August 2015 - Ivan Zartz Attorneys

31 Aug

Cheating and Divorce

It seems as though cases of divorce that are a consequence of a partner’s infidelity are in the spotlight again. This follows a recent case that unfolded at the Pretoria high court. A couple, married out of community of property but with accrual, was subject to a ruling by the magistrate that to some may consider unconventional nowadays.

The wife, who was involved in extramarital affairs, was found guilty of misconduct, and because of this she was ordered to forfeit some of the benefits that would be received from her husband’s estate following the finalization of the divorce. It is entirely within the court’s power to make this decision, and the reason for this ruling is to prevent a party, guilty of misconduct, from benefiting from a marriage that they were responsible for breaking.

It was put forward that the section of the Divorce Act that deals with financial benefits in the even of divorce in cases involving ‘misconduct’ was out of date and is no longer applicable in the modern sense. It was at this stage when the judge said that the woman’s counselor is allowed to challenge the Section. The challenging of the section will also involve Justice Minister and Speaker of Parliament as parties to the court case. If successfully challenged, the revision of the Section could herald great changes in future divorce cases.

It must be remembered that in cases of divorce that are a result of adultery, this has no influence on the resultant custody where children are involved. A cheating spouse may in fact be a very good parent, and the reasons for divorce should have little impact on their ability to co-parent or be awarded visitation rights. Adultery has no bearing on the settlements in a child contact and care agreement.

If you seek an experienced and adept attorney in cases involving child custody and other matters of family law, then make sure that you contact Ivan Zartz Attorneys today!

26 Aug

Surrogacy Legal Process

The legal process that takes place at the onset of surrogacy is a long and complicated procedure. However, the surrogacy procedure in South Africa is not as lengthy and perplexing as the surrogacy process in a number of other countries.

The legal aspects regarding surrogacy leans heavily on the reliance of an approved High Court application. The application toward the High Court requires a collection of documentation that, unfulfilled, will mean the end of the surrogacy process.

The initial stages of the application requires the surrogate mother as well as the intended parents to go through a number of medical and psychological reports. The psychological report, made by psychologists, will determine if the intended parents are fit to look after a child, and if the surrogate mother can adequately bare the mental trauma of pregnancy and childbirth. A medical report will also establish if the surrogate mother is able to have children, while a report must also be made on the intended parents’ inability to have their own children.

There are also reports that need to be issued by social workers that deem whether or not intended parents are fit to raise a child, given the intended parents’ lifestyle, living-conditions and financial situation.

The most important part of the High Court application is the surrogate agreement between the parents and the surrogate mother. The agreement has to fulfill the requirements as stipulated in Chapter 19 of the Children’s Act, Surrogate Motherhood.

This Chapter of the Children’s Act outlines all the requirements of both parties involved in the surrogate agreement. The Chapter outlines the requirements of the genetic origins of the child, and where the gametes involved in insemination may be derived. This part of the Chapter also points out requirements such as, if only the gamete from a single intended parent can be used, that there is proof of the other parent being unable to provide a gamete. The Chapter lays down the rules pertaining to the handing over of the child after birth. It also outlines the effects of termination of the surrogate agreement, as well as the termination of the pregnancy.

The High Court and the Chapter ascertains the actions that are prohibited on the part of both surrogate mother as well as intended parents, such as the prohibition of payment etc.

It is only after these guidelines are provided, an the correct documentation approved, that the High Court accepts an application. It is at this stage that the High Court will determine the process of insemination and the guidelines following from pregnancy to the handing over of the child.

If you require legal representation and assistance with any case involving surrogacy, make sure that you contact Ivan Zartz Attorneys. Ivan Zartz Attorneys specialise in all cases and legal matters involving surrogacy in South Africa.

24 Aug

Problems of Surrogacy

For some the idea of surrogacy may be a beautiful thing. It allows those who are unable to have children the chance to get what they always wanted. Whether they are restricted by their sexual preferences or they are unable to have children because of medical issues, surrogacy can provide couples with the option of having someone else bear their own child.

However, there are issues regarding surrogacy. Problems of surrogacy involve ethics, medical complications and problems regarding the surrogate mother.

Ethical issues include the religious implications. Many Christian denominations believe that surrogacy is immoral, and in the Islamic faith surrogacy is banned altogether. Some other religions allow surrogacy, but only if certain conditions are met.
Many people believe that surrogacy is akin to the selling of the babe. Surrogate mothers are usually believed to be desperate women, and they can be victims of prejudice in their societies and families. The issue of contact between birth mothers and the child are also highly controversial, as some parents do not believe that their children should ever meet their biological mothers.
The health of the biological mother is also a risk as they are prone to infection or the chances of twins and triplets. Artificial insemination also leads to many miscarriages, and this will affect both the parents and the biological mother.
Intended parents also stand the risk of losing their child due to the behaviors of biological mothers as they go about their daily lives. Some mothers drink, and on the rare occurrence may even take drugs that can affect the baby’s health.
Some surrogate mothers will choose to keep their child after their pregnancy. In this case either the mother or the intended parents will be grievously upset by the choice made in court.

Be sure to read our next blog concerning the legal problems involved in surrogacy. For any issues, contracts or grievances concerning surrogacy in South Africa, be sure to contact Ivan Zartz Attorneys. Ivan Zartz Attorneys also specialize in other cases regarding family law, such as divorce, care and contact, and family mediation.

17 Aug

Babies Behind Bars!

As an aside, and information that is not directly linked to that of Family Law, is that there are hundreds of babies that are born and raised behind bars in South Africa. How does this occur? Mothers in South Africa that are found guilty of crimes are locked up WITH their children if the children are under the age of two.

This occurs because of a child’s need to be with his/her mother in their infancy stage of growing up. A child’s attachment to their mother are many international governments’ reason for allowing babies to grow up in the despicable environment found within prisons, and South Africa is no different.

Some prisons have developed and adapted the living conditions within prisons to suit the requirements of mothers and babies. Such prisons include Pollsmoor, where special ‘mother’ units have been constructed so that they allow a ‘softer’ environment and better living conditions that suit mother and child. It is a difficult task, arranging prisons so that they offer baby-friendly environments but also making sure that such exceptions do not restrict the mothers’ sentencing.

Some prisons elsewhere in the world, like those in South America, see children of all ages living in prison with their parents, while families who rely on the ‘breadwinning’ income of the imprisoned become entirely confined to cells.

For more information of cases regarding family law, particularly divorce as well as care and contact, make sure you get in touch with Ivan Zartz Attorneys today!

12 Aug

When Parents Turn Poisonous

Ivan Zartz’s experience in cases involving Parental Alienation Syndrome has prompted the South African YOU magazine to seek Ivan Zartz’z consultation regarding an article pertaining to the subject.

Parental Alienation Syndrome (PAS) is the unfortunate occurrence whereby children are estranged from one parent through conditions instigated by the other parent. This often involves measures like that of brainwashing or by false accusations leveled at the other parent.

When asked about PAS, Zartz remarked that cases of PAS are definitely on the increase in South Africa. Other attorneys in the article stated that PAS seems to be instigated as much as twice in every five divorce and custody cases. There are many ways in which PAS is incited. Some parents go as far as falsely accusing their counterparts of abusing their children, physically and sexually. Sometimes all it takes is for a parent to continually vilify the other parent in front of the children.

Warning signs of PAS include odd behavior from children. They may be hostile toward one parent, or they may use vocabulary that they are unlikely to use and can only have heard such terms from the other parent. Parents must also remember to never discuss details of divorce in front of children unless it is a measure of family mediation.

The article highlighted a recent case in the United States whereby a mother had managed to alienate her children from the father to such a degree that the children became loath to even sitting and having lunch with their father. The judge made the controversial decision of taking the children out of the situation and placing them in a juvenile detention center whereby they could receive professional help.

There are ways and measures of avoiding and dealing with cases of PAS. Make sure that you look for warning signs of PAS or ensure that you do not incite PAS because it is likely that courts will deal more severely with such cases. For any legal assistance or representation regarding cases of child custody, contact Ivan Zartz Attorneys. Ivan Zartz Attorneys are adept in cases regarding child custody, custody agreements, contacts and care disputes as well as family mediation. Make sure to pick up the latest copy of YOU magazine dated 13 August #453