FAMILY LAW ARTICLES
by Mary Anne Decaria

 


This month’s article is written by my guest author, Kathleen T. Price.  Kathleen practices  primarily family law, and she recently traveled to South Africa as a delegate for the People to People Ambassador Program.

 

FAMILY LAW IN SOUTH AFRICA

 

            In January of 2002, I had the pleasure of traveling to South Africa as a delegate for the People to People Ambassador Program.  Our delegation consisted of eleven family law attorneys and judges from all over the United States.  Our mission was to exchange information with attorneys, judges and others who practice family law in South Africa. 

            First and foremost, South Africa is one of the most beautiful places I have ever seen.  We traveled to Johannesburg, Pretoria, Soweto, Cape Town and other small venues.  Although most of our time was spent on business, we did have time to relax and sight see.  The highlight was a fabulous game safari in Kruger National Park.  Our tour guides were wonderful and showed us a variety of places including, shanty towns, Robben Island (where Nelson Mandela was imprisoned), native marketplaces, Table Mountain, and many other interesting sites.  I thoroughly enjoyed a horseback ride on the beach in Cape Town.

              The food and accommodations were delightful and very economical.  We were welcomed with open arms wherever we went.  While Apartheid has ended, South Africa is still very much a class and race based country.  Nevertheless, it is my firm belief that the negative publicity South Africa has received, is just that.  Its people are friendly, warm and beautiful and never did we feel threatened or unsafe.

            The practice of law in South Africa is similar to England’s system, in that those who practice there are broken into classifications:  Attorneys belong to the Side Bar and Advocates belong to the Bar.  Their education and training differs from ours and one must opt to be an attorney or an advocate, you cannot be both.  Attorneys meet with clients, do the paperwork, prepare witnesses, etc.  Advocates present the case in Court.  Attorneys have their private offices around the towns and cities, but the Advocates are generally housed in the same building and share staff.  Advocates cannot meet with clients unless the Attorney is present.  The Attorney can be present during Court appearances, but does not have to be. This system seemed inefficient to me, but we were assured it was not.  South Africa has  no mandatory Bar Association that regulates  the Advocates or Attorneys.

            The Family Court systems in South Africa are also cumbersome.  There is a Divorce Court, a Maintenance Court (alimony-spousal support), a Children’s Court and the High Court as well as other Courts.  The Judges are not family law specialists and they rotate hearing domestic relations matters.  Less than ten percent of the Judges are women in South Africa, although, law school enrollment is now approximately gender equal.

             All divorces are monitored by the Family Advocate who must give his or her stamp of approval for all divorce matters, including custody and access (visitation), even when the parties agree.  If the Family Advocate does not agree with the parties’ settlement, it is not approved by the Court.  Another very interesting difference is that South African Courts do not condone joint custody.  It is presumed that going from one house to the other is not beneficial for children and children are referred to as  “suitcase children.”  Generally, the mother gets primary custody of the children and the father gets access, which is what we refer to as visitation.  There is no standard formula for child support and awards are extremely low and rarely collected.  South Africa is a huge country, making communication  difficult.  Over sixty percent of the eligible work force is unemployed.  Sadly, with high unemployment combined with rampant HIV, there are many street children living in poverty and on the streets without a roof over their heads or someone to take care of them.

            Legal Aid is also very different.  While in Washoe County and many other areas, Legal Aid is only for certain types of cases, such as landlord tenant, domestic violence, etc., in South Africa if you are poor, you are entitled to Legal Aid.  This creates a problem in domestic relations cases.  For example, if one party is arrested for domestic violence and that party contacts Legal Aid, the other party is turned away if he/she later contacts Legal Aid for a divorce, support, etc., because of the obvious conflict of interest.  This system means that many victims of domestic violence must proceed without legal representation because the perpetrator was the first to the Legal Aid office.  South Africa has no “public defender” to represent criminal defendants.  Legal Aid handles approximately 75% to 80% of criminal defense matters and the other 20% to 25% are domestic relations matters.

            South Africa’s marital property laws are similar to those in the United States South Africa recognizes “community of property” with many variations and generally “community of property” is divided equitably, not equally.  Disclosure and discovery is very difficult in South Africa.  There is no such thing as a Qualified Domestic Relations Order.  If a spouse is awarded a portion of the employed party’s pension, it is up to the alternate payee to attempt to get the benefits when the participating party retires.  This is usually an exercise in futility. 

            While South Africa is progressing in family law matters, they have a long way to go.  Without exception, all of the professionals with whom we met welcomed the United States Delegation with open arms and were very willing to accept our suggestions and thoughts.  This once in a lifetime experience has left me feeling much more aware of other cultures and very willing to return, but also, feeling very lucky to live and practice in the United States of America.