Category: Family Law (page 1 of 2)

Interim maintenance until date of divorce – husband’s nightmare and wife’s weapon?

This article gives an overview of the purpose of interim maintenance applications, what considerations are to be taken into account when determining maintenance, the difference between the nature of an interim maintenance application in the Regional Court and High Court, and the possible detriment to husbands with an interim maintenance order against them.Given the complicated nature of divorce proceedings, and the length of time required to finalise a divorce, the existence of interim relief until the date of divorce is often required by a party to a divorce who have been maintenance dependent on the other party during the subsistence of the marriage.

Rule 58 of the Magistrates’ Court Rules and Rule 43 of the Uniform Rules of Court make provision for a spouse to claim interim maintenance during the litigation process, a contribution towards costs of the pending matrimonial litigation, interim care of a child and interim contact with a child.

Rule 43 is being used far more often than Rule 58, because in the High Court it can take up to three years to get a trial date for a defended divorce, whereas, in the Regional Court, a defended divorce can be finalised within a few months. Therefore, interim maintenance is more important in High Court proceedings, because a party will have no other choice but to maintain himself/herself for up to three years until the divorce is finalised. Especially in the case of housewives who raised the children and cared for the home but have not been working or have not been economically active for years, a three-year wait for a trial date can result in a dire financial situation, if no provision is made for their maintenance until the date of divorce.

The other side of the coin is that a husband with a Rule 43 order against him, can be forced to pay maintenance for quite a lengthy period, especially if his wife as the plaintiff is well taken care of in terms of the Rule 43 order, then she will probably not be in a hurry to take the matter to trial.

A party can be entitled to a contribution towards legal costs. If a husband can afford a lawyer and good legal representation, his wife can be put in a position to litigate on an equal basis, by a Rule 43 or Rule 58 order compelling a contribution towards the wife’s legal costs.

Since it is possible to get a trial date in the Regional Court quite speedily, magistrates are often not inclined to waste too much time on an interim maintenance application, because it will not have a long-term effect, and it is better to determine the issue of maintenance at trial.

Rule 43 and Rule 58 orders cannot be taken on review, and cannot be appealed against, thus a husband with a detrimental Rule 43 or Rule 58 order against him can only apply for a variation of the original order, based on a change in financial circumstances. However, if he can afford to comply with the order, he has no other choice but to comply, and a failure to comply can lead to a contempt of court application against the husband. Rule 43 or Rule 58 orders can sometimes lead to parties settling the whole divorce sooner, especially in the High Court where a party will be compelled to comply with the Rule 43 order for three years.

The following factors are taken into account in the determination of maintenance: 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, their conduct so far as it may be relevant to the breakdown of the marriage, and any other factor which in the opinion of the court should be taken into account.

In Taute v Taute 1974 (2) SA 675 (E), it was determined that interim maintenance will be determined according to the “marital standard of living of the parties, her actual and reasonable requirements and the capacity of her husband to meet such requirements.” It was further held that, “I have found nothing, however, in the decisions to which I have been referred which justify in such maintenance the inclusion of extraordinary or luxurious expenditure even in the case where the husband is ‘very wealthy’ or ‘very rich’.”  This decision makes it clear that a wife will not be entitled to anything that she was not entitled to during the subsistence of the marriage, and that a court will not make a finding for luxurious expenditure.

Kroon v Kroon 1986 (4) SA 616 (E) held that, “The position in our law is that no maintenance will be awarded to a woman who can support herself.”  It was further held that, “What does the plaintiff want and what does she need? Wants and needs are two different things. People usually want more than they need.” This decision makes it clear that a woman who has no need for maintenance, because she earns an income and can support herself, will not be entitled to maintenance.

If parties were married for a long period of time, a party would be more likely to get interim maintenance, and permanent maintenance at trial. Furthermore, the age of the parties would play a significant role in determining interim maintenance and permanent maintenance, because, for example, for a 60-plus woman with no formal education, and who have no formal work experience, it will be difficult to obtain employment.

In Nilsson v Nilsson 1984 (2) SA 294 (C), it was determined that, “The shorter the duration of the marriage, the more important the conduct of the parties within the relationship – their respective ‘guilt’ or ‘innocence’ – would ordinarily be in relation to the question whether maintenance should be paid at all.” If a woman is responsible for the breakdown of the marriage, her conduct would weigh against her getting interim maintenance, especially in the case of a short marriage.

Interim maintenance remains a thorny issue, and in an ideal world, such orders would not have been necessary at all, which is more or less the case in a Regional Court divorce. However, in the High Court, it remains an important instrument to ensure that a divorce is handled in a fair manner, and that a wife is not being left without maintenance, or unable to effectively litigate against her husband.

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)

Choosing guardians for your minor children

Choosing guardians for your children is one of the hardest and most important decisions you will ever have to make. The thought of someone other than you raising your precious children is gut-wrenching. The worst part about it?

You’ll never be fully comfortable with the choice, because no one can do as good a job as you. There is no perfect choice. However difficult it may be, naming guardians is a must-do for every parent.

My husband and I have two minor children. I am concerned about who will look after our children in the event of my husband and I passing away at the same time. We have been advised to nominate guardians in our wills. What should I keep in mind when choosing guardians?

Choosing guardians for your children is one of the hardest and most important decisions you will ever have to make. The thought of someone other than you raising your precious children is gut-wrenching. The worst part about it? You’ll never be fully comfortable with the choice, because no one can do as good a job as you. There is no perfect choice. However difficult it may be, naming guardians is a must-do for every parent. If the thought of placing the future of your children in someone else’s hands makes you queasy, imagine leaving the decision to someone you do not like, or do not even know. That is why parents should pick legal guardians – the persons who should raise their children if both parents die before the children turn 18.

When preparing a Last Will and Testament, the emphasis is typically on the disposition of property. However, selecting guardians to care for your minor children and nominating them in your Last Will and Testament is just as, if not more important, than distributing assets. The transition to life with guardians is especially traumatic as children come to terms with new parental figures, likely following the untimely death of one or both parents. The guardians you choose will be responsible for helping to heal this wound. It is of the utmost importance to choose guardians with whom you and your kids are comfortable and who has the emotional intelligence, time and interest to raise your children.

Choosing guardians

The first hurdle in choosing guardians is finding someone who is willing to act in such an important and responsible capacity. Raising someone else’s children is not a decision potential guardians should take lightly, as assuming guardianship will change the rest of the guardians’ lives, as they step into the roles as surrogate parents. Besides finding willing persons, choosing guardians involves objective and subjective assessments different from choosing other fiduciaries such as trustees. Guardians should be reliable and stable, with sound judgment and values that are similar to your own. The guardians will need to comfort, teach and encourage your children as they grow towards adulthood. Guardians who already have a warm and loving relationship with your children would be immensely valuable in such an emotionally trying transition.

Selecting family members

Instinctively, many think the right guardians for their children are family members. However, in some cases, nonfamily members may be a better fit. Naming friends as guardians is increasingly common, though relatives are still the most popular choice. While family is frequently an obvious choice, circumstances may make this impractical or undesirable. Hopefully your children are comfortable with grandparents, or an aunt and uncle who may have similarly aged children of their own. If this is not the case, close friends with similar values, who live nearby, and who have kids of their own, may be a better option than faraway relatives. The choice is specific to your lifestyle and your relationship with your family.

Naming alternate guardians

Unfortunately, couples divorce and families break up. Choosing a couple as guardians could turn out to be problematic if they divorce or one is otherwise no longer able to serve in the role. Such a scenario could give guardianship to a person whom you are less inclined to have raise your children. If alternates are not named and the nominated guardians are unable to care for your children, the decision as to their care could end up being made by a court. As a result, it is advisable to name alternates in case the first choice is unwilling or unable to act. This way your wishes can be carried out and the paths of your children’s lives are not at the discretion of a judge.

Revisiting your choice of guardians

Once you have carefully selected the guardians and alternates and have nominated them in your Last Will and Testament, it is important to remember to revisit the choices as circumstances change. As children (and guardians) age, their needs and abilities also change. You will want to make sure that the people you selected a few years ago are still the right choice today.

 

Reference List:

 

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)

What is the process of adoption?

This article discusses the process of adoption in South Africa and who has the power to grant adoption orders.

Introduction

The adoption process is regulated in South Africa by the Children’s Act 38 of 2005 (“the Act”). Adoption is one of the ways to help give abandoned minors a permanent or stable family life, which they would otherwise not have had. The Act provides that a child is adopted if the child has been placed in the permanent care of a person in terms of a Court order. Section 28(2) of the Constitution of the Republic of South Africa provides that every matter concerning a child, is of paramount importance.

Who can adopt?

A child may be adopted jointly by a husband and wife, partners in a permanent domestic life-partnership, or other persons sharing a common household and forming a permanent family unit. The Act goes further to say that a child may be adopted by a widower, widow, divorced or unmarried person, by a married person whose spouse is the parent of the child or by a person whose permanent domestic life-partner is the parent of the child, by the biological father of a child born out of wedlock, or by the foster parent of the child.

In terms of the Act, a prospective adoptive parent must be a fit person to be entrusted with full parental responsibilities and rights in respect of the child, willing and able to undertake, exercise and maintain those responsibilities and rights, over the age of 18 years old, and properly assessed by an adoption social worker.

What does the process entail?

A child may be adopted only if consent for adoption has been given by each parent of the child, regardless of whether they are married or not, or by the guardian of the child, the child – if the child is 10 years or older, or if the child is under the age of 10 years old but at an age to understand the implications of such consent.

If the parent of a child wishes the child to be adopted by a particular person, the parent must state the name of that person in the consent. Before consent for the adoption of the child is granted, the adoption social worker facilitating the adoption of the child must counsel the parents of the child and, where applicable, the child, on the decision to make the child available for adoption. The eligibility of the prospective adoptive parent must be determined by the Children’s Court.

The consent to adopt must be signed by the person consenting in the presence of a presiding officer of the Children’s Court, and signed by the child in the presence of the presiding officer (if consent of the child is required). The consent to adopt must then be verified by the presiding officer and filed by the clerk of the Children’s Court pending an application for the adoption of the child.

In certain circumstances, consent of the parent or guardian of the child to the adoption is not required, for example, where the parent or guardian is incompetent to give consent due to a mental illness, has abandoned the child, or if the whereabouts of the parents cannot be established, or if the identity of the parents are unknown, if the parents abused or neglected the child, failed to fulfil his or her parental responsibilities towards the child during the last 12 months, has been divested by an order of Court of the right to consent to the adoption of the child, and/or has failed to respond to a notice of the proposed adoption within 30 days of service of the notice. The Act lists further exceptions where consent is not required.

In terms of the Act, notice must be given by the presiding officer to each person whose consent to the adoption is required. If such person fails to comply with the request contained in the notice within 30 days, the person will be regarded as having consented to the adoption.

The application

An application for the adoption of a child must be made to the Children’s Court, and accompanied by a report by the social worker. The report must contain information on whether the child is adoptable, whether the adoption is in the best interest of the child, and medical information in relation to the child. The application must also be accompanied by an assessment referred to in Section 231 of the Act and a letter by the provincial head of social development recommending the adoption of the child.

A Court considering the adoption of a child must be satisfied that all the requirements, as set out above, have been met and that the adoption of the child is in the best interest of the child.

Conclusion

In South Africa, all prospective adoptive parents are required to comply with the requirements as set out in the Act to ensure a successful application.

Sources

Children’s Act 38 of 2005

 

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)

Can I avoid a drawn-out legal battle when I get divorced?

This article gives a brief overview of the normal divorce procedure, and how the procedure differs if the parties are able to reach an agreement before even issuing a summons for divorce. It also underlines the benefits of concluding a settlement at an early stage.

Normal procedure in an opposed divorce:

Divorce proceedings can lead to a long, drawn-out and very expensive procedure if the parties are not able to reach a settlement before going to trial. Once the plaintiff issues a summons for divorce and the summons has been served on the defendant, the defendant has ten days to defend the matter, and a further twenty days to answer to the allegations contained in the particulars of the claim. Because divorce proceedings can take years to finalise, especially in the High Court, there is also the possibility of an interim maintenance application in both the Regional and High Court, which leads to further delays.

Once both parties have discovered what documentation they wish to use at trial, a pre-trial conference needs to be conducted in order for the court to determine whether the matter is trial ready. If the matter is declared trial ready, a trial date will be allocated, and the parties can be up to three years down the line from the date of issuing the summons.

Settlement before the summons has been issued:

The abovementioned procedure can be avoided to a large extent, if the parties who decide to get divorced, agree to do so on an amicable basis from the start, and is able to reach a settlement before instituting legal proceedings. The settlement agreement in divorce proceedings is referred to as a “consent paper”.

Especially in divorces with regards to marriages in community of property, or marriages out of community of property where the parties do not have substantial assets to divide, it is a viable option to conclude a settlement as soon as possible, as the division of the assets should be fairly simple.

Consent paper:

The parties need to address all the patrimonial consequences of the divorce in the consent paper. An agreement needs to be reached on the division of movable and immovable assets, and the possible realisation of certain assets in order to make the division of the assets easier. Furthermore, if there are minor children involved in the divorce, a settlement needs to be reached as to with which parent the minor children will reside, and the visiting rights of the other parent. The maintenance of the minor children will also need to be addressed, and the possible rehabilitative/lifelong maintenance of a maintenance dependent spouse.

Procedure of a settled divorce:

If the parties reach a settlement by means of a consent paper before a summons is issued, the consent paper will be attached to the particulars of the claim of the summons. The summons will still need to be issued and served by the sheriff on the defendant. Once the summons has been served, and the ten days to defend the matter has passed (which will happen in a case which was settled before the issuing of the summons), the plaintiff in the matter can request a date from the registrar of the court on the unopposed roll. Once a date is received, the matter still needs to be set down in accordance with the rules of court, and the defendant needs to be notified of the date. However, on the court date itself, only the plaintiff and his/her legal representative need to be in court. The terms of the consent paper will then form part of the divorce order.

Benefits of an early settlement:

The benefits of reaching an early settlement in a divorce are that the parties will not have to spend large sums on legal costs, which would be the case if a divorce is opposed and go to trial. It will also ensure the swift conclusion of the matter, which can be concluded in a few months. Children benefit from a swift settlement of a divorce, as they do not have to live through a drawn-out legal battle, in which they usually become bargaining tools. Thus, an early settlement is an outcome which should be endeavoured for, as it is in the best interests of all parties involved.

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

My Lawyer_Images_Template-05A 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.

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)

References:

http://www.justice.gov.za/docs/articles/2009_foreign-maintenance.html

http://mclarens.co.za/maintenance-children-foreign-countries/

WHEN MUST YOU CONSULT THE FAMILY ADVOCATE?

my-lawyer_images_oct-05You 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.

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)

References:

http://www.ourlawyer.co.za/family_advocate_cape_town.htm

http://www.justice.gov.za/services/consult-fam-adv.html

REGISTERING DEATHS AND DEATH CERTIFICATE REQUIREMENTS IN SOUTH AFRICA

A2Many South African citizens do not know the correct procedures to follow in order to register a death, or how to obtain a death certificate and by whom, until it is too late. Coming to terms with a death is difficult enough without having to enquire about the legal processes that are necessary in the circumstances in order to proceed with funeral arrangements and other family affairs. The Births and Deaths Registration Act 51 of 1992 outlines the simple requirements and procedures to be followed upon the death of a South African citizen.

The Births and Deaths Registration Act no. 51 of 1992 requires that a person’s death must be reported to any one of the following people authorised by The Department of Home Affairs. Specific officers at the Department of Home Affairs, South African Police Service members, South African Missions, Embassy’s or Consulates where the death occurred abroad or funeral undertakers that have been appointed and are recognised by law.

A Notification of Death or Still Birth Form (Form BI-1663) must be completed when reporting a death. This form, along with all other forms that may be necessary are available from all Home Affairs offices. The following people have to complete different sections of this form in order for it to be submitted: the person reporting the death, the medical practitioner or traditional healer involved in the declaration of the death, and a Home Affairs official or a member of the Police service if a Home Affairs official is not available.

A Death Report (Form BI-1680) will be issued after a death has been registered with one of the relevant department officials. Only someone whom the Department of Home Affairs has authorised to do so can issue this report and this includes traditional leaders, members of the SA Police Services and authorised undertakers.

These designated people may also issue burial orders. No burial may take place unless authorised by way of a burial order (Form BI-14).

Deaths of South African citizens and South African permanent residence permit holders that occur outside South Africa must be reported to the nearest South African embassy or mission abroad. The country in which the death occurs must issue a death certificate and a certified copy of the death certificate must be submitted to the South African embassy or mission when reporting a death. If the deceased is to be buried in South Africa, the embassy or mission will assist with the paperwork and arrangements with regards to transportation of the body to South Africa.

The Department of Home Affairs will issue a Death Certificate on receipt of the notification of death form BI-1663 and the Death Report form BI-1680. Applications for a Death Certificate must be lodged at any office of the Department of Home Affairs or at any South African embassy, mission or consulate if the death occurs abroad. An abridged death certificate will be issued free of charge on the same day of registration of death. An unabridged death certificate can be obtained by completing Form

 BI-132 and paying the required fee.

If a person has been recorded, mistakenly or fraudulently, as dead in the National Population Register, (i.e. they are still alive); this must be reported as soon as possible to the nearest Department of Home Affairs office for urgent investigation and corrective action.

Chapter 3 (Section 14 to 22) of the Births and Death’s Registration Act regulates all matters pertaining to the Registrations of Deaths in South Africa and regulations on how to obtain a Death Certificate. The Act provides for the different procedures to be followed when a death is due to natural causes, stillbirth or other methods. This process is simple to follow and the appointed officials at Home Affairs Departments are fully equipped to process registrations and to answer any questions you may have.

Reference List:

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)

A promise to marry

A1_BIn this article the legal consequences of breaking off an engagement will be discussed. Is it a contract, and if it is, can you institute a claim for damages due to a breach of this contract?

In order to enter into a valid engagement to be married the following requirements must be met:

 

  • Both parties must have the capacity to act, which generally means that parties must be older than 18 years or if they are minors, that they have the necessary consent from their guardians.
  • Both parties must voluntarily consent to the engagement. A material mistake, such as the identity of either of the parties, will render the engagement void. There must also be no misrepresentations made by either of the parties; in other words, where it would have resulted in the contract not being concluded, had the other party known the truth.
  • Both parties must be permitted by law to marry each other. For example, you may only be engaged to one party, unless a polygamous engagement applies under African Customary Law.
  • One may not marry a sibling.

It is important to note that there is no law in South Africa that requires an engagement before    marriage.

Once a date for the marriage has been determined, there is a reciprocal duty to marry on that date, unless the date is changed by mutual agreement. Further, if no date has been determined, it is presumed that the marriage will take place within a reasonable time. Nevertheless, either of the parties may terminate the engagement, which may or may not attract a claim for damages or return of gifts.

An engagement can be terminated in the following ways:

  • Marriage
  • Death of either parties
  • Mutual agreement
  • Withdrawal of parental consent
  • Breach of promise
  • Termination by one party that is justified and based on sound reasons

It is important to establish whether there is a just cause for cancellation. If there is, the engagement may be validly terminated. A reason such as sterility or criminal activity, if it was only brought to the attention of the other party after agreeing to marry, may provide enough grounds to break off the engagement. If both parties agree to terminate the engagement, all gifts given in anticipation of the marriage, including the engagement ring, must be returned.

If one party breaches the promise to marry without justifiable reasons, the innocent party can, according to our law, institute a claim for damages, provided that the losses were within the contemplation of the parties. The innocent party can claim expenses incurred in anticipation of the wedding, thus placing the innocent party in the financial position he or she would have been had the engagement never been entered into. Further, the innocent party may keep or claim back the engagement ring as part of costs incurred.

In the case of Van Jaarsveld v Bridges, the court decided that a party cannot successfully institute a claim for prospective losses on the basis of a breach of promise to marry, because an engagement is not an ordinary contract in the context of contractual damages and should therefore not be placed on a rigid contractual footing. This means that a party may not institute a claim for damages placing him or her in the position he would have been had they gone through with the marriage. Previous court judgements indicate that compensation will be awarded at the discretion of the court and that each case must be evaluated on the basis of its individual circumstances.

In conclusion, it is important to note that a promise to marry is an agreement which attracts legal consequences; therefore one should not be hasty when deciding to ask the big question.

Bibliography:

Van Jaarsveld v Bridges 2010 (4) SA 558 (SCA).

Cloete v Maritz 2013 (5) SA448 (WCC).

Bull v Taylor 1965 (4) SA 29 (A).

Georgina Guedes, 23 October 2013, Mail and Guardian, “Five fallacies about engagement rings”.

A Guide to Divorce and Separation in South Africa, “Engagement and the Law”.

Ronald & Bobroff, “The engagement”.

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)

What is the role of the Family Advocate?

A2_BThe Family Advocate has many duties but in the context of Divorce Law, they are mostly consulted for making sure that all Parenting Plans and divorce Consent Papers are in the best interest of any minor children involved. The public can, however, also have access to the Family Advocate and it is important to note that they offer a free service.

The roles of the Family Advocate include the following: to provide education to family members and to others involved in the systems serving the family and youth; to help identify the strengths and needs of families; to be a mediator between the system and the family by helping to educate professionals on the strengths and needs of the family; to help family members understand the different roles of the agencies involved in the system and how they may affect the family and assist families in identifying and utilizing necessary services.

A Family Advocate helps state and local agencies and systems adopt more strengths-based and family-driven programs, policies, and services. The focus is to better meet the needs of families and their youth who have mental illness, co-occurring disorders or substance use disorders and improve outcomes for all, including families, youth, and the agencies they utilize.

A Family Advocate also has the authority to draft Parenting Plans at no cost which will help provide the minor child with a stable and suitable schedule between the two parents. A Family Advocate cannot however provide for a maintenance amount as this falls under the jurisdiction of the maintenance court. Should a parent feel like they are not sure of their rights or responsibilities towards their minor child, the Family Advocate can be approached in order to arrange a meeting between the two parties to mediate the rights and responsibilities between the two parties. This process is also at no cost, however should one of the parties deny the meeting, the Family Advocate has no authority to subpoena them to attend the meeting.

The Family Advocate is a perfect remedy for parents who have their child’s best interest at heart and who aim to provide a stable environment for the child when both parents are no longer together.

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)

Difference between the Domestic Violence Act and the Harassment Act

A3_BThere are people who suffer emotional and physical abuse on a daily basis but are not quite sure what they can do to prevent it. There are two options available to them. They can either apply for a Protection Order or apply for a Harassment Order. However, many people do not know the difference between the two and which Order would suit their situation.

A Protection Order is described as being a form of court order that requires a party to do or to refrain from doing certain acts. These orders flow from the court’s injunction power to grant equitable remedies in these situations. The following is required to be present when applying for a Protection Order:

– Needs to show a pattern of abuse.

– It has to be a form of domestic violence which includes:

  • Physical violence
  • Sexual violence
  • Financial violence
  • Emotional/verbal violence

– The violence needs to be directed at the person who wants to make the application.

A Protection Order forms part of the Domestic Violence Act. This means that the abuse needs to be between persons that live in the same house, like brother and sister, or mother and father, etc. An application is made for a Protection Order and thereafter a return date is set. At the return date the Applicant can change their mind and ask that the order be removed. If not, the Order is granted, and it is binding for life. If the Respondent breaches the Protection Order, he/she may receive up to 5 years imprisonment. If the Applicant applies for a Protection Order under false pretences the Applicant may receive up to 2 years imprisonment.

The application for a Protection Order is an ex-parte application, which means that the application can be made without having the Respondent at Court. This can cause problems in the instance where the Respondent is innocent, but does not have a chance to defend himself/herself.

If you’ve been the victim of abusive or threatening behaviour by someone other than a person living with you, or with whom you have a domestic relationship, it may be harassment. There are different things you can do if you’re being harassed, such as applying for a Harassment Order. The following is important to know about Harassment Orders:

  • No pattern is needed, and a first offence can be sufficient for a Harassment Order.
  • No relationship is required, and it can be against someone you don’t even know
  • Harassment includes: following, messaging, unwanted packages, letters, psychological harm, physical harm, financial harm, etc.

If you decide to apply for a Harassment Order without knowing who it is against, the Court has the power to order a police official to investigate the matter. The application for a Harassment Order takes place in open court, which means that it is not private, which can sometimes prevent victims from making the application. Once a Harassment Order is granted, it is binding for 5 years. If the Applicant wants to withdraw the Order, the Court must be satisfied that the conditions have changed. Breach of a Harassment Order can result in 5 years imprisonment, which is the same punishment for Applicants who make the application under false pretences.

It is important to know that there are remedies available to victims who are in abusive relationships. Whether it is emotional, physical or financial abuse by someone you know or stalking and harassment by someone you don’t know, it is time to take a stand against abuse.

This newsletter 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) 

Older posts

© 2019

Theme by Anders NorenUp ↑