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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.
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Uncontested divorces – Notice of Set Down for undefended and uncontested divorce matters – The document used to place your divorce on the divorce court roll
Undefended, unopposed or uncontested divorce cases are what all divorcing couples should strive towards. If the marriage broke down completely and there is no possibility of saving it, then why fight any longer? If both parties act fairly, there is no need to spend thousands of Rands on legal fees. That money can be used on starting a new life. If there are minor children involved, then the money saved in avoiding litigation can be used on them. At the end of the day, no one really benefits from a long drawn out or protracted contested divorce process.What is the simplest divorce?
The simplest divorce is when the parties are married out of community of property and profit and loss, with the exclusion of the accrual regime. What this means, it that whatever property a spouse owns during the marriage, still belongs to him or her after the marriage. There is also no need to pay the other spouse any amount after the divorce as an accrual. The simplest divorce would also require there to be no minor children born from the marriage. In other words, all the children are adults or there were none. Lastly, neither party claims personal maintenance or alimony from the other spouse. If the above scenario applies, then all that the divorce court would have to do is ascertain whether or not the marriage has irretrievably broken down, and grant a decree of divorce. There is no issue regarding child maintenance, custody issues, or proprietary rights. It’s a simple divorce and easily finalised.What do couples usually fight over in the divorce process?
As can be seen from the above, if a couple has children, things may turn out to be complicated. The parents may dispute who should have primary care or custody over the minor children. Then there is the issue of child maintenance, and the amount thereof. This latter issue is usually a stumbling block when it comes to the finalisation of a divorce. Some parents are unreasonable in their request, and others again don’t want to pay or contribute what is fair and reasonable.The matrimonial property regime
If the parties are married in community of property, there should be an equal division of the joint estate. However, parties still find a way to argue on this aspect which makes the divorce a contested one. The same applies should the spouse be married out of community of property with the inclusion of the accrual regime. Most of the time, the divorce gets settled just days before the divorce date, after both parties spent thousands of Rands on legal fees.The notice of set down in divorce matters
After the divorce, summons has been issued and served, and the divorce is uncontested, a notice of set down must be filed at the divorce court. Usually, it’s 10 days after the divorce summons was served on the other party. Basically, the notice of set down advises the court and the other party that the divorce is going to be heard on a certain date. Once the notice of set down is filed, the divorce matter would be placed on the court roll for the divorce to be finalised.What happens on the unopposed divorce court date?
Once the notice of set down has been filed and the divorce date has arrived, one of the parties, usually the plaintiff would have to appear at court to give evidence. Basically, he or she needs to confirm that the marriage has broken down, the court has jurisdiction and that all aspects have been resolved. This is usually done with a consent paper. If the parties were married out of community of property without the accrual regime and there are no minor children, then there is no need for any other documents to be filed.What happens after the divorce has been granted?
Once the divorce has been granted, the parties can move on with their lives. They may remarry incur debt in their own name and so on. A few days after the divorce, and depending on the specific court, the parties would be able to collect a document called a final decree of divorce. This document would confirm to the world that they are divorced.Free Online Divorce Form and Guide
If you want to attend to your own uncontested divorce, we can to help you kick start it at no charge. Fill in the form below, and then our system will send you an email with the details you provided, which you should include in the divorce documents. [ninja_form id=35] Have a family Law appointment with us We have an online appointments system which enables you to save valuable time and cut straight to the chase. There is, therefore, no need for you to visit our offices (unless it is best for you to do so, or is your most preferred option).
You may set up telephonic or video consultations should you wish to do so. You can, therefore, stay in the office or on the couch in the comfort of your own home when dealing with us. We are therefore physical, online, set-up and ready to meet with you. Make your appointment online for a consultation today. If you find any of our articles, free resources and posts interesting, or possibly useful to others, please like IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case no.: JOHN WILLIAMS PLAINTIFF
(Identity Number: 0000000000000) And JANE WILLIAMS DEFENDANT
(Identity Number: 1111111111111 NOTICE OF SET – DOWN
KINDLY BE ADVISED that Plaintiff hereby sets the above matter down for hearing for 2015 at 10:00 or so soon thereafter.
Kindly enrol the matter accordingly.
DATED AT SIGNED AT CAPE TOWN THIS___DAY OF __________________2017. ______________________
Per: JOHN WILLIAMS
(Plaintiff in Person)
4 Green Street,
Greenland,
WESTERN CAPE TO: THE REGISTRAR
HIGH COURT
CAPE TOWN AND TO: JANE WILLIAMS
1 Apple Street,
Apple Town,
WESTERN CAPE
_________________o0o_________________
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