-->
Need a divorce attorney Cape Town?
Considering Divorce? I'm on your side
More Information
Dr Ilze Van der Merwe
B.A. (Psych) (RAU) B.A Honn (Psych)(RAU) M.A. Research Pysch (Cum Laude)(RAU) M.A. Couns. Psych (Cum Laude)(RAU) D.Litt et Phil.(RAU)
Divorce Attorney Cape Town
Admitted Attorney of the High Court of South Africa.
B.Bus.Sci (UCT), LLB (UCT), PDLP (UCT)
Request a callback or
arrange an appointment




Moving with children post-divorce? What you need to know.

Relocating with children post-divorce

It’s natural to want to make a fresh start after divorce. Inevitably, at least one party must move out of the marital home. Where there are children involved, it is often the father who moves, to minimise disruption to the daily life of the children. Sometimes both parties move, often for financial reasons. Generally, when there are children, parents will remain in close vicinity to each other. But some choose to move away from painful memories and physically relocate much farther afield. This can cause challenges for access if the non-custodial parent moves, but he (usually ‘he’) does not face any legal issues in doing so.

However, what happens when the primary caregiver parent (let’s use ‘she’ for the sake of convenience, as it is usually the mother) wants to move across or even out of the country? What is the legal position and what consent does she need to obtain?

 

Children’s Act

The primary piece of legislation for all matters concerning children is the Children’s Act 38 of 2008. The guiding principle underpinning all the provisions of the Children’s Act is: “in all matters concerning the care, protection and well-being of a child the standard that the child’s best interest is of paramount importance must be applied” (Section 9). However, the Children’s Act does not make specific reference to the relocation of one parent or the other, nor does it legislate consent procedures. Section 18 makes it clear that if one parent wants to emigrate outside of South Africa the consent of both parents is needed. For relocation within South Africa, the situation is less well defined.

In the absence of legislative controls, decisions coming before the courts have been decided on a case-by-case basis, and case law is now brought to bear in new court hearings on the matter.

 

Parents have rights too

An interesting feature of the Children’s Act is the provision (in section 18(4)) for parents with shared guardian responsibility to act independently without the other’s consent, including relocation within the country. However, the Act, with its overarching concern for the rights and interests of the child, also allows for the child, depending on age and maturity, to be informed and consulted on any decision (such as relocation) that significantly affects the child. It also allows for the other parent to be informed (Section 6(5)).

Furthermore, the Act provides for the views of the other (non-custodial) parent to be taken into consideration in any decision that may impact on his rights, such as right of access. But the primary caregiver need not accommodate the other’s views, and even a failure to inform the non-custodial parent does not automatically invalidate the decision. It would, however, cause the decision to be reviewed.

 

A practical example

What does this mean in practice? Let’s say John and Mary are divorced and live in Durbanville and the child of their marriage, Sarah, who is eight, lives with Mary the majority of the time. Mary is considered the primary caregiver. John sees Sarah every other weekend and takes her to school on Wednesdays. Mary is offered a promotion which will significantly advance her career and render her able to provide Sarah with a better quality of life. The job is in Johannesburg. Because Mary is choosing to relocate for a ‘reasonable and bona fide’ reason (and not deliberately or spitefully seeking to remove Sarah from John’s range), it can be assumed that the move is in the interests of the child. Sarah, being eight, may or may not have the developmental maturity to be part of the decision, but is certainly old enough to be informed. Mary should consult with John, but he does not have authority to refuse permission for the move. Should Mary go ahead and relocate without telling John, he would be entitled to ask for the decision to be reviewed, but he is not automatically guaranteed a mandate to keep Mary in Durbanville.

South African courts have tended to favour a ‘pro-relocation’ approach. In Godbeer v Godbeer in 2000, the court upheld the view that if the decision to move is made maturely and rationally, it can be presumed that the relocation is in the best interests of the child. This principle was reinforced in Jackson v Jackson in 2002, where the relocation in question was international. The court decided: “…even if the access by the non-custodian parent would be materially affected, it would not be in the interest of the children that the custodian parent be thwarted in his or her endeavour to emigrate in pursuance of a decision reasonably and genuinely taken.” The opinion went on to state: “The reason why a Court is reluctant to interfere with the decisions of a custodian parent is not only because the custodian parent may, as a matter of fact, be in a better position than the non-custodian parent in some cases to evaluate what is in the best interests of a child but, more importantly, because the parent who bears the primary responsibility of bringing up the child should as far as possible be left to do just that.” However, it was unequivocally stated that the interests of the child must be the primary consideration.

 

Neutrality rules

Other cases have taken a more neutral approach and given more equal weighting to the views of both parents. It is worth noting, however, that in one neutral approach case law example the children of the marriage were 11 and 14, and so their views (on a move to Dubai to marry a Dubai resident, out of a complex where both parents lived separately and the children could spend time with both on a regular basis) were much more seriously considered.

 

Factors to consider

  • Hopefully, divorced parents can resolve issues of location and access amicably and without resort to the courts. However, if legal intervention is required, the courts will consider:
  • The reason for the relocation
  • The interests of the relocating parent
  • The interests of the non-relocating parent
  • The relationship between the child or children and the parents
  • The gendered nature of the roles in the family post-divorce (i.e. is the mother the primary caregiver? Would a decision to restrict the primary caregiver’s movements have a more detrimental effect on women than men and thus be discriminatory?)
  • The wishes/views of the child or children

 

Relocation Act?

Currently, as we have shown, relocation is not explicitly legislated in the Children’s Act. There are calls for a Relocation Act. Until then, we must continue to consider each case on its merits and rely on case law for guidance.

 

We’re here to help

Are you a primary caregiver who wants to relocate, or a non-custodial parent concerned about the relocation of your children? We can advise you on your situation. Contact Simon or call on 087 550 2740 or 076 116 0623 or email sdippenaar@sdlaw.co.za. SD Law & Associates are experts in divorce and family law. You are assured of absolute confidentiality.

Posted in Children's Act, divorce attorney cape town, Parenting, Relocation Act | Tagged , , | Leave a comment

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

Divorce with Dignity

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

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

 

Why divorce with dignity?

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

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

 

How?

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

 

That said…

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

 

Take care

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

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

 

We’re here to help

We can support you through divorce proceedings and help you move on to the next stage of your life as quickly as possible. If you would like to talk to someone in confidence, give Simon a call on 087 550 2740 or 076 116 0623 or email sdippenaar@sdlaw.co.za. SD Law & Associates are experts in divorce and family law. For more information on divorce in South Africa, see Types of Divorce in South Africa and for more information on mediation, see Divorce Mediation on our website.

Posted in Divorce, divorce attorney cape town | Tagged , , , , | Leave a comment

Out of Control? End Domestic Violence

Domestic violence - we can help

Understanding domestic violence

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

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

 

What is coercive control?

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

 

Examples of controlling behaviour

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

 

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

 

The law and why it is so hard to prosecute

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

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

 

Recognising controlling behaviour

 

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

 

Prosecution

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

 

New laws…or change of attitudes?

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

 

Need help

Such a law is a long way off. Meanwhile we have the DVA to protect victims of intimate violence and psychological abuse. If you recognise your situation or that of someone you know in the information above and would like to talk to someone in confidence, give Simon a call on 087 550 2740 or 076 116 0623 or email sdippenaar@sdlaw.co.za. SD Law & Associates are experts in divorce and family law. If you are suffering at the hands of a controlling partner and need help to bring him…or her…to justice, we can use the full force of the DVA to prosecute your case. You can rest assured your query will be handled with discretion and sensitivity.

Posted in Domestic Violence | Tagged , , , , , , , , | Leave a comment

Women in the workplace: How equal is equal?

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

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

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

 

A woman’s place…

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

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

 

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

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

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

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

 

The glass ceiling – how thick is it?

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

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

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

 

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

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

 

What can business do to improve the situation?

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

 

What can women do?

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

 

What about the unemployed millions?

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

 

If you think you’ve been unfairly treated

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

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

Posted in Womens Day | Tagged , , , , , , | Leave a comment

Same-sex divorce – Equal rights, equal wrongs

Same-sex Divorce Cape Town

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

 

Same-Sex Divorce

 

Marriage is marriage

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

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

 

Civil partnerships

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

 

Divorce is divorce

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

 

Children of a same-sex marriage

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

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

 

Help is at hand in a difficult time

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

Posted in Divorce, divorce attorney cape town, Same-Sex Divorce | Tagged , , | Leave a comment