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Divorce Lawyers – Make sure your Attorney or Advocate is on your side

Divorce Lawyer – Divorces need not be difficult. With a large number of marriages ending up in divorce; surely the process should be simple. When a marriage has broken down irretrievably, life needs to go on. It is senseless to make up for your unsuccessful marriage, by trying to have a successful divorce. If there are children involved, there is even more reason not to fight. And if there are no children involved, the only outstanding issues would be property. But if you were married out of Community of Property, there is no need to fight at all. This is where a good divorce lawyer comes in.

Family Law Questions and Answers

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Divorces – Questions and Answers

Child Custody – Questions and Answers

Child Maintenance – Question and Answers

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This article does not deal with the procedural aspects of a divorce. Other articles on this website deal with that. The aim of this article is for you to search and find a good divorce lawyer, attorney, or advocate that has your best interests at heard. In other words, not there to make a small fortune off you, at the expense of your well being and that of your family. Below you would find a consent paper, with reasonable terms, that can be customised accordingly.

How should divorce lawyers deal with divorce matters?

Not all divorces are the same. But the reality is, not all divorces need to be a fight. The only persons that benefit from a long drawn out divorce are lawyers. And once the funds dry out, so too does the divorce lawyer’s energy for your case. In our view, the first thing the divorce lawyers should do when approached by a client for a divorce is to resolve it expeditiously. This can be done by trying to call both parties into a round table meeting. This is where all issues are unpacked. If that is not possible, send the other side a reasonable settlement agreement. In that way, before huge sums of money are wasted on legal costs; matters can be resolved in a cost effective manner. Have a look at the Settlement Agreement below which should be part of any good divorce lawyer’s templates. It is reasonable an one that should be accepted by the other side with due amendments. [caption id="attachment_6682" align="alignleft" width="300"]Divorce Attorney Cape Town Divorce Attorney Cape Town[/caption]

EXAMPLE OF A CONSENT PAPER

IN   THE   HIGH   COURT OF SOUTH   AFRICA (WESTERN CAPE DIVISION, CAPE TOWN) CASE NO:          /18 In the matter between:   JOHN SMITH                                                                    PLAINTIFF       and     JANE SMITH                                                                   DEFENDANT     CONSENT PAPER   INTRODUCTION THE PARTIES, as described above, were married to each other on XXX, at XXX, Cape Town, Western Cape, and the marriage still so subsists; THREE (3) MINOR CHILDREN, namely, XXX (hereafter together referred to as “the minor children”), were born from the marriage; THE PARTIES find it unfortunate, and are in agreement that the marriage has broken down irretrievably and that there is no reasonable prospect of the restoration of a normal relationship between them; AND THEREFORE, the Parties both wish for a divorce, dissolving the marriage between them, which divorce both parties would co-operate in finalising as friendly and as speedily as possible; AND WHEREAS the Parties have arrived at an Agreement relating, inter alia, to parental responsibilities and rights, proprietary rights and costs of suit, which agreement the Parties desire to record in writing and have incorporated in the Final Order of Divorce in the event of the above Honourable Court seeing it fit to grant a Final Decree of Divorce dissolving the marriage between the Parties. NOW THEREFORE THESE SAID PARTIES AGREES AS FOLLOWS:
  1. PERSONAL MAINTENANCE
    • Each Party hereby waives his or her claim to personal maintenance, past, present and future from the other Party, if any;
  2. PARENTAL RESPONSIBILITIES AND RIGHTS
    • The Parties are to remain co-holders of parental responsibilities and rights in respect of the minor children in terms of the Children’s Act, 38 of 2005 (“the Children’s Act”) as follows:
      • The Parties are to remain co-holders of guardianship over the minor children as provided for in Section 18(2(c), 18(3), 18(4) and 18(5) of the Children’s Act; and
      • The Parties are to remain co-holders of parental responsibilities and rights of care and contact in respect of the minor children as provided for in Section 18(2)(a) and (b) of the Children’s Act.
    • The Parties’ rights of care and contact shall be implemented as follows:
      • The minor children shall reside primarily with Plaintiff who shall be their primary care-giver; and
      • Defendant shall have reasonable contact with the minor children as follows unless agreed to otherwise between the Parties:
        • Every alternative weekend, commencing from Friday 15:00 until 17:00 on the Sunday;
        • Every Tuesday preceding his weekend of contact from 17:00 to 20:00; and
        • Every Thursday succeeding his weekend of contact from 17:00 to 20:00.
      • School Holidays
        • Equal sharing of long and short school holidays, in that the minor children shall reside one half with Plaintiff and the other with Defendant which shall alternate each year.
      • Special Days Contact
      • The Plaintiff and/or the Defendant, as the case may be, shall further have contact with the minor children on the following days for 3 (three) hours notwithstanding in whose care the minor children are in on those days:
        • Christmas Day;
        • The minor children’s birthday;
        • Father’s Day and Mother’s Day; and
        • The Parties’ birthday.
      • The Parties shall have telephonic contact with the minor children on a regular basis whilst the minor children are in the other’s care;
      • Notwithstanding the above, the Parties shall have reasonable contact with the minor children at all times, provided that any additional contact shall be arranged telephonically and shall only take place by prior arrangement and consensus between the Parties; and
      • The Parties shall respect each other’s privacy and shall not enter each other’s homes at any time without prior invitation, whether for the purpose of fetching or returning the minor children or any other reason whatsoever.
    • JOINT DECISION MAKING
      • The Parties shall make joint decisions about the following aspects of the minor children’s life:
        • Major decisions about the minor children’s schooling and tertiary education;
        • Major decisions about the minor children’s physical care, mental health care and medical care;
        • Major decisions about the minor children’s religious and spiritual upbringing;
        • Decisions about the minor children’s residence both within and outside the Cape Peninsula;
        • Decisions which are likely to significantly change the minor children’s living conditions or to have an adverse effect on their well-being; and
        • Decisions which affect the minor children’s everyday care and daily routine shall be made by the party in whose care the minor children are in at the relevant time.
  1. FACILITATION
    • A facilitator shall be appointed by the parties jointly to facilitate and assist in resolving disputes between the parties relating to the minor children;
    • These disputes shall include contact disputes should one party feel that contact should be increased or decreased, or varied for either party;
    • In the event of the facilitator being unable to continue as facilitator, then he/she shall appoint a facilitator in his/her place, alternatively, or should the parties be unable to agree on the appointment of a facilitator or replacement facilitator, such facilitator or replacement facilitator as the case may be shall be appointed by the chairperson for the time being of FAMAC (Western Cape);
    • In the event of the parties being unable to reach agreement in respect of a dispute, with the assistance of the facilitator, then the facilitator shall be entitled to issue a directive in respect of such dispute which shall be valid of full legal force and effect and binding upon the parties until a court of competent jurisdiction Orders differently;
    • The facilitator shall be entitled in his/her sole discretion to appoint such other person as may be necessary in order to make a decision in respect of the issue in dispute, including the right to co-opt a facilitator or the assistance of an appropriate expert if he/she deems it appropriate or necessary; and
    • The cost of sessions with the facilitator and the services of the expert shall be shared equally between the parties unless otherwise directed by the facilitator. Each Party shall, however, be liable for the facilitator’s costs incurred attendant upon such party’s written and telephonic communications with the facilitator.
  2. CHILD MAINTENANCE
    • Defendant shall pay an amount of R XXX – 00 (XXX Rand) per month per child, in respect of child maintenance;
    • The aforementioned amounts are payable on or before the 1st day of each and every succeeding month from the date of the Divorce. The said sum shall be paid into such bank account as Plaintiff may nominate from time to time;
    • The child maintenance payable shall increase annually on the 1st day of January each year, in accordance with the rise that has taken place in the preceding 12 (Twelve) months in the Consumer Price Index (CPI) for the Republic of South Africa, as determined by the Director of Statistics or its equivalent for persons in the middle-income group;
    • Plaintiff shall retain Alyssa Skye Abrahams, on her current medical aid scheme, or a similar scheme with similar benefits;
    • Defendant shall retain Joel Malcolm Abrahams, on his current medical aid scheme, or similar scheme with similar benefits;
    • Both Parties would be responsible, in equal shares in respect of the minor children for all reasonable medical, psychological, physiotherapy, dental, ophthalmic, pharmaceutical, hospitalization and prescribed medication costs, incurred, and not covered by the latter medical aid schemes.
    • If the minor children display aptitudes and qualify for tertiary education, then both Parties shall be responsible in equal shares for all the costs associated with such tertiary education, which shall include, but not limited to, tuition, textbooks, transport, and boarding if necessary. In this regard, if one Party paid for an educational expense in full, he or she shall accordingly be reimbursed with half the expense within 7 (seven) days of being showed proof of such expense.
  3. THE JOINT ESTATE OF THE PARTIES SHALL BE DIVIDED AS FOLLOWS:
    • Defendant’s Investment Policy
      • XXX
    • MOTOR VEHICLES
      • XXX
  1. BALANCE OF THE JOINT ESTATE
    • The balance of the Joint Estate shall equally be divided between the Parties.
  2. OBLIGATIONS BINDING ON ESTATE
    • The obligations in terms of this Consent Paper shall be binding on the parties’ respective estates, heirs, administrators and/or assigns.
  3. FULL AND FINAL SETTLEMENT
    • This Agreement is a full and final settlement of all outstanding differences between them, and save as herein provided, neither party shall enjoy any personal claim against the other.
  4. COSTS
    • Each party shall pay their own legal costs associated with the divorce.
   
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Parents with Psychiatric disorders

No parent is perfect. And no one can help it if they suffer from some psychological disorder. However, when it comes to parenting, mental health does play a role regarding the issue of child custody. In other words, a parent with a psychological disorder would find it hard to be a child’s primary care giver, if the child would best be cared for by the other parent. This is assuming that the other parent in this case is capable of caring for the child. This article is connected to the topic Child Custody and Visitation Court Applications. It may be useful to read up on it before proceeding to read further. Otherwise, read on to find out more about parental child abuse and the legal aspects surrounding it.

When should you consult with a lawyer?

Seeing that you are dealing with parental rights and responsibilities, it is best to first try to resolve issues with the other parent. If that does not work, then try mediation. Should that still not work, see a lawyer who would advise you on what would be best for you and your child. If need be, a Court application would have to be launched.

What about a psychological evaluation of a parent?

It often happens that a parent would accuse the other parent of having a mental, or psychiatric problem. The most common psychological condition in our legal practice, in relation to child custody matters, are bo-polar and schizophrenia. These conditions can be managed by medication. However, if the patient fails to use the treatment prescribed, the consequences could be detrimental to parenting. Therefore, one should consider the possibility of the psychological condition manifesting itself in an unfortunate situation. In most cases, the Court would want to hear from medical experts.

An example of psychological disorder in relation to parenting

In one case, a mother has been diagnosed with obsessive compulsive disorder (OCD) by a psychiatrist. She had an excessive fear of germs and dirt and the compulsion to repeatedly wash and clean herself, and items she uses, to ward off dirt and germs. She also has a compulsion to avoid possible contaminants in her daily life. For example, she would not touch anything unless she is convinced it is clean. The father of their child was of the view that the mother’s problem detrimentally affected their family daily life, and the well-being of their child. According to him, her condition has caused him to care for the child from when he came from work until when he left to work the next day, as well as the entire weekend.

Prescription medication

The mother used prescription medication for her condition. It was Leximil, which is an anti-depressant, and Zyprexa which is used to treat schizophrenia and bipolar disorder. These medications make her want to sleep during the day and for prolonged periods during the evening. It also made her very lethargic. She cannot wake up to attend to the child during the evening at all as she was in a very deep sleep. She also struggled to get out of bed in the mornings.

Psychotic behavior

The mother further displayed psychotic behaviour in that she tried to stab the father and told him afterwards it was not her in that it was another persona inside of her who was responsible. She also believed that spirits spoke to her and guided her.

The Obsessive Compulsive Disorder Overpowers her

The mother’s condition causes her mind to focus on the OCD and it over powers her and she has a disregard for those surrounding her. She was totally incapable of taking care of the minor child during the day, let alone during the evenings. To give an example, she would wash a used glass for about 30 times with detergents and put it away, and then her mind will tell her it is not clean, and then she will wash it again another 30 times, again with detergents. In the process, she would use a half a bottle of washing liquid. Thereafter, she would go to the bathroom and wash her hands for about 20 minutes. She would soap her hands, wash off the soap and do it again until her mind is satisfied. She utilises about 2 to 4 bars of soap a day. Packaged food would be left to become expired as she would believe it is contaminated.

Neglect of Hygiene

Other than neglecting the minor child when she is busy with her rituals, she would also not want to attend to her as it would cause her to “dirty” herself. For example, if a child had to dirty her dyper, the mother would have to weigh the issues of cleaning the child and dirtying her hands and spending a long period of time washing herself afterwards. She would then just leave the child the way she is and not touch her for fear of contamination. The same would apply to making food, which would mean cleaning afterwards. If an unknown third party touches her child, the mother’s brain would tell her that the child has been contaminated and her clothes and bodies need to be washed immediately.

Wastage by the mother

Furthermore, until the child is washed, no one can touch her. And anything the child touches becomes contaminated in the mind of the Mother and needs to be washed. Another example was when the mother filled up the kettle, and emptying it about 30 times and then be convinced that it is full, boil the water and then start all over again with filling up the kettle and emptying it. She would leave the child to her own demise whilst the OCD’s consumes her. This is very dangerous for the child. She needs to shower a few times a day, which she does for long periods at a time. This would cause her to wash until there is no longer hot water, and then continue washing when the water is hot again. The mother’s OCD therefore causes her to neglect the minor child when in her care and all her focus is on her compulsions. If the OCD becomes too much, she would resort to sleeping and deal with the challenges later. Her entire day would be consumed by the OCD.

How would this affect the father’s rights of custody?

Considering the example above, should the parents separate, there is as strong possibility that the father be made the minor child’s primary care giver. This would be in her best interests.

Sharing is Caring

This and other articles and posts found on this website are written by Adv. Muhammad Abduroaf to assist people with various family law related issues they may have. If you find any of our articles, free resources and posts interesting, or possibly useful to others, please like and share it on Social Media by clicking on the icons below. For more interesting articles and information on Family Law, view our articles and Q&A page. If you have a family law related legal issue and you want someone to answer or reply to it, feel free to post it on our Family Law Blog. Therefore, kindly like and share. Should you require any other legal services and advice, not related to family law, visit Private Legal.    
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