Catherine and Zelda specialise in Family Law, particularly Divorce, Contact and Parental Rights and Responsibilities. We understand the personal and sensitive nature of these disputes, and are conscious of the psychological and financial implications on all members of the family. For these reasons, it is imperative that the disputes be settled as soon as practically possible. That said, in some instances it is crucial to proceed with legal action promptly and vigorously.
Catherine has also attended mediation courses and regularly assists the Family Advocate’s office with mediations.
Zelda and Roxanne are Notaries and thus assist clients with Antenuptial contracts.
Our Family Law Department assists clients with:
The Divorce Act makes provision for two grounds of divorce, namely irretrievable break-down and mental illness or unconsciousness. Clients often say “I refuse to give him / her a divorce”. One cannot refuse to get divorced, only the terms of the divorce can be contested. Contested divorces are very costly, and often many of the disputed terms are driven by emotions and not reason.At GB Inc we believe it is imperative to be the voice of reason for the client, carefully balancing our client’s right to a fair settlement and limiting unnecessary legal costs.
The matrimonial property regime and other legislation determine what each party is entitled to in terms of the divorce.
- Divorce Mediation
Divorce mediation is an alternate process to litigation in preparing couples/partners for separation and/or divorce. It is a voluntary process for the parties and either of them can terminate the process at any stage. The purpose of mediation is to reach an amicable settlement to the divorce or seperation with joint decision on the primary residence of the children, contact and care of the children, maintenance, division of assets and any other consequences of the divorce.
One of the most important advantages of a successful mediation is that the consequences of the divorce are agreed upon between the parties instead of a court ordering the consequences, which are rarely only in favour of one party. This minimises the conflict and emotional trauma on the family unit. Children cope better with divorce when there is less conflict between the parents.
- Variation of existing divorce orders, where possible
A terms of a divorce order may be varied by a competant court order, either by agreement between the parties or on application by either of the parties.
- Parenting Agreements
The Children’s Act 38 of 2005 makes provision for a Parenting Plan. A parenting plan can be drafted and agreed upon between the parents at any stage and not necessarily only between divorcing parents. Parents already divorced or single parents can also enter into a parenting plan. Parenting plans should be designed to meet the specific needs of the family unit, be practical and fair.
- Parental Responsibilities and Rights disputes, including contact with minor children
Parental Responsibilities and Rights disputes, including contact with minor children
Section 18 of the Children’s Act instroduces Parental Rights and is defined as including “the responsibility and the right” to care for the child, to maintain contact with the child, to act as his or her guardian and to contribute to the child’s maintenance. “Care” replaces “custody” and “contact” replaces “access”.
Both parents of a child born of the marriage automatically obtain Parental Responsibilities and Rights.
In the case of extra-marital children parental responsibilities and rights vest automatically in the mother only. The father automatically obtains these responsibilities and rights if:
a) at the time of the child’s birth, the father and mother are cohabiting in a “permanent life-partnership”;
b) he consents to being identified as the father, pays damages at customary law, or contributes or attempts in good faith to contribute to the child’s “upbringing” or maintenance for a “reasonable period”.
Any dispute between the parents about whether any of these conditions has been fulfilled must be referred for mediation to a family advocate, social worker, social-service professional or “other suitably qualified person”. Any party to the dispute may then have the outcome of the mediation reviewed by a court.
The father of an extra-marital child also acquires full parental responsibilities and rights if he marries the mother any time after the birth of their child.
- Maintenance Matters
Due to the high costs of litigation we seldom recommend that clients appoint an attorney to respresent them in the maintenance court.To minimise the legal costs we prefer to guide clients in completing the forms correctly and explaining their rights and or obligations and the process to be followed to enforce their rights.
- Protection Orders / Domestic Violence
These matters often go hand in hand with divorce matters, and although domestic violence usually covers actual or threatened violence or harassment between married or de facto partners living in the same household or who have lived together previously, the term “domestic violence” is wide enough to include violence against children and elderly family members, as well as between parties “that share or recently shared the same residence”.According to the Honourable Bosiela JA in Director v Public Prosecutions v Mnogoma 2010 1 SACR 427 (SCA) para 14 at 432c, “…[D]omestic violence ha[s] become pervasive and endemic” in South African society. It is estimated that as many as one in every three South African women is subjected to violence and that every six hours a woman is killed by an intimate partner. The actual extent of violence in the home may never be accurately known, but it is clear that violence is part of the dynamics of many family situations. In S v Engelbrecht 2005 2 SACR 89 the following shocking statistics came to light:
“ A community-based prevalence study conducted in three provinces found that 26,8% of women in the Eastern Cape, 28,4% in Mpumalanga and 19,1% of women in the Northern Province had been physically abused in their lifetimes by a current or ex-partner. The same study also investigated the prevalence of emotional and financial abuse experienced by women in the year prior to the study. This was found to have affected 51,4% of women in the Eastern Cape, 50% in Mpumalanga and 39,6% in Northern Province. Thus in some parts of South Africa, as many as one in two women have experienced some form of domestic violence. In a study of 1 394 men working in three Cape Town municipalities, approximately 44% admitted to abusing their female partners.
 At its most severe, domestic violence may result in death, with either the woman striking back and killing her abuser, or the abuser killing his partner. Research covering the period 1990–1999 identified at least 941 killings as having occurred in this period. This translates into at least one woman in Gauteng losing her life at the hands of her intimate male partner every four days. Research finds that the risk of being killed by an intimate partner is far greater for women than it is for men. The same study, conducted in three Gauteng courts (Witwatersrand Local Division, Transvaal Regional, and Transvaal Provincial) over the years 1994–1998 found that for every one woman who killed her male partner, four men killed their female partners. This study also found that more than half of the women were killed under circumstances in which they were being abused. The same was not true for male perpetrators. While not one male killed in response to violence from a female partner, at least a third had a history of abusing their female partner before finally killing her.”
- Cohabitation Agreements and Separation of Parties Involved in Cohabitation Relationships
Cohabitation agreements and separation of parties involved in cohabitation relationships
Due to the fact that there is no “law of cohabitation” regulating cohabitation in South Africa, it is essential for parties cohabiting to reduce the terms of their cohabitation to writing, as the South African courts have on occasion come to the assistance of such couples by deciding that an express or implied universal partnership proper (societas universorum bonorum) exists between the couple. Proving the existance and terms of this agreement if not reduced to writing is not easy.
Furthermore, unless expressly conained in a written agreement, No enforceable right to claim maintenance from a cohabitation partner exists either during the cohabitative relationship, or after termination of the relationship.
- Antenuptial Contracts
There are three matrimonial property regimes in South Africa, namely
- Marriage in community of property which automatically applies to all marriages where the parties have not entered into an antenuptial contract
- Marriage out of community of property
- Marriage out of community of property with the accrual system
Each regime has different legal consequences and it is imperative that that clients obtain proper advise on what regime will best suit their their current and future needs. More importantly the Antenuptial Agreement, more commonly known as an ANC, must be signed by the furture husband and wife in the presence of a notary before the marriage is concluded.
Soon to be married couples often want to avoid consulting an attorney to draw up an ANC as they feel they are already planning for a divorce, and who will get what if they divorce. This is not the sole purpose of the ANC, as it, inter alias, protects the spouses assets from the creditors of the other spouse
- Variation of Matrimonial Systems and Postnuptial Agreements
Although this is possible, it is a costly exercise. The Matrimonial Property Act make provision for clients to to alter the matrimonial property regime applicable to their marriage during the subsistence of the marriage. This post-nuptial agreement will not be valid until t is made an an order of court. The creditors of the joint estate will have to be notified and may not be prejudiced by the change of the regime, thus both spouses will remain jointly and severally liable to existing creditors.
- General Family Law Advice