Question Marks

Q and A with Belaine Paslovsky (attorney)

Prior to addressing the questions hereunder, I hereby make a disclaimer that whatever I write hereunder must not and can not, in any way be construed as legal advice, legal opinion or an answer. Rather, I am simply enunciating general principles of law and thereby attempting to guide you in the correct direction.   

QUESTION 1

 “How do I apply for maintenance without an address”

As a general principle of law, you correctly allege that the primary duty of support falls on your son’s biological mother (yourself) and his biological father.

It is however interesting to note that there has been a fairly recent decision of MB v NB 2010 (SALR), where Judge Brassy explored a scenario where a spouse, (who was not the biological parent of the child in question), represented to third parties and to the child, himself, that he was his father. He is in fact insisted that the child attended a particular school as was his family’s tradition. The child referred to the spouse as “father” and the spouse in turn referred to the child as “son”. Brassy, inferred a quasi adoption and in so doing, made it incumbent upon the spouse (who was not the biological father), to assume a portion of the child’s private school fees, post divorce.

In order to ascertain the whereabouts of your son’s biological father, you could instruct your legal representative to source a tracing agent on your behalf, on a “no find, no charge basis”. Otherwise, depending on financial resources at your disposal, you could also employ a private detective to locate your son’s biological father. You should bear in mind that you can also claim arrear maintenance from him.

QUESTION 2

 “How long does it take to get a decree of divorce”

Unfortunately, the answer depends on various and many extraneous and unknown variables. For example, from which court do you intend to institute proceedings? Does you spouse intend to oppose the divorce? In the event that he does, the matter is considered to be an opposed matter. It will then have to proceed to a trial court to determine the proprietary and other consequences flowing from your divorce. Are there minor children involved? If so, this would require the intervention of the Family Advocate and the compilation of a parent plan. If your spouse does not intend to oppose the divorce and you further, conclude an agreement regulating the terms of divorce, then the process is substantially shorter.

I have referred to some but not all of the variables which could have an impact on the time it would take to obtain a decree of divorce. I would suggest that you consult with a legal representative to both facilitate and expedite the process.

QUESTION 3

“I am in the process of a rather complicated divorce at the moment. I have a Protection Order against my wife for severe assualt on two occasions. She is viscioulsy slandering me with the few freinds that we have. My two sons are age 18 and 15 years. They are residing with their mother who has been under pschychiartic treatment recently. The youngest sone made a statement to the SAPS on Saturday, 13 February 2016 regarding being locked out from the matrimonial residence on several occasions. He further alledges that his mother is not interested in his school work. As a matter of fact he failed his current grade last year and the school principal tried to cantatct her at least 15 time to arrange a discussion with the parents. I was the only one attending the meeting which was rather traumatic for the youngest child. In his affadavit he further expresses his fear of being at home  because of hist mother’s mental state as she gets frquent outburst. Kindly urgently advise how I should proceed with this matter.

I have also been thretehened by the Plaintiff’s legal team to sign her financial demand of R41000,00 maintenance per month failing which they will obtain the Rule 43. I am of the view that they must consider my financial circumstance particulalrly as I was forced to leave the matrimonial residence  because of the assaults. I am now renting at an additional inclusive cost of approximately R11,000.00. Kindly advise on this matter as well”.

The facts you allege in respect of your youngest son’s affidavit and the circumstances under which he deposed to the affidavit, are  unclear. However, I will enunciate the general principles of law that will guide you.

When one is dealing with minor children, our courts’ have regard to one question only namely, what is in the best interests of the child?

A Rule 43 is applicable to a spouse who seeks relief from the court in respect of inter alia, maintenance pending the final decree of divorce, interim custody of a child and interim contact of a child.

In order to avail yourself of the provisions of a Rule 43 application, you would be required be launch an application in the  relevant high court, in which jurisdiction vests. You would  be required to accompany your said application with a report by a forensic psychologist who has assessed your child. This is an extremely costly  and a traumatic process for all involved. The Family Advocate will also meet you all and make the necessary recommendations to the court

Accordingly, I would advise, that prior to you launching such an application, you invite your spouse and (her legal representative) to agree to a suitable psychologist to assess your child and make the necessary recommendation. The process also requires that both parents subject themselves to an interview with the said psychologist .

I reiterate that the only concern is what is in the best interests of the child. The Children’s Act makes express provision for the child to express his preference and views. However, as a rule of thumb, it is considered unfavourable for siblings to be separated. Particularly, when they would need on rely on each other for support.

Turning to your question of maintenance. It would appears that you are being coerced to pay a certain monthly sum in order to discharge your duty to support your children failing which your spouse is threatening to launch a rule 43 application.

In my practise, I always attempt to explore an amicable settlement prior to proceeding to court. In addition, to saving both parties unnecessary expenditure, it further engenders  goodwill. It is relevant to consider, that you will be required to co-parent for many years to come.

Accordingly, request your spouse to forward you with a  detailed itemized list of your children’s monthly needs. The duty of supporting a child is common to both parents, according to their respective means. The means at your disposal, will determine the standard at which you will be required to support your children.

It is important to note that  your separate household that you are now obliged to run, cannot in any way prejudice your ability to fulfil your children’s monthly reasonable needs. Adopt a common sense approach and I am sure you can reach resolution

 

BELAINE PASLOVSKY IS AN ASSOCIATE AT ABIGAIL SHER ATTORNEYS. SHE HAS SPECIALIZES IN ALL ASPECTS OF MATRIMONIAL LAW INCLUDING PROTECTION ORDERS, MAINTENANCE, CONTACT AND CUSTODY OF CHILDREN, DIVORCE, INTERM MAINTENANCE AND THE LIKE. PRIOR TO HER SPECILIZING, SHE WORKED AT MOSS MORRIS AND EDWARD NATHAN.& FRIEDLAND IN THE LITIGATION DEPARTMENTS. SHE CAN BE CONTACTED ON 082 521 2299 OR ON belaine@ors.co.za. SHE OPERATES IN NORWOOD.

Comments

  1. Sue

    Good Day,

    I have a question regarding separation / legal separation / divorce: What are my rights if I ask for the separation from my husband regarding staying in the house we live in with my three children? He pays the rent and the rental contract is in his name. Do I as the mother to our three children have a right to ask him to leave so that its not such an upheaval for my children as the separation will probably not be easy on them? Can he refuse? I fear he will fight dirty for my kids, there is no way I will let them go. Their ages are 5, 7 and 10.

    Thank you!

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