Clarks Attorneys held their ninth Annual Family Law Conference on 20 and 21 October 2022 in Johannesburg. The conference touched on several topics and cases of interest in the practice of family law. The welcome address was delivered by the Director of Clarks Attorneys, Beverley Clark, who welcomed delegates to the conference. She said that legal practitioners practise in an adversarial legal system, ‘we are competitive and love a fight, however, we deal with the most vulnerable in society and should remember that “first, do no harm”,’ she said.
The Director of Clarks Attorneys, Beverley Clark, welcomed delegates to the ninth Annual Family Law Conference on 20 and 21 October 2022,
Ms Clark added that it is time for change to happen in the family law system, and that practitioners must constantly refocus themselves, by thinking of themselves as changemakers and by finding solutions to assist parties by thinking creatively.
The keynote address on the first day of the conference was given by Acting Judge of the Supreme Court of Appeal (SCA), Judge Thina Siwendu, who told delegates that more needs to be done to achieve the values of constitutionalism, adding that structures need to be created to create better practitioners and in turn, create a better world. She said the majority of divorces included children, stating that since her time on the Bench, she has observed that family law disputes mirror back the quality of our relationships.
Judge Siwendu said that one must remember the nature of a family dispute and what it looks like. She said the assumption is that a conflict can be settled by a judge and that it ignores the complexity and variety and the theory that there is a dispute on the one hand and a conflict on the other. She said that a dispute engages on deficiency and can be settled by negotiation and conciliation. Where on the other hand, conflict is long term and involves differences that cannot be resolved. She added that the reason family dispute mechanisms are difficult is that the facts are in a state of flux, the dispute process has unknown facts, there is an uncertain future, and the outcomes are emotional and personal and can take a devastating toll on children.
The keynote address on the first day of the conference was given by Acting Judge of the Supreme Court of Appeal, Judge Thina Siwendu.
Judge Siwendu referred to three models of dispute, namely –
Regarding the therapeutic model, Judge Siwendu said South Africa (SA) is far from taking part in a therapeutic model, as this is a long-term view, especially for a society dealing with trauma. She added that the adversarial model is often criticised, as it is founded on confrontation and vindication, and this system thrives on blaming, shaming, dehumanising, and traumatising people. She added that all the delegates could be victims of this model, which disregards any relationship and can be at the core of family conflicts. She added that at the end of this process there is a lack of buy-in after the court order has been given, which creates additional contempt proceedings.
Regarding the collaborative model, Judge Siwendu referred to what has been done by the Gauteng Local Division of the High Court in Johannesburg, where the court took a giant step in creating a designated Family Court in July 2022 and all family related matters are adjudicated and resolved by this court. She added that the court joins the likes of England and Australia, who have designated family courts too. She said the unified family court is driven by Deputy Judge President Roland Sutherland. She added that the court designed a case management system where adjudication could minimise conflict and where the mediation process could be incorporated. She added that every week, four to ten opposed r 43 application matters are heard, and one to four custody cases take place, and approximately 50 to 60 uncontested divorce matters proceed each week.
There are some strengths in the adversarial system, with a principled argument and clarified legal principles, but delayed integration in the current models need to be factored in. Judge Siwendu said a shift in our thinking needs to take place. There can be flexibility between the model and a lot of creative thought can be applied, such as what services are discretionary? She said that mediation can be seen as a certainty rather than a debate. Judge Siwendu closed off by saying that these were her own views and not necessarily those of her colleagues.
Consultant Solicitor at Expatriate Law in London, Lauren Carmichael, discussed the tips and traps for expats moving between SA and the United Arab Emirates (UAE). In a pre-recorded speech, Ms Carmichael said that the state of the UAE is 51 years old, and the UAE continues to use Sharia laws and principles. ‘There is a system of law governing family law disputes in the UAE and these laws apply to Emirati nationals, as well as expats,’ she said. Ms Carmichael added that in 2021, Abu Dhabi launched a new Civil Family Court aimed at the expat population.
Ms Carmichael stated that Federal Law 28 of 2005 (Federal Law) is the main family or ‘personal status’ law in the UAE, she added that amendments to this statute were made in 2019 and 2020 to simplify the divorce process and to enable expats to undertake a divorce more in line with their own culture. These provisions apply across the UAE, except in Abu Dhabi.
Ms Carmichael said that an amendment to art 1 of Federal Law allows expats to apply foreign laws within the UAE courts, for example, a South African Ante-nuptial Contract (ANC) will be recognised provided the parties married in SA, however, whether it will be interpreted accurately, is another question.
Ms Carmichael gave the following tips to delegates:
Ms Carmichael said that when parties have reached an amicable settlement agreement in respect of their divorce and finances, it is relatively straight forward to apply for such an agreement to be registered with the UAE courts.
She highlighted certain aspects pertaining to divorces and finances, namely that in the UAE, the law has been considerably relaxed in that it is no longer illegal for unmarried couples to live together, although adultery remains illegal. However, there must be evidence, which can be problematic. She said that it is illegal to access someone’s private information and to record someone without their consent. Ms Carmichael said that an aggrieved party who has found out that their spouse is having an affair might consider criminal proceedings, which is often encouraged by local UAE lawyers, but this should be avoided at all costs. The UAE courts only deal with assets in the UAE and do not make orders regarding foreign assets. Foreign pensions are also not recognised.
Regarding guardianship and custody, art 146 of Federal Law states that the mother will automatically become the ‘custodian’ of young children. Article 178 stares that the father will be the ‘guardian’. The parents do not share equal parental responsibilities. Ms Carmichael stated that there is no legislative overriding principle of the best interests of the child, nor is there any provision to allow a child to be heard. ‘When determining custody issues, UAE courts do consider the welfare of the child as the primary concern and make a decision based on a child’s best interests in each particular case,’ she said.
Regarding marriage and divorce in Abu Dhabi, Ms Carmichael said that the new Abu Dhabi laws apply within a new civil family court set up for –
According to Ms Carmichael ‘the new Abu Dhabi laws apply to non-Muslim expats and can apply to Muslim expats apart from those from Pakistan, Afghanistan, and a few Arab counties. The parties cannot request to have the laws of their home country applied, albeit it is not yet clear how foreign ANCs will be interpreted.’ She added that individuals will have jurisdiction to use the new Civil Family court when expats are residents or have existing or previous working addresses in Abu Dhabi; if the civil marriage was concluded in Abu Dhabi and where a child is domiciled in Abu Dhabi.
You can find out more about the Abu Dhabi Civil Family Court by visiting: www.adjd.gov.ae/EN/Pages/Home.aspx
Social worker in private practice, Heidi Reynolds, explained that supervised contact may be ordered by the court, due to the safety of the child, which can include both physical and emotional safety.
Social worker in private practice, Heidi Reynolds, explained that supervised contact may be ordered by the court, due to the safety of the child, which can include both physical and emotional safety. She explained that if the court considers that:
Ms Reynolds added that the supervised contact between a non-residential parent or guardian and their minor child is observed by a trained and qualified professional or sometimes by a family member or trusted friend.
Ms Reynolds explained the value of supervised contact with the primary aim being to support the emotional, psychological, and social development of the child by providing them with safe and beneficial contact with their parents, siblings, and other family members from whom they are separated. ‘This contact creates an opportunity for the parent and child to interact in a safe, controlled, and neutral environment,’ she said.
Ms Reynolds went on to say that supervised contact is often used as a ‘weapon’ to disrupt and damage the relationship between parent and child. She said that most children want and desire a relationship with both their parents and will be put in a loyalty conflict when they are told they must be kept safe from their parent. ‘This child has no understanding of why they need to be kept safe. More often than not, this keeping a child safe is a legal strategy to ensure that the client “wins” contact and/or residency from the other parent,’ Ms Reynolds said.
Ms Reynolds also added that supervised contact can be used in high-conflict divorces and ‘false’ accusations of domestic violence, drug and alcohol abuse, and ‘appallingly’ sexual abuse accusations are made as a deliberate strategy to withhold contact or to withhold and minimise contact between a child and their other parent. Ms Reynolds went on to state that legal practitioners fail to understand the role of the person supervising contact and often expect and demand forensic reporting. She said that it needs to be understood that the social worker supervising contact may not perform any mental health or any other evaluations or assessments and must function independently from the professionals appointed to conduct forensic recommendations. Ms Reynolds said that the social worker must provide factual information based on their observations of contact to the professionals appointed to investigate.
‘Supervised contact as a weapon destroys the relationship between a parent and child, it can destroy the parent financially and supervised contact is costly and destroys the possibility of co-parenting. It keeps the power and control over the child with one parent and this is not healthy for either parent and it is certainly not healthy for the child,’ she said.
‘The vast majority of separating and divorcing parents maintain safe, healthy and positive relationships with their children and one another, however, a small percentage of parent-child relationships are deliberately damage through the use of supervised contact as a weapon. Children are at greater risk when parent-child contact problems are not effectively addressed and when family law professionals and others echo and intensify the polarisation within the family,’ Ms Reynolds said.
Practising legal practitioner specialising in family law, Charles Mendelow, shared his reflections based on what he has learnt since 1989 on his journey as a mediator.
Practising legal practitioner specialising in family law, Charles Mendelow, shared his reflections based on what he has learnt since 1989 on his journey as a mediator, stating that back then, mediation was a great idea, but alien to the world of law and the court system. However, today it is mainstream in the legal system. He said that mediation is not the cure-all that it is trumpeted to be. ‘Many cases that are referred to mediation still need the intervention of the court to determine issues and/or to protect parties.’ He added that the mediation process is still being under-utilised as a tool to narrow disputes for adjudication.
Mr Mendelow said that mediation is almost a profession, but there is still a way to go, adding that there are accredited bodies, but there is limited accountability. He added that a botched mediation is where the process itself exacerbates the conflict and further poisons relationships and/or results in an unjust result.
Mr Mendelow spoke about great lessons he learnt on the way, referring to the ‘three Ps tripod’ on which mediation is built, namely:
‘A common mistake mediators make is to start the dealmaking process before completing the information gathering process. … Information gathering does not only mean information about the finances of the parties or the children of the parties, … the mediator gathers information about: What the needs, interests and concerns of the parties are. How the parties perceive needs, interests, and concerns, to what extent the parties are in good faith and to what extent they will be guided by pragmatism and fair-mindedness. To what extent they are compromised in terms of these capacities and what their expectations are aligned with reality,’ Mr Mendelow explained.
Mr Mendelow said that mediators must be hyper vigilant not to create unrealistic expectations. He also added that a legal practitioner, can be a very useful in reassuring presence for a jittery client. He said that staying calm and in the zone is important as the mediation is a sacred space. ‘One has to hone one’s skills to ensure that one does not give advice on these issues, and one must keep a clear distinction between giving information and giving advice, which is an absolute no-no,’ he said. The last reflection that Mr Medelow spoke about was that mediation is God’s work. He said that conflict resolution is the most sorely needed skill in the world.
Western Cape Division High Court Judge, Ashley Binns-Ward reviewed the jurisprudence concerning the treatment of trust assets in patrimonial claims and awards in contested divorce proceedings.
On day two of the conference, Western Cape Division High Court Judge, Ashley Binns-Ward reviewed the jurisprudence concerning the treatment of trust assets in patrimonial claims and awards in contested divorce proceedings. In his address to delegates, Judge Binns-Ward said he would be discussing the important differences between the concepts of –
‘The idea of choosing the topic of trusts as an issue in the determination of the patrimonial consequences of divorce stems from a judgment I wrote about eight years ago in a commercial matter, in which the trustees of an insolvent estate of a natural person sought orders declaring that certain immovable properties, one registered as the property of a trust and the other as the property of a company, could be treated as assets in the insolvent estate of the individual. That judgment, which has subsequently been endorsed in a number of appeal court judgments, was reported as Van Zyl and Another NNO v Kaye NO and Others 2014 (4) SA 452 (WCC),’ Judge Binns-Ward said.
Judge Binns-Ward referred to the Kaye matter and said he drew on the analyses of finding from two sources, namely, Prof Marius de Waal’s paper titled ‘The abuse of the trust (or: “Going behind the trust form”): the South African experience with some comparative perspectives’ (2012) 76 The Rabel Journal of Comparative and International Private Law 1078, (http://scholar.sun.ac.za/handle/10019.1/85023, accessed 12-12-2022) and RB Stafford’s Master’s thesis ‘A legal-comparative study of the interpretation and application of the doctrines of the sham and the alter-ego in the context of South African trust law: The dangers of translocating company law principles into trust law’ (LLM thesis, Rhodes University, 2010) (https://commons.ru.ac.za/vital/access/services/Download/vital:3695/SOURCEPDF?view=true, accessed 12-12-2022). Judge Binns-Ward said he highlighted two common law remedies under which those objects could be achieved – provided, of course, that the evidence was available to satisfy their respective, and completely discrete, requirements.
‘The first is obtainable by establishing that the trust concerned was a sham and that its ostensible existence, therefore falls to be disregarded, with the result that the property ostensibly vested in it remained the property of the person who had purported to make it over. The other is obtainable by going behind the trust or piercing its veneer. This remedy acknowledges the effective establishment of the trust but provides for its existence to be disregarded in the given situation and for a particular purpose. Going behind the trust is a remedy that can be available where the trust form has been abused. It is sometimes equated with the sort of cases in which a court pierces the corporate veil of a company. Its effect is that the trust is rendered responsible to satisfy the liabilities of the defendant spouse and the
distinction between the defendant spouse’s property and that of the trust is disregarded for that purpose,’ he said.
The judgment in Kaye related that the jurisprudence showed that the distinction between those remedies and the bases for their availability were frequently overlooked, with the result that they were incorrectly conflated. He added that there was, and continues to be, such confusion, ‘for the inappropriateness of
the conflation is obvious: If the trust is a sham, there is nothing to go behind,’ he said.
Judge Binns-Ward said that South African law only knows two trust forms. They are identified in the definition of ‘trust’ in s 1 of the Trust Property Control Act 57 of 1988, which reads:
‘“Trust” means the arrangement through which the ownership in property of one person is by virtue of a trust instrument made over or bequeathed –
(a) to another person, the trustee, in whole or in part, to be administered or disposed of according to the provisions of the trust instrument for the benefit of the person or class of persons designated in the trust instrument or for the achievement of the object stated in the trust instrument; or
(b) to the beneficiaries designated in the trust instrument, which property is placed under the control of another person, the trustee, to be administered or disposed of according to the provisions of the trust instrument for the benefit of the person or class of persons designated in the trust instrument or for the achievement of the object stated in the trust instrument.’
Judge Binns-Ward said that the form of trust that is invariably in issue in divorce cases is the first of two types described. He added that nowhere in the Trust Property Control Act, nor in South African common law, is the notion of a third type of trust mentioned, namely the ‘alter-ego trust’, he added that there is no such thing.
The Kaye judgment highlighted that the ‘only relevance of the so-called alter ego character of a trust is the evidential role it will play in determining cases founded on other causes for remedial relief, such as exposing an ostensible trust to be a sham or demonstrating a relevant abuse of the trust form as would justify the court in going behind it, or in justifying a redistribution of assets in terms of s 7(3) of the Divorce Act [70 of 1979] with reference to one of the spouse’s ability to beneficially access trust assets – these all being separate and mutually distinguishable bases for relief,’ Judge Binns-Ward said.
Judge Binns-Ward explained that the characteristic that is common to all trusts, however, and fundamental to their establishment is the making over by an owner of some or all of the property owned by them to the trust, in other words, all of the property that is validly in a trust is property that has been alienated by someone and the accrual or growth of such property while it is being administered by the trustees.
Judge Binns-Ward said: ‘In Badenhorst, the parties were married out of community property before the advent of the accrual system option. The wife counterclaimed for a redistribution order in terms of s 7(3) of the Divorce Act and pleaded that the assets in a trust that had been established by the husband during the marriage though, which he had conducted all of his entrepreneurial activity during the major part of the marriage should be counted as if they were part of his estate. The trial court held that as the trust was not a sham, and as its form had not been abused, it could not accede to the wife’s request that regard should be had to the value of its assets for the purpose of determining a just and fair redistribution order. The appeal court disagreed.
The essence of the reasoning was that if the evidence showed that the trust in question was the alter ego of one of the spouses and was invested with assets that but for the establishment of the trust would have vested in that spouse’s estate, then it would be just and equitable to treat the value of the trust’s assets as if it was value in the spouse’s estate when determining a monetary redistribution in terms of s 7(3).’
According to Judge Binns-Ward, the Badenhorst approach (or Badenhorst principle as it is sometimes called) cannot apply in an accrual claim under the Matrimonial Property Act 88 of 1984, and any judgment that reasons to the contrary, and there are some, is in his opinion, misdirected.
‘My observation that the judgment in Badenhorst did not entail going behind the trust or piercing its veneer has been criticised by some academic writers. With respect, the criticism has been misconceived. The court in Badenhorst did not disregard the existence of the trust or make any of its assets available to satisfy the redistribution order. If Mr Badenhorst did not pay the amount, he was ordered to in order to satisfy the redistribution order terms of s 7(3), Mrs Badenhorst would have no resort to execution against the trust or any of its assets. The judgment did not render the trustees liable to make the payment, nor render any of the trust’s assets liable to execution. Notwithstanding the academic criticism of my opinion in this regard, it must now be treated as right because it has recently been endorsed by the SCA in the as yet unreported judgment in MJ K v II K (SCA) (unreported case no 360/2021, 28-7-2022) (Zondi JA (Schippers and Mabindla-Boqwana JJA and Matojane and Smith AJJA concurring)),’ Judge Binns-Ward said.
According to Judge Binns-Ward, the reference to ‘the principle stated in Badenhorst’ was misconceived. He added that the Badenhorst matter had nothing to do with an accrual claim and was concerned solely with how a court might exercise its discretion in a s 7(3) Divorce Act redistribution claim.
Judge Binns-Ward continued: ‘The litigation in Badenhorst proceeded on the basis of an acceptance by both sides that the trusts were validly established. A court will, of course, determine a case on the basis that it is presented. I should point out, however, that a case could have been made out for a declaration that the trusts were shams. They were all under the absolute control of the founder, who in every one of those cases dealt from the outset with the assets of the ostensible trusts in a manner indistinguishable from the way in which he would with his own estate and in total disregard of the trust form. I, therefore, stress the importance of properly formulating any proprietary claim in divorce proceedings in which the assets in a trust or their value is to be made an issue. And to be able to do that, one of course has to have a clear understanding at the outset of the true nature of the available remedies and of their legal character and what is required to avail of them. If you do not, assisted by the confused and confusing state of the jurisprudence, the result of the litigation is going to be unpredictable,’ Judge Binns-Ward said.
Other topics discussed at the conference included –
Kathleen Kriel BTech (Journ) is the Production Editor at De Rebus.
