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Family Law

Bregmans has handled family law matters since 1974. Family Law is the practice of law dealing with all aspects of family matters including the following:

  • Drafting of Antenuptial Contracts
  • Matrimonial Property system advice
  • Marriages (Customary, Civil and Same Sex Unions)
  • Maintenance (Child and Spousal)
  • Parental rights & responsibilities  (Care, Contact and Guardianship)
  • Parenting Plan Agreements
  • Domestic Violence
  • Divorce
  • Sharing of assets and redistribution agreements
  • Drafting of Cohabitation Agreements
  • Drafting of Wills
  • Divorce Mediation
  • Court preparation
  • Research
  • Any other Family Law related service

Bregmans practise law holistically, Read More… 

Links to useful family law acts.

Domestic Violence

Source: A simple guide to South African Family Law by Nthabiseng Monareng

What is domestic violence?

Domestic violence is the term used when a person in a household abuses another person with whom he or she is living. It occurs between people who are in a relationship with each other. These relationships include married couples, dating couples, ex-partners, children, and members of the same household.

Domestic violence occurs on a daily basis but people are still afraid to talk about it. There are also many wrong perceptions regarding domestic violence. These include the perception that domestic violence is a family problem and should be treated as a private matter.

There is also a perception that domestic violence happens only to certain kinds of people. The truth is that domestic violence can happen to anyone.

Forms of domestic violence

Physical violence

This is when physical harm is inflicted on a person’s body. It includes:

  • Slapping.
  • Punching.
  • Kicking.
  • Pushing.
  • Biting.
  • Burning the spouse or partner with hot water or other things such as cigarettes.
  • Stabbing or shooting.
  • Any other harm which is inflicted on your body.

Sexual abuse

This is any conduct that abuses, humiliates, degrades or violates a person’s sexual integrity. This may include:

  • Your partner or ex-partner forces you to have sex with him or her.
  • Forcing you to do sexual acts that you do not like.
  • Forcing you to have sex with someone else.
  • Forcing you to do any sexual act that you find degrading.

Emotional and psychological abuse

This is any emotional, verbal and psychological behavior that includes:

  • Insults, ridicule, or name-calling.
  • Threats.
  • Controlling, for example by telling you what you can do and what you cannot do, controlling your movements, stopping you from having friends, and isolating you from your family.
  • Being disrespectful to you and saying bad things about you, your friends, your family, and so on.
  • Having affairs with other people.
  • Using children to control you.
  • Any other act which causes you emotional or psychological pain.

 

Economic abuse

This occurs when your partner does not support you financially and/or denies you the opportunity to earn money. It includes:

  • Not letting you work.
  • Refusing to give you money.
  • Taking away the money you have earned.
  • Refusing to pay for household needs.
  • Not letting you have a say in the finances of the house.
  • Misusing your money.

 

Other forms of abusive conduct

 

These include:

  • Harrassment.
  • Stalking.
  • Causing damage to property.
  • Any other controlling or abusive behaviour that harms or may cause harm to you.

 

Stages of domestic violence in a relationship

Stage 1: Honeymoon stage

This is the period in the relationship where everything is good. The couple is in love and everything is going well.

Stage 2: Tension stage

This is when one partner starts to complain and accuses the other about things they did not do. The relationship starts to be tense.

Stage 3: Abuse stage

This is when one partner abuses the other, in most cases by being physically abusive.

The abuse cycle

After the incident, in most cases, the abuser becomes sorry. He or she will beg for forgiveness and promise not to do it again. The abuser will also start to buy gifts and give the other partner attention. Sometimes abusers are really sorry and sometimes they are just pretending.

The abused person will forgive the abuser and the relationship will go back to the honeymoon stage. After a while, sometimes within a short period of time, the abuser will start with his or her abusive ways again and the parties will be back at stage two and then three. This cycle will occur until the abused person puts a stop to it.

Why do abused people find it difficult to leave an abusive partner?

  • Many blame themselves and see the abuse as their own fault.
  • A large number of women are dependent on their male partners for their economic survival and that of their children. They fear that if they leave the abuser they will not have anywhere to live or anybody to support them and their children financially.
  • Abused people are made to feel guilty if they want to get out of the relationship.

Others are isolated from friends and family. They often find themselves not having anyone to turn to or lack knowledge of where to seek help.

Protection order

Getting a protection order

To get a protection order, an abused person must apply at the magistrate’s court nearest where he or she lives or works or where the abuser lives or works.

Procedure to follow

You go to court on two separate days. The first time is when you make an application for a protection order. The magistrate will give you a temporary order. A return date will be set and you have to go back to the court for the second time. The abuser is also called to appear in court on this day.

The process is as follows:

Step 1

  • You go to the magistrate’s court and apply for a protection order.
  • Take with you any documents like medical reports, photographs of the injuries, supporting affidavits from family members, neighbours or children who know about the abuse. You must also take your Identity Document and details of the abuser, such as his or her work address and home address.

Step 2

  • The magistrate will listen to your story and read any affidavits that you have brought with you. The magistrate will then give you a temporary protection order, if he or she considers this appropriate.
  • You can also ask the magistrate:
  • To have the abuser’s firearm taken away if he or she has threatened you with it.
  • For the police to come with you to collect your belongings at your home.
  • For the abuser to be evicted from the home you share.

Step 3

  • The sheriff of the court or the police will serve the protection order on the abuser.
  • The protection order tells the abuser that he or she must be at court on a date written on the protection order.

Step 4

  • You must go to court on the date written on the protection order. The abuser should also be there.
  • Both of you will get an opportunity to tell the magistrate your side of the story.
  • After hearing both sides, the magistrate will decide whether to make the temporary protection order a final order or set it aside.
  • If the abuser does not come to court, the magistrate will make the temporary order a final order.
  • If the magistrate makes a final order, he or she will also issue a conditional warrant of arrest in respect of the abuser. This means that the police will arrest the abuser if he or she violates the protection order.
  • The clerk of the court serves the final protection order on the abuser. The clerk will also send a copy of the order and the conditional warrant of arrest to a police station that you choose. You will also get a copy of the order.
  • The order lasts until it is cancelled.

Who can apply for a protection order?

  • A spouse who is married according to civil, customary, religious law or civil union.
  • People who are living together but are not married.
  • People who are engaged.
  • People who are dating.
  • Family members and friends of the abused person, provided that they have the written consent of the abused person.

Violation of the protection order

If the abuser violates the protection order

  • Go to the police station where the protection order was sent or to any police station. You must bring along the warrant of arrest that is attached to the protection order.
  • Tell the police how the abuser violated the protection order. You do this in the form of a statement given under oath.
  • The police can warn or arrest the abuser as a result of the violation.
  • You can also lay charges against the abuser – for example for assault, or for pointing a firearm at you.

What happens to the abuser?

If the abuser is arrested, he or she can be sent to jail until a court appearance or warned and told to appear in court on a certain date.

Cancelling the protection order

If you want to cancel the protection order, you must give written notice to the abuser and apply to the court to withdraw the order.

Be alert!

Abusers have a tendency of being apologetic and promising to change. They do this in order to make you cancel the protection order or any other legal action. After you have cancelled it, they start again with their abusive ways.

How to get out of an abusive relationship

  1. An abused person needs to acknowledge that he or she is in an abusive relationship and that it is not his or her fault.
  2. Get help. Talk to family members or friends or go to the police.
  3. Contact advisory centres or support groups in your area. You can get their details at the police station.
  4. If you have no place to go to, you can apply to move into a shelter.
  5. Get a protection order.

Shelter

What is a shelter?

A shelter is a safe house where victims of abuse who do not have anywhere else to go or who fear for their lives are temporarily placed.

Advantages of a shelter

  • It is a safe place.
  • Shelters provide support and counselling.
  • The environment is friendly and everybody is supportive.

General notes about domestic violence

  1. An abused person has a right to call the police when the abuse occurs.
  2. Abused people can ask police to help them find a place of safety and for help to move there.
  3. The police have a right to arrest an abuser at the scene of an incident of domestic violence without a warrant of arrest, if the police reasonably suspect that the abuser has committed an offence involving physical violence.
  4. Getting help from the police and applying for a protection order are free of charge.
  5. As soon as you realize that you are in an abusive relationship you must get out. Do not let you economic dependency be the reason your partner treats you badly.

 

 

 

 

 

 

 

 

 

 

 

 

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Tel: +27 (0)11 646-0335
Email: info@bmalaw.co.za

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