FSG FORENSIC INVESTIGATORS & AUDITORS | TRACERS | RISK MANAGERS | GUARDS
SA's national litigation, corporate & government private intelligence, private/forensic investigation/auditing, loss & risk management specialists.
FSG  is a LEVEL 4  B-BBEE
Accredited Company

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HEAD OFFICE DETAILS
Telephone
+27 (0) 86 1000 979
Fax
+27 (0) 86 5168 722
Mobile
+27 (0) 83 7841 523
Postal Address
PO Box 17, Pavilion,
3611, South Africa
Physical Address
7 Cedar Road, Westville,
 3629, South Africa
PSIRA Reg. No.
1144490
Email Address
fohladbn@yebo.co.za


FSG has corporate offices in:
DURBAN
CAPE TOWN
JOHANNESBURG
- and field agents in every Magisterial District in SA.

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... The objects of this Act are: (b) to give the following constitutional rights to children, namely -
(i) family care or parental care or appropriate alternative care when removed from the family environment;
(ii) social services;
(iii) protection from maltreatment, neglect, abuse or degradations; and
(iv) that the best interests of the child are of paramount importance in every matter concerning the child ...
35 (i) Any person having care or custody of a child who ... refuses another ... who holds parental responsibilities and rights ... from exercising such ... responsibilities and rights is guilty of an offence.


THE CHILDREN'S ACT
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DIVORCE, PARENTAL RIGHTS & RESPONSIBILITIES/CARE/CONTACT FORENSIC INVESTIGATIONS
INCLUDING FORFEITURE, INFIDELITY, PARENTING CAPACITY, FAMILY ADVOCATE ENQUIRIES, CHILD & SPOUSAL ABUSE, DOMESTIC VIOLENCE, PAS

It is said that the three most stressful events are moving home, death and divorce. Persons intending to divorce often approach FSG directly to investigate their spouse to seek proof of whatever it is that motivates their intention to divorce, the most common of which is obviously infidelity. The greatest concerns of such persons have to do with their future financial wellbeing and, if there are minor children born of the marriage, the 'custody' and maintenance of their minor children.

Often the motive for financial gain from a divorce is simply a desire for revenge - a motive, while not noble, is as justified as any other. When infidelity is a factor, suing for Alienation of Affection is often a parallel legal proceeding.

Persons who intend divorcing are consequently in a highly emotive state, but the spouse who is considering instructing FSG should be aware of the following:

  • The aggrieved spouse who approaches FSG often expects FSG to share his/her hurt and take up his/her cause with similarly emotive fervor. FSG cannot adopt this role - neither should we, for two reasons. Firstly, the instructions we receive are, to us, simply another business transaction. Secondly, our role is only to provide a professional investigation service that produces evidence (that will stand up to the test of the applicable burden of proof) that demonstrates or refutes clients' allegations. We are not counselors.

  • Often the spouse who instructs us does so to seek justification of his/her desire to divorce. If the spouse who instructs us has not yet decided to divorce, then that spouse should be approaching a marriage counselor, not an investigator.

  • Under South African law it is not necessary to demonstrate fault on the part of the other spouse to successfully sue for divorce. All that necessary is for the spouse who initiates divorce proceedings to demonstrate is that he/she has reached the conclusion that marriage has irrevocably broken down.

  • The promulgation of The Children's Act (Act 38 of 2005) has made argument over who has custody of any minor children of the marriage moot, in all but the instance referred to in the next bullet. The default position of the Children's Act is that both parents should share EQUAL parental rights and responsibility i.r.o. the children, and that both parents should give as much care to, and have as much contact with, the children as is practically possible. For practical purposes the home of one of the parents will be elected as the primary residence of the children, and the younger the children the greater the probability that the primary home shall be that of the mother. The Act, quite effectively, makes all decisions about the children subject to WHAT IS IN THE BEST INTERESTS OF THE CHILD. The divorcing parents of minor children are expected to resolve between them a "parenting plan" that gives proper expression to the expectations imposed by the Act  regarding equal parental rights and responsibilities and both parents giving as much care to, and having as much contact with, the children as is practically possible. If the divorcing parents fail to resolve an acceptable parenting plan, the court refers the matter to the Office of the Family Advocate, who must assess the circumstances and make recommendations to the court regarding parental rights and responsibilities and care and contact. It should be noted that unless COMPELLING reasons are given to the court to not do so, the court will implement the recommendations of the Family Advocate.

  • The one exception to the Children's Act having the effect of making argument over custody moot is if there are COMPELLING REASONS to deny one or both parents parental rights and responsibilities, and care and contact. It should be noted that the fact that one parent would be able to provide materially for the children to a much greater extent than the other DOES NOT constitute a COMPELLING REASON. The only reasons that can be regarded as compelling are the likes of abuse and neglect of the children - and, in some cases, psychological incapacity to provide care. It is also the case that Parental Alienation Syndrome ('PAS') is increasingly being raised as a form of abuse although, no our knowledge, there is no SA case law that demonstrates decisions relating to parental rights and responsibilities, care and contact having been made solely on the demonstration of PAS behaviour by a parent - although there are indications that evidence of PAS is a factor in decisions made in respect of parental rights and responsibilities, care and contact.

  • Divorcing spouses who have minor children tend to regard their minor children as part of what has to be divided in the divorce process, even if they are unaware of the fact. The Children's Act prevents parents from acting in this manner.

  • The division of the marital estate  decided primarily by the marital regime. However, the court is sensitive to the equitable future financial security of both divorcing spouses, especially when there are minor children involved. So, regardless of whether a couple is married in Community of Property or by Anti-Nuptial Contract (with, or without, accrual) the court allows that one spouse may sue the other for forfeiture of a part of his/her financial estate/share of the joint marital estate. The court will also consider forfeiture as restitution if it is overtly the case that one of the spouses caused the breakdown of the marriage (eg. acts of infidelity, domestic violence and crime that results in a criminal conviction or incarceration that impacts negatively on the marriage, etc.).

  • The non-payment of MAINTENANCE has no bearing on the rights of either parent to joint parental rights and responsibilities and care and contact except when non-payment of maintenance IS NOT the result of financial dire straights, in which case the non-payment of maintenance is regarded as the most basic form of child abuse. It should also be noted that amount of maintenance a parent must pay is determined by a BALANCE between the needs of the minor children and what the parent who must pay maintenance can afford, under circumstance that The Act also permits maintenance to be claimed from the grandparents of the children.

  • Parental rights and responsibilities, and issues of care and contact CAN ONLY BE AMENDED BY AN ORDER OF COURT. An aggrieved parent MAY NOT amend or alter the rights and responsibilities, care and contact of the other because the other has done something wrong (like not paying maintenance). In fact, the Act makes it a CRIMINAL OFFENCE for one parent to deny the parental rights and responsibilities, and care of contact of the other.

It is often the case that a major issue in a divorce process is the concern that the other spouse is hiding/disguising income and assets to avoid these from becoming part of the division of the joint matrimonial estate, or from becoming the subject of forfeiture. This is one of the applications of FSG's unique FINANCIAL ASSESSMENT INVESTIGATIONS ('FAI') product. 

IT IS THE UNWAVERING ADVICE OF FSG that a person intending to divorce who believes he/she requires the services of a private investigator, MUST FIRST CONSULT AN ATTORNEY and should ONLY INSTRUCT FSG/A PRIVATE INVESTIGATOR THROUGH AN ATTORNEY. FSG strongly discourages persons from instructing FSG directly in divorce-related matters.

Finally, please be advised that divorce is one of the more common types of litigation to which FSG has lent investigative support for more than 25 years. It is an area in which we have significant capacity, resources, experience and expertise.


Fohla Security CC t/a FSG FORENSIC INVESTIGATORS & AUDITORS | TRACERS | RISK MANAGERS | GUARDS

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