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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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Protect your intellectual property with a prenup

It’s complicated: Why more and more tech start-up founders are demanding prenups

Prenups are not just for the wealthy - protect your intellectual property

Young couples contemplating marriage often think of antenuptial contracts, or “prenups“, as something either for their wealthy counterparts or for second marriages, when each partner is bringing a history of asset accumulation to the marriage. In the first flush of love, couples often think, either romantically or naively, that they’ll last forever and agree on everything. But as this article from fin24.com shows, you may have more to protect than your pension fund or bachelor flat. Budding entrepreneurs need to be very careful to protect assets that may not exist yet, or investors may be put off. Prenups protect intellectual property too. California is the home of Silicon Valley but there are plenty of young entrepreneurs right here in South Africa. If you’re one of them, read on…

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Coercive control – spotting the signs

Most victims of sexual assault know their attackers…and it often starts insidiously

Along with the rest of the country, we at SD Law were outraged and heartbroken by the spate of violent attacks on women that marked this past winter. Although assaults by strangers do happen, in the vast majority of cases, the victim knows the assailant. A study conducted last year at Glasgow University in the UK found that only 9% of attackers were strangers to the woman assaulted. 

Control often leads to violence...and even murder. Don't let it happen to you.

Furthermore, physical violence is often presaged by emotional violence and controlling behaviour. It often begins with small actions that in themselves go unnoticed. A boyfriend’s jealousy or possessiveness can at first seem endearing, a sign of affection. By the time the mistrust has progressed to control, the woman may be so deeply involved in the relationship that she finds it very hard to extract herself. We make no apologies for our lack of gender neutrality. While we acknowledge that isolated incidents involving female violence against men do exist, the vast majority of gender-based assaults are perpetrated by men against women. One gender activist has suggested that we stop talking about “Violence against Women” and call it what it is: “Violence against Women by Men”.

What is coercive control?

To learn more about this phenomenon, we’ve studied the work of Lisa Aronson Fontes, a psychologist at the University of Massachusetts and the author of Invisible Chains: Overcoming Coercive Control in Your Intimate Relationship. According to Aronson Fontes, much behaviour that goes on in relationships would not be considered abusive by a criminal or even a family court. Her context is American; in South African society, with its traditional views of patrimony and the subservient role of women, this is even more true. Initially the controller may seem like a saviour, especially if a woman has children and/or limited resources (think of “sugar daddies”). Over time, “…the controlling behaviours suppress conflict. One member of the couple…is deprived of the resources she needs – such as money, friends and transportation…” The controller seeks to isolate his partner socially, and often financially, making her dependent on him. He may stalk her, watching her movements via technology, and micromanaging her daily life. Even a strong woman can be worn down by the constant threat of entrapment and the fear of displeasing her partner. 

“Hidden power”

Eventually the controlled woman starts to doubt herself. Controlling partners can be persuasive, charming and outwardly very genial, which is why friends and family often don’t believe the woman’s claims of emotional abuse. This is the abuser’s hidden power, according to Aronson Fontes. The combination of her partner’s manipulation and her friends’ disbelief leads to self-doubt and disorientation. The woman may lose her own grip on reality, often encouraged by her partner’s “gaslighting” behaviour. The man often belittles the woman, and degrades her. While this can be verbal, it is often sexual – involving coercion and humiliation.

Next stop on the coercive control train – assault

When a man views a woman as property and treats her with disrespect and disdain, it is only a matter of time before physical violence enters the scene. This is also part of the control – physical abuse creates a climate of fear and stops the woman from seeking help or running away. If she does, it is extremely common for the man to come after her, and unless there is a protection order in place to stop him contacting her, retribution can be harsh. Women often blame themselves for domestic abuse; they must have “misbehaved” or done something to deserve the punishment. A recently published study of 358 domestic homicide reviews by Dr Jane Monckton-Smith, of Gloucestershire University in the UK, found that control was present in 92% of domestic killings. This is an alarming statistic. Coercive control does not just do psychological damage. It can be fatal. 

Red flags signalling coercive control 

Don’t lose your life for the love of your life. There are signs you can look out for. If anything about your relationship makes you uncomfortable, ask yourself if the behaviour is reasonable. It may be that you’re just not suited to each other, in which case you can part amicably. However, if your partner does any of the following, you may be in the throes of a controlling relationship.

  • Excessive phone calls or messages during the day
  • Demands to know your whereabouts or plans – constantly and in detail
  • Monitoring your communications – phone calls and messages to others
  • Aggressive behaviour – e.g. damaging your belongings during a dispute
  • Blaming you for things that happen or for his own behaviour (“I’m only like this because of you”)
  • Telling your family he is concerned about your mental health
  • Preventing you from seeing your family or friends
  • Not allowing you to work
  • Not allowing you to go out
  • Insulting or undermining you
  • Frequent and/or unreasonable demands for sex, particularly for unusual sex acts that you may not be comfortable with

There are others, but if you are experiencing coercive control it’s almost certain that a number of these will be familiar. Although leaving may feel impossible, help is at hand. There are organisations that provide support to women who have suffered violence and abuse. That support ranges from a safe place to stay to legal assistance. The Reeva Rebecca Steenkamp Foundation is one such organisation and there are many others.

Contact us today

SD Law is a firm of family attorneys with deep experience of helping women escape abusive relationships and find peace and dignity in a new life. We can serve a protection order on a controlling partner and help you initiate divorce proceedings, if appropriate. We will connect you to relevant support services and make sure you and your children are safe. At Cape Town Divorce Attorneys, we understand how deeply distressing coercive control can be, and we will handle your case with discretion, empathy and compassion. Contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za for a confidential discussion. We can call you back on a safe number.

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Why have a parenting plan?

A parenting plan is a good idea even if your divorce is amicable

If you are getting divorced and have children under 18, it’s a good idea to have a parenting plan. In a high-conflict divorce, when parents can’t agree on anything, the court may order a parenting plan to be drafted. It is not compulsory when the divorce is amicable and the spouses are able to negotiate arrangements peaceably. So why is it advisable to have a plan anyhow?

Parenting plans ensure the best interests of a child are always the priority

Purpose of the parenting plan

The parenting plan defines the roles and powers of each parent or carer. These may be equal (co- or shared parenting) or one parent may have a greater share of the care responsibility. Post-divorce, one parent may relocate to another city for work or personal reasons, and the parent whose residence is the primary one may also assume decision-making powers, without the need to consult the other (though they should always be informed). In an emergency, it’s important that the parent on the scene be able to act swiftly and decisively in the best interests of the child. A parenting plan spells out these powers.

The devil is in the detail

At the time of divorce, assuming a mature and good-natured settlement, it is natural to think that your current harmony will be sustainable. And hopefully it will be. The relationship between divorcing spouses usually improves with time. Usually…but not always. As future partners enter the arena, feelings can change. Difficult circumstances with a child, such as problems at school or behaviour disorders, can cause conflict between parents previously in accord over childcare. If there is no parenting plan in place, or if it is very vague, disputes may arise in future and the best interests of the child may be compromised. 

A detailed parenting plan can anticipate and help you avoid these future challenges. 

For example:

Your children are old enough at time of divorce to be involved in the decision over care. You allow them to have some discretion regarding the division of time between each parent’s residence. One day you have an argument with your 13-year-old daughter and she decides to stay at the other parent’s home and not return to you. What do you do? If the language of the parenting plan – or the informal agreement – confirms the child’s right to choose, you could find yourself not seeing your daughter until she decides to come back. This may be her choice, but it is not in her best interests. A 13-year-old does not have the maturity to make that judgement. You hope your ex-spouse would exercise some influence over her, but what if relations have soured between you? Therefore a detailed parenting plan can cover this eventuality and ensure there is a fall-back plan.

Other important details

A parenting time schedule is the basis for the plan, to avoid scenarios such as the example above. Other important details include a specific holiday schedule with dates and times. Christmas can be particularly emotive. A generic agreement to take Christmas in turn may not be sufficient if, 10 years down the line when both parents have new families, one needs to make an alternative arrangement one year. The plan needs to spell out the circumstances when the Christmas plan can be altered, and when it can’t be. You might also want to think about seemingly minor day-to-day considerations such as transport. Many couples have come to blows over the school run!

Another source of conflict – or at least inconvenience – is what to do when a child is sick or there are in-service days at school. If you are lucky enough to have live-in childcare or accommodating relatives, this might not be an issue. But for many working parents a child’s illness causes genuine problems at work. Many companies allocate a certain number of “family leave” days per year…but not all. Does the parent with whom the child is staying on the morning she is sick take the day off? Or do you agree to negotiate on a case-by-case basis, taking into consideration your respective work demands? It really helps to figure this out in advance and include it in the parenting plan. And what about accidents? Hopefully these won’t happen, but it’s important to be prepared. When your child is sick or hurt is not the time to be making decisions about who should do what. Think through unpleasant scenarios calmly when they are only hypothetical so you know what to do when it matters.

Grandparents have rights too

Time with grandparents should also be included. We hear over and over again from grandparents who have been alienated from their grandchildren because the parents have drifted apart after divorce and the parent with custody wants nothing to do with the family of the other. Children derive huge benefit from their relationships with grandparents and this should be protected via the parenting plan.

A parenting plan is not for life

Parenting plans are designed to be reviewed and revised. The level of detail included will influence the frequency of review, and also the formality of that review. On the one hand, the more detail there is, the more often you will need to review the plan, as children grow, you re-marry and/or have more children, one parent relocates, etc. If the parenting plan includes information such as school holiday arrangements, this may need to be revised when the child changes schools, for example. On the other hand, if there is too little detail, and a dispute arises, you may wind up going to court to have the parenting plan adjusted. It’s a good idea to incorporate a review date or interval in the parenting plan itself. If you prefer not to set a formal review date, you can still reflect your intention in writing to review the plan as needed.

How much does a parenting plan cost?

You can draw up a parenting plan on your own. There are numerous templates available online. However, we don’t recommend it. As family law attorneys you might expect us to say that. But here’s why we genuinely believe the guidance of an expert divorce lawyer is critical. Online forms are usually vague and generic. That’s the nature of them. It is impossible for a template designed to accommodate a diverse range of people and situations to include everything you need in your parenting plan. You, your co-parent and your child/ren are unique. Online templates miss out important details. Only an experienced attorney will know what details to include to ensure your parenting plan runs smoothly until your child is 18. The cost will vary depending on the complexity of your circumstance but is in the range of R5000 – R15 000.

We’re here to help

At Cape Town Divorce Attorneys, we’ve helped many parents develop workable parenting plans with empathy and compassion. We are known for our high EQ and respectful approach to the divorce context. Contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za to discuss your case in confidence.

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Children and divorce

What young people say helped them get through their parents’ divorce

When parents separate or get divorced, it inevitably disrupts the lives of children, and can take a toll on their mental well-being. Over time, children learn to accommodate the changes – some more successfully than others.

Divorce is challenging for children to understand, but they do adjust.

Parents often worry about how best to support their children, so that they can adjust to the changed family situation as successfully as possible. For my latest research, I conducted a comprehensive survey of 34 young adults, aged 18 to 30, reflecting on their childhood experiences of separation and divorce. For some, their experience was as recent as one to three years ago – for others, it was much further behind them.

An end to conflict

The most important thing, which helped children adjust, was when separation brought an end to conflict between their parents. This might not happen until initial arrangements about where children would live and when they would have contact with each parent were put in place. But when it did, my participants reported an immediate sense of relief, which helped them view the separation as a positive improvement in their lives.

Communication also made a big difference: being told what was going to happen in advance by their parents helped children make sense of their changing family situation. For young children, this often meant being told more than once. Children benefited from having the opportunity to talk about their parents’ separation, and receive support from other family members, such as aunts and grandmothers. Talking to siblings and friends – particularly trusted friends who had experienced their own parents’ separation – was also found to be helpful.

Children who were able to stay in contact with both parents, as well as their friends, accommodated separation and divorce better. It also helped if further changes were kept to a minimum: for example, if children continued to live in the same area and attend the same school after separation. Where this happened, children felt their views had been taken into account in post-separation arrangements – they felt they “mattered” to their parents. This ultimately brought about a more positive view of the separation.

Losing touch

Children who lost contact with the parent they didn’t live with, but said this was what they wanted, tended to show a high level of accommodation. But those who did so involuntarily accommodated the separation less well. My research found that they viewed their parents’ separation as neither a positive improvement, nor a significant loss, and showed a medium level of accommodation.

Few of these children were told about the separation in advance, and loss of contact meant they did not see their needs taken into account. While they did not experience conflict between their parents directly, they were often aware of their resident parent’s dislike of the other parent and felt “silenced” from talking about them at home, which led to a sense of divided loyalties.

These children appeared very isolated, having access to few sources of support within the family, no support outside the family and feeling unable to talk to anyone about the changes. Over time, they created an emotional distance from the separation, meaning they treated it as a life event and moved on.

Continuing conflict

Children who continued to experience conflict between their parents after separation accommodated the changes less well. My participants described feeling “caught in the middle” of their parents’ conflict, particularly at handovers, and feeling responsible for younger siblings. This aligns with findings from many previous studies. They viewed their parents as being preoccupied with their own issues and concerns, and failing to take their children’s needs into account. They also felt unable to talk to anyone in the family about the separation, for fear of making the conflict worse.

Children found it particularly difficult when parents couldn’t agree on where they would live and contact arrangements, requiring them to talk to social workers as a result of family court proceedings. As children, my participants said they struggled to accept the post-separation changes, and as young adults their parents’ separation remained a very significant loss in their lives.

Having a sense of how these young adults experienced their parents’ separation in childhood, and the factors that helped them accommodate the changes it brought about well, can help guide parents who are separating now. It can inform their choices, and those of their families, to make sure their children have the best chance of accommodating separation well over time.

Reposted from PARENTING by SUSAN KAY-FLOWERS

If you’d like more information on any aspect of divorce and children, including parenting plans, contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za to discuss your case in confidence.

Further reading:

Posted in Child Guardianship, Child maintenance, Children, Children's Act, Co-Parenting, Divorce, Divorce mediation, Parent Plan, Parental Alienation Syndrome, Parenting, Parenting Coordination | Tagged , , , , , , , | Leave a comment

Will a post-nup make your marriage stronger?

This Marriage Week, we look at how a postnuptial contract can strengthen marriage

We recently wrote about the vexed issue of divorce and pensions. After the marital home, the pension is often the biggest asset to divide and the one that can cause the most contention, usually because it is the direct result of one spouse’s career efforts and not a joint acquisition like a home. Without an antenuptial contract in place, all assets are up for grabs in the game of divorce roulette. If you married in community of property and do not have a “pre-nup” in place, a postnuptial contract may be worth considering.

Postnuptial contract can strengthen your marriage

A pension is the asset that can most easily be divided unequally, i.e. one or other spouse can demand a 60/40 or 70/30 split. Of course this can also apply to the proceeds from the sale of a property, but it is more common for one partner to remain in the home and an agreement to be reached about the other’s compensation. A pension is simply a fund, which can be divided in any proportionality. Couples who marry young and have little in the way of assets in their own names often consider an antenuptial agreement unnecessary, or feel that it will detract from the romance of their forthcoming union. They default to a marriage in community of property. The notion of a “contract” can make a love match sound like a business deal (which of course in years gone by it was!).

Older and wiser? Or just older and richer?

As the couple matures, their careers advance, their pension funds grow, and they accrue other assets, perhaps including businesses, valuable jewellery or second properties. Then they start to think about protecting those assets in the event of divorce. It may sound contradictory, but when uncertainty is removed around one aspect of a relationship, rapport is strengthened in other areas as well. While it may sound like preparing for war, in fact developing a postnuptial agreement can lay the foundation for a more peaceful and loving connection.

When a marriage goes through a difficult patch, it is inevitable that one or other party loses sleep worrying about what will happen to this or that asset in the event of the differences becoming irreconcilable. Sometimes, this anxiety exacerbates the relationship difficulties because resentment is projected forward: in anticipation of marital breakdown, one spouse begins to fear the other will behave in a certain way, whether or not they have ever given any reason to believe they will. This fear then crystallises into a concrete expectation and whatever chance the marriage might have had is more or less eliminated, because one spouse has found the other guilty without benefit of judge or jury.

Enter the post-nup

A mature couple anticipates these challenges by securing their assets via a postnuptial contract. As adults with an equal stake in the marriage, they recognise that it is worth being realistic and not starry-eyed about the divorce statistics in South Africa (nearly half of all marriages end in divorce). They know that it is better to discuss tough issues while they are still committed to the marriage. They can negotiate matters as partners. If the relationship deteriorates and they end up as adversaries, their hard-earned assets will become weapons and/or prizes to be won. A rational agreement reached when love and care for each other are the prime motivators will mitigate hostilities down the line if the marriage fails. More importantly, a post-nup may be a factor in making the union stronger. With anxiety over their future security alleviated, the couple can deal with any emotional disagreements and work to make their marriage better.

How does a post-nup work?

The marital regime must be changed to out of community of property and agreed by both parties (obviously!). A divorce lawyer draws up a new contract (called a postnuptial contract), which must be approved by the High Court. Approval is generally granted as long as certain conditions are satisfied. There must be sound reasons for the change of regime, clearly stated. All creditors of both spouses must be notified (and named in the application); and, most importantly, the court will want to be satisfied that no child is prejudiced by the change of regime. As with any legal contract, there is a process to follow. It is fairly straightforward, but diligence is vital. Good divorce lawyers with expertise in antenuptial and postnuptial contracts will ensure adherence to procedure.

International Marriage Week

South Africa joins 20 countries around the world in celebrating Marriage Week 1-7 September 2019. There are many tips offered by relationship counsellors on how to make a marriage work. At Cape Town Divorce Lawyers we don’t claim to be marriage guidance experts. However, we are always pleased when clients don’t need our services and choose to recommit to the marriage rather than pursue divorce. We believe that a carefully crafted antenuptial or postnuptial contract, drawn up in a spirit of love and harmony, can play an important role in a strong and healthy marital relationship.

Seek the guidance of an expert family lawyer

If you’d like to know more about postnuptial contracts, or if you are preparing for marriage and would like to draft an antenuptial contract, contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za to discuss your case in confidence.

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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. According to Stats SA, in 2016 there were 25,326 divorce court orders, and most of them involved an application for an interim maintenance order by one or other spouse. 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 final divorce order 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.

How interim maintenance impacts 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.

Interim maintenance: 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.

Rule 43 orders cannot be appealed

The whole point of an interim order is to provide an immediate, interim facility to prevent potential financial hardship or to ensure custodial arrangements are suitable and children are not placed at risk, while waiting for a divorce to be finalised. For this reason interim orders cannot be appealed, as the appeal process could leave a family in a vulnerable situation for a lengthy period of time, while the appeal is resolved.

This prohibition against appeal was recently challenged first in the Supreme Court of Appeal, and when it was rejected at that level was taken to the Constitutional Court. The Con Court upheld the Supreme Court ruling. The challenge was based on the premise that the inability to appeal an interim order is unconstitutional, on the grounds that it violates the best interests of the child principle and the right to equality and access to courts.

However, the court ruled that the purpose of Rule 43 – to “provide a speedy and inexpensive remedy, primarily for the benefit of women and children” – is too important to be compromised. The right of appeal would negate the whole point of Rule 43. Furthermore, access to court is not denied, as anyone can approach the court for a variation in a Rule 43 order if circumstances change materially. Furthermore, if any order appears to be against the best interests of the child, it can be addressed on a case-by-case basis.

There were hints in this case that the constitutionality of Rule 43 itself may be open to challenge in the future, but for now, the prohibition against appeal stands. Read more about the case here.

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.

Cape Town family lawyers 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.

Further reading:

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Divorce and pension sharing

Asset splitting on divorce includes pensions – or does it?

There is probably no aspect of divorce more complex and contentious than the division of pension entitlement. Despite the introduction of “clean-break” legislation in 2007 by amendments to the Pension Funds Act 24 of 1956 (PFA), fair and equitable sharing of pension fund assets is still a minefield.

Pension sharing is a very complex part of divorce

Marital regime and pension sharing

The very first question to ask is – what marital regime applies? Entitlement to asset sharing of any description is determined by whether or not the marriage is in or out of community of property, and, if out of community of property, influenced by whether it is with or without accrual. The terms of the marital regime are set out in an antenuptial contract (ANC), or “pre-nup”. If there is no pre-nup, the default regime is in community of property (although this can be altered subsequently by means of a post-nuptial agreement).

If the marriage is out of community of property, then neither party has a right to the assets of the other, including pensions. They each leave the marriage with the property they brought to it and with any assets they secured independently during the period of marriage. If the marriage is in community of property, or out of community of property with accrual, it gets more complicated.

Because the division of pensions is so complex, for illustrative purposes we will assume that one spouse is a member of an occupational scheme (“the member”) and the other spouse has no pension provision apart from the anticipated share in the proceeds of the scheme at retirement (“the non-member”). Historically, this was the situation for many couples where the husband was the breadwinner and the wife looked after the home, or perhaps worked part-time in a low-value job. Now of course many couples are professionals with two incomes and two pension pots and may also be same-sex; but the traditional scenario of member/dependent non-member is still common enough to be useful for the sake of illustration.

Pension interest

“Pension interest” is not to be confused with interest earned on investments. Pension interest refers to the fund benefit at time of divorce and the entitlement of the non-member to a portion of that fund. Amendments to the Divorce Act 70 of 1979 – the Divorce Amendment Act 7 of 1989 – provided that: ‘In the determination of the patrimonial benefits to which the parties to any divorce action may be entitled, the pension interest of a party shall…be deemed to be part of his assets.’ What this means is that the court granting the divorce decree can now order that ‘any part of the pension interest of that member which, by virtue of subsection (7), is due or assigned to the other party to the divorce action concerned, shall be paid by that fund to that other party when any pension benefits accrue in respect of that member’.

In simple terms, this means the award to the non-member spouse of any part of the member spouse’s “interest” is calculated as at the date of the divorce, but takes effect (is paid) at a date in the future when the pension benefit accrues to the member spouse. In this way the fund continues to grow for the benefit of both parties on retirement.

However, the PFA also gives the non-member spouse the right to take the pension interest allocation as a lump sum in cash or reinvested into another retirement fund at the date of divorce.

Clean break

This provision is known as the clean-break principle. The clean-break principle was introduced by the 2007 amendments to the Pension Funds Act 24 of 1956 (PFA) and extended to private sector retirement funds by amendment on 1 November 2008. “Clean break” describes the right or entitlement of the non-member spouse who is married in community of property to receive immediate payment or transfer of the portion of the other spouse’s pension interest allocated to them upon divorce. Certain public pension funds are not regulated by the PFA and therefore the clean-break principle does not automatically apply to members of these schemes who divorce.

Bar that exit!

There can be no pension interest in an annuity or if the member spouse has left the fund. Exiting a fund is a common tactic employed to avoid sharing a pension. Technically the proceeds would be part of the joint estate. However, it can be difficult to recover the spouse’s share of benefit if the member has gone and spent the money. This is a short-sighted action that will diminish the member’s own retirement facility but is often done to ensure the estranged spouse receives no benefit. For this reason a good divorce lawyer will often ask the fund administrator to put a hold on any claims pay-out until the divorce is finalised.

Out of community of property with accrual

If the marriage is out of community of property but with accrual, and if the pension benefits were not expressly excluded in the antenuptial contract before the marriage, the same principle applies. Either spouse may have an accrual claim against the other, which could mean that the pension fund of the other spouse may need to be accessed to pay the accrual on divorce. The court is empowered to order that the non-member spouse be paid out a portion of the other’s pension fund if there are no other funds to satisfy the accrual claim.

Mind your language

The wording of the Divorce Order is absolutely crucial in matters concerning pension sharing. If the language is imprecise and the pension fund not correctly cited by name, the fund administrator may reject the claim. The administrator can make the payment only if the Divorce Order is binding on the fund, which means it must meet certain conditions. For example, if the insurance company managing the fund is named, but not the fund itself, the administrator may reject the claim on the basis that the company runs multiple funds and it is not clear which fund is meant. Any errors in the Divorce Order will require an amended order from the court; it can’t be adjusted informally.

The Divorce Order

In order to be binding, the Divorce Order must contain certain critical elements. There must be specific reference to “pension interest”. It is not sufficient to refer to “pension fund”, “pension benefits”, or any other generic description. The fund must be named or it must be clear from the wording which fund is meant. The Divorce Order must also contain the percentage or rand value of the pension interest to be assigned to the non-member spouse.

Seek the guidance of an expert divorce attorney

We have tried in this short article to give an overview of the treatment of pension entitlement on divorce. There are many variables and each situation is unique. Achieving fair and equitable sharing of pensions, remaining within the various laws involved but securing full entitlement, requires professional advice. This is not a matter that can simply be agreed between parties, however amicable the divorce, though the spouses may come to an agreement on the portion of pension interest to be awarded.

Contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za to discuss your case in confidence. SD Law and Associates are experienced family law attorneys who will look after your interests and ensure a fair settlement that respects all parties.

For more information see this related article.

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Divorce and the negotiation for pension benefits

No couple believes on their wedding day that their newly minted union will end in divorce. The stark reality is however that just under half of marriages in South Africa do not last 10 years. And many of us have little to no understanding of how our various assets, (including your pension) will be split up if it happens or how this will impact our journey to a successful retirement.

Divorce and the negotiation of pension benefits

This is according to Nashalin Portrag, Head of FundsAtWork at Momentum Corporate, who points to the latest statistics from Statistics South Africa (Stats SA), which notes that there are more than 25,000 divorces annually in South Africa.

“Divorce can be a painful and traumatic experience for everyone involved. The financial implications can also be devastating and often result in both partners having to significantly lower their standards of living post-divorce. This is highlighted by the results of the Momentum/Unisa Consumer Financial Vulnerability Index (CFVI) Q1 2019 survey, where 47.7% of respondents stated that they struggle to adapt to changing financial conditions which could include divorce,” says Portrag.

During the turmoil of negotiating the splitting of assets, maintenance and the custody of children enjoy priority, Portrag cautions that an area which is often neglected is the negotiation to claim a portion of your former spouse’s retirement savings. “In terms of the Divorce Act, your retirement benefit forms part of your assets and must be considered when dividing your marital assets. This is especially important for a spouse who has put their career on hold to take care of the children, and in doing so has not built up sufficient savings for their retirement,” says Portrag.

However, if couples are living together as “husband and wife” and not married under a legal Act of Parliament such as; the Marriages Act, Recognition of Customary Marriages Act and the Civil Union Act, there cannot be a pension interest transfer. Under these circumstances, there is no marriage capable of dissolution in terms of the Divorce Act, which enables the transfer of a pension interest benefit.  The Pension Funds Act, which regulates all private funds, was amended to allow for a pension interest transfer on the dissolution of an Islamic marriage by an order of court.

“The legal terms of a marriage will determine the guidelines for financially exiting the union. In terms of the law, if you are married in community of property or out of community of property, with the accrual system, you may be entitled to a portion of your former spouse’s pension interest. In a pension or provident fund, “Pension interest” is the amount of money that a spouse would have received if they resigned on the date of the divorce.

“This does not mean that the retirement fund member needs to split their pension interest in half to pay their former spouse. They have the choice to pay the amount that the former spouse would have received from the retirement fund, from the other assets in the estate,” says Portrag.

Also note that the pension interest claim is not limited to 50%, as in terms of the law, the parties can claim anything from 0.1% to 100% of the pension interest benefit of the former spouse.

“The benefit allocated to the non-member spouse is now payable from the date of divorce. This was not always the case, as before 13 September 2007, the non- member spouse had to wait until a benefit is accrued to the member before being able to access the divorce benefit assigned to him/her. The non-member spouse would therefore only be able to access the divorce benefit upon the member’s exit from the fund due to resignation, retirement or death,” explains Portrag.

With the introduction of the “clean-break” approach in 2007, which applies to pension, provident, retirement annuity and preservation funds, Portrag says that the non-member spouse may immediately claim the portion of the member’s pension interest and can elect to receive a cash benefit or transfer the benefit to another retirement fund.

“If a person does decide to split their pension interest and claim payment from their retirement fund, they must remember that there are certain legal requirements that have to be met before their retirement fund can pay part of their benefit to their former spouse,” Portrag continues.

He cautions that when it comes to pension interest, poorly drafted divorce orders can drag out divorce proceedings significantly and in worst case scenarios, result in non-member spouses not receiving their intended entitlements.

“It is important that clients are careful when drafting and reviewing their divorce orders. Clients are advised to check with their funds or its administrators, prior to the divorce, if the wording used will result in a valid claim for the former spouse. ”

Portrag notes that there are four key requirements, which must be included in a divorce order in terms of the Pension Funds Act, in order to facilitate speedy payout and resolution:

  1. A client must still be a member of their particular retirement fund on the date of the divorce order.
  2. The name of the fund must be in the divorce order or the fund must be identifiable from the order.
  3. The divorce order must specify the amount that the former spouse should get.
  4. The divorce order must specifically order the fund, and not for instance the member, to pay a part of the pension interest to the former spouse.

A divorce is never going to be easy, but Portrag believes there are steps a person can take to ensure that it runs as smoothly and quickly as possible, enabling all parties to put it behind them and move onto the next chapter of their lives.

It is important for members to seek advice from a financial adviser or to get an understanding of their retirement benefits options through retirement benefit counselling – a service which is accessible via their retirement find. “Having a long-term relationship with a professional financial adviser who will offer appropriate advice is paramount to reaching ones financial goals and ensuring that even through life changes one is able to make necessary financial adjustments. A holistic financial plan is vital in incorporating multiple financial strategies to allow clients to live their best lives while knowing that future uncertainties are taken care of,” Portrag concludes.

Source: IOL (emphasis by SDLAW*)

*Divorce Attorney Cape Town is a division of Simon Dippenaar & Associates Inc. (SD Law). We are passionate about the law. Based in the heart of Cape Town, our family lawyers and divorce attorneys offer expert legal advice with complete client confidentiality. Our expertise encompasses family and divorce law, and a comprehensive range of legal services. Founder and director Simon Dippenaar holds a BBusSc LLB degree and Professional Diploma in Legal Practice from the University of Cape Town, and is an admitted attorney of the High Court of South Africa. Simon Dippenaar & Associates Inc. has law offices in Cape Town and Gauteng and represents clients in South Africa and further afield.

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