FAMILY LAW

If you get married without an antenuptial contract it automatically means that you are married in community of property. This means that all debts and assets before and during the marriage forms part of one joint estate.

Neither party will own any assets in his/her own name as both parties are now co-owners of one another’s property. This also means that the parties will become liable for one another’s debts and liabilities incurred before or during the marriage, even is he/she was not aware of these debts.

This regime poses a high risk to both parties in that when one party becomes insolvent, both parties will be declared insolvent due to the fact that they share one estate.

The disadvantages of marriages out of community:

• The financially stronger spouse will have to share his/her assets with the financially weaker spouse;
• Both partners are jointly liable for each other’s debts and liabilities;
• The administration of the joint estate can become rather complicated and burdensome;
• The division of assets in a divorce can become complicated and burdensome;
• If one party becomes insolvent both parties’ will be declared insolvent.

The advantages of marriages out of community:

• Couples do not have to enter into a special contract before getting married;
• The economically stronger spouse has to share the profits and assets that he/she made during and before the marriage;

It is also important to remember that both spouses have equal powers to manage the joint estate. In the following circumstances written consent should be obtained from both parties:

• alienating or burdening assets in the joint estate that is kept mainly for investment purposes. This includes items such as stamps, works of art, jewellery, coins etc;
• alienating, ceding or burdening insurance policies, mortgage bonds, fixed deposits, shares, stocks or any of the other spouse’s investments at any financial institution;
• withdrawing money from any account held in the name of the other spouse;
• alienating immovable property belonging to the joint estate;
• entering a credit agreement in terms of the National Credit Act 34 of 2005; and
• entering into a contract to purchase immovable property.

This system also requires an agreement to be drawn up by an attorney prior to the date of marriage.

In terms of this regime, each spouse has his/her own separate estate and assets are kept in their own names. The spouse with the smaller estate will have a claim against his/her share in the growth of the other spouse’s estate during the marriage.

The net estate values will be determined separately upon death or divorce and the larger estate will have to transfer half of the difference to the smaller estate.

If either party owns assets prior to marriage, it needs to be specifically excluded in the ANC, otherwise the asset will be included in the accrual calculation. If both parties have no or very little assets, there will be no commencement value to the estate.

Certain assets will be automatically excluded from the accrual calculation, like an inheritance, donations or damages for personal injury. Assets that are jointly acquired by the parties, is considered part of the accrual.

The net estate values will be determined separately upon death or divorce and the larger estate will have to transfer half of the difference to the smaller estate.

Advantages of marriage out of community of property with accrual:

• Both parties share in the assets accumulated during the marriage and the spouse with the smaller estate benefits;
• All assets acquired before the marriage can be excluded;
• Each spouse keeps his/her own assets and has their own discretion on how to deal with their finances;
• Spouses are not liable for each other’s debt. If one spouse becomes insolvent, creditors cannot touch the assets of the solvent spouse.

Disadvantages of marriage out of community of property with the accrual

• The economically stronger spouse has to share the profits that he/she made during the marriage;

Each couple’s circumstances are unique and they have their own way of dealing with finances, debts and assets. There is no marriage regime that one can recommend as a one-size-fits-all approach and each couple’s circumstances need to be investigated prior to recommending a marriage regime.

A contested or opposed divorce means that you and your spouse cannot reach an agreement regarding how to end your marriage or the terms and conditions of your divorce. Contested divorces can drag on for years, causing emotional draining and financial loss to all involved.

In South Africa, a marriage can be dissolved even when one of the parties does not wish to get a divorce and this can happen if one party believes that there has been an “irretrievable breakdown of the marriage relationship and that no reasonable prospects exist of restoring the relationship.

Steps that need to be taken in a contested divorce are as follows:

• Summons will be issued and served on the Defendant by the Plaintiff;
• The Defendant will have to serve and file his/her Notice of Intention to Defend;
• The Defendant has 20 days to serve their plea. The Defendant must either deny or admit all the material facts alleged in the Particulars of Claim and must clearly state the nature and grounds of their defence. Should the Defendant fail to deliver their plea, the Plaintiff may deliver a Notice of Bar wherein the Defendant is awarded 5 days in which do serve and file his/her Plea. If the Defendant fails to do so it will result in the case being set down without further notice to the Defendant and judgment will be taken without consideration of the Defendant’s case;
• If the Defendant has a counterclaim, they must deliver a counterclaim together with their plea.
• If the Plaintiff intends to defend the counterclaim, the Plaintiff must deliver a plea to the counterclaim within 10 days. Once this is done the pleading are closed;
• Once pleading are closed, the parties will deliver their discovery documents. This is where each party demands to see the documentation and other materials that they would like to use at the trial;
• Before obtaining a trial date, a pre-trial conference will be held. This is a semi-informal conference that will be conducted by the presiding officer in order to narrow the issues in dispute;
• Once a pre-trial conference has been held, the Plaintiff will apply for a trial date. The Registrar will allocate a date and the Plaintiff will proceed to set the matter down for hearing;
• The trial proceedings will then take place where each legal representatives is given an opportunity to address their case and present necessary evidence in support thereof;
• Judgment will be handed down by the presiding officer. This order can include a cost order if such order is requested and motivated by the successful party.

Contested divorces can be very complicated especially when there are minor children and/or large asset values involved. At Chininga Attorneys Inc. we have the requisite skills and experience to assist you through a turbulent divorce process.

In an uncontested divorce, the parties do not dispute or argue over issues of property division, child custody and support. In other words where both spouses are in agreement about all the aspects affected by the act of divorce and the court is not required to make decisions over disputed or contested issues.

Once you and your spouse have made a decision to divorce in an amicable way by discussing your options and agreeing in principle on all the aspects of your divorce, you can approach Chininga Attorneys Inc. and we will gladly assist you in drafting a settlement agreement. The settlement agreement needs to be legal and binding and, in the case of minor children, endorsed by the Offices of the Family Advocate before a court would grant the divorce order.

By this time you would both have agreed on aspects regarding custody of your children as well as contact/access, maintenance payable in respect of the children and the length thereof, spousal maintenance (if any) and the division of assets.

The parenting plan will be incorporated in the settlement agreement. The parenting plan will deal with all the contact between the parties and this minor children, including contact during the week, over weekends, over long weekends and during school holidays.  Another important aspect that you will have to agree on is which parent will be the primary caregiver of the minor children, or whether both parents will act as primary caregivers.

A divorce order granted by default is also a form of uncontested divorce. If you serve a divorce summons on your spouse and he/she does not oppose same, the court will grant a divorce by default. After your decision to divorce, our attorneys will assist in the preparation of a summons, a court will issue the summons and a sheriff will serve the summons on your spouse. In the event that your spouse does not answer with a specified number of days, our attorneys will assist further in approaching the court to enrol the divorce on the unopposed roll.

Spousal Maintenance is different from child maintenance in that it is paid by one spouse to the other spouse following a divorce. It is a general principle of law that neither spouse has a right to spousal maintenance upon divorce.  However, section 7(2) of the Divorce Act, 70 of 1979 provides the court with the discretionary power to make an award should it be necessary.

Without a written agreement between the spouses that was agreed upon before the divorce, Section 7(2) of the Divorce Act comes into effect and the court will use its discretion when deciding on whether one spouse should pay maintenance to the other spouse.

For clarity, we quote Section 7(2) of the Act herewith:

“the court may, having regard to the existing or prospective means of each of the parties, their respective earning capacities, financial needs and obligations, the age of each of the parties, the duration of the marriage, the standard of living of the parties prior to the divorce, the conduct in so far as it may be relevant to the breakdown of the marriage, an order in terms of section 7 (3) and any other factor which in the opinion of the court should be taken into account, make an order which the court finds just in respect of the payment of maintenance by the one party to the other for any period until the death or remarriage of the party in whose favour the order is given, whichever event may first occur”.

WHO IS ENTITLED TO SPOUSAL MAINTENANCE

You should be aware of the factors the court will take into account when determining whether a spouse will be entitled to spousal maintenance or alimony. The court may decide to look at the following:

• their existing or prospective means;
• their respective earning capacities;
• their financial needs and obligations;
• the parties’ ages;
• the duration of the marriage;
• the standard of living of the parties prior to the divorce;
• the parties’ conduct insofar as it may be relevant to the break-down of the marriage;
• any other factor, which in the court’s opinion should be taken into account.

Should the court decide to award maintenance to a spouse, these factors mentioned above will determine the amount of that maintenance. Thus, the amount cannot be treated as a separate question. The means, earning capacity, financial needs and obligations and age of each of the spouses and an order in terms of the Divorce Act for the transfer of assets from one party to the other all relate to the criteria of need for support and ability to pay, while the conduct of the parties introduces a moral component to the judgement.

The purpose of an inquiry is to determine what award would be ‘just’. In order to determine what is just, the court has to consider whether maintenance is to be paid at all, and if so, what the amount should be as well as the period for which maintenance would be payable.

Rule 43 of the Uniform Court Rules as well as Rule 58 of the Magistrate Court Rules provides litigants in divorce proceedings with the opportunity to approach the court for an order granting interim relief pending the finalisation of a divorce.

 Due to congested court rolls as well as the complexity of divorce matters, contested divorces can take up to years to be finalized, generally leaving one of the parties scrambling to make ends meet.

It is also possible that one of the spouses who is a homemaker, without an alternative income, are left to meet their minor children’s needs without the means to do so. In these instances, the law makes provision to financially assist spouses until the finalisation of the divorce.

PROCEDURE FOLLOWED IN A RULE 43 APPLICATION.

A litigant in divorce proceedings can approach the court to grant a Rule 43 order in respect of interim maintenance for minor children as well as financial aid to assist the spouse to alleviate financial needs.  It can also make provision for interim care and contact with the minor children or assist the spouse who has no alternative income, with a means to contribute to her legal costs.

The spouse can thus approach the court in respect of any of the following matters:

1. Maintenance to be granted whilst the divorce proceedings are pending;
2. a contribution towards the legal costs of a pending matrimonial action;
3. interim custody of any child;
4. interim access to any child.

An application in terms of rule 43 consists of a notice of motion, setting out the relief prayed for by the applicant. Annexed to the Notice of Motion, must be the applicants’ founding affidavit setting out the relief claimed for and the grounds therefor, together with a notice to the respondent. Within 10 days of receipt of the application, the respondent shall deliver his reply. Thereafter, the matter will be set down for argument, provided that both parties have received notice thereof, 10 days prior to the notice of set-down.

It is imperative to note that when there is an existing maintenance order made by the maintenance court, a party cannot approach the court in terms of Rule 43 with the purpose of overruling the maintenance order.

Our practitioners at Chininga Attorneys Inc. have substantial knowledge and experience to assist clients in ensuring that an application in respect of interim maintenance complies with the rules and practice directives of the relevant court.

Cohabitation refers to a couple, heterosexual or same-sex, living together without being legally married to each other. While many people have believed that cohabitation is common law marriage, it is not recognized as a legal relationship by South African law. There is, therefore, no law that regulates the rights of parties in a cohabitation relationship. Persons living in cohabitation arrangement do not enjoy the same rights as a legally married couple regardless of how long the couple has stayed together, all the while the living arrangement of cohabitation is increasingly becoming the norm in South Africa.

Legal Rights & Protection for Cohabiting Couples

Because parties who are cohabiting are not afforded the same rights as those of married couples, in the event of the death of the one partner, the other partner will be precluded from inheriting in the estate of the deceased partner in terms of the Intestate Succession Act if the deceased partner died with a executing a will.

However, nothing prevents either partner from naming the other partner as a beneficiary to inherit under their respective last will and testament. Furthermore, the surviving partner will not have a spousal maintenance claim in terms of the Maintenance of Surviving Spouses Act against the estate of the deceased partner as this is a claim that can only be lodged by a legally married spouse.

In South Africa, banks do not usually allow joint bank accounts to cohabitants, however, they do allow co-signing rights and therefore any debt incurred by the owner of the bank account will be executed upon on the said bank account. The other partner will be left with the strenuous exercise of having to prove that they have their monies in that bank account or will have to claim their money against the indebted partner. Furthermore, should the partner in whose name the bank account is held have an overdraft facility, the money in the bank account will be deducted regardless of which partner holds what share and in what ratio.

On occasion, courts in South Africa have assisted couples in recognizing that a universal partnership does exist between them.  A universal partnership recognizes a partner’s joint material status, in other words, the court would award a share of the assets that the relationship acquired during the partnership to each of them. The requirements which have to be met to prove a universal partnership are:

• that the aim of the partnership is to make a profit;
• both parties have contributed to the enterprise;
• the partnership operates for the benefit of both parties; and
• the contract between the parties is legitimate.

In order for us to tailor make a cohabitation agreement that suits your living arrangement, please feel free to make an appointment with one of our Attorneys at Chininga Attorneys Inc. at our East London office for a consultation.

For many, adoption is the only viable way for them to expand their families and can make a dream of having a family come true. The process of adoption seeks to legally place a child permanently with a parent or parents who may not be biologically related to the child. In the adoption process, the parental rights of the biological parents will be terminated while handing over the parental rights and responsibilities to the adoptive parents. After the process, the adopted child must be regarded as the child of the adoptive parents.

The process of adoption in South Africa is available to all persons having the means to fend for a child, regardless of marital status or gender. This is also one of how same-sex couples are afforded the joy of parenthood.  Today, many children have been placed in a stable and loving home due to this process.  The availability and process can be discussed with our attorneys who are well acquainted in the sometimes long and complicated process of adoption.

In South Africa, adoption is regulated by the Children’s Act. An Adoption order can only be granted in the Children’s Court in the jurisdiction where the child lives. Much consideration is given by the Courts before granting an adoption, it is therefore imperative that you contact our adoption lawyers in Johannesburg to assist you.

The adoptive child may be issued with a new birth certificate and get the surname of the adoptive parents, however, it is also possible for the child to keep their original surname.

Legal Adoption Process In South Africa

Section 250(1) of the Children’s Act (Act 38 of 2005), stipulates that only certain people are allowed to provide adoption services. These are:

• A Child Protection Organisation accredited in terms of Section 251 in providing adoption services;
• An adoption social worker, a private practitioner as defined in the Act;
• The Central Authority in the case of intercountry adoptions; or
• A Child Protection Organisation accredited in terms of Section 259 to provide intercountry adoption services.

Legally all adoption service providers must be accredited in terms of Section 251 of the Children’s Act (Act 38 of 2005) and comply with the norms, standards and accreditation criteria.

Child maintenance or child support is a compulsory payment made by a parent for the financial benefit of a minor child/children following the end of a marriage or other relationship. All parents, whether married or not, living together, separated, or divorced and parents of adopted children, are required to support the financial needs of their children.

The child maintenance system ensures that the parent who does not have primary care of the minor child honours their duty to maintain their child. Maintenance includes the reasonable provision towards the minor child for clothing, housing, dental and medical care, and education. Both parents have a duty to maintain the child according to their respective means and the circumstances and needs of the minor child. If the child’s parents are unable to contribute to maintenance towards the minor child, the biological grandparents may need to pay maintenance.

LEGAL REQUIREMENT FOR CHILD MAINTENANCE

A parent has a financial duty towards a child and is therefore expected to pay child maintenance and/or to provide financial support for the child until such time a child is self-supporting, which is usually when they reach majority, however just because the child reaches majority (18 years of age) does not necessarily mean that maintenance is terminated. Should the child not be self-supporting or wants to further their education, the child can apply for maintenance from their retrospective parents. Maintenance payments are not automatically suspended when the child turn 18 year of age.

Payment of child maintenance is viewed by the legal system as a very serious responsibility due to the fact that a child’s well-being is threatened if there is not sufficient money to support the child.  Chininga Attorneys Inc. will assist you in this very important process.

After launching a full financial enquiry into both parties’ financial position, the court will determine what amount constitutes reasonable maintenance. The parents’ income and expenditure and the child’s expenses will be taken into account.

WHAT HAPPENS WHEN A PARTY FAILS TO PAY CHILD MAINTENANCE?

If a party fails to pay maintenance, it is in the court’s power to order a deduction from a parent’s salary or their savings/investment account for the outstanding maintenance money. This is done by way of an emolument attachment order. The court can furthermore auction their property to collect the outstanding money by way of a Warrant of Execution.

An order of maintenance made by the court is binding and that means that the child maintenance payment may not be withheld. The fact that a party is in another relationship, moves away or remarries does not suspend an obligation to contribute to maintenance. Should a party, for whatever reason, withhold a parent’s contact from the minor child, the parent cannot withhold maintenance payments. A separate application needs to be launched in order to restore contact with the minor child.

Maintenance may need to be adjusted regularly, depending on the changing needs of the child or the financial position of the parents. You can increase the maintenance order or you can decrease the order if you are unable to afford the maintenance that has been ordered by the Court. You will need to proof your case to the Court should you wish to do either of the above options.

If you want to increase the maintenance you will need to show the court why you require such increase and if you want to decrease the maintenance you will need to proof to the court why you cannot afford the maintenance any longer. The court can set aside an existing maintenance order, make a new maintenance order, decrease a current order; increase a current order or amend a current order.

The Children’s Act, Act 38 of 2005 refers to Parental Rights and Responsibilities. This term is used to describe a parent or guardian’s rights and responsibilities towards a child. If a person has full parental rights and responsibilities, the person will have the right and responsibility to:

• care for the child;
• maintain contact with the child;
• act as guardian of the child;
• contribute to the maintenance of the child.

In certain circumstances, a parent, or a third party acting in the child’s best interest, can approach the court to have a parent or guardian’s parental rights and responsibilities suspended or terminated. In the aforementioned case, the applicant needs to prove that it would be in the minor child’s best interest. Grounds for an application like this will include physical abuse, verbal abuse, sexual abuse, drug abuse etc. The best interests of children are paramount in all child custody cases.

CHILD CUSTODY APPLICATIONS & SETTLEMENT AGREEMENTS

Any person with an interest in the care, well-being or development of a child may apply to the High Court for an order granting guardianship. The court must take several factors into account, including the child’s best interests and the relationship between the applicant and the child.

In most cases, both parents remain holders of full parental rights and responsibilities upon divorce or separation. A detailed settlement agreement is drawn up, addressing all the necessary issues in respect of parental rights and responsibilities. This includes which party will have primary residence of the child, the contact the minor child will have with the other parent, major decisions regarding the child’s welfare, maintenance payable by each party and what to do in the event of the parties being unable to agree on a certain aspect.

Although the settlement agreement is made an order of court, both parties should always act in the best interest of the minor child. If circumstances change, a party has the right to deviate from the agreement and approach court again for an amendment of the terms and conditions thereof, alternatively the suspension or termination of the other party’s rights.

WHO ARE HOLDERS OF PARENTAL RIGHTS AND RESPONSIBILITIES

A child’s biological mother automatically has full parental right and responsibilities. A child’s biological father will also have full parental rights and responsibilities is he is/was married to the child’s mother at conception, birth or after birth.

Unfortunately, an unmarried biological father will not have automatic parental rights and responsibilities.

He will acquire full parental rights and responsibilities if he can prove that he was living in a life partnership with the mother at the time of the child’s birth, if he consents to be identified as the father of the child or applies for an amendment to be effected on the birth certificate that he is registered as the biological father of the child in terms or if he contributes or has attempted to contribute in good faith to the upbringing of the child.

There are many more aspects of child custody than what has been discussed briefly above. Please do not hesitate to contact one of our very competent Child Custody Lawyers for more information.

In terms of the Domestic Violence Act 116 of 1998, Domestic Violence refers to the

• physical abuse;
• sexual abuse;
• emotional, verbal or physhological abuse;
• economic abuse;
• intimidation;
• harassment;
• stalking;
• damage to property;
• entry into the complainant’s residence without consent, where the parties do not share the same residence; or
• any other controlling or abusive behavior towards a complainant where such conduct harms, or may cause imminent harm to the safety, health or well being of the complainant.

DOMESTIC VIOLENCE ACT IN SOUTH AFRICA

Domestic violence is recognized by the Domestic Violence Act as a social evil that affects not only the abused but also the family of the abused.  The unfortunate thing about domestic violence is the fact that it is very often kept secret and not reported to the proper authorities.

Domestic violence has a history of repeating itself and/or becoming increasingly violent if nothing is done to put a stop to it.  In cases of domestic violence towards a mother, the possibility is also there that the abuse can later be directed towards the children. This will cause irreversible psychological damage to minor children and needs to be avoided at all cost.

Make an appointment with one of our domestic violence attorneys as soon as possible to obtain a Protection Order.  A protection order is a court order also called a domestic violence interdict, to order the abuser to desist from his or her abuse. In the order, certain conditions will be set out to prevent him/her from further abuse.  If the abuser is in breach of the protection order, you can immediately contact the police and have the accuser arrested.

There are instances whereby a complainant will lay a frivolous, vexatious or unreasonable claim against the accused. There are countless reasons why a person would lay a false claim against another person. It can range from attempting to force a settlement agreement in a divorce or maintenance case, attempting to keep minor children away from the other parent, or something as simple as applying for a protection order a form of revenge.

If someone laid a false charge against you it is of vital importance to file a proper reply under oath and appoint a domestic violence attorney to represent you on the return date. If your version is not placed before court and the order is made final, you will be arrested if you contravene the terms and conditions of the order.

An applicant who requests an urgent application essentially requests the court to accept the non-compliance with the rules of the court. The court is required to give preference to prevent prejudice to the Applicant.

Before the court considers the merits of the Applicant’s case, it will make a ruling on whether the application is indeed urgent. As with all family matters, the best interest of the minor children is paramount at all times. The court will, in all probability, entertain an application on an urgent basis if a minor child’s welfare or safety is at stake.

The best possible way to deal with a case where you urgently require relief is to contact our experienced family law attorneys who will handle an urgent high court application expertly, efficiently and with the necessary experience.

REQUIREMENTS FOR A URGENT APPLICATION IN HIGH COURT

The onus for the justification of the urgency of an application falls on the Applicant. It is of utmost importance that the application adheres to the requirements established in the court’s practice directives and the Rules of the Court.

If the facts and circumstances set out in the Applicant’s affidavits for his/her urgent application do not:

1. constitute sufficient urgency for the application to be brought as an urgent application; and/or;
2. justify the abrogation or curtailment of the time periods referred to in Rule 6(5); and/or

justify the failure to serve the application as required in Rule 4, the Court will decline to grant an order for the enrolment of the application as an urgent application and/or for the dispensing of the forms and services provided for in the rule. Save for a possible adverse costs order against the applicant the Court will make no order on the application.