Australia’s family relationship centres: A possible solution to creating an accessible and integrated family law system as envisaged by the South African Law Reform Commission’s Issue Paper 31 of 2015?

In the first part of this article certain problems with the adversarial system of litigation in family matters as highlighted by the South African Law Reform Commission in Issue Paper 31 of 2015 are investigated. Next, reference is made to the various alternative dispute resolution processes as recognised by the Issue Paper, namely family mediation, voluntary court-annexed mediation, African dispute resolution, online dispute resolution, collaborative practice, arbitration and parenting coordination. It is indicated that these processes developed in an unstructured and piecemeal manner and that little specific provision has been made to cater for these processes in our family law system. The various structures necessary for dealing with family dispute resolution are also examined. Here it is pointed out that there are a variety of structures or services available to families facing separation or other family disputes, namely the different official courts, the tribal or chiefs’ courts, community structures, private mediators and/or Legal Aid South Africa. However, some of the available and widely-used structures or services are not regarded as part of the official family law system in South Africa. The conclusion is therefore that South Africa has not succeeded in establishing a comprehensive family law system. Subsequently, the development of a coherent family law system is examined. Specific focus is placed on the manner in which the establishment of family relationship centres has led to a more accessible and integrated family law system in Australia. Lastly, in the light of the Australian example, which reframed parental conflicts arsing from divorce and separation from a legal problem with relationship conflicts to a public health problem with legal elements, it is proposed that the network of primary healthcare clinics in South Africa should be transformed into fully fledged family health and relationship centres which also cater for families in distress. At the clinics people would first receive information and education and from there they would be referred to the appropriate service or services, which would not necessarily include the official courts, but rather the chiefs’ courts, community structures and private mediators, arbitrators, parenting coordinators or collaborative practitioners. All these services should form part of a coherent procedural family law system in South Africa.Private La

Ten-year anniversary of the Maintenance Act 99 of 1998 – A time to reflect on improvements, shortcomings and the way forward

The Maintenance Act 23 of 1963 moved the burden of maintenance enforcement from the then Supreme Courts to maintenance courts The aim of the Act was to create a procedure by means of which an aggrieved party could obtain and/or enforce a maintenance order quickly and cheaply. Regrettably, the Act, and more specifically its enforcement mechanisms, proved to be ineffective. Complaints about the system ranged from the treatment, attitudes and facilities encountered at maintenance courts by complainants, to the seeming impunity with which maintenance debtors manage to evade their legal duty to maintain their dependents, even where maintenance orders were in force. In response to the problems encountered with the 1963 Maintenance Act and to fulfil South Africa’s international and constitutional obligations, the Maintenance Act 99 of 1998 was introduced. As the bulk of the Maintenance Act would have been in operation for exactly ten years on 26 November 2009, the government thought it appropriate to obtain a ten year review of the Act. I was subsequently instructed to compile a report, of which this article is an abbreviated version.Private La

The cut-off date for determining accrual claims: a cruel decision and a better decision

Despite the fact that the accrual system has been in operation for over 26 years, there is very little case law dealing with the operation and principles of this system (see Schulze "Some thoughts on the interpretation and application of section 8(1) of the Matrimonial Property Act 88 of 1984" 2000 THRHR 116 117; Ferreira "Protection of the right to accrual sharing" 2002 THRHR 287). In this note I refer to two recent cases that dealt with the operation of the accrual system but resulted in conflicting judgments. The first is the as yet unreported case of Le Roitx v Le ROILX (case no 1245/2008 (NCK), delivered on 2009-10-30) and the second is MS vNB 2010 3 SA 220 (GSJ). Both cases concern the cut-off date for the determination of accrual claims where marriages are dissolved through divorce. As these cases propose totally different approaches, it may be useful to ascertain what is done in other jurisdictions under similar circumstances. As the current default matrimonial property system in Germany operates very similarly to the accrual system in South Africa, the position in Germany is discussed briefly for purposes of comparison. After the above-mentioned cases have been discussed and German and South African law compared, some suggestions are made and practical pointers provided on how and when information is to be obtained to enable parties to determine accrual claims

Towards a more uniform approach to parenting coordination in South Africa

Because of the need to mitigate the damage done to children by chronic conflict between co-parents after divorce or family breakdown, the process of parenting coordination has been embraced by South African courts. In terms of the process, a parenting coordinator will first attempt to facilitate resolution of the parenting disputes by agreement of the parties, but if this attempt fails, the parenting coordinator has the power to make directives regarding the disputes which are binding on the parties until a competent court directs otherwise or the parties jointly agree otherwise. Although parenting coordination has flourished over the past decade, there still seems to be uncertainty and a lack of uniformity about various aspects regarding the process and the role and functions of a parenting coordinator. First of all, we have the Guidelines on the Practice of Parenting Coordination in South Africa (SA Guidelines), drafted by a task team of the National Accreditation Board for Family Mediators (NABFAM) to provide guidance for parenting coordinators concerning minimum qualifications, ethical obligations and conduct, practice and procedure, and children’s participation in the process. In addition, the South African Law Reform Commission published the draft Family Dispute Resolution Bill, 2020, which deals with the process of parenting coordination in Chapter 7. Very importantly, we also have various court decisions dealing with parenting coordination in South Africa, which provide some guidance. However, the SA Guidelines, the provisions of Chapter 7 of the Bill and our court decisions are not always aligned and provide different answers to important underlying theoretical questions about various issues, such as the circumstances under which a parenting coordinator should be appointed; the issues that could be dealt with by a parenting coordinator; whom to appoint as a parenting coordinator; the approach to be followed in the parenting coordination process; the inclusion of children in the parenting coordination process; the nature of the parenting coordination process; confidentiality in the process; and a parenting coordinator’s relationship with the court and the parties’ legal representatives. A lack of consensus regarding these issues has given rise to diverse practices among professionals and confusion for all involved in the parenting coordination process. This article therefore endeavours to provide more clarity and certainty on these issues, taking international best practice into account

Default matrimonial property regimes and the Principles of European Family Law – A European-South African comparison: Part 2

Private La

Divorce mediation in Australia – valuable lessons for family law reform in South Africa

It was officially recommended that the South African Family Court should be modelled reasonably closely on, inter alia, the Australian Family Court. Since its inception this court has had a social component which emphasized the importance of counselling and conciliation in divorce matters. Over time this court also started to respond the new wave of interest in divorce mediation. In addition, family law legislation of the past 30 years provides strong evidence of the Australian government’s commitment both to making alternatives to litigation available for the solution of disputes surrounding family breakdown and to strongly encouraging separating spouses to avail themselves of these alternatives before resorting to litigation. The most important of these are the Family Law Act 1975, the Family Law Reform Act 1995, the Federal Magistrates Act 1999 and the Family Law Rules 2004. The way in which these pieces of legislation attempt to integrate alternative dispute methods, especially mediation, into the family law system is examined in this article. Further, certain problems with the present family law system in Australia relating to divorce and family mediation are set out. Lastly, the very recent endeavours of the Australian government to address these problems are investigated.Private La

Suggested safeguards and limitations for effective and permissible parenting coordination (facilitation or case management) in South Africa

Private La

Arbitration of family law issues – A useful adjunct to mediation and the court process

For over half a century now section 2(a) of the Arbitration Act 42 of 1965 has prohibited arbitration in respect of matrimonial and related matters. In this article, it will be illustrated that this prohibition is clearly incompatible with present-day demands. Today there is a strong tendency in public policy towards alternative dispute resolution processes such as arbitration. As any recommendations that arbitration should be applied to family law disputes must be anchored in an analysis of the specific character of the arbitral remedy, the article begins by giving a broad overview of the nature of arbitration. This is followed by a discussion of the present-day demand for family arbitration, which examines the problems experienced with the adversarial system of litigation in resolving family law disputes, party-autonomy, the development of alternative dispute resolution processes such as mediation and arbitration, the special synergy between mediation and arbitration, the success of arbitration in other fields of law and possible forerunners for family arbitration in South Africa. Inherent in the demand for family law arbitration are the many advantages of arbitration which are also touched upon. Thirdly, current trends in England, Australia, the United States of America, Canada and India are analysed so as to identify a suitable family law arbitration model for South Africa. Special attention is paid to the matters that should be referred to arbitration – for example, should it be confined to matrimonial property and financial disputes or extended to all matters incidental to divorce or family breakdown, including children’s issues? Other questions examined include whether family arbitration should comply with substantive law only, who should act as arbitrators, whether family arbitration should be voluntary or compulsory, what the court’s role in the family arbitration process should be, and whether family law arbitration should be regulated by the existing Arbitration Act or by a separate statute with specialised rules for family matters. Lastly, it is concluded that although family arbitration will not have universal appeal or common application, it should be encouraged and enforceable for those who choose this private alternative dispute settlement technique to resolve their family disputes.Private La

Suggestions for a divorce process truly in the best interests of children (1)

Divorce is pre-eminently a matter which may affect children negatively. As such it triggers the obligatory application of the best interests of the child standard and the principle of child participation. However, it appears that this standard and principle are not effectively upheld and complied with in our legal system. The adversarial system of litigation undeniably exacerbates the risk factors for children upon divorce or family breakdown because it encourages and increases conflict between children’s parents, counters authoritative parenting, leads to the absence of the non-caregiving parent and causes a decline in the standard of living of the caregiving parent (and the children). There is also no unanimity as to how and when children’s voices should be entertained in the legal process. In addition, the adversarial system of litigation causes especially contested matters to be unnecessarily protracted and excessively expensive. Consequently, a radical reshaping of the legal system is proposed in the period before, upon and after divorce. As far as pre-court processes are concerned, suggestions are made, first, for a new intake point or procedure away from attorneys and the courts where parents could be educated about the effects of divorce on children, children could be informed about the process and families could be triaged and referred to an appropriate service or structure and, secondly, for a mandatory child-informed mediation process in which children could participate and in which their best interests would be the focal point for all negotiations. Alternatively, a call is made for a collaborative divorce law process in which a neutral child specialist might be appointed to bring the voice of the child into the negotiations between parents and their legal representatives. With regard to the court process, proposals are set out for a less adversarial trial in which the presiding officer would play a more active role and children would have an input throughout the process through the involvement of the mediator in a new and innovative manner. With respect to the post-court process, recommendations are made regarding the practice of parenting coordination (facilitation or case management) in a way that promotes children’s best interests and their participation in the process. Ensuring that the best interests of children are the focus in all pre-court, court and post-court processes will represent a sound investment in family stability and productivity despite the occurrence of divorce.Private La