Category Archives: Family law

The difficulties in relocating a child of divorced parents

I have divorced my husband and I am now the primary caregiver of our minor child. I received a job offer in another country and I would really like to accept it. My ex-husband and father of my minor child won’t consent to the relocation of our minor child. Will I get permission from the court to relocate?

In the case of relocation disputes where the primary caregiver wants to relocate, there are certain factors the court considers before granting the relocation. These factors are listed in Section 7 of the Children’s Act.

As one can imagine, family law and divorces are difficult topics; especially when minor children are involved. In the event the parties separate, the minor children will need to be in the primary care of one parent and the other parent will have rights and responsibilities in respect of the minor child but does not necessarily have to live with the child.

The issue that arises in situations as outlined above is where the primary care-giver wants to relocate to another country and the other parent won’t give consent (hereafter “the disputing party”). The difficult part of disputes relating to relocation is that there are numerous competing rights. The Children’s Act (“the Act”) regulates and makes provision for those rights.

In order to have a full understanding of the issues that arise here, a breakdown of the various rights should be discussed. Firstly, the right to freedom of movement and association of the primary caregiver may become a problem. Secondly, the rights of the opposing parent to be in contact with the minor child. Lastly, the rights of the minor child are restricted, i.e. the right of the child to maintain personal relations and direct contact with his parents. The infringement of these rights can, by their very nature, turn into a dispute.

Where the dispute cannot be resolved between the parties through negotiation, the parties would rather opt for mediation than litigation. The reason for choosing the former is because of the nature of the dispute – it is a family matter and there are minor children involved. Litigation is a more strenuous route of dispute resolution, thus not the most suitable given the circumstances.

Where the court is tasked with making a ruling in a relocation dispute, there are certain factors the court considers. Section 7 of the Act sets out a list of these factors.

If the parties are divorced, the court will consider whether there is a court order in existence prohibiting the removal of the child from the court’s jurisdiction. In some case, the parties agree in their settlement agreement to never remove the minor children from the Republic of South Africa.

In the event the court has to consider the right to contact with the minor child, the court looks at the meaning of the word “contact” as used in the Children’s Act. It is important to keep in mind that “contact” does not only mean the physical seeing of each other in flesh, but also communications via laptop and/or cell phone. This form of contact is easier to make use of in our era.

The court will consider the reason for the relocation as a factor in these matters. The reason for this consideration is because the best interest of the child is of utmost importance. If the reason for relocation is, for example, to contribute to the child’s education or safety (something that would be considered positive), the court is likely to be more pleased.

The court will also consider the relationship the child has with the parents. If the opposing parent has a great relationship with the minor child and sees the child every alternate weekend or holiday and will now only be able to email the child- the court will have to consider this and the possible influence the absence of the opposing party would have on the minor child, if relocation is granted.

This will also become clearer when the court considers the choice of the minor to relocate or not.

The court also considers the stability factor. This includes the court considering the life outside the home of the minor. It is important to know whether the child is happy where he/she is, how well the child does at school, whether he/she has family members living nearby and whether he/she visits on a regular basis.

As with the conflicting rights of the parties, the court kept the best interest of the child in mind, whilst considering the above mentioned factors. The court in the AC v KC case also applied the “reasonable person’s test” and the court held that “one must think oneself into the shoes of the proverbial bonus paterfamilias or the reasonable man”. Even though the reasonable person test was used in AC v KC, the best interest of the child is the most important factor.

Reference list:

  • Children’s Act 38 of 2005
  • A.C. v K.C. (A 389/08) [2008] ZAGPHC 369
  • Jackson v Jackson (18/2001) [2001] ZASCA 139

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).

Safeguarding children’s rights during divorce


Divorce and the resulting challenges regarding child custody and the responsibilities of parents can be an ugly and difficult process. This is especially true of the children whose emotional and physical wellbeing would have to be taken into account during the entire process. However, the office of the Family Advocate offers an efficient and free service with the wellbeing of the child in mind.

The Family Advocate (FA) manages disputes regarding the responsibilities and custody of children during and after a divorce. The point of the FA is to protect the rights of children and ensure that their best interests are taken into account when it comes to their custody and the parent’s responsibilities. The office of the FA is not just one person but consists of lawyers and social workers who all assist in getting the best outcome for the child/children.

What can the Family Advocate do?

Section 28(2) of the Constitution says, “A child’s best interests are of paramount importance in every matter concerning the child”. This forms the basis of the FA’s role in disputes.

The Family Advocate has the ability to:

  1. Institute an enquiry so as to be able to furnish the court with a report and recommendation on any matter concerning the welfare of the minor child;
  2. Appear at the trial or hearing of any relevant application;
  3. Adduce any available evidence; and
  4. Cross-examine witnesses giving evidence at such trial or hearing of an application.

*According to Mediation in Certain Divorce Matters Act (Act 24 of 1987)

The Children’s Act 2005 (Act 38 of 2005) has also made mediation by the FA compulsory for all parties involved in parental rights and responsibility disputes over children born out of wedlock.

What’s the point of the Family Advocate?

The FA has many advantages when there is a dispute over children. The FA can change the parental rights and responsibilities agreements of the parents without the need to go to court. A court will also take into consideration a report by the FA before making any decision on the child, they are even required by law to do this. Furthermore, a registered parental rights and responsibilities agreement would be considered the same as a court order. The office of the FA also allows for the children involved to express their point of view and desires. In order to ensure the best for the child/children, the FA will work together with social workers, psychologists and other professionals when dealing with disputes.

Reasons to see the Family Advocate

  1. The parties disagree about how to contact or care for a child.
  2. They want to draft, register or change their parental rights and responsibilities agreement.
  3. Disputes about whether an unmarried father of a child born out of wedlock fulfils the requirements making him eligible for the full parental rights and responsibilities of the child.

A court may also order the FA to provide a report on what is best for the children involved in a dispute. Altogether, the FA’s goal is to ensure the child gets the best out of a divorce process and that their rights are protected. They can not only help in disputes, but also provide a comfortable environment and process for what can be a stressful time for the children involved.

Reference:

  • “The Office of the Family Advocate”. The Department of Justice and Constitutional Development. Accessed from: http://www.justice.gov.za/FMAdv/ on 13/05/2016.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).

Terminating a surrogate agreement


Partial surrogacy agreements allow for the surrogate mother to terminate the agreement within 60 days after giving birth to the child. This article looks at the different outcomes surrogacy agreements may have.I entered into a gestational surrogacy agreement with a married couple. I am currently 8 months pregnant and have formed a bond with the baby. Will I be able to terminate the surrogacy agreement after the birth of the baby?

The Children’s Act 38 of 2005 (“the Act”) makes provision for a valid surrogacy agreement. In terms of the Act, a surrogate agreement is concluded when ‘the commissioning parent(s) are not able to give birth to a child and the condition is permanent or irreversible’.

Prior to the introduction of modern technology, specifically that of reproductive techniques, ‘traditional or partial surrogacy’ was the only method available to women who had no uterus or abnormalities of the uterus to have children. Recently, artificial insemination is used to inseminate surrogate hosts in order for the surrogate mother to carry the child. The Act governs the artificial fertilisation of a surrogate mother.

There are two types of surrogacy agreements, namely partial surrogacy and full (gestational) surrogacy. Partial surrogacy is the method used in the case where the husband’s gamete together with the gamete of the surrogate mother, is inseminated into the internal reproductive organs of the surrogate mother. As a result, the child is genetically linked to the father and surrogate mother. Full surrogacy refers to the instance where the gametes of both the commissioning parents are inseminated into the internal reproductive organs of the surrogate mother. In essence, the surrogate mother has no genetic link to the child.

A surrogate to a partial surrogacy agreement has 60 days during which she can terminate the agreement after the birth of the child. However, in terms of gestational surrogacy agreement, the parties to the agreement are not given the option to terminate the agreement. Additionally, in this case, the surrogate mother cannot refuse to relinquish the child to the commissioning parents.

The law of contract in South Africa revolves around two main principles, namely pacta sunt servanda (Latin for “agreements must be kept”) and the freedom to contract. These principles imply that the obligations arising out of the agreement must be enforced. The reality of these two principles is that they do not exist in isolation, as they are subject to legislative and judicial decisions. Despite meeting the ordinary requirements of a contract, a surrogacy agreement is a unique contract as there are conflicting human rights and interests involved when a dispute arises out of such an agreement.

Forcing a surrogate mother who is not genetically linked to the child to hand the child over to the commissioning parents when she refuses to do so has been described as a sacrifice of a woman’s reproductive autonomy to the principle of pacta sunt servanda.

The fundamental rights and values of the Constitution cannot be ignored in surrogacy agreements as Section 12(2)(a) – (b) of the Constitution clearly provides “everyone the right to bodily and psychological integrity, which includes the right to make decisions [regarding] reproduction [and] to security in and the control over the body”.

For a surrogacy agreement to be valid it must meet the requirements set in chapter 19 of the Act. When such a surrogacy agreement is invalid, the common law position will apply insofar as the woman who gave birth to the child would be regarded as the legal mother of the child whether or not such a child has a genetic relation with her.

Reference list:

  • Brisley v Drotsky 2002 (4) SA 1 (SCA).
  • Lewis SV ‘The Constitutional and Contractual Implications of the Application of Chapter 19 of the Children’s Act 38 of 2005’ available at etd.uwc.ac.za/xmlui/bitstream/handle/11394/1828/Lewis_LLM_2011.pdf?sequence=1 (accessed 20 April 2017)
  • http://www.casebriefs.com/blog/law/health-law/health-law-keyed-to furrow/reproduction-and-birth/johnson-v-calvert/2/
  • Children’s Act 38 of 2005
  • Constitution of the Republic of South Africa, 1996.
  • Brinsden PR ‘Gestational Surrogacy’ 2003 (9) 5 European Society of Human Reproduction and Embryology 483 – 491

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Who pays for the child after divorce?

When couples divorce it’s often the children that feel the brunt of it. Sometimes it’s the other person in the relationship that suffers economically. Hence the reason there’s a legal duty towards maintenance after divorce, which is an obligation to provide for another person.

A child of a divorced couple, for example, may need help with housing, food, education and medical care. Maintenance could also be understood as providing the means for the person to have the necessary essentials. Maintenance duties is based on factors such as blood relationship, adoption, or that two people are/were married to each other.

This duty is also referred to as ‘the duty to maintain’ or ‘the duty to support’.

Which parent supports the child?

If a couple has decided on getting divorced, then the child has to be supported by both the parents, regardless if they’re living together or whether or not the child was adopted. In some cases, the grandparents are also responsible for the child’s maintenance, even if the parents weren’t married. This usually happens if the parents are unable to support the child.

What if the child is living with one parent?

In scenarios where the child is living with one of the parents, it is still the duty of the other parent to also contribute to the maintenance of the child. Many people in South Africa, especially women, face the reality of an ex-spouse who doesn’t live with the child and doesn’t want to pay maintenance. However, there is no legal way out of a parent contributing to a child’s maintenance, even if one of the parents re-marries.

What if you can’t find your non-paying ex-spouse?

If one of the child’s parents refuses to pay and doesn’t make their whereabouts known, then it is the responsibility of the state to claim maintenance from the unpaying parent. Maintenance investigators will try solve the issue and trace the person who is responsible for maintenance.

When does the maintenance end?

Until a child reaches the age of 18, his/her parents or another person (guardian) will have the parental rights and responsibilities for the child. This includes the maintenance of the child. So both the divorced parents of a child will have to contribute to the caring and maintenance of the child at least until he/she becomes an adult.

References:

  • Anderson, AM. Dodd, A. Roos, MC. 2012. “Everyone’s Guide to South African Law. Third Edition”. Zebra Press.
  • Justice.gov.za. The Department of Justice and Constitutional Development, Family Law, Maintenance. [online] Available at: http://www.justice.gov.za/vg/children/ [Accessed 13/05/2016].

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Immediate steps following the death of a loved one

The death of a loved one is a difficult process to go through, and when the inevitable occurs, it is important to remember what happens next. The cause of death is determined under 2 categories: natural death, such as illness or heart attack, and unnatural death, such as a suicide or an accident.

Natural or unnatural death

If the deceased has passed in their home, and cause of death is suspicious, the family is required to contact the South African Police Service (SAPS) to conduct an immediate investigation before contacting the mortuary. In the event where death is natural, the family is required to contact medical professionals to determine the nature of the death, and sign certification of the cause of death.

Death certificate

A prescribed certificate may be issued by the medical practitioner if the death is ruled as natural, either following a period of illness, or a medical examination. Should it be suspected that the death is unnatural, the certificate may only be issued to the concerned police officer after an investigation where the corpse is no longer required for further examination.

An autopsy is not deemed necessary should the death be ruled as natural.

Registration of death may take be done the following places:

  •  Department of Home Affairs
  •  SAPS, if there are no Home Affairs offices available
  •  South African Embassy or Consulate, should the death have occurred abroad
  • Registered funeral undertakers

An abridged death certificate is issued on the same day of registration, free of charge.

References

Births and Deaths Registration Act 51 of 1992. (2017). [PDF] Cape Town: Government Gazette. Available at: http://www.gov.za/sites/www.gov.za/files/a51_1992.pdf [Accessed 31 Jul. 2017].

Dha.gov.za. (2017). Department of Home Affairs – Death Certificates. [online] Available at: http://www.dha.gov.za/index.php/death-certificates1 [Accessed 31 Jul. 2017].

Grange, H. (2017). What to do when someone dies | IOL. [online] Iol.co.za. Available at: http://www.iol.co.za/the-star/what-to-do-when-someone-dies-1810336 [Accessed 31 Jul. 2017].

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

 

Claiming maintenance from parents living in foreign countries

A major concern many parents have revolves around the existence of maintenance orders from a South African court which requires enforcement against a non-compliant person who resides in a foreign country.

South African law allows its citizens to claim maintenance from a parent living in a foreign country. The Reciprocal Enforcement of Maintenance Orders Act 80 of 1963 is a piece of legislation which regulates foreign maintenance processes. To obtain maintenance for minor children in any foreign country it is advisable that an order for the maintenance of the minor children has first been made by a South African court.

It is important to note that not all foreign countries are recognised under the Reciprocal Enforcement of Orders Act. Chief Directorate: International Legal Relations in the Department of Justice and Constitutional Development (DoJ&CD) has a list of proclaimed countries. This means such countries have a special arrangement with South Africa whereby maintenance orders granted in one country can be enforced in another.

The following documents where applicable must be transmitted to Head Office from our courts:

  • four certified copies of the provisional court order;
  • an affidavit by the complainant or an officer of the court as to the amount of arrears due under the order;
  • the deposition or evidence of the complainant;
  • physical, and or working address of the defendant;
  • a photograph and description of the defendant;
  • the original exhibits (marriage certificate, birth certificate, photographs etc.) referred to in the complaint’s deposition or evidence duly endorsed as prescribed/affidavit;
  • three certified copies of the documents referred to in (b) and (c) above and in the event of the High Court, four copies as well as an additional copy of the court are required.

Countries recognised under the Reciprocal Enforcement of Orders Act:
Australia, Canada, Cocoa (Keeling) Islands, Cyprus, Fiji, Germany, Guernsey (Bailiwick of Hong Kong), Isle of Jersey, Isle of Man, Kenya, Lesotho, Malawi, Mauritius, Namibia, New Zealand, Nigeria, Norfolk Island, Sarawak, Singapore, St Helena, Swaziland, United Kingdom, United States of America, Zambia and Zimbabwe.

If the foreign country in question does not have a reciprocal enforcement agreement with the Republic, the second option is to launch formal proceedings in the courts of the foreign country based on an already existing maintenance order. This option in most cases, tends to be an expensive process, takes an indeterminable amount of time and doesn’t always render favourable results.

References:
http://www.justice.gov.za/docs/articles/2009_foreign-maintenance.html
http://mclarens.co.za/maintenance-children-foreign-countries/

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Compensation for a fatal holiday resort accident

a4bEmily and Nathan were a happily married couple in their early thirties with two minor children. Emily was a stay at home mom and Nathan was the breadwinner of the family. The family decided to take a vacation in Sun City, which ended tragically when Nathan was fatally injured on a Valley of the Waves ride. Who was to take care of the family now that Nathan was no longer there and who was to pay the price for the family holiday that ended in a tragic loss?

Negligence

If the question of negligence is hanging in the air, then the obvious word to pop into one’s mind would be that of delict. In Kruger v Coetzee 1966 (2) SA 428 A 430E-G the formulation for negligence was established by Holmes in two steps:

(a) a diligens paterfamilias in the position of the defendant –

  • would foresee the reasonable possibility of his conduct injuring another in his person or property and causing him patrimonial loss; and
  • would take reasonable steps to guard against such occurrence; and

(b) the defendant failed to take such steps.

In the case of Za v Smith (20134/2014) [2015] ZASCA 75 (27 May 2015) the father and breadwinner of the family died in a tragic accident while on vacation at a mountain resort close to Ceres, Western Cape, after falling off a sheer precipice (a steep rock or cliff). The wife of the deceased took the matter to the Supreme Court of Appeal, who considered three elements, namely wrongfulness, negligence and causation.

The background facts were taken into account, namely the fact that the park was used for recreational purposes for the public upon paying an entry fee. Furthermore, the 150 metres gorge drop where the deceased fell to his death was not visible, especially in snowy weather, nor were there any warning signs.

Wrongfulness

The court a quo did not find the Respondents to be wrongful as they did not have the duty to warn guests of the danger that was blatantly apparent to them. However, in the above-mentioned case it was reiterated that the test for wrongfulness is whether it would be reasonable to have expected the defendant to take positive measures, while the test for negligence is whether the reasonable person would have taken such positive measures. Confusion between the two elements is almost inevitable. It would obviously be reasonable to expect the defendant to do what the reasonable person would have done. The result is that conduct which is found to be negligent would inevitably also be wrongful and visa versa.”[1]

Conclusion

If the above-mentioned case is taken into consideration then Emily would most likely be successful in her application for compensation for herself, as well as in her capacity as mother of the two minor children, if it is found that Sun City Holiday Resort was negligent and wrongful and had causation.

Reference:

  • [1] Za v Smith (20134/2014) [2015] ZASCA 75 (27 May 2015)

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

When must you consult the Family Advocate?

You may consult the Family Advocate if you have a dispute relating to either the best interests of a child and/or parental responsibilities and rights. Other circumstances under which the family advocate may be consulted include:

    1. When parties require assistance in drafting parental responsibilities and rights agreements and to register such with the Family Advocate or to amend, and/or terminate the said agreements registered with him or her.
    2. When parties require assistance in drafting parenting plans and to amend or terminate such parenting plans registered with him or her.
    3. An application to define contact.
    4. A custody, access or guardianship dispute arising from the dissolution of a customary or religious marriage.
    5. Domestic Violence and Maintenance cases referred to the Family Advocate in terms of the Judicial Matters Second Amendment Act (Act 55 of 2003).
    6. Fathers of children born out of wedlock may request mediation of their parental rights and responsibilities (in terms of the Children’s Act).
    7. Parental child abduction to and from South Africa.

If there is a dispute regarding the contact, guardianship or care (parental responsibilities and rights) of a minor child, the Office of the Family Advocate would be requested to investigate the welfare and best interest of the minor child involved. Often, they provide a report which is handed to the relevant Court for consideration. The Office of the Family Advocate is not employed by the parties involved. They work for the State ensuring that they are objective in their investigation and only have the child’s best interests at heart.

Steps involved

    1. Contact your nearest Family Advocate to request an enquiry or, mediation of your legal dispute.
    2. Upon receipt of the request, the Family Advocate institutes an inquiry during which he or she interviews you and the parties involved to determine your personal circumstances and the background of the matter. Where mediation is requested the Family Advocate will be the mediator.
    3. The Family Counsellor then interviews the children separately, so as to enable such children to exercise their statutory right to be heard and to enable the Family Advocate to convey their views to the Court.
    4. The Family Advocate will communicate whatever decision taken, which significantly affects the welfare of the child, to such child.
    5. Upon completion of the enquiry or mediation process the Family Advocate will file a report for the Court and furnish copies to the parties or their lawyers.

In a typical custody dispute, a Family Advocate and social worker would be appointed to a case and investigate it. The social worker and the Family Advocate would consult with the parents (or parties involved in the dispute), visit their homes if necessary and obtain information from relevant parties etc. The Family Advocate and social worker would also speak to the child and may want to observe the child’s interaction with the parents. If there are other professionals, for example, a social worker or a psychologist who assessed the situation and provided a report, the Office of the Family Advocate would consider those documents as well and even consult with those experts before handing in their report.

References:

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Safeguarding children’s rights during divorce

A3_bDivorce and the resulting challenges regarding CCCcc and the responsibilities of parents can be an ugly and difficult process. This is especially true of the children whose emotional and physical wellbeing would have to be taken into account during the entire process. However, the office of the Family Advocate offers an efficient and free service with the wellbeing of the child in mind.

The Family Advocate (FA) manages disputes regarding the responsibilities and custody of children during and after a divorce. The point of the FA is to protect the rights of children and ensure that their best interests are taken into account when it comes to their custody and the parent’s responsibilities. The office of the FA is not just one person but consists of lawyers and social workers who all assist in getting the best outcome for the child/children.

What can the Family Advocate do?

Section 28(2) of the Constitution says, “A child’s best interests are of paramount importance in every matter concerning the child”. This forms the basis of the FA’s role in disputes.

The Family Advocate has the ability to:

  • Institute an enquiry so as to be able to furnish the court with a report and recommendation on any matter concerning the welfare of the minor child;
  • Appear at the trial or hearing of any relevant application;
  • Adduce any available evidence; and
  • Cross-examine witnesses giving evidence at such trial or hearing of an application.

According to Mediation in Certain Divorce Matters Act (Act 24 of 1987)

The Children’s Act 2005 (Act 38 of 2005) has also made mediation by the FA compulsory for all parties involved in parental rights and responsibility disputes over children born out of wedlock.

What’s the point of the Family Advocate?

The FA has many advantages when there is a dispute over children. The FA can change the parental rights and responsibilities agreements of the parents without the need to go to court. A court will also take into consideration a report by the FA before making any decision on the child, they are even required by law to do this. Furthermore, a registered parental rights and responsibilities agreement would be considered the same as a court order. The office of the FA also allows for the children involved to express their point of view and desires. In order to ensure the best for the child/children, the FA will work together with social workers, psychologists and other professionals when dealing with disputes.

Reasons to see the Family Advocate

  • The parties disagree about how to contact or care for a child.
  • They want to draft, register or change their parental rights and responsibilities agreement.
  • Disputes about whether an unmarried father of a child born out of wedlock fulfils the requirements making him eligible for the full parental rights and responsibilities of the child.

A court may also order the FA to provide a report on what is best for the children involved in a dispute. Altogether, the FA’s goal is to ensure the child gets the best out of a divorce process and that their rights are protected. They can not only help in disputes, but also provide a comfortable environment and process for what can be a stressful time for the children involved.

Reference:

“The Office of the Family Advocate”. The Department of Justice and Constitutional Development. Accessed from: http://www.justice.gov.za/FMAdv/ on 13/05/2016.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

True Love, or Easy Paycheck?

A1_bSummary:

The issues that are dealt with in this article is whether a partner is entitled to maintenance from the other partner in terms of a Divorce Order if the partner that is asking for maintenance, is living with / or has a new relationship, where that partner is already maintaining him / her. We will deal with case law and the Maintenance Act 99 of 1998.

You’re soon to be ex-wife has moved on and is now happily living with a new partner. They are in a stable, supportive relationship and her new partner doesn’t seem short of cash. Everyone is living happily ever after, so why should you pay maintenance to your ex-wife?

The judgment of Harlech-Jones v Harlech-Jones [2012] ZASCA 19 has a reference. The issue, in this case, is whether a husband is obliged to pay maintenance to his former wife, who is involved in a relationship with another man, after divorce.

The duty of support

Neither spouse has a statutory right to maintenance. The language in the Divorce Act is clearly discretionary and the ex-spouse seeking an award for maintenance has no right as such. The court will consider the following factors before deciding whether to award spousal maintenance:

  1. The existing or prospective means of each party
  2. Their respective earning capacities
  3. Their financial needs and obligations
  4. Their age
  5. The duration of the marriage
  6. Their standard of living prior to the divorce
  7. Their conduct, if relevant, to the breakdown of the marriage
  8. An order for the division of assets
  9. Any other factor which in the court`s opinion, should be taken into account.

The discretionary power of the court to make a maintenance award includes the power to make no award at all. Our law favours the ‘clean break’ principle, which basically means that after a divorce the parties should become economically independent of each other as soon as possible.

Harlech-Jones v Harlech-Jones [2012] ZASCA 19

Through a long line of cases dealing exclusively with maintenance pendent elite (awaiting litigation), it has become customary not to award maintenance to a spouse who is living in a permanent relationship with another partner.

As mentioned above, the Supreme Court of Appeal  gave an interesting judgment in the matter of Harlech-Jones v Harlech-Jones [2012] ZASCA 19. The question raised in this matter was inter alia whether it would be against public policy for a man to pay maintenance to his wife while she is living with another man.

The parties, who were married to each other in December 1972, were divorced in January 2011, after many years living apart and many legal battles. In terms of the Divorce Order, the Appellant (the former husband) was ordered to pay the Respondent the sum of R2 000-00 per month as maintenance with effect from 1 February 2011. With the leave of the High Court, the Appellant then appealed to the Supreme Court of Appeal solely against the maintenance order.

By the time the Divorce Order was granted, both parties had formed relationships with other partners, and the Respondent had been living for some three years with another man who fully and unconditionally maintained her.

Relying upon judgments such as Dodo v Dodo 1990 (2) SA 77 (W) at 89G; Carstens v Carstens 1985 (2) SA 351 (SE) at 353F; SP v HP 2009 (5) SA 223 (O) , it was argued that it would be against public policy for a woman to be supported by two men at the same time.

The court was of the opinion that while there are no doubt members of society who would endorse that view, it rather speaks of values from times past and the court was of the opinion that in the modern, more liberal age in which we live, public policy demands that a person who cohabits with another should not for that reason alone, be barred from claiming maintenance from his or her spouse.

However, in light of facts of the present case, where the Respondent was being fully maintained by the man with whom she had been living with for years, the Respondent failed to show that she was entitled to receive maintenance from her former husband.  The Appeal therefore succeeded, and the maintenance order was set aside.

Therefore, if you feel that you are currently paying your ex-partner maintenance which he / she do not deserve, contact your legal representative and take back the money that you worked so hard to obtain!

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)