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Admitted Attorney of the High Court of South Africa.
B.Bus.Sci (UCT), LLB (UCT), PDLP (UCT)
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Divorce a Missing Spouse

by Simon Dippenaar as featured on All4Women

You want a divorce but have no idea where your spouse is. You can serve notice using "substituted service" via social media or email.

How to get a divorce when you don’t know where your spouse is

Your marriage is on the rocks and you’ve finally decided to call it a day and file for divorce. The only thing is…your spouse is AWOL. How do you divorce a missing spouse?

Whatever the reason for the breakup, divorce is one of life’s most stressful experiences, second only to the death of a spouse, and it triggers a range of emotions and feelings of loss. This can be even more difficult when you do not know the whereabouts of your spouse.

Divorcing a missing spouse

In South Africa, The Divorce Act 70 of 1979 regulates the process of getting a divorce. A court may grant a divorce as a result of an irretrievable breakdown in the marriage, or if the defendant suffers from mental illness or is in a continuous unconsciousness state.

It is important to point out that the Act governs only registered marriages or civil unions; if the union is not registered the Divorce Act does not apply.

The law further states that summons for divorce must be issued on the defendant in person. But what if you have no idea where your spouse is? Don’t worry, the legislation has taken this into consideration and made it possible to divorce a missing spouse.

You can institute divorce proceedings through a process called “substituted service” in terms of the Uniform Rules of Court: Rules Regulating the Conduct of the Proceedings of the Several Provincial and Local Divisions of the High Court of South Africa 4(2). This mechanism applies when your missing spouse cannot be traced but is believed to be in South Africa.

First things first

The first step is to apply to the court for substituted service. As the plaintiff, you are required to produce an affidavit proving that you have done everything in your power to locate your missing spouse (the defendant). This  includes trying to find the defendant’s last known address, checking with neighbours, relatives, former employers and friends, as well as searching on social media sites such as Facebook and Twitter.

The court must be satisfied that there is no alternative but to issue summons via substituted service, and will decide on an appropriate method, such as advertising in a newspaper published in the area where the missing spouse is thought to live or serving notice on a family member.

Technology and the law

As communication technologies evolve, so do the courts, and the digital age is transforming the face of law. Substituted notice can now be served on a missing spouse via email or social media sites such as Facebook and LinkedIn, where personal service is not possible.

In 2012, the Durban High Court made history in South Africa when it allowed notice to be served via Facebook in the case of CMC Woodworking Machinery v Pieter Odendaal Kitchens. This development is thanks in part to Section 6(10) of The Companies Act, 3 of 2011 which states that: “… it is sufficient if the notice is transmitted electronically directly to that person in a manner and form such that the notice can conveniently be printed by the recipient within a reasonable time and at a reasonable cost.”

Although this case did not pertain to divorce, it opened the doors to serving notice via online media.

When your missing spouse lives abroad

If your missing spouse resides outside of South Africa you must apply to the court for divorce papers to be served by an official of the court in their country of residence. This process is known as an “edictal citation” and is governed by the Uniform Rules of Court: Rules Regulating the Conduct of the Proceedings of the Several Provincial and Local Divisions of the High Court of South AfricaNotice will be served on your spouse in person, at their home or work premises, with 30 calendar days to defend the action, after which the divorce will be set down for hearing.

You are required to show that you have a prima facie case, that the court has jurisdiction if your missing spouse is a foreign peregrines (a foreigner who neither resides nor is domiciled in the jurisdiction of the court); and you must disclose the spouse’s whereabouts or, if this is not possible, a last known address, location of close family members and the steps taken to obtain this information.

We can help

At SD Law & Associates we are experts in divorce law. We’ll protect your legal interests, while helping you through this difficult time with sensitivity and empathy. If you’re considering divorce and need advice call Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za.

Further reading

Abusive behaviour – How to Recognise Abusive Relationships

3 Benefits of Divorce Mediation

Foreign Divorce in South Africa

Choosing the right divorce lawyer or family attorney in South Africa

Divorce Procedure in South Africa

Divorce and Annulment – What’s the difference?

Parenting Coordination – When parents can’t agree, on anything

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Married and declared insolvent?

Insolvency | How it affects each party depends on the marital regime – in community of property or out of community of property

Couples often draw up antenuptial contracts to protect their assets in the event of divorce. No one thinks about insolvency. But your marital regime also affects what happens if one of you becomes insolvent.

In recent articles we have talked about the various marital regimes and why you might opt for one or other. There are some advantages and disadvantages to each regime; and we have covered how you can change your status once you are already married. Often circumstances arise that were beyond your ability to foresee when you were young and in love; and it’s at that point that the choice of marital regime can become critical.

Divorce is not the only scenario in which you can be affected by whether you married in community of property or out of community of property. Another major event to consider (however unpleasant) is insolvency.

What is insolvency?

Firstly, let’s clear up a myth. Insolvency is not the same as bankruptcy, although the terms are often used to mean the same thing. One is a financial state; the other is a legal procedure. Someone is insolvent when they are unable to pay their debts, either because their liabilities exceed their assets, or because they have insufficient cash flow. The latter is a particular trap for small businesses and self-employed traders. Business might appear to be booming but if invoices remain unpaid there may be insufficient funds to pay debts; and insolvency is the result.

Bankruptcy, on the other hand, occurs when one of the following takes place:

  1. A person or legal entity, i.e. a close corporation or company, makes an application to the relevant court to have themselves declared bankrupt
  2. A creditor of a person or legal entity makes an application to the relevant court to have the company or person declared bankrupt
  3. A legal entity files a special resolution with the Registrar of Companies to be declared bankrupt

Insolvency may lead to bankruptcy but does not necessarily do so; it may be possible to rectify the situation without legal protection from creditors. Insolvency does not automatically cause bankruptcy, but all bankrupt debtors are considered insolvent.

Insolvency in the context of marriage

Once upon a time, as they say in all fairy tales, most marriages were in community of property, that is, all assets were held jointly by both spouses. When women were less likely to earn their own income and more likely to look after home and children, this afforded them a degree of protection in the event of the breakdown of the marriage: they were assured an equal division of assets. Of course it also meant liabilities were shared, and if the main income earner (traditionally the man) was declared insolvent and subject to sequestration (effectively personal bankruptcy, where one’s assets are sold to pay creditors), the joint estate was sequestered and the woman’s lot was thrown in with that of her husband.

Insolvency – marriage out of community of property

It is increasingly common for couples approaching marriage to draw up an antenuptial contract and elect to be married out of community of property. In this scenario, each party’s estate is discrete, and the solvent partner’s estate does not form part of the insolvent partner’s estate in the event of insolvency of either spouse.

However, should the insolvent party be sequestrated, the solvent party is considered liable until documentation is produced (such as an antenuptial contract) that proves the separate legal ownership of assets. The court must be satisfied that the solvent partner’s assets were legitimately acquired in compliance with the Insolvency Act.

Protecting a business

Both partners are protected by the out of community of property marital regime. A couple may be able to maintain a reasonable standard of living and continue to enjoy credit facilities if one spouse is insolvent but the other retains their solvent status. More importantly, if one partner runs a company (or indeed if both have business interests), the solvent spouse is afforded protection. They can continue trading separately from the insolvent spouse. However, the solvent spouse will have to show that any interest the insolvent estate has in the assets is protected.

Consider an antenuptial or postnuptial contract

If you are getting married or are already married and have a business, it is highly advisable to ensure your marriage is out of community of property. This will protect your business should your partner become insolvent, and will also protect your partner and their business interests should your company fall into insolvency. If you married in community of property and wish to change your marital regime, you can do so by way of a postnuptial contract.

We can help

Simon Dippenaar and Associates are experts in family law. We have handled hundreds of antenuptial and postnuptial contracts and can help you choose the marital regime that is right for your circumstances. In this article we have given a brief overview of insolvency within marriage; but there can be many factors to consider. If you’d like more information or want to discuss your situation, contact us on 086 099 5146 or 076 116 0623 or email sdippenaar@sdlaw.co.za.

For more about our approach to divorce click here.

For more about how to choose a divorce lawyer click here.

For more about foreign divorces click here.

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Antenuptial contracts – the accrual system

An antenuptial contract with accrual is a fair concept, but it is not always appropriate

Antenuptial contracts (ANCs) are a fairly standard part of modern wedding preparations. Prior to the Matrimonial Property Act of 1984, antenuptial contracts did exist, but were exceptional. The majority of marriages were in community of property (still the default marital regime in the absence of an ANC), and women were subject to their husband’s marital power. The common marital estate, while nominally joint, was in fact completely under the husband’s control. This afforded a woman, who was often financially dependent on her husband, a degree of economic security. A man could not just up and leave his wife with nothing (although, of course, that did happen).

Matrimonial Property Act of 1984 changes all that

Why did this change? And what does it mean for couples today, especially women? Where ANCs existed, they probably involved a marriage between two people of wealth, and arguably of power. If a man married a young woman of high social standing from a wealthy family, it is likely that her family would insist on the protection of her share of family assets she took to the marriage. This would prevent “gold-digging”. In these cases the marriage would be out of community of property in its entirety. This meant that husband and wife were separate legal and contractual entities and there was no joint estate. 

However, a disadvantage of this regime is that a woman whose contribution was labour, i.e. housekeeping and childrearing, had no share in any “profit” that might be made in the course of the marriage. So if the husband built up a successful business, and the wife played an important role in greasing social wheels, this supporting role was effectively disregarded on the dissolution of the marriage by divorce. She walked away with what she had brought into the marriage and nothing more. The husband, meanwhile, had the right to all the wealth he had built up, even if his wife was instrumental to his success.

Antenuptial contracts provide a fairer system

The legislators who crafted the Matrimonial Property Act of 1984 were progressive, and arguably even feminist. The Act sought to combine the advantages of the two marital regimes at the time (in community of property and out of community of property) and to eliminate their disadvantages. It did this in two ways. Firstly, in community of property was retained (still the default marital regime with no ANC) but revised to remove the marital power of the husband. It gave both spouses equal administrative rights over the joint estate. Secondly, it introduced the accrual system.

What is accrual in an antenuptial contract?

A marriage out of community of property with accrual allows the spouses to retain the assets they owned before the marriage but share in any gains made during the marriage. To put it in mathematical terms, the difference between the net increases in the respective estates during the marriage is divided equally between the two when the marriage is dissolved. 

A sample calculation looks like this: One spouse owns a property worth R1m prior to marriage. Ten years later, the couple files for divorce. The property is now worth R1.5m.

The net increase (R500 000) is the accrual. This is then divided equally between the parties. The same calculation is applied to the entire estate.

Certain assets can be excluded from the accrual system, such as an inheritance or donations between the parties.

Marriage without accrual – any advantages?

You may wonder why anyone would want to enact a marriage without accrual? After all, it seems the fairest and most equitable way to acknowledge the mutual responsibility of care that marriage represents. At the same time it does not unduly compromise either’s right to maintain ownership of their own assets. But there may be circumstances in which without accrual is a more suitable system for the individuals involved. Firstly, liabilities are treated the same as gains in the accrual system, so each party’s debt remains his or her responsibility if there is no accrual. If one spouse is a known risk-taker, the other may prefer not to be exposed to the financial liabilities that may arise. It may also help to protect one party’s business, where they are a sole trader.

Secondly, not all newlyweds are young couples. Marriage and remarriage can happen later in life. The two individuals may have built up substantial estates and have children and grandchildren whose welfare they wish to protect. Particularly if both parties have similar means, they may prefer to keep their discrete assets entirely separate and “clean”. This leaves them free to dispose of them as they wish on termination of the marriage, either by divorce or death. In this way promises that pre-date the new marriage can be kept to family members. And of course any express wishes between the spouses in terms of inheritance can be captured in a will.

Expert advice on antenuptial contracts

An ANC is not a complex contract but it pays to take legal advice. It’s important to ensure you include everything of relevance and arrive at an accurate valuation. Simon Dippenaar and Associates have handled hundreds of antenuptial and postnuptial contracts and can ensure your ANC is robust and meets your needs. Contact us on 086 099 5146 or email sdippenaar@sdlaw.co.za.

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Foreign Divorce in South Africa

Married to a national of another country or a foreign national married to a South African? The foreign divorce

Foreign Divorce in South Africa. Foreign Marriage.

Foreign or international divorce happens when at least one spouse is a foreign national of another country. Given both the mobility of South Africans and the number of foreigners choosing to live in South Africa, international marriage is a very common occurrence. Furthermore, some couples choose to marry abroad in popular wedding destinations such as Mauritius or Italy. However, provided the marriage was duly registered with Home Affairs, divorce for a couple who married abroad is not classed as a foreign or expat divorce.

Divorcing a foreigner in South Africa

If you married a foreign national and they have now left South Africa, you can still institute divorce proceedings here. Furthermore, if you have left the country but your spouse is still resident here, you can also file for divorce through the South African courts. As long as one of the parties is domiciled in South Africa on the date the action is instituted, you can file in South Africa. This is also the case even if both spouses are not South African but are ordinarily resident here on the date the action is filed or have been ordinarily resident for a period of one year. South African courts have jurisdiction to hear these cases.

A gendered law

Although clearly an archaic piece of legislation, SA law, in common with many other countries, states that the “patrimonial consequences” of a marriage – that is, the marital property regime and by extension what happens on divorce – are governed by the domicile of the husband at the time of the marriage. This is called “matrimonial domicile”.  Should the man later change his domicile (which is not that easy to do, unlike residence), the status of his marital domicile remains unaltered. Therefore a man cannot wilfully change his domicile purely to create disadvantage for his wife in a forthcoming divorce action.

What this means is that, wherever a wandering husband might be right now, if the matrimonial domicile…that is, his domicile at the time of the marriage…is South Africa, the courts will apply South African law in dissolving the marriage. However, it also implies that if the husband is the foreigner, the laws of the country of his domicile will apply, even if the divorce is initiated in South Africa.

What is not yet known is what bearing this custom will have in the case of same-sex international marriages. Which partner will be deemed the “husband” when they are both husbands? To our knowledge this has not yet been tested in the courts. Perhaps a test case will pave the way for the entire misogynist practice to be abandoned.

Other factors to consider

If, in the course of the marriage, the couple has lived in numerous locations, there are other considerations. There may be jointly owned property in a foreign country. In dividing the assets of the marriage, an attorney will appraise the location of the assets and their liquidity. It will also be important to consider whether a divorce order sanctioned in South Africa will be enforceable in the country of the husband’s domicile or where the property is located.

Antenuptial contracts can help

As we’ve said on numerous occasions, antenuptial contracts (ANCs) can be real lifesavers in more than one situation. They make a difference to what happens on death and in the event of divorce. Where the divorce involves a foreign national, an ANC – or a postnuptial contract if there is one – can make the difference between acrimony and harmony. Whatever the laws of a foreign jurisdiction, which may not be as progressive or as fair as the laws of South Africa, the terms of the antenuptial or postnuptial contract will be applied to the divorce settlement.

An ANC might not help with the division of a property that has been jointly purchased by the spouses and where the title and the bond are in both names. In this case decisions must still be made about the disposal of the asset – whether it is sold and the proceeds split or one party buys out the other. And of course it will not impact on child custody arrangements, which can be complex when the divorcing spouses live in separate countries. But an ANC will reduce or eliminate disputes over other matters that are clearly defined in the contract.

Professional advice is critical

Divorce is best handled by a skilled attorney in all circumstances, even if there is no antagonism between the spouses. International divorce is particularly challenging and requires a lawyer experienced not only in divorce but in the complexities of foreign marriage and divorce. Every situation is different. If you would like to have an exploratory conversation about your circumstances, contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za, One of our specialist divorce lawyers will call you back.



For more about:

Divorcing a missing spouse

Relocating with children post divorce

Divorce and annulment

Abusive behaviour

Married and declared insolvent

Parenting co-ordination – when parents can’t agree on anything

Last will and testament 

Benefits of mediation

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Not married – when the inevitable happens

What happens to the estate on death when a couple is not legally married

We recently wrote about the consequences of the death of a spouse in terms of the different marital regimes (featured on FIN24 and our blog here). A reader wrote to tell us of losing her life partner – they were never married – and her shock upon learning she had no legal right to his estate, despite living together for many years.

So we thought it would be helpful to clarify the situation surrounding the death of a non-married life partner. Although the trend in both civil and customary marriages is slightly upward, there are still many people, both heterosexual and same-sex, who choose to live together without entering into a legal union. This is often called a domestic partnership, but this term does not (yet) have any legal standing.

No such thing as common-law marriage

We’ve said it before, but it is worth repeating, because there are still many misconceptions. Common-law marriage does not exist. Living together as man and wife for a certain number of years or even having children together does not confer any type of legal status. This can be achieved via a cohabitation agreement, but does not occur automatically by virtue of the tenure of the relationship. If you have been labouring under the assumption that you have certain rights as common-law husband and wife, it’s important that you take alternative steps to secure your future.

When bereavement strikes

Hopefully you and your partner will live long, healthy lives unmarked by tragedy. But whether through accident or old age, one of you will probably predecease the other. If many of your assets are jointly owned, and if there are surviving parents or children, whether from your relationship or a previous one, the situation can be complex and potentially financially damaging for the surviving partner.

What happens in the event of death with no other contracts

Let’s assume for a moment there is no cohabitation agreement in place and your partner did not leave a will, or the will does not include you (for example, the will was drawn up before you met and was never updated). In this case, to all intents and purposes you have no automatic rights to half the estate. Of course if an asset, such as a house, is jointly owned, you will still own your half (provided both names are on the deeds; it may be more difficult to prove your contribution to household upkeep if the house is in only one name). But that might not help you if a distant relation lays claim to the other half. You would have to buy them out, which might entail selling the house. null

The principle of reciprocal duty of support between unmarried persons has been tested in the Constitutional Court. A landmark case in 2006 resulted in victory for the surviving partner of a same-sex couple, who successfully challenged the parents’ claim to inherit from their deceased son. However, it is crucial to note that this judgement was handed down before same-sex marriage became legal in South Africa. Since the option of marriage was not available to this couple, the Court ruled that the law was discriminatory. In subsequent challenges, the Court has made it quite clear that marriage is available to anyone who wants it, and if a couple chooses not to marry, they are also choosing to exclude themselves from the legal consequences of marriage – the rights and obligations that arise uniquely from marriage, whether civil or customary or civil union.

Will you or will you not?

There are two ways you can protect your partner and yourself from being financially compromised by the other’s death: a cohabitation agreement and a will. We recommend having both. A cohabitation agreement is a relatively simple contract that includes details of a couple’s assets, property and the financial contributions each partner makes to the joint home. It is valid when ratified by an appointed lawyer.

You can download a cohabitation agreement template here.

Secondly, you should both have a will (everyone should have a will). A will sets out an individual’s wishes for the disposal of their assets after death. In the absence of a will, the Intestate Succession Act No. 81 of 1987 applies. While this Act endeavours to ensure fair distribution of assets, it may not be in line with your express wishes. A will makes sure you look after one another in the event of the other’s death.

It’s important to note that, unlike a marriage, it is simple to unwind or change a cohabitation agreement or will. If your circumstances change and you want to amend your will, you can do so simply by making a new will or adding a codicil – a sort of appendix – to it (if the changes are very small) and having it signed by two witnesses. A cohabitation agreement can be updated in the same way. In fact, it is important you remember to do this, should you split up, or your ex-partner may inherit your assets against your wishes!

Domestic Partnership Bill

In 2008 Parliament proposed a Domestic Partnership Bill that would formalise the circumstances of couples who choose to cohabit rather than marry. If enacted, it will provide the option to register a relationship as a domestic partnership, creating similar rights and responsibilities as a marriage or civil union. However, we are still waiting for this Bill to become law. Meanwhile, the information in this article represents the current situation.

Let us Help

Don’t take chances with your future – or that of your children. Simon Dippenaar and Associates are experts in family and divorce law. If you and your partner are choosing cohabitation as a long-term option, we can help you draw up a cohabitation agreement and a will. Call us on 086 099 5146 or email sdippenaar@sdlaw.co.za.

For more on how to choose a divorce lawyer click here.

For more about being married and becoming insolvent click here.

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Child maintenance – marriage is irrelevant

unmarried fathers child maintenance
Unmarried fathers have the same duty to maintain their children as married dads.

Unmarried fathers have the same duty to maintain their children as married dads

This article focuses on child maintenance. In a recent article we talked about the rights of parents, specifically unmarried fathers. A man who was never married to the mother of his child/ren does not have the same inherent rights as a married father, but parental rights are easily established, according to the Children’s Act of 2005. The Act is premised on the principle of the best interests of the child, and in most cases it is in children’s best interests to have a relationship with both parents, married or not.

Child maintenance – who pays?

We learn from an early age that every right is accompanied by a responsibility. What are the legal duties of parents, and particularly of unmarried fathers, when it comes to supporting a child? Who is responsible for maintaining the child and what costs are included in the legal definition of support?

Divorced or unmarried – it’s all the same

The law may make a minor distinction between unmarried fathers and those who were at some point married to the mother of their child in terms of rights, but when it comes to supporting the child there is no difference. Although there is considerable discussion of maintenance for minor children in the Divorce Act (indeed a court can withhold a decree absolute if the child support arrangements are not deemed satisfactory), the Maintenance Act of 1998 contains the crux of the law.

The Maintenance Act clearly states that “the parents’ respective shares of such obligation are apportioned between them…and…the duty exists, irrespective of whether a child is born in or out of wedlock or is born of a first or subsequent marriage.” In simple terms, all parents carry the responsibility to financially support their children. This is the case even if conception was unplanned or the relationship between mother and father was casual.

What does child maintenance include?

The law takes into account the respective means of both parents, and there are no fixed amounts or minimums applied by the courts. Parents have a duty to provide reasonable requirements for a child’s upbringing. This includes food, clothing, accommodation, medical care and education. The court will take into consideration the ability of each parent to pay, and the obligation on each will not necessarily be identical. The court strives for fairness rather than equality. Equal contributions could be very unfair to one party if the other party has significantly higher earnings. However, the higher earning capacity of one parent does NOT release the other parent from the reciprocal duty to support the child.

All children are equal

The birth of subsequent children to either parent does not lessen or dissolve the obligation to support the first or earlier-born child or children. Take the case of an unintended pregnancy in a teenage relationship. Years later the father marries and starts a new family. He is still responsible for the upbringing of the child he fathered in his teens. Furthermore, the arrival of more children on the scene may not jeopardise the wellbeing of the first child. The court’s view is that the parents should adjust their own standard of living rather than compromise that of the child’s.

Furthermore, where a change in circumstances of a parent, such as unemployment, results in a considerable decrease in their ability to contribute to child support, the court may require the parent to access capital such as a pension fund or retrenchment payout. In some circumstances grandparents may even be held liable to support the child. If a parent is genuinely unable to pay, for example if he is incapable of working due to serious illness, the duty of support lapses, but it does not lapse if someone voluntarily makes himself unemployed for the purpose of avoiding maintenance payments.

Responsibilities trump rights

Occasionally a parent’s access to a child may be restricted. This could happen if a parent’s behaviour is dangerous or detrimental to the child, either physically or emotionally. It is not completely unheard of for mothers to have restricted or supervised access to a child, for example if there is an alcohol or substance abuse problem, but it is a sad fact that it is more commonly men who pose a threat to the women and children in their lives, given the prevalence of domestic violence in our society. Some men also choose not to be involved in their children’s lives, for a variety of reasons. None of these scenarios absolve them of the responsibility to support their children. Rights may be forfeited or left unrealised, but responsibilities remain.

When does it end?

You might think the duty to provide financial support ends when the child reaches the age of majority (18). This is not the case. The law states that parents remain responsible for children until they are self-supporting. So university students over the age of 18 can reasonably expect their parents to continue supporting them. However, the nature of support changes when a child reaches majority. At this stage parents are only responsible for essentials, e.g. accommodation and food.

When do these responsibilities NOT apply?

There are a few situations where biological parents do not carry any responsibility for the upbringing and financial support of their children. Men who donate sperm and women who donate eggs (“biological material”) are not deemed to be the legal parents of any children born as a result of this donation and do not have any responsibility to support them. Surrogate mothers who carry a child for someone else are also not entitled to parental rights, nor do they have the corresponding responsibilities, according to the Children’s Act.

If he still won’t pay

A maintenance order may be made as a result of a divorce decree or an unmarried mother may seek child support from the father of her child. Sometimes, despite court orders, payments lapse. This can cause extreme difficulty if the income of one parent alone is insufficient to cover the costs of raising the child. But often the parent in these circumstances…usually the mother…feels powerless to enforce the maintenance order. We can help. If you are not receiving the financial support you are owed by the father of your child, call Simon at Simon Dippenaar & Associates on 086 099 5146 or email sdippenaar@sdlaw.co.za. We will ensure you get the child maintenance you are due.

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Unmarried father – know your rights

unmarried father

I’m not married to the mother of my child. What are my rights as an unmarried father?

What are my rights as an unmarried father?

Traditionally, two people fell in love, got married, and then (usually but not always) had children. In that order. Pregnancy outside of wedlock carried stigma and young women were often sent away to have the baby, who might then be raised as the “child” of the grandparents. An unmarried father rarely claimed a right to be involved in the child’s life.

But that was then and this is now. In the post-millennial era, many couples choose to start a family before or without getting married. Some of these relationships stand the test of time without legal sanction. Others, just like some marriages, break down. Where the parents and child/ren live as a family unit, the rights of each parent individually rarely come under scrutiny.

However, what are the rights of the father if the unmarried couple splits up, either before the child is born or while the child is a minor, or indeed if conception occurs as part of a casual encounter? While we always strive to be gender-neutral in our approach, the rights of the mother in law are incontrovertible, even if the child’s primary residence is the father’s home, and so this article deals with the rights of the father.

Children’s Act 2005

Prior to 2007, when the Children’s Act of 2005 came into force, an unmarried father did not have parental rights and responsibilities in respect of his child/ren. In order to secure those rights, he would have to approach a court. We know one couple who, although still together after 30 years, never wanted to marry. They had two children and fully intended to raise their daughters together. However, they had the wisdom to recognise that sometimes relationships don’t last. Mom suggested that Dad adopt his own children. This ensured, should there ever be acrimony between them in the future, Dad’s rights to his girls would not be compromised. Fortunately that card never had to be played. And thankfully fathers don’t have to go to these absurd lengths today.

The Children’s Act is a progressive piece of legislation that seeks to align the rights of children with the Constitution. One critical component of the Act is the definition of parental responsibilities and rights. The Children’s Act is built on the principle of the best interests of the child. These come before the interests of the parents, guardian, or anyone else. In determining the rights of the parents, the interests of the child are paramount.

What do we mean by “parental rights”?

The Children’s Act defines parental rights and responsibilities as four discrete activities. They are:

To care for the child

To maintain contact with the child

To act as guardian of the child

To contribute to the maintenance of the child

In this article we are focusing on rights, but will expand on the implications for responsibilities in a future article.

Mom’s rights

This is easy. The biological mother of a child has full parental rights and responsibilities in respect of the child, whether or not she is or ever was married to the child’s father. Case closed. These rights may be withdrawn or compromised by court order if some aspect of her behaviour is not in the child’s best interests, but these are her inherent rights as biological mother.

Dad’s rights

The Children’s Act recognises that children need both parents, whether married or not, and it seeks to grant parental rights to unmarried dads without too much complexity. The biological father of a child has full parental rights and responsibilities if he’s married to the child’s mother or was married to the child’s mother at conception, birth, or any time between the two events. However, we’re discussing unmarried fathers.

An unmarried biological father automatically acquires full parental responsibilities if:

When the child is born, he and the mother are living together as life partners, OR

If he is not living with the mother, he satisfies these conditions:

He consents to being or applies to be identified as the child’s father, or he pays damages in terms of customary law

He contributes or has attempted to contribute to the child’s upbringing and towards expenses in connection with the maintenance of the child for a reasonable period

As long as he meets these requirements, the unmarried father automatically acquires parental rights and responsibilities.

Same-sex relationships

Same-sex marriages are legal in South Africa, and the laws that apply to children of same-sex marriages are the same as those that apply to children in heterosexual marriages. In a future post we will look at the circumstances surrounding the rights of unmarried parents in same-sex relationships, and at surrogacy.

If you have been denied your rights…

Despite legal rights, some fathers have difficulty maintaining contact with a child when estranged from the mother. This can be due to lack of awareness of rights or obstructive behaviour by the other parent. If you need help to enjoy your full parental rights and responsibilities, call Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za. We believe it is in the best interests of the child to have a healthy relationship with both parents and we will help you achieve that.

What about maintenance?

We’ll look at the laws surrounding child support and maintenance in a future article.

Further reading

For more about what happens upon death when unmarried click here.

For more about interim maintenance for children, that is pending divorce, click here.

For more about relocating with children post divorce click here.

For information about taking a child abroad click here.

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Co-parenting with a narcissist? There are ways to cope.

Co-parenting: This is the last in our three-part series on coping with, divorcing and raising children with someone with narcissistic personality disorder (NPD). For more information on NPD and the personality traits it manifests, see our article on Narcissistic Abuse. To learn more about aspects of divorce involving a narcissist, see our article: When It All Gets Too Much – Divorcing A Narcissist.



The divorce is final, but you still have to deal with your narcissist ex. How to ensure co-parenting  with a narcissist doesn’t become a battleground

In this final article, we look at the challenges inherent in co-parenting after the divorce. What are some of the tactics you can expect, and what are the strategies that will enable you to cope?


It’s not a gender thing

NPD is more prevalent in males than females, but that doesn’t mean fathers are always the protagonists and mothers always the victims in a difficult co-parenting situation. Either parent can make the other’s life hell after the divorce. Statistically, more divorces are initiated by women than men; and women are more likely to have custodial responsibility for children. But in this article we make no assumptions about the sex of the narcissist partner or the custodial partner and will use gender-neutral language throughout.


Don’t expect things to be different

Divorce often brings with it tremendous relief. The dying days of the marriage were tense, the divorce was fraught with conflict and emotional strain, and now you just want to get on with life in peace. But you have a child or children and you are both committed to being the best parents you can be and collaborating to give your children a good and happy upbringing. Right? Don’t bet on it.

The narcissistic personality is not suddenly going to change. And there is nothing like the co-parenting arena to bring out the worst in the narcissist. Firstly, if they do not have custody or joint custody, they have the opportunity to show the world how victimised they are, how you have wrenched their children away from them. Secondly, children can be strategic weapons. From bad-mouthing you to your children, to picking them up or returning them late from access visits, to disrupting the children’s routine just to get at you (e.g. allowing them to stay up too late and returning tired, cranky kids to you the next day), the narcissist has a whole new set of tools in the toolbox with which to torment you and bolster their own ego.


Some tactics they may employ and ways you can respond

The previous two articles in this series (Narcissistic Abuse, When It All Gets Too Much – Divorcing A Narcissist)  outlined some strategies and coping mechanisms for relating to a narcissist in a conflict-free manner. The guidelines for moving into the co-parenting environment follow the same principles and include some specific tips for managing the post-divorce relationship.



If boundaries were important before, they are absolutely critical now. Your lives are separate. If you were the one who initiated the divorce, your ex may not want to accept that, but you must firmly and calmly establish and continually reassert your boundaries. Do whatever it takes to enforce your limits, whether that means never inviting your ex into your home, or ending a phone call if the conversation turns abusive, etc. Just be sure to keep your emotions under control and remain courteous at all times. Don’t give the narcissist any (legitimate) grounds for criticising your behaviour.


Toxic communication

Your only communication will be about the children, but that won’t stop the narcissist from using it to undermine, belittle or even threaten you. If you get stuck in traffic and are late for a pick-up, be prepared for an angry confrontation or hostile messages on your phone. Try to confine your communication to email or SMS/WhatsApp messages. Email is better for sorting out detailed arrangements, such as school holidays, and you can use short messaging for more immediate concerns, such as reminders about after-school activities or play dates. Make sure your messages are only about these matters and don’t engage in exchanges about personal issues. Avoid phone conversations as much as possible.



This term has been adopted by Erin Leonard PhD, a psychologist who specialises in relationships and parenting, to describe the manipulation of the other parent via the children. This often takes the form of lining the children up as allies while positioning the other parent as the opposition. As much as it may gall you to do so, the best response is to ignore it. Determine whether or not your children’s safety is at risk. If it is not, then accept that your rules will not always be upheld in the other household, and the children will survive. You may not approve of sweets before dinner or a later bedtime, but unless your child’s health is seriously jeopardised it is not worth provoking a major conflict. If it blows up, in the children’s eyes the narcissist will be proved right – you are the bad guy, the killjoy, and the other parent is much more fun. If it is a non-issue for you, it will be for the kids too.

Furthermore, children are very adaptable and quickly understand that they have a different routine with each parent. It’s not that rules don’t apply; kids simply know they live by a different set of rules in the other home. Unless those rules are unreasonably harsh, or your kids are subject to discriminatory treatment relative to step-siblings, you must learn to accept them. Reinforce your own values and structures in your home, and as the children grow they will see for themselves how your conduct differs from that of their other parent.


Parallel parenting

Sometimes co-parenting doesn’t work. The conflict doesn’t go away and the stress involved is unhealthy for you and the children. You want a friendly relationship for the sake of the children, but friendship is just not on the cards. In that case, forget co-parenting and embark on parallel parenting instead. Parallel parenting means using the tactics described in this article to the full. Limit communication, set clear boundaries, don’t get embroiled in a tug-of-war with the kids’ affections, and remain calm and collected at all times.

In addition, you can’t play happy families at child-related functions. For example, don’t include your ex in a child’s birthday party. It is not reasonable for either of you to expect to mingle amicably with other parents when you can’t be civil to each other. Hold separate birthday parties instead or trade off the host responsibility year to year.  If your child is in a school production, attend on different occasions. If there is only one performance, don’t sit together. When parent-teacher night comes around, only one of you should go. The other can schedule a separate meeting if your communication is so fraught you can’t even share the outcome.


If the worst happens

No, we’re not talking about death. But if the narcissist parent ultimately forsakes their parental responsibilities and abandons their children (data from the UK shows that one in five fathers loses touch with his children within two years of a break-up), you may feel a combination of anger and relief, but your children will be heartbroken. They may blame you. Worse, they may blame themselves. Whatever their reaction, your love and affection must be unstinting. Furthermore, though you may do so through gritted teeth, you must provide constant reassurance of the other parent’s love. Stress that the absent parent is very sad and is missing them, but for reasons it may be hard to understand is not able to be in their lives right now. Children can cope with being abandoned; the thought of not being loved does far more lasting damage.


We can help Co-parenting

SD Law & Associates are experts in divorce and family law and have helped many clients navigate divorce from a narcissist and negotiate custody or access to children. If you are considering divorce or need help with co-parenting arrangements we can support you through the process with compassion. Contact us on 086 099 5146 or 076 116 0623. Or contact us.


Further reading

For more about the rights of an unmarried father click here.

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