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Rehabilitated drug addicts and custody
I recently got consulted by a man from Table View in Cape Town with regard to the abovementioned query. He had advised me that he had been separated from his wife for four months, and that she alleged that she had been “clean” for this period of time. Whilst they had been living together his wife had apparently gone out every night to pubs and clubs. She was addicted to “tik” and “cocaine”. She furthermore had a history of being admitted to rehabilitation centres.
Wife claims to be rehabilitated
In the abovementioned case the wife, who now claimed to be rehabilitated froms her addiction, threatened my client by saying that she would ask for sole custody of the child. In this particular case the minor child had been spending an equal amount of time with his mother and his father. I advised my client that I was convinced in terms of the new Children’s Act that his wife would not be entitled to full custody of the child.
Drug use is a custody consideration
I furthermore advised my client that his wife’s history of alcohol and drug abuse would certainly be used against her if the matter were referred to a family advocate for investigation. The courts would view alcohol and drug abuse as an addiction which can resurface at any stage. The fact that this lady had only been clean for four months would definitely be taken into account should the matter be referred to the family advocate for investigation.
Although the abovementioned case relating to custody has not at this stage been referred to the family advocate, I am convinced that the court would award joint custody, and perhaps even full custody to the man due to his wife’s drug history.
Victoria Spencer & Jonathan Aitken
This weekend I read an article in a magazine which I find particularly interesting. The article deals with the divorce case between Victoria Spencer and Jonathan Aitken. As everybody knows, Victoria is the ex-wife of Lord Charles Spencer, brother of deceased Princess Diana.
I was quite surprised to read that they were getting divorced, as a few years ago I remember reading an article and seeing pictures of them in happier days. What is particularly interesting about this case is that they are both recovering drug addicts, and have a minor child together. I understand that Mr. Aitken abused “cocaine” excessively. The two had apparently formed a close relationship at the start, due to their common interest in recovery from drug abuse.
In such a case one party can clearly not in the divorce papers allege that the other party abused drugs in the past, and would therefore be a bad parent, as they are guilty of the same thing. It is actually quite common in my personal experience that when one party has a history of alcohol or drug abuse, so does the other party.
Best interests of minor child
The courts always take into account what is in the best interest of the minor child. A drug addict or alcoholic is never really fully recovered, and can “relapse” at any stage. The courts would in such a case look at the probability of the parent relapsing again, and also look at what type of alcohol or drug was being abused.
Drug testing
One of the easiest ways to check whether your partner has been abusing drugs is to take a hair sample for testing. Drug testing kits can also be purchased at your local pharmacy. Although you can never force somebody to go to a rehabilitation centre, if you are able obtain evidence of drug and/or alcohol abuse, this will definitely stand up as evidence in some way in a court of law.
This article was written by Cape Town divorce law specialist, Peter M Baker
If you're in court already, it's usually too late to save the marriage. The above photograph appeared in the Chicago Tribune of 1948, of a man getting on his knee and begging his wife for forgiveness. The wife had had enough of the husband's drunken behaviour.
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Other divorce-related issues
At the beginning
Should I advise my spouse of the impending divorce action?
Should you move out of the matrimonial house prior to divorce?
Remove your spouse as a beneficiary on your Life assurance.
Divorce rule 43 for maintenance prior to divorce & divorce costs
Psychological issues
Marriage counselling to avoid divorce
Psychological impact of divorce on children
Child-related divorce matters
Can a "band-aid baby" save a marriage?
Annexure A
If there are minor children involved, the divorce summons must have an Annexure A attached to it.
Custody of children upon divorce
Jurisdiction in child custody matter (e.g. if child moved to another province)
Joint decisions with respect to minor children
Using Rule 43 to apply for interim custody entitlement
Custody when there's been drug use.Child custody for the father
Custody granted to unmarried father
When a child won't see his/her father or mother
An unborn child when divorcing
Grandparents & divorce
When Grandparents want custody ahead of parents
Challenging the family advocate report
Child custody post divorce
Application to terminate your ex's parental rights
Splitting up siblings post divorce
Which parent decides the school to attend?
Child custody on death of a parent
Child custody following the death of a parent.
Adoption of a stepchild
Maintenance for children
Child maintenance to what age?
Maintenance & proof of paternity
Maintenance & custody of adopted children
Maintenance for the unborn child
Divorce & maintenance considerations for a handicapped child
Token or minimal maintenance when parent doesn't work
Impact of inheritance on child maintenance obligations
Maintenance for children over 18
Children suing for maintenance
Application for maintenance reduction
Arrest after failing to pay maintenance
Maintenance for spouse
Maintenance in a polygamous marriage
Maintenance when your spouse remarries
Abduction & kidnapping of children
Abduction of a minor - Latest case law
The kidnapping of minor children by a parent
The international abduction of children from South Africa.
International divorces, children & overseas issues
Divorce when the children & spouse are overseas
Child contact rights for an overseas parent
When your child and ex move overseas - keeping contact
Other child-divorce matters
Handicapped children & the divorce rate
National register of those unsuited to working with children
Affairs
Affairs and their impact on divorce settlements.
Assets/debt and divorce
The duty to disclose your financials when divorcing.
Insufficent disclosure from a spouse on their assets/liabilities; the section 7 notice remedy (in terms of the Matrimonial Property Act)
Division of the joint estate in the event of a divorce.
- Antenuptial contracts
- When parties cannot agree on the accrual calculation; the court may appointment a referee to assist with the accrual calculation
- When parties cannot decide how to divvy the assets : The court may nominate someone to collect, realise and divide the estate (called a liquidator, receiver or curator).
- How affairs impact the division of assets on divorce
Movable assets - what to take if you move out.
Protection of assets using a trust
Divorce & pension fund assets
Divorce and pension fund payouts
Get your info directly from spouse's pension fund, not indirectly from your spouse.
Undisclosed Pension Interest at divorce results in amendment to divorce order
Pension interest in the accrual calculation, and the related tax liability
State pension fund is unconstitutional
Navy pension payout post-divorce
Property and divorce
Be careful with how you word the clauses about selling the property upon divorce
Should you move out of the matrimonial house prior to divorce?
Property in your spouse's name
When parents have rights to stay at the property you want to sell on divorce.
Life insurance, death & divorce
Life assurance actions you need to take when divorcing
Death in the middle of divorce
Divorce & future expenses
Divorce & Future medical expenses
Marriage (COP vs ANC), cohabition and Universal partnerships
Marriage in community of property
Short definition of a marriage in community of property
Forfeiture of benefits of marriage in community of property - Wijker v Wijker 1993
Kooverjee v Kooverjee
Rights for those in Universal partnerships
- Universal partnership: Asset sharing
- The distribution of assets from the dissolution of universal partnerships
Treatise on the Contract of Partnership: By Pothier ; with the Civil Code and Code of Commerce ... (1854)
Null declaration of customary union
Perjury & forgery
Divorce: Forging spouse's signature
Divorce courts
Divorce cases in the Cape High Court
Annulment instead of divorce
What is annulment of a marriage?
What are the grounds for annulment of a marriage?
Divorce documents
Sheriff letter for divorce summons (combined summons)
Sheriff letter for divorce summons
The final order of divorce
Divorce & the particulars of claim
Divorce orders
Vary or rescind a divorce order
Change divorce order without court application
Non-compliance with a divorce order
Spangenberg & Another vs De Waal; Rule 43 order is set aside
Quote for Family Lawyer
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