Advocate Muhammad Abduroaf Attorney Appeal Constitutional Court Supreme Court
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I Appealed my divorce court’s decision regarding care and contact for my two minor children to the High Court. I was successful.
After a 12-year marriage, which was in community of property, and raising two minor children, I was compelled to initiate divorce proceedings due to severe issues, including gambling, alcohol abuse, and infidelity on my husband’s part. This caused me to leave the marital home with my minor children three years ago. Since our separation, I have been the sole caregiver for our two minor children, ages 10 and 11. My primary concern is their well-being, and I have dedicated myself to their care and upbringing.Initiating the divorce proceedings
Instituting divorce proceedings against him was the best thing I could have done for myself. He did not take this lightly and immediately defended the divorce proceedings. This was unfortunate, as I believed we could have amicably resolved the divorce. The divorce, in my view, should have been a simple one. Although we were married in a community of property, we did not have many assets. An immovable property involved a house that needed to be sold, and the bond would have to be paid so that we could have shared the sale proceeds. None of us have pension funds, and there is little debt in the joint estate. The only issue was what type of contact my husband would have with the minor children after the divorce.The primary caregiver of the minor children
There was no dispute regarding the minor children remaining in my primary care. At the same time, I do not believe it will benefit the minor children if the father has limited contact with them. Despite our marriage problems, my husband has always been an excellent father to my minor children. They are very fond of him and him of them. Furthermore, I have spoken to the minor children regarding the divorce, and they agree that they would want to remain in my primary care.My husband fighting for shared care of the minor children
After instituting divorce proceedings, my husband decided that he wants to have shared care over the minor children. This never made sense to me. Firstly, although he was always in their lives, he was not their primary caregiver or cared for them like a primary caregiver would. I was the one who attended to them from birth, fed them when they were babies, took them to school, assisted them with their homework, and so on. My husband was always there, playing with them and communicating with them. He would take us as a family out on the weekend to the beach for entertainment, and it was always around. However, should the minor children fall ill, I attended to them. They will come to me first if they require any assistance with schoolwork, homework, extramural activities, etc. Therefore, it would not have benefited the minor children to be in my husband’s care for half the month. At the same time, my husband, due to infidelity, was involved with other people, and therefore, I do not believe it would benefit the minor children to be exposed to his lifestyle and, at the same time, be cared for by him. However, I accept that the minor children would have to meet his new partner as she would form part of their lives. Therefore, I had no problem with him having contact with the minor children every second weekend and half of the school holidays.Presenting my husband with a parenting plan
My attorney at the time presented my husband with a parenting plan. The parenting plan, in my view, was fair. It allowed my husband to have contact with the minor children every day of the week after school for about an hour or two. It also allowed him to have contact with the minor children every second weekend from after school on a Friday until 5 pm on Sunday. He also would have contact with the minor children for half of the long and short school holidays. He would also see the minor children on Father’s Day, Christmas Day, and other special days. On his birthday, he would also have contact with the minor children.My husband refuses to accept my parenting plan
Unfortunately, my husband disagreed with my attorney’s parenting plan and said he would not move away for shared care of the minor children. What this meant was that the minor children would live with me for one week and with him the following week, and this would alternate until the school holidays when we would share the school holidays 50-50. It has never made sense to me because during our marriage, my husband was never available to care for the minor children, and he did not know how to assist with the homework. On top of that, the minor children did not want to be in his primary care during the week.Seeking assistance from experts
To resolve this issue, my attorney enlisted the assistance of a childcare expert. The expert assessed what would be in the minor children’s best interest regarding care and contact after the divorce. The expert recommended that care and contact be as outlined in my attorney’s parenting plan, as outlined above. The minor children would see the father every day of the week, half the school holidays, special days, and every second weekend.Father being unhappy with the expert’s recommendations – Approaching the Office of the Family Advocate
The father of the minor children was still unhappy with the expert recommendation. We then approached the Office of the Family Advocate for assistance office. They conducted an investigation and concluded that it would not be in the minor children’s best interest for the father to have primary care over them or for us to have shared care of them as he proposed.The matter proceeded to Trial
Following the trial in the magistrate’s court, where I presented evidence supporting my position, the judgement was for a shared care regime, a decision I respectfully disagree with. This went against both experts and would not be in the minor children’s best interest.Appealing the divorce court’s decision to the High Court
My attorney then appealed the decision to the High Court. On appeal, the court followed the recommendations of the childcare expert at the office of all the family advocates. The High Court was not convinced that the magistrate made a fair decision, as clearly, based on the facts I presented, the experts said it would not be in the minor children’s best interest for a shared care regime.Assistance with an Appeal to the High Court, Supreme Court of Appeal or the Constitutional Court
Should you require assistance with an appeal to the high court, Supreme Court of Appeal, or constitutional court, feel free to contact the firm of Adv. Muhammad Abduroaf.
Posted on by Telelaw
Best advice on finding a top divorce lawyer for your divorce case in Wynberg, Cape Town
Do you live in Wynberg, and are you considering divorcing your spouse? Or have you been threatened with divorce? Either way, a divorce is a legal matter, and it is best to find sound legal advice or assistance. Furthermore, divorcing someone has potential severe legal consequences you may not know of. The first consequence, of course, is that you are no longer married to your former spouse, and there is no legal obligation to maintain each other (unless you qualify for alimony). You may also not inherit from your former spouse’s intestate. Lastly, and obviously, you are free to marry someone else. However, do you know of the proprietary (property) consequences of getting a divorce? What about the assets and debt you and your spouse incurred in Wynberg or elsewhere during your marriage? Do you know what should happen to it? If not, it is best you find out about these critical aspects and others before getting divorced. Then there is the issue of parental responsibilities and rights after the divorce should there be minor children involved. This article aims to provide guidance on finding the best attorney or advocate for your divorce matter that can adequately and properly advise you or handle your divorce. The advice would apply whether you live in Wynberg or anywhere else in South Africa. The issues we shall deal with are the following.- Gender of the Advocate or attorney;
- Location of the Advocate or attorney;
- Experience of the Advocate or attorney;
- Costs of the Advocate or Attorney; and
- The personality of the Advocate or Attorney.
What is the best gender of the Advocate or Attorney I need to use for my divorce? Is a male or female better?
Generally, the gender of your Advocate or Attorney should not play a role at all in a legal matter. However, depending on your background and the issues involved in your divorce, you may prefer a specific gender where you may feel more comfortable. A female who has been emotionally, physically and psychologically abused may be more comfortable with a female Attorney or Advocate. However, the same female client may prefer a male Advocate or Attorney. No more will be said on this issue.What is the ideal office location of the Advocate or attorney? Does it have to be in Wynberg?
The location or office of your attorney or Advocate is essential if you wish to consult with them in person. It is also ideal, but not necessary, for their offices to be close to the Court where the divorce would be handled. However, many lawyers make use of correspondent lawyers for this purpose. Furthermore, location should not be an issue if you want a specific lawyer to handle your case. This is so especially seeing that people are making use of virtual meetings.What level of experience should the Advocate or attorney have?
It is important to remember that not all legal matters require the best lawyer. If your divorce is straightforward, finding the best lawyer in the field is unnecessary. The best may be very busy and lack the time to give your case the attention it deserves. However, if your matter is complicated, then in that case, the most experienced and best lawyer out there is not warranted.What about the Costs of an Attorney or Advocate?
For many, the costs of the Attorney or Advocate are the most crucial consideration when it comes to enlisting their services. Usually, the more experienced the Attorney or Advocate, the more they would charge. Another aspect that affects costs is the nature of the expertise of the Advocate or Attorney. If the issues in your matter are highly technical and complicated, an Advocate or Attorney with expertise and experience may charge more.What about the personality of the Advocate or Attorney?
Many may discard the Advocate or Attorney’s personality as not important. However, it is essential to note that it may be time to change lawyers if you do not get along well with the Advocate or Attorney because of their personality. A lawyer and their client would develop a professional relationship in family law matters. This is especially so when the lawyer must discuss many personal issues regarding you, your marriage, children, finance, spouse etc. If you cannot get along well with your Attorney or Advocate, you may not divulge important information relevant to your case.What is our best advice to a client looking for an Advocate or Attorney in a divorce matter?
Considering all the factors mentioned above, before enlisting the services of an Advocate or Attorney, ensure you enlist the right one. Do not look for the most experience or best, or the top one in family law. You may have to change lawyers if you do so and cannot afford legal bills. Therefore consider the above and any other factors that you may consider necessary when deciding on enlisting the services of an Advocate or an Attorney. Best of luck.
Posted on by Telelaw