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Interim maintenance – how to use Rule 43 in divorce proceedings

Posted on Aug 23, 2019 by Divorce Attorney Cape Town

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

Posted on Aug 22, 2019 by Divorce Attorney Cape Town

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.

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.

Posted in Accrual, Antenuptial Contract, Divorce, Divorce finances, Pension, postnuptial contract | Tagged , , , | Leave a comment

Divorce and the negotiation for pension benefits

Posted on Aug 17, 2019 by Divorce Attorney Cape Town

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.

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.

Further reading:

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Who will care for your child after divorce

Posted on Aug 4, 2019 by Divorce Attorney Cape Town

Custody and access are now called child care and contact – but are still determined by the courts

The Children’s Act 2005 changed the language we use when it comes to child care arrangements after a divorce or breakdown in the parental relationship. Because the Act aimed to place the interests of the child at the heart of all policy, it did away with “custody” and “access”, replacing these terms with “care” and “contact”. These are the terms we will use, but we know that many people still think in terms of child custody, and want to know how they can “win” the battle for custody of their child.

Care of your child is all you want. Here's how to get it. Family attorneys and divorce lawyers

A child is not something to be fought over

The concept of winning or losing suggests that a child is an object to be won – an outcome of a battle rather than a vulnerable human being who needs and deserves love and nurturing. We strongly advise our clients not to think of care of their child as something to be won, but rather as something to be ensured. When child custody is approached from the perspective of the interests of the child, the process is much more likely to be collaborative rather than adversarial. 

That said, the ideal scenario of two divorced parents calmly negotiating co-parenting and making a smooth transition into a two-home happy family is rare. Most divorcing couples experience some degree of conflict when arranging the care of their children. In this article we will look at the behaviours that will help you increase your chances of arriving at a care agreement (more formally known as a parenting plan) that is in the best interests of your child and maximises the time you spend together.

Child care and contact: Shared parenting

The concept of custody was traditionally based on the custom of a primary residence and an alternative residence. For example, if the child lived with the mother the majority of the time, that was the primary residence, and weekends spent at the father’s home constituted the secondary residence. Today, it is becoming increasingly common for parents to genuinely share the care, with the child having a base in both homes. A number of factors need to be present for this to work; e.g. the parents need to live near each other and near the child’s school. Or one parent has to be willing to put in the extra effort involved in getting the child to school and after-school activities when the school is a bit farther away.

Where shared parenting is not in effect, and you would like your child to reside primarily with you, what steps do you need to take to convince the courts this is in the child’s best interests? We have assumed that you and your ex are already living apart, and the child or children are not living with you. If you are in the early stages of divorce and you are both still in the family home, some of these tips may not apply, but the principles do.

  1. Work together with your ex. If the divorce is acrimonious and you can’t agree on anything, this may be difficult. But it’s important for the court to see that you are willing – and able – to put your differences aside for the sake of the children. You may not manage co-parenting, and you may need the help of a mediator, but your ability to behave in a calm, adult manner and be civil to your ex will make an significant impression on the court and help convince a magistrate that you are a competent parent. (Read more here about when mediation is disqualified.)
  2. Spend time with your kids! This may sound obvious, but if you have created a carefree single life for yourself and don’t maintain regular contact, including routine parenting tasks like attending parent/teacher sessions, the court will find it harder to believe you are committed to full-time parenting. If you have been granted contact time, stick to the arrangements and be on time, every time. Don’t treat time with your children like an optional extra.
  3. Ask for a home evaluation, if this has not been done. You want to prove that you have suitable accommodation for your child (their own room) and an appropriate environment (i.e. no lodgers who might not be good for your child or dangerous physical structures).
  4. Speak well of your ex around the kids. This is sound advice regardless of your custody battle. Your children are not divorcing your ex and they love both parents. Speaking negatively about the other parent will only confuse a child and could lead to parental alienation. Not only is it abusive behaviour to alienate a child from the other parent, it could also cause the child to become defensive and turn against you for denigrating their mother/father. If your children are consulted by the court in the care decision, they should not have any unpleasant tales to tell about your treatment of your ex.
  5. Stay sober! It’s no crime to have a drink from time to time. And occasionally you might over-indulge. Provided you don’t have an alcohol or substance abuse problem, this shouldn’t affect your case. However, it is vital that you never look after your children in an intoxicated state. The court must have confidence in your ability to be a responsible parent at all times.

If you suspect abuse…

These tips assume you and your ex are both decent parents who put the child first, and you have legitimate reasons for wanting your child to reside with you…or simply to spend more time with you. All of these behaviours will also assist you in being awarded more contact time even if primary care is not your aim. 

However, what if your motivation for wanting care of your child is more pressing…you suspect abuse or otherwise believe that your ex-spouse cannot provide a suitable home environment for your child, perhaps due to mental health issues or substance abuse? What additional steps can you take to convince the courts?

  1. Gather evidence. Document everything. For example, in the case of substance abuse, if you collect your child from your ex’s residence and you suspect they are under the influence of alcohol or drugs, note the date and time and circumstances (smell of alcohol, etc.).
  2. Take photos. If your child has bruises or marks that are suspicious, take a picture and note the date and time. There may be an innocent explanation, but if there is abuse involved you will need visual evidence to back up your suspicions. Take photos of the state of your child when you collect them if you are concerned that your child is being neglected, either due to substance abuse or incompetent parenting.
  3. Get supporting statements. If other family members or friends have witnessed any of the behaviours you are using in your case for care of your child, get them to make a written statement. This applies in the case of substance abuse, physical abuse, neglect or any other inappropriate conduct. 
  4. Keep a record of any police interventions or arrests, or employment termination. If your ex’s actions bring them into contact with the law or otherwise have a negative impact on their suitability as a parent, such as loss of income, be sure to keep documentation of each incident.
  5. If you suspect parental alienation, this is a very serious matter that must be addressed promptly. The longer it goes on, the harder it will be to win back your child’s trust and affection. Speak to your family law attorney and raise your concerns. Seek counselling for the child. (Read more here.)

Always seek the advice of an excellent divorce lawyer for child care and contact

At Cape Town family lawyers, we know how important it is for children to have a stable parenting environment post-divorce. Their physical surroundings are far less important than emotional stability and a loving, nurturing environment. If your abode is humble and your ex-partner lives in more glamorous circumstances, this is irrelevant to the best interests of the child, as long as you cherish them and give them a caring upbringing – and, most importantly, keep them safe.

We will help you bring your case before the courts, and support you through the process. We have a track record of helping deserving parents win care or increased contact time with their children.

Contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za to discuss your case in confidence.

Further reading:

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International Child Custody

Posted on Jul 27, 2019 by Divorce Attorney Cape Town

Taking children abroad post-divorce

Moving overseas with a child is subject to certain conditions. Don't fall foul if them.

It is becoming increasingly common for couples to marry across borders. International travel is more accessible and over the past decade there has been an influx of immigration into South Africa, resulting in more marriages between partners of different nationalities. Inevitably, some of these marriages will end in divorce. Equally predictably, some parents will want to return to their country of birth with the children of the marriage…in other words they will seek international child custody. 

In this post we will look at 1) how you can do that legally and 2) what to do if the other parent has removed your child to another country without your consent.

International child custody: What the law says – the Children’s Act 2005

South African law does not explicitly govern international child custody, and relocation with children post-divorce. All matters concerning children are legislated by the Children’s Act 2005. This progressive piece of legislation takes the focus away from the rights of the parents and places the child at the heart of all decisions. “In all matters concerning the care, protection and well-being of a child the standard that the child’s best interest is of paramount importance must be applied” (Section 9). The Children’s Act does not directly mention the relocation of one parent or the other, nor does it legislate consent procedures. However, Section 18 stipulates that consent of both parents is needed if one or other wants to emigrate with the child(ren). 

The wellbeing of the child extends beyond simple contact with each parent. In some cases the move might be in the child’s best interests. For example, if one parent has an employment opportunity overseas that will significantly enhance the quality of life or environment the child experiences, that situation may be considered as good for the child as remaining near the non-custodial parent. South African law has tended to decide international child custody matters on a case-by-case basis. Furthermore, the views of the children will be considered, though not necessarily accommodated.

While relocating with a child is not as difficult as you might think, it is still a situation that needs to be handled carefully and with due consideration for the law. Failure to follow the correct procedures could have unwelcome consequences down the line. Furthermore, once a child is settled in an environment, even a foreign one, courts are usually reluctant to disrupt the child’s wellbeing by reversing an earlier decision. So if you are considering moving abroad with your child, or if your child’s other parent is relocating with your consent, it is a good idea to take legal advice regarding international child custody. Cape Town family law firm SD Law will ensure your conduct complies with the Children’s Act, in letter and in spirit. We will look after the interests of the child while at the same time respecting your wishes and those of the other parent.

International child abduction

International child abduction is a much more serious matter and is increasingly common globally, as air travel becomes more affordable. The abducting parent may not think of themselves as such or even realise that their behaviour is classed as abduction.

International child abduction is monitored (note – not governed; it is not a piece of legislation) by the Hague Convention on Civil Aspects of International Child Abduction (“the Hague Convention”). The Hague Convention is an international treaty designed to prevent the removal of a child from their home jurisdiction by a parent (or other caregiver) without the consent of the other parent. It also aims to return a child thus illegally removed to their home country. South Africa has been a signatory to the Hague Convention since 1 October 1997 (ratified in 1996). 

The Hague Convention defines the removal of a child as improper if it breaches the custody right of anyone based on the laws of the nation where the child was resident prior to their removal. Where two parents have shared (equal) care of a child (i.e. custody), both parents must give consent for a child to be removed, as also required by Section 18 of the Children’s Act. When there is a dispute about a child’s care between countries that are both signatories of the Hague Convention, the courts of the destination country are responsible for returning the child, if appropriate, i.e. unless there is a risk of a human rights violation such as female genital mutilation, and as quickly as possible. Under the Hague Convention, the return should be effected within six weeks.

International child abduction: The Hague Convention in Africa

Unfortunately, only South Africa, Mauritius and Zambia are signatories to the Hague Convention on the African continent. This can make the return of the child more complex, and naturally many  marriages in South Africa are between nationals of African countries. Therefore the Hague Convention does not apply. The Convention only applies to wrongful removals that occur after the treaty comes into effect between two countries.

The return of a child, whether from a Hague Convention signatory country or other, is a matter for the Central Authority in South Africa (the Family Advocate’s Office). You can approach the Central Authority on your own behalf, but it is strongly advised to use the services of capable family law attorneys to lodge an application to court. The Central Authority can be overwhelmed with child abduction applications and a good divorce lawyer, with deep knowledge of child law, can navigate the pathway more expediently than a private individual. The Central Authority will oversee the process. Your legal representative will seek to:

  • Discover the location of the child
  • Secure the voluntary return of the child if possible, or initiate legal proceedings

Dealing with a foreign court

With luck, and in most cases, the Central Authority and/or your divorce attorney will be able to locate your child and negotiate their return without involving foreign courts. However, if the matter does go to court, there are factors beyond legislation to bear in mind. Has your child been taken to a jurisdiction where cultural or religious beliefs are different to ours? Some countries have a tendency to grant sole custody to mothers. Others may lean toward awarding care to fathers. If a girl child is promised in marriage at a young age, traditional cultures may defend this practice and resist returning the child to the home country. While you can’t change entrenched beliefs in another jurisdiction, the more you are aware of the issues that may impact your case and the better prepared your legal advisers, the greater your chances of success.

What you will need

In order to begin the proceedings,  for international child custody, that will hopefully result in the return of your child, you need:

  • Completed questionnaire in English
  • Recent photographs of the child and the parent who abducted them
  • Certified copies of birth certificates
  • Proof of parental rights, such as court orders concerning care and contact (custody and access) and/or guardianship
  • Certified copy of marriage certificate, if relevant
  • Last known details of the child and the abducting parent’s possible location
  • Sworn translations in English of all relevant documentation in other languages (e.g. marriage certificates)

We’ll support you every step of the way

At Cape Town family lawyers, we know that being separated from your child is traumatic for you and them. We will work tirelessly to effect a speedy reunion with as little distress for all parties as possible. 

If you are relocating with the full consent of the other parent, we will help you revise your parenting plan to reflect the changed circumstances and protect the rights and interests of the child and both parents. Excellent legal advice regarding international child custody will ensure the best outcome in either scenario.

Contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za to discuss your case in confidence.

Further reading:

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Online divorce – beware the pitfalls

Posted on Jun 29, 2019 by Divorce Attorney Cape Town

Online or DIY divorce may look cheap – but could cost you dearly in the long run

Google “online divorce” or “DIY divorce” and you will be overwhelmed with results. It’s made out to be as easy as buying tickets to a show, and almost as cheap. It may be easy, but it’s not that simple. At Cape Town family law firm SDLAW, we don’t offer online divorces. We believe that divorce is a serious matter, however amicable, and deserves to be treated with the same respect and dignity as the institution it seeks to dissolve. 

Online divorce? Don't Risk It. Divorce Attorney Family LawyerNo such thing as an online divorce

Divorce is not granted online. This is a misnomer. All divorces in South Africa are granted either in the High Court or the Divorce Court, as a division of the Magistrate’s Court. Only a judge can grant a divorce order. All an online divorce attorney does is charge you to provide you with the relevant documentation. They do not appear in court for you or with you. You must still:

  • Sign the Deed of Settlement
  • Make copies of all documents
  • Go to court and issue your summons and annexures at the Registrar of court
  • Take the documents to the Sheriff of the Court to serve on the defendant. You can go together, which speeds up the process, but you still have to attend in person 
  • If you have minor children, go to the Family Advocate
  • Go back to court to get a date for the hearing
  • Appear in court on that date

So while it may be a DIY divorce, the only “online” function is the provision of documents, for which you pay a fee. The online divorce lawyer won’t tell you that your local magistrate’s court will provide you with the necessary forms (for free) and give you guidance on the procedure to effect your own divorce without legal representation.

Advice and guidance is fundamental

Online or DIY divorce is only suitable for couples who have discussed and agreed the terms of the divorce. DIY divorce agencies emphasise this point. What they fail to say, however, is that there are many factors that the divorcing couple might not have considered or even be aware of. Certain issues, undisclosed or unresolved at time of divorce, can come back to haunt the couple later in life. Unwinding a legal partnership – for that’s what a marriage is, in the eyes of the law – requires competent legal advice. And the fact that the partnership is also a personal one means that sensitivity and compassion from a legal adviser is essential. As family lawyers we have a reputation for high EQ and a caring approach to divorce.

Online divorce issue 1: Assets

If the divorcing couple rents their home, has no children (we’ll come on to that later), and has no other property in common, they might get away with a DIY divorce. But if there is a shared marital home, with a bond, there are complex issues such as the transfer of property to manage. Is there an antenuptial agreement (“pre-nup”) in place? Is the marriage in or out of community of property, and with or without accrual if the latter? There are many financial implications of divorce when assets are involved, and only a legal adviser can make sure all elements of the marital estate are accounted for.

Online divorce issue 2: Maintenance and pensions

Unless you’re a lawyer, you won’t know all your legal entitlements. You may be able to claim maintenance from your spouse, even if they are unemployed, because maintenance can kick in once they secure employment. If you are married in community of property, you can claim 50% of your spouse’s pension – even before they reach pensionable age, and of course that works both ways. Handling your divorce yourself could mean you miss out on financial compensation to which you are entitled, or it could mean that your spouse makes a claim later on that catches you unawares. A good divorce lawyer will ensure these matters are all dealt with up front.

Online divorce issue 3: Children

If there are children, there is a procedure that must be followed, however the divorce is enacted. Even if parents draw up a post-divorce parenting plan, a court must be involved when it comes to custody and access (now called “care and contact“). The parents may approach a family advocate for help with the parenting plan, but they only advise the court on what’s best for the children – they do not issue a judgement or an order. Again, a family law firm will ensure the best arrangements are in place before approaching the court.

Cape Town family lawyers can help

We understand that cost is an issue. Dividing assets and setting up separate households is more costly than maintaining the family home, and inevitably everyone is worse off financially. It’s reasonable for couples to want to spend as little as possible on the divorce itself, especially if they have done the hard work of thrashing out an agreement. At SDLAW we offer fixed fees for an uncontested divorce, so you know at the outset what you will pay. It may cost a little more than doing it yourself, but you will be better off reaching a settlement that is legally watertight and protects your interests, now and in the future. There is no one-size-fits-all solution for divorce. We will make sure your divorce fits you. 

Contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za.

Further reading:

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High Noon for Devious Parents as Judges Place Children First

Posted on Jun 18, 2019 by Divorce Attorney Cape Town

Maintenance evaders beware – the litigant with the best typewriter doesn’t always win.

Rule 43. Maintenance evaders beware. The litigant with the best typewriter doesn't always win.

Last week a three-judge bench of the Johannesburg High Court pronounced on the level of disclosure required by those appearing in a maintenance court. Both parties must now make full financial disclosure: every detail, including trusts and offshore assets, as well an explanation if a spouse enjoys a particularly luxurious lifestyle.

A judge can now call for an explanation if one spouse pleads poverty yet appears to live the life of Riley.

While the judgment pertained to Rule 43 (pre-divorce) maintenance actions in the high court, the decisions of the high court are binding on those magistrate’s courts that deal with divorce or maintenance.

What is Rule 43?

Rule 43 is similar to Rule 58 of the magistrate’s court. It sets out the procedure to be adopted by spouses seeking maintenance prior to a high court divorce and when maintenance is sought in the latter court.

It is more often than not the only court hearing the spouses will have before reaching a settlement of the financial aspects of the divorce. This why the judgment is so important.

Why was a full bench decision necessary?

Three divergent decisions on maintenance by high courts in Gauteng caused uncertainty.

While not a referred matter, the judgments of TS vs TS and SC vs SC handed down by Johannesburg Judge Brian Spilg appeared to take centre stage in the full bench proceedings.

Judge Spilg’s approach in TS vs TS was multi-pronged; in it he stated that:

  • Without proper financial disclosure, the court has little to work on in cases involving child support other than the product of competing typewriters.
  • If an applicant were unable to reply to the respondent’s contentions an unfair trial might result, something which goes against the spirit and letter of the Constitution.
  • If the one party is alleged to be concealing assets or an income stream then a lifestyle questionnaire or a brief hearing covering the lifestyle of the parties would assist in reaching an informed decision, as opposed to doing the best one can with the paucity of detail provided on untested affidavit evidence.

Self-employed deadbeat parents 

In SC vs SC the respondent had his own business. Judge Splig carefully analysed what both the applicant and respondent put before court (pointing to lifestyle) and observed the following:

  • It is obvious that the underlying source of each party’s income is the starting point of any investigation. The underlying source is not necessarily, nor even predominantly, an amount deposited into a bank account at the end of each month. It can be other forms of benefits that have an economic value, such as the right to occupy a residential property indefinitely, the use of a motor vehicle or credit card facilities.
  • The mere fact that a party claims to earn a salary and produces a pay slip or even an IRP5 form [employee tax certificate] tells a court very little unless it is self-evident that he or she is strictly a wage earner with no personal connection to the employer. By way of example; salary can be converted in the books and retained as a loan account or converted into equity or an investment. The use of assets registered in the name of a legal entity or a trust, such as a residential home or motor vehicle can be used indefinitely for the de facto sole benefit of a party and recurring purchases or expenditure such as groceries, petrol, vehicle maintenance, clothing, entertainment and even utility bills can be put through the company, while school fees can be taken out of a trust which provides for such an expenditure.

Judicial admonition

Judge Splig admonished presiding officers to be astute in such cases and to place proper weight on the external manifestations of the parties’ disposable income by reference to the lifestyle enjoyed by them when they lived together, whether they lived debt-free and were able to access ready sources of funds as and when needed unless proof is provided that the individual breadwinner or both lived beyond their means by reference to overdrafts, genuine loans, or had disposed of a capital asset. In short, these various structures are invariably established not simply to protect individuals from personal liability but serve legitimate tax structuring objectives to defer or convert income.

The conclusion of the full bench: Your lifestyle says it all

The full bench held that lifestyle says it all. Both parties are required to make a full and frank disclosure of their relative financial positions to the court and the other party by way of an affidavit.

These affidavits must also be accompanied by Form E – also under oath – and filed seven days before the hearing. Form E, a 20-page document that each spouse completes, will give a maintenance officer a clear insight into the lifestyle of the parties. A lifestyle investigation will prevent the parties from ducking and diving and is an incisive and long overdue manner of getting to the bottom of what has been a vexing issue in our society for far too long.

Postscript

Last year a feisty self-employed Pretoria mother got hold of TS vs TS and SC vs SC and produced seven lever arch files of financial documents in the Pretoria Maintenance Court. The magistrate too one look at the trolley load and ordered that she produce no more than one lever arch file for the hearing.

The matter is presently being taken on review in the Pretoria High Court on the basis that full disclosure was made, as stipulated by the high court. The magistrate was not obliged to read every financial document – only those referred to by the parties.

The magistrate’s decision to curtail the mother’s constitutional right to a fair hearing is to be reviewed. She has also asked the high court that the magistrate pay the costs of the review application on a punitive scale out of her own pocket so that the taxpayer is not burdened with this expense.

Read the full bench judgment here.

Source: MoneyWeb (emphasis by SDLAW*)

*Simon Dippenaar & Associates, Inc. is a law firm of Cape Town Attorneys, now operating in Gauteng and Durban. Contact one of our specialist divorce lawyers or family attorneys on +27 (0) 86 099 5146 or sdippenaar@sdlaw.coz.a for immediate strategic and compassionate assistance.

Further reading:

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Considering divorce?

Posted on Jun 3, 2019 by Divorce Attorney Cape Town

Things to consider when considering divorce

If your marriage has broken down irretrievably and you honestly believe you and your spouse would be better off going your separate ways, you have probably reached the stage of considering divorce. But perhaps you are just feeling unhappy, bored, dissatisfied or demotivated. Every relationship goes through difficult times and it’s important to be sure there isn’t something worth saving. Sometimes a bad patch in one’s own life is attributed to the relationship, when a bit of self-reflection and self-care can solve the problem.

Considering Divorce? Divorce lawyer family attorney

Many couples get as far as the divorce attorney’s office and realise they don’t actually want to get divorced after all. Sometimes this happens during mediation; at other times the process of articulating the reason for the divorce to the divorce lawyer results in a re-evaluation of the situation. At Divorce Attorney Cape Town, we are always pleased to see a couple reconciled, but your bank manager might prefer you to do that before arriving at our offices.

When you’re sure you want to divorce

You’ve asked yourself the hard questions, and you are confident that divorce is the best outcome for your situation and for your family. In that case, we’re here to support you. What’s next? And what do you need to think about?

How amicable will the divorce be?

Are you and your spouse in agreement over the need to divorce? Do you have a common view as to how assets should be divided and how your children (if you have them) should be raised? It is possible to go through the divorce process in a civil manner and make mutually acceptable arrangements regarding the big decisions…the house, the children, the savings account. In this case you may succeed in having an uncontested divorce. This is by far the most affordable option. Divorce costs can spiral out of control when the divorce is contested.

What does this mean? Well, an uncontested divorce is just what it sounds like: both partners agree on the division of assets (the marital regime will have an impact on this anyhow) and how any children of the union will be cared for, without contest or conflict. A parenting plan will be drafted as part of your divorce settlement.

By contrast, a contested divorce is one in which these key considerations are disputed. The spouses, who have become warring parties, are at loggerheads and, often out of spite or their own pain, are unable to compromise and find a way forward. The divorce attorney may recommend mediation as a means of arriving at an out-of-court settlement, but, if that fails, the case goes to trial. In these situations, it is unlikely that anyone will emerge unbattered or unbruised. The judge becomes the decision-maker, allocating assets and determining child care and contact, because the spouses are too immersed in their own pain to envisage a more dignified way out of the marriage.

Cape Town divorce lawyer SD Law strongly recommends trying to achieve an uncontested divorce wherever possible. We have seen first-hand the damage contested divorces can wreak. Unless your spouse is a multi-millionaire and you feel you are entitled to your share of their millions, perhaps because you helped them build their career while sacrificing your own ambitions (in which case we will fight tooth and nail for you), an uncontested divorce is always easier to recover and move on from.

Do you need interim maintenance?

In some divorce cases, one partner – usually but not always the woman – is financially disadvantaged by the whole divorce process. Perhaps the relationship has broken down to the extent that you have established separate households before the divorce is finalised. One partner has been responsible for daily care of the children and has foregone earning potential to fulfil this role. But two households cost more than one to sustain. If one partner is struggling financially while waiting for the decree absolute, the South African courts offer a temporary solution in the form of interim maintenance known as Rule 43. A Rule 43 application allows a non-earning spouse to receive interim maintenance when the joint household income has been dissolved. The lower- or non-earning spouse may also receive financial assistance with legal costs, allowing equal access to due process of law. We are family lawyers in Cape Town and can assist with a Rule 43 application.

We will also ensure your final maintenance settlement is fair and equitable and arrangements for child care and contact after divorce are not only in the best interests of the child but workable for both parents as well.

Married abroad?

If you were married overseas, or if you are married to a foreign national who has now left South Africa, our international divorce specialists can help you navigate the slightly more complex waters of foreign divorce. We can also help if you were married in South Africa but are now living abroad and want to divorce through the South African courts. And while we’re on the subject of international divorce, we were delighted to learn that Ireland recently relaxed its strict requirements for divorce, reducing the time couples must live apart before divorce from four out of the five previous years to two out of three. Divorce places families under tremendous emotional strain, and can also have a financial impact. A long, drawn-out process does not encourage reconciliation; it just prolongs the pain. Fortunately, here in South Africa we do not have a similar prerequisite to divorce.

We are divorce lawyers with high EQ

At Cape Town divorce lawyer SDLAW, we will help you reach the best possible divorce settlement for your circumstances. This includes the financial arrangements and the plan for looking after the children. But we do more than that. We understand how stressful divorce is, even if it is mutually agreed and amicable. We will work with you to resolve issues in a sensitive, intuitive way that treats all parties with dignity and respect and accepts that emotions are inevitable. We know that you will need to rebuild your life after the divorce, and that’s most easily done if you haven’t been completely broken by the process.

Our unique approach is valued by our clients and has been featured in All4Women and Fin24. You can read what our clients have to say about us here.

Contact Divorce Attorney Cape Town for more information

Cape Town divorce lawyer SDLAW is an expert in divorce and family law. If you would like to discuss your divorce in confidence, contact Cape Town Divorce Attorneys on 086 099 5146 or email sdippenaar@sdlaw.co.za.

Additional reading

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