; and it’s being extended and modified all the time. But a sincere intent on the part of employers is now required to bring women more actively into the economy.

 

A woman’s place…

For centuries, women have been expected to be ‘pregnant and barefoot in the kitchen’. Thanks to socio-cultural conditioning, even the most liberal of male employers sometimes finds it difficult to choose a woman over a man, faced with two equally qualified candidates.

This scenario is particularly common in South Africa; our history and aspects of our culture ensure that women are (in the main) coming second in the human race.

 

Equal pay for equal work or equal pay for equal value?

‘Equal pay for work of equal value’ refines the term ‘equal pay for equal work’. In other words, there is now legislation to ensure that employees doing similar if not identical work are paid the same. It is designed to prevent discrimination on the basis of gender or other factors by measuring the value of the work produced rather than the actual tasks completed.

For example, a hotel porter (male) might be paid more than a hotel chambermaid (female); but essentially their work is of equal value so they should be paid the same.

The Draft Code of Good Practice on Equal Pay for Work of Equal Value, 2014, is another step on the road to equal pay. An assessment of whether or not the work is of equal value is carried out based on factors such as responsibilities, skills, qualifications, expertise and effort (physical, mental and emotional) and remuneration is allocated accordingly.

 

The glass ceiling – how thick is it?

How does South Africa compare to the rest of the world in terms of workplace gender equality? Not too badly, if you look at the global figure – in fact, we’re on a par… 24% of senior roles in business are held by women world-wide and in South Africa.

But once a woman crashes through the glass ceiling, is she going to be paid fairly? The law upholds the principle (e.g., the South African Employment Equity Act, 2013; the Women Empowerment Gender Equality Bill, 2014; the Constitution of South Africa) but implementation is not straightforward.

Perceptions need to change and no amount of legislation is going to do that; women still need to work hard for their position in society.

 

The road ahead – what can government do to empower women?

Education, public transport, childcare facilities, adequate housing, after-school care, access to healthcare, protection from domestic abuse and gender-based violence are all critical enablers that will help women take their rightful place in the world of work. Legal structures exist to ease the burden of poverty, inequality and lack of employment opportunities; but many women are still unaware of their rights.

 

What can business do to improve the situation?

The barriers to women’s advancement are being broken down, but more training, apprenticeships and mentorship programmes (not just for women) are required in almost every sphere of employment. Business needs increased sensitisation to the needs of female employees, especially single parents and those with family responsibilities. A change in mind-set is needed to open up the marketplace.

 

What can women do?

Successful women are role models who can encourage and educate others, particularly young women and girls, but women can also help each other with good support systems and peer-to-peer mentoring.

 

What about the unemployed millions?

Many South African women are uneducated, poor and located far from facilities that could enable them to achieve a better life. They are under-valued in society and frequently lack self-esteem. Yet they often posses tremendous strengths that could and should be developed for the greater good. There are many excellent government and NGO programmes helping to develop women’s skills and foster sustainable livelihoods, but more needs to be done.

 

If you think you’ve been unfairly treated

The legislation surrounding labour relations is complex and difficult to navigate. If you think you have been unfairly treated at work or have suffered inequity in pay, you should seek professional advice. At Simon Dippenaar & Associates we are experts in labour law and can ensure your rights are protected.

Contact Simon today on 087 550 2740 or email sdippenaar@sdlaw.co.za

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Same-sex divorce – Equal rights, equal wrongs

Same-sex Divorce Cape Town

 
Recently we’ve had quite a few queries about what happens when a legally married gay or lesbian couple decides to call it a day. We’re happy to answer these questions, but there is in fact very little to say.

 

Same-Sex Divorce

 

Marriage is marriage

Same-sex marriage, often called ‘gay marriage’, despite the fact that not all men who have sex with men or women who have sex with women identify as ‘gay’, was a victory for gay rights expressly because it extended the right to legally marry to all members of society, regardless of sexual preference. Some countries had introduced the concept of civil partnerships or civil unions, conferring all the legal rights of marriage while withholding the actual institution of marriage from same-sex partners. This was often a compromise reached with politically powerful religious groups who resisted the notion of gay marriage. Thankfully, many of these countries, most notably the US and UK, have now extended the right to marry to all their citizens.

Here in South Africa, same-sex marriage has been legal for nearly 10 years, since 30 November 2006. South Africa was the fifth country in the world, the first in Africa (and unfortunately still the only one), the first in the southern hemisphere and the second outside Europe to legalise same-sex marriage.

 

Civil partnerships

Although some countries restrict same-sex unions to civil partnerships and forbid marriage, in South Africa every couple has the option of both. Civil partnerships came into being at the same time as same-sex marriage, and form part of the same legislation (the Civil Union Act 2006). Civil partnerships can be formed by opposite-sex couples and by same-sex couples, and carry the same rights, responsibilities and legal consequences as marriages. Civil partnership is often the choice of couples who do not adhere to any religious code and prefer a secular union.

 

Divorce is divorce

Just as marriage is marriage, should a same-sex marriage or civil partnership break down, divorce is divorce. The same legal process must be followed; and the same rights to a share in assets apply (depending on which marital property regime the marriage falls under – community of property, with or without accrual, or an antenuptial agreement). South African law provides for no-fault divorce based on the ‘irretrievable breakdown’ of the relationship. A number of factors may be given as evidence of a breakdown, including adultery, but the simplest and least harmful to all involved is one year’s physical separation. Divorce of same-sex couples is subject to exactly the same law.

 

Children of a same-sex marriage

Fans of Grey’s Anatomy will be aware of the battle between two moms for custody of their daughter. The girl is the biological child of one of the mothers, who were previously married. The court awarded custody to the stepmother, who eloquently testified that an adoptive parent or step-parent is no less a parent than a biological one.

If a same-sex couple decides to have children, it’s obvious that only one of the two can be the natural parent.But this does not automatically confer preferential rights in a custody battle, any more than a mother is automatically awarded custody over a father in a heterosexual divorce situation. The only factor that may increase the complexity of a same-sex divorce with children is the relationship with the other biological parent and the visitation arrangements, if he or she is involved in the child’s life (which is not always the case). There is no set precedent for this and each case must be resolved, hopefully amicably, by all parties.

 

Help is at hand in a difficult time

Whether same-sex or opposite-sex, marriage or civil union, the breakdown of a life partnership is a painful and trying time. At SD Law and Associates, we handle divorce with patience and sensitivity. We help clients reach the best possible settlement in terms of property, family structure and emotional stability. If you are in need of legal advice and support regarding divorce, contact Simon now on 087 550 2740 or 076 116 0623. Or email sdippenaar@sdlaw.co.za.

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