What you will need to know when you are getting divorced.

When I sit and think about what to write for these blog posts I try as far as possible to write about a topic which I have not seen anyone else write about in their newsletters or magazine articles and the like.

I have however been asked to write about divorce matters earlier this week. I have thought that the internet is already flooded with information and advice on this particular field of work which is done by most of the legal practitioners in my area. So- I reckoned- what difference shall it make if I am to write a blog post about this?

Well- I have been told by this interested member of the public- a lot of the information out there is written by lawyers for lawyers and is not easy enough to understand.

So-  what if I wrote an article that enabled you to get your own divorce matter started and that pointed out to you what you are to be prepared for?

That is exactly what I intend to do with today's post!


1. When and why you should get divorced

Morality and religion aside- it may not always seem like it, but our law does not allow for people to get divorced just because they feel like it. This may be a shock to some, but even two people who have agreed to get divorced can get sent back home by the Court to go and sort out their marital problems before they get divorced. Why would this happen?

It is because the Court can only divorce a married couple for one or more of the following reasons:

as taken from the Divorce Act 70 of 1979 as amended.

The reasons in part (b) needs very little elaboration, but it is usually the reason in part (a) above that gets presented to Court and get motivated in a wide variety of ways.

What are problems to work through for some are for others reasons why a marriage can no longer be.

I am not going to try to limit the definition of "irretrievable breakdown", but will point out that the clearest indications that require the least elaboration on- if any- are the following:

1. Living apart for more than a year;

2. One of the parties having committed adultery while the other party does not want to be in an open marriage at all.

3. One of the parties having been declared a habitual criminal by the Court and not getting out of prison anytime soon.

There are other indications as well. Whatever you may think are signs that your marriage has broken down beyond all hope of repair shall accepted by the Court as a reason to get divorced as long as the Court does not believe that it is a problem that can be solved by counselling, talking things over or just taking some time to think it over.


2. How to get started

Divorce courts are accessible to the public without the need for a legal representative. If you want to get divorced without an attorney you can start proceedings 100% on your own. If you do so the only person that you will need to pay shall be the Sheriff. This is why...

Your Regional Court has a Registrar that can be approached during business hours. If they hear that you want to get divorced they will give you a form to fill out. Thus form is actually your summons. Personally- I don't like those summonses because I know I can draft much better summonses myself, but they are still good enough to get your divorce matter going.

The minimum amount of information that you need to fill in is the following:

1. The names and addresses of yourself and your spouse;

2. If you have children- their names. You shall in this case need to attach copies of their birth certificates;

3. Where and when you got married. Your marriage certificate needs to be on hand in court and a copy thereof needs to be attached to the summons.

4. Whether you are married in- or out of community of property. If you are married out of community of property you shall need to attach a copy of your antenuptual contract. If you don't have one you can obtain a copy from the Deeds Registry where the contract got registered. It does not cost that much.

5. Why you deem the marriage have irretrievably broken down.

6. Where the minor children shall live and how the parent who does not have the children living with him or her shall maintain contact with them.


If the above is all that you wish to fill in you can get divorced without an attorney.

If you do wish to claim maintenance either for yourself or your children from the other party- you will really want to appoint an attorney to help you. In most cases the other party can accept the fact that he is getting divorced and go along with it. The moment they hear that their money is being threatened, however, they rush to find the nearest attorney. Well- not all of the defendants do that. Some will go for the most expensive attorney or the one with the best reputation...

If the Defendant (that is the other party- the one that you are suing for divorce) does not do any of the above he/ she most likely does not have much money to worry about in the first place and you may wish to reconsider your own claims- at least with regard to the amounts that you are claiming...

With the summons having been filled out/ drawn up the Registrar then has to issue it with a case number. It may take couple of days. It it is not done within a week, though, you shall have to get help because summonses that are not issued within a week have a high likelihood of having gone missing (here in Mbombela).

If you do receive your summons with its case number you then have to hand it to the Sheriff in the area where the defendant lives. The Sheriff delivers the summons to the Defendant in person and then gives you a report stating when a copy of the summons was delivered to the Defendant. 
 
The Court Rules provide for someone who receives a summons to give notice within two weeks that he/ she opposes any aspect of the divorce (like the amount of maintenance being claimed).

This is why you can only ask for your court date after two weeks from when the summons got served on the Defendant.

If the Defendant does enter appearance to defend you should rather get an attorney, because it is even possible for him/ her to get a court date without you knowing if he/she knows the court rules or is assisted by somebody who does. A Defendant who does this can even then go finalise the divorce without you knowing.


And this is how a divorce matter gets started.


Finishing one is another story altogether...


All that I will say is that you can easily get divorced in a month or two if you don't want any money from the Defendant. If you do claim money, though, you can expect the matter to drag on for years unless you have an attorney who know how to manage an opposed divorce.


I hope that this post is useful to someone out there and that he/ she shall be able to find his/ her way to getting the divorce action started. If any help is needed in finalising the matter you know who to call...

Why I do not always like to keep things out of court

Those who know me will be able to tell you- I enjoy going to court. I am in the best of moods on my court days.

I might have a case that worries me a bit, but worry soon gets replaced with focus when the proceedings start.

Still- I have to admit that it is much better for the client if a matter can get settled out of court- or is it?

Well... It can be, if you know what you are looking for and you also know the consequences of the choice that you are to make between proceeding in court and settling out of court.

The main benefit of settling a matter out of court is that it puts an end to the running up of litigation costs for both parties. Sure- you may still get charged for a letter getting written here or there, but that is not nearly the cost of a full day in court. If settling can save you the cost of at least one day in court it is definitely worth it.

So- settling is the way to go, right?

Unfortunately for every tool the law may give us to help us there is someone who finds a way to abuse it. The same is true for settlement negotiations.

It is not uncommon to find your opponent's attorney trying to buy an indefinite amount of time with a phone call to your attorney in which he makes some vague, non-commital promise of an offer for settlement. I am actually asking myself whether there can be such a thing as a non-committal promise.

:D It appears to exist in our line of work...

So- when would it be a good idea to get your matter ready for trial?

The following circumstances are usually a good indication that it shall be better to go to court:

1.  If it is the only way to finalise the matter. In many cases a defendant does not want to see a matter finalised, because finalising the matter will mean that he has to pay! If you are a plaintiff and the defendant does nothing but avoid you- you are going to need the court's help.

2. When it will actually cost less to have the matter heard in court. Some plaintiffs get really creative when they start claiming money from somebody- especially if that somebody seems to be a push-over that will pay anything that the plaintiff demands. In this life we find the motor owner that want you not only for the dent on his bumper, but also his wheel alignment and te removal of scratches on surfaces of his car that did not even have contact with yours! That person is definitely not going to be happy with your offer and he would rather bully and badger you as much as he can outside of court. In a case like this it is better to have the person sue you so that the matter can be properly adjudicated in court. As long as you remain acting in good faith the court will see no need to penalise you in any manner.

3.  If your opponent's proposal is to give you far less than what you will be awarded by the court. In some cases accepting "nuisance money" instead of incurring the cost of a day in court is the better idea. What is not as good is when an unscrupulous opponent counts on your willingness to keep a matter out of court and then tries his best to bully you into accepting an offer of far less than what you are actually entitled to. 

The above 3 circumstances are actually reasons why I have saved clients a lot more money by going to court instead of staying out of it. I am sure you will see the difference between paying for a 2 hour meeting with your opponent and his attorney that has led to nothing and paying for the same amount of time in court that got you a court order in your favour...

Emergency Monetary Relief in terms of the Domestic Violence Act- Quicker than Maintenance Court, but Definitely NOT a substitute for maintenance proceedings!

Hello, everyone!

I admit that I do not write here very often. When I do write something on this blog it is usually I am having a very quiet time at work and then use this platform as a means to get the public's attention.

Today's post, however, is something for which I have specially made time during a really busy month because it deals with something that is often much needed by divorce clients, but not so often obtained by attorneys. I will explain the reason for this very shortly.

If you have read some of my earlier posts you will know by now that I do not take a "chapter-and -verse" approach that involves the quoting of legislation and case law.

My reason for writing the way I do is mainly because these posts are not intended for some legal journal or a doctoral thesis on any aspect of law. It is also not for my colleagues to take note of, but for you- the people.

This is why I keep this kind of post simple and why I try my best to make it the least boring legal article that you are likely to read.

Now- what this post is actually about:

I have recently gotten the Domestic Violence Court to order my client's husband to pay my client money.

It sounds strange, right?

The Domestic Violence Court is there for issuing protection orders (what the people in the U.S. call "restraining orders"), not to make any awards for money to be paid, right?

Well... Not exactly-

You see- domestic violence can take on a number of forms- in our law that number is 10, actually...

If you want to know all 10 of the forms domestic violence can take you can read this short excerpt from Section 1 of our country's Domestic Violence Act (That is Act 116 of 1998 for those who are actually interested in reading the entire Act...):





Noticed (d) in the excerpt above? It names "economic abuse" as a form of domestic violence.

We all know what economic abuse is, don't we?

Well- not all of us...

That's okay- It is easy to explain.

In many domestic relationships, be it a marriage, an unmarried couple living together or that of parent/ guardian  and child we find that one party to this relationship is financially dependent on the other.  The breadwinner in this relationship can easily use this financial dependence to hurt or manipulate the dependent party- and in many cases they do just that.

In my client's case her husband wanted to put pressure on her to agree to the least expensive settlement for him before the divorce proceedings started so- before going to see a lawyer he told her that she had a month to get out of the house and that he has cancelled the lease to their home and will also stop paying the rent after this month...

So- what is she to do?

The Maintenance Court will give this man 2 weeks to come to court with his bank statements and then take another month to get this matter heard by a Magistrate.

We have not yet even issued a divorce summons and even if we did a Rule 43 (High Court)/ Rule 58(Regional Court) application (for maintenance to be paid pending divorce proceedings) have the inherent weakness of giving the Respondent 10 work days to file his answering affidavit (which he usually delivers to your attorney late in the afternoon on the 10th day) and then the matter gets heard only in the next month- if you are that lucky!

By that time the rent is already skipped and the Landlord already scrambling to get my client and her children out of the house! If he is a good law-abiding landlord it would mean that my client now has the added burden of eviction proceedings and if he is a bit more of a loose canon my client could find the doors to her home removed and all her possessions strewn across the street in front of the house! (Don't laugh. I actually sympathise with these landlords, because they have most likely become disillusioned with our legal system when they had a family of freeloaders dealing insane amounts of damage to their homes before they eventually took their leave... I digress now, however. Let's get back to the topic at hand...).

So- we couldn't pass this buck to any other court. We know now that the Domestic Violence Act knows about a thing such as "economic abuse", but how does it deal with it?   

The answer to that question lies with Section 7(4) of the Act that reads as shown below:



Well- I would have preferred to have the section say that non-compliance with the order is a criminal offence and a one-way ticket to stoxing (prison) like the case is with contravention of protection orders in respect of other forms of domestic violence, but I can work with this as well...

Now- I have mentioned that many attorneys have tried and failed to get this kind of order. The main reason for this is because they miss the difference between preventing or stopping an act of domestic violence with compelling somebody to maintain a dependent.

What is the difference between the two?

There are actually a number of differences:

For one: Where the duty to maintain a spouse automatically exists during a marriage and the duty of a parent to obtain a child exists as long as the parent is the legal parent and guardian of that child- unmarried adults living together do not automatically have a duty to maintain one another. One of the parties can obtain that right by applying for a maintenance order, but then the court has to first determine whether the need exists and such right can be awarded to an applicant.

In the case of economic abuse the court needs only to know that the parties are in a domestic relationship- be it married, living together, related or in a romantic relationship and that the complainant is financially dependent on the respondent.

 Secondly: A maintenance order covers a wide range of expenses starting with the most basic of the dependent's needs, but in appropriate cases branching out to those expenses that a dependent would have incurred in order to ensure his/ her education and to maintain living standards to which he/ she are accustomed.

Economic abuse does not go that wide. Your dad cancelled your horse riding lessons? Move on! That is not what the Domestic Violence Court is for.

Thirdly: The economic abuse that a complainant refers to this court has to strike at the very basic needs for human survival: food, a home, healthcare, medical treatment.

A man who has never maintained his child before can still get a maintenance order against him to do so. If somebody in a relationship has never before made certain payments to his partner then the Domestic Violence Court cannot introduce a new regime where he now has to make those payments.

It becomes an act of violence when the financial support on which somebody is dependent and accustomed to receiving suddenly gets withdrawn for no good reason- or for very bad reasons indeed...

Fourthly- A maintenance order can serve to improve the status quo between the dependent and the breadwinner. An order for emergency monetary relief can only endeavour as far as possible to preserve the status quo between parties. This is why a maintenance order application involves a detailed enquiry into the financial positions of the parties while in the case of an application for emegency monetary relief the court needs only to satisfy itself with the status quo before the sudden withdrawal of financial aid.

Lastly- I realise that I should probably have put this difference at the very op of this list- the operational word here is "emergency". Emergency monetary relief is meant to avert a sudden crisis. To deal with an emergency.  It implies that there is no time for coming back for a meeting in the Maintenance Officer's offices to get a court date somewhere in the next month.

I have now come at the end of this article, but anyone interested in finding out more about domestic violence proceedings, maintenance order applications or other related topics can contact me. My details are below:

New Year, New Direction

It is really good to be back. 

I am glad to say that 2019 has started off at a running pace and that the first of my 3 court appearances for this month is already behind me.

The legal environment is not just busy with the same old things, though. It is often changing and I find myself having to adapt to stay on top of it. 

Some of these changes have been creeping up on us for years now, some of them happened as recently as November last year.

So- here is a quick summary of the new services that I am offering as of from this year:

Estates:

Knowing very well that it no longer just a matter of sending paperwork to the Master and checking the post for their next directive, hoping to one day receive the pink slip saying that the estate's administration has finally been completed I have decided to be available to assist.

One big reason why I did not want to get involved in estates in the current state of things is that the administration of estates has now become more labour intensive with more difficulties to deal with due to a disorganised Master's Office in Pretoria and with more time being taken up by the simple tasks that involve visiting the Master's Offices. 

Another reason was that it is not litigation and that it can be a huge bore.

Well- now I see that the wheels have basically come off at the Master's Offices. If your Bank is the executor of your deceased relative's estate I can foresee a couple of walls that they are going to run into. Some of those walls, however, are put there by the Master failing in their legal duty to keep record of estates and supervise the administration thereof. Someone has to take them to court when all else fails. 

And yes- you have guessed it- I am that someone.

Debt Collection and Liquidations

Debt collecting in the Magistrates' Court has become really difficult now with debtors having become smarter and better at hiding assets and legislation removing more and more of the relief that we have been able to obtain against them without having to notify them.

By now I think we all know- give a debtor notice that you are taking steps for execution of a judgment against his assets and those assets will just disappear.

It is all good if we can accept that the debtor really has no assets, but you know that nagging suspicion that these scoundrels actually have huge estates or assets hidden away in family trusts or companies?

Well- I know that feeling all too well. That is why I am offering to wind up the estates of those debtors at the rate that I normally charge for litigation. And yes- you may ask me what it is.

A bit more about liquidations.

I have always been available to bring the applications for the order to wind up and left the actual winding up to a liquidator. The majority of liquidators that I know are based in Pretoria and even the ones that are here in Mbombela would not accept instructions to wind up an estate if it is too small. 

Well- this year I am going to give being a liquidator a go. 

Well- that's what is new here with me. I wish you all the best for this year and look forward to being of service!

And so 2018 has come to an end...

It is very easy in this profession to disregard the passing of a year. "Next Year" in our context is often little more than "Next Month". 

Pending cases still require attention, new court appearances are diarised and we still meet new clients as well.

Still- with this being the third year of me being in this practice I would like to take a moment to see what this year has added.

By now the 33 files with which I have started out in 2016 have increased to 188.

I have been appearing in the High, Regional and District Court on a more regular basis.

What I enjoy most, however, is the cases that got finalised.

This year saw two divorces finalised of which one started out as an opposed divorce.

Amidst the numerous debtors that seemingly enjoy our Magistrates' Court's protection I am glad to see that we have been able to see some of them making payments instead of excuses. In this regard I foresee that our District Court is going to make it harder for us to get money out of defaulters under its jurisdiction, however. I hope that the next year will bring us new solutions. At least my creativity is getting tested in the process...  

Although I still do not under any circumstances litigate on a contingency basis I am pleased to see that I have nonetheless enabled a number of clients to litigate in the High, Regional and District Court where it was initially thought that they would not be able to afford to do so.

Still- It is due to the regular payments of these people, ordinary people like you and me, who have been keeping this practice's cash flow steady enough for it to see the end of yet another year.

For this I thank you all.

This practice was built on a dream to help those who find themselves wronged and at a disadvantage. It was built on a notion that the rich and powerful need to learn that they can not do with us as they please- at least not all the time.

As much as I have enjoyed doing so as a Legal Aid Candidate in 2008 and 2009- I still enjoy fighting for those in need of help and always will.

I hope you all enjoy a safe and happy festive season.

I know that many of you will not be able to reach me during the time from the 14th of this month and the 4th of the next. I sincerely hope, however, that you shall not feel the need to. These 3 weeks are best spent on those people who get deprived of us by work commitments throughout the largest part of the year.

Best Wishes to All!

Execution against Organs of State

Lawyers, I trust, have no trouble knowing whose assets to go after when they have obtained judgment, but I have noticed over time that some departments of our Provincial Government here have begun with a lot of confidence to attempt to mislead us.

One instance- in Mbombela High Court case 898/16 we got an order for costs against the Plaintiff who was an organ of state and department in provincial government who had instituted an action that was actually supposed to have been instituted by another department altogether.

One would think that the Plaintiff had learnt his lesson after having had to withdraw on this technical point and tender costs.

Next thing that happened, however, was that I received emails from yet another government department who wanted to pay the Plaintiff's costs as per the taxed bill, but- wait for it- I first had to register as a VENDOR on their system!

This, of course, is a load of hogwash!

Neither an attorney in my position or the Sheriff should be thrown off by delaying tactics such as this. A functionary in an organ of state who is liable for execution is an execution debtor like any other and his assets are liable for attachment like any other. Those enormous salaries they get can also be attached if the correct procedure is followed.

Personally- I consider being sent from pillar to post by someone who just has to shut up and pay as an insult.

Having to register as a vendor with the indebted organ of state may make things easier for them internally to process the payment, but any delay of longer than 3 days is a delaying tactic.

If the Provincial Government does not yet understand this we shall just have to teach them by experience time and again.  

Rule 15- When one's client passes away before the case has been finalised...

I admit that it has been a long time since I have had something to write about in this blog.

While I would prefer to stick with what I know and avoid the unusual cases one such case has found its way to me. Not so much because it concerns the decisions of our MEC for Cooperative Governance and the relevant Local Municipality about the Respondent building on a cultural heritage site, but rather because my client got killed before the court date...

The Respondent's legal team seems to expect of me to raise the white flag and tender costs...

What I think of them for requesting a withdrawal and tender for costs I shall rather leave to your imaginations, however, as I have enough trouble as it is...

So- after a frantic search by my counsel and myself for answers we have found Rule 15 of the Uniform Rules of Court- not to be confused with Rule 15 of the old Magistrates' Court Rules that got used by crooked defendants to make a nuisance of themselves when they had no real defense to begin with...


No- this Rule 15 reads as follow:


"15 Change of Parties
(1) No proceedings shall terminate solely by reason of the death, marriage or other change of status of any party thereto unless the cause of such proceedings is thereby extinguished.

(2) Whenever by reason of an event referred to in subrule (1) it becomes necessary or proper to introduce a further person as a party in such proceedings (whether in addition to or in substitution for the party to whom such proceedings relate) any party thereto may forthwith by notice to such further person, to every other party and to the registrar, add or substitute such further person as a party thereto, and subject to any order made under subrule (4) hereof, such proceedings shall thereupon continue in respect of the person thus added or substituted as if he had been a party from the commencement thereof and all steps validly taken before such addition or substitution shall continue of full force and effect: Provided that save with the leave of the court granted on such terms (as to adjournment or otherwise) as to it may seem meet, no such notice shall be given after the commencement of the hearing of any opposed matter; and provided further that the copy of the notice served on any person joined thereby as a party to the proceedings shall (unless such party is represented by an attorney who is already in possession thereof), be accompanied in application proceedings by copies of all notices, affidavits and material documents previously delivered, and in trial matters by copies of all pleadings and like documents already filed of record, such notice, other than a notice to the registrar, shall be served by the sheriff.
[Subrule (2) substituted by GN R235 of 18 February 1966.]

(3) Whenever a party to any proceedings dies or ceases to be capable of acting as such, his executor, curator, trustee or similar legal representative, may by notice to all other parties and to the registrar intimate that he desires in his capacity as such thereby to be substituted for such party, and unless the court otherwise orders, he shall thereafter for all purposes be deemed to have been so substituted.

(4) The court may upon a notice of application delivered by any party within 20 days of service of notice in terms of subrule (2) and (3), set aside or vary any addition or substitution of a party thus affected or may dismiss such application or confirm such addition or substitution, on such terms, if any, as to the delivery of any affidavits or pleadings, or as to postponement or adjournment, or as to costs or otherwise, as to it may seem meet."


Yes- I admit that it is a lot to read and if you have just scrolled down to what I have to say about it all you are forgiven.

Well... in short this rule allows for somebody to act in my client's stead.

Who this person may be is the following:

1. The executor of my client's estate;

2. His curator;

3. His trustee;

4. a "similar" legal representative.

Well- at the moment I do not know who the executor to my client's estate is. I have feeling that I shall find out quite soon, though... Until I know, however, I have to be prepared to look at other options for a suitable substitute.

There is no curator or trustee in the picture.

Now we get to the last option, which seems to point at yours truly. What is meant by "similar" legal representative I am not certain yet, but that question seems to be the least of my concerns.

My main concern is that other residents around the area affected by the Respondent's activities wish for this matter to continue. It can only continue through the appointed substitute, however, if the court finds upon application (by myself, most likely) that-

1. the cause of the proceedings have not become extinguished by my client's demise;

2. that it is necessary or proper for the substitute to be introduced into the matter and to take it further.

From where I am looking it seems that it would definitely be necessary and proper for the future owner of the deceased's property to continue with this application.

I'd also consider it proper if the other interested residents of the area give me a mandate to act as substitute.

What the Court will have to say on this, however, remains to be seen.

I shall tell you in due course...