Michael Trapido
Michael Trapido

Divorce can be deadlier than criminal law

While I specialised in criminal law in 1997 I have been inundated with divorce matters almost from the time that I elected to narrow down the cases that I would be prepared to deal with.

The problem is that ordinary people, both men and women, who feel slighted or emotionally scarred by their spouse’s conduct, for whatever reason, are capable of acts that would give even armed robbers cause to pause.

In 2008 I wrote an article about a Dutch man who had murdered his four-year-old son before killing himself in an act of pure spite. The fact that his soon to be ex-wife would be moving on to a better life without him was sufficient cause for him to kill his own young child.

My own experience of dealing with criminals has left me in no doubt about what they are capable of but I would be hard-pressed to think of one who could cold-bloodedly murder a child that young simply out of spite.

The problem is how do you stop these spouses from killing each other and/or the kids?

In reality it is not easy.

Our law provides for protection orders arising out of the Domestic Violence Act in terms whereof a warrant of arrest is issued but suspended and held by a police station in case the respondent breaches the terms of the court order.

Instead of having to go to court or convincing the police of the accused’s misconduct the spouse can then simply go to the police station which is holding the warrant with evidence of a breach of the order and the arrest is made.

The problem is that too many attorneys see this procedure as a tactic in the divorce, which often leads to protection orders for both sides, often with spouses continuing to reside on the same property.

That is often an abuse of the system and should not be tolerated by our courts. It leads to a mockery being made of what should be a vital tool in protecting genuinely abused spouses and children from what might be life-threatening situations.

The fact that spouses continue to live in the same home where violent acts are threatened or are being carried on regularly is an act of insanity in my opinion.

The attorneys need to draw up an interim agreement which provides that there is no prejudice to the party leaving the home’s right to claim ownership or such other benefits as he/she would have been entitled to had they had remained at the premises and that vacating is simply being done in order to avoid unpleasantness.

In addition Section 40(1) of the Mental Health Care Act 2002 provides for intervention by members of the South African Police Service where a member — from personal observation or information obtained from a mental health care practitioner — has reason to believe that due to mental health problems a person is capable of harming themselves or others.

The section is not designed for divorce but may offer valuable assistance in preventing a tragedy where mental health problems arise. Again this should not be abused for personal gain.

Of course it is necessary to emphasise that any court order is worthless against a person who is homicidal and/or suicidal. The value of law and legal process requires that its adherents respect it and fear the consequences of their infringements. How much value, for example, would a suicide bomber place on international law and imprisonment?

Invariably nothing whatsoever.

The best solution is always to put as much distance as a party can from a potential perpetrator and conceal any details of address or where they can be contacted. This unfortunately is very difficult, unless parties immigrate, and even more so where there are children involved.

If there is genuine concern over the mental stability of a divorcing spouse then it is vital that their family and the frightened spouse work together. Remember if a member of your family kills someone then their life is effectively over. Think of the kids and the damage that will do to your family if you ignore your brother/sister/son/daughter’s plea for help.

Often those who are married to a member of our family are thought of as the enemy during divorce which turns out to be a tragic mistake for everyone concerned.

Every day we are reading about bizarre cases like Shrien Dewani, who allegedly ordered a hit on his spouse; Chanelle Henning, whose death has allegedly been arranged by a drug dealer, (they only murder addicts who don’t pay or rivals in a turf war, which does not appear to be the case here, contracted hits are done on behalf of others often a family member or friend involved in the split) who went through an acrimonious divorce; a karate teacher who has suddenly been described as a serial sex offender, interestingly just before his divorce is due to be heard and murdered acting judge Patrick Maqubela was trying to divorce his wife Thandi and so on and so forth.

The list is endless and occurs across the planet because human beings going through a divorce are said to be undertaking one of the most traumatic experiences our species faces.

If that be so it is vital that those closest to the parties concerned understand that as much as our criminal justice system and the laws of our country are there to regulate the process it cannot operate smoothly without their help.

Friends and family must not exacerbate the situation with advice based on dislike of an individual but rather encourage what is genuinely in the best interests of the parties.

It would be half the battle won and reduce the risk of deadly force which happens all too often in matters of divorce.

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