Month: July 2014

True love, or easy paycheck?

A1blThe 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 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 pendente lite (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 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.

Rule 43 applications

A2blDivorce proceedings can take years to come to conclusion and this leaves certain issues unresolved until such a time. A Rule 43 Application can be used to find a comparatively speedy interim solution to important issues such as maintenance and access to minor children.

If you are involved in an opposed divorce action you may wait years before getting your final divorce order. This means that your legal costs may end up sky high and your spouse may not be contributing to living costs of yourself or your children. There may also be issues with regard to custody of minor children or access to minor children that will eventually be resolved at the completion of the divorce proceedings for which you need to make interim arrangements. This is particularly helpful where one parent is preventing the other from having access to the minor children born out of the relationship. Luckily there is a way of dealing with these issues while you are still engaged in divorce proceedings.

A Rule 43 Application allows you to claim for a contribution towards the costs of a pending matrimonial action, for maintenance pendente lite (awaiting litigation), for interim custody of any child and for interim access to any child. [1] In order to do this you need to deliver a sworn statement which sets out what you are claiming for as well as the grounds upon which you are relying. A notice must also be attached to this sworn statement which you’ll find in the Uniform Rules of Court. These documents will usually be drafted by your attorneys after having consulted with you. Remember that a sworn statement must be signed before a commissioner of oaths. Make sure to read through this document thoroughly to make sure that it is complete and accurate before you sign it.[2]

A Rule 43 Application must be served by the sheriff and the Respondent must deliver a sworn reply to the sworn statement within 10 court days of receiving it. If the Respondent does not reply then he shall be barred from doing so. If the Respondent does reply then the Registrar must as soon as possible thereafter bring the matter before the High Court for summary hearing on 10 days notice to the parties.[3]

The High Court may then make an order that it deems as just or it may dismiss the Application if they can see from the sworn statements that the claims have no proper grounds or for any other reason that they deem to be just and fair. The court also has the power to change its decision through the same procedure where there has been a material change in the circumstances of either party or the circumstances of a child takes place or where the contribution towards costs proves to be inadequate.[4]

If you are involved in opposed Divorce proceedings and are struggling with any of the abovementioned issues then consider mentioning your interest in making an Application to the High Court in terms of Rule 43 to your legal representation if this remedy hasn’t been brought to your attention yet. It is an effective remedy to getting relief in what can be a long and drawn out process and decreases the chances of one party being prejudiced where they do not have the finances to fund the legal costs of the divorce proceedings.

References

  • Rule 43 of the Uniform Rules of Court: Rules Regulating the Conduct of the Proceedings of the Several Provincial and Local Divisions of the High Court of South Africa

[1] Rule 43(1)(a) – (c) of the Uniform Rules of Court: Rules Regulating the Conduct of the Proceedings of the Several Provincial and Local Divisions of the High Court of South Africa

[2] Rule 43(2) of the Uniform Rules of Court

[3] Rule 43(3) & (4) of the Uniform Rules of Court

[4] Rule 43(5) & (6) of the Uniform Rules of Court

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.

The new South African Immigration Regulations tightens screws for foreign spouses

A3blThis article looks at the New South African Immigration Regulations that came into effect on 26 May 2014 and how it affects a spouse attempting to renew or obtain a spousal visa.

A Newlands family was torn apart after South Africa’s new regulations barred Louise Johnson from returning to South Africa after going on a family holiday in Namibia.

Section 27 of the new regulations declared Louise Johnson, a Danish-born spouse of a South African, as an undesirable person. People who are travelling on an expired visa will be declared as undesirable people. This is very controversial because many foreigners, such as Louise, have applied well within the time limit, which is 60 days before the expiry thereof, and have still not received their renewed visa.

In order to apply for a spousal and life partner visa one must prove that the relationship has existed for two years before an application for this visa is made. One must also prove that the relationship still exists after two years. Further, if you are married to or in a life partnership with a South African citizen or a permanent resident holder, you have to be married for a continuous period of five years before an application for permanent residency can be launched.

Visa renewals often take months to process and in the past a receipt issued by the Department of Home Affairs, indicating that an application was pending would suffice. The new regulations bring this to an end. Foreigners who remain in South Africa for anywhere between one to thirty days after the expiry date of their valid visa will be deemed to be undesirable for a period of twelve months. A second transgression within a period of twenty-four months will render them “undesirable” for a period of two years and should they overstay for more than thirty days they will be classified as “undesirable” for five years.

For example Olivia Lock, a British National, who is married to a South African, was prohibited from returning to South Africa for 12 months in May, due to leaving South Africa on an expired visa whilst awaiting the outcome of a renewal of her visa. United States citizen, Shaima Herman, married to a South African, was also declared an “undesirable person”, after a two-year wait for the approval of her spousal visa. Her husband indicated that she had visited the Department of Home Affairs on 14 separate occasions and yet her visa remains delayed.

Haniff Hoosen from the Democratic Alliance stated that: “Media reports and public outcry suggest that in less than a month the new regulations have already ripped apart families, dissuaded investors, and led to the suspension and even cancellation of multimillion-rand film and tourism ventures”. He called for the regulations to be reviewed and debated by Parliament’s Home Affairs Portfolio Committee.

The Minister of Home Affairs, Malusi Gigaba, asserted that the new immigration regulations proposing to be in the best interests of South Africa’s security, is an insufficient excuse for inefficient policy. He further states that: “Omissions and lack of definitions and criteria raised serious concerns about the new regulations, which would be subject to “misappropriation and abuse” by the Department of Home Affairs and its officials.”

It is very likely that one can expect to see court cases challenging these regulations very soon but in the meantime one should not travel out of South Africa without a valid visa, or you will be declared an “undesirable person”.

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.

International love meets the law

A4blA South Africa citizen “x” decides that he is going to study in England after leaving school. During this time abroad he meets the love of his life “y”, a British citizen. Both parties decide that they want to marry each other and are now unsure if the marriage will be valid once they return back to South Africa.

The abovementioned marriage and/ or relationship adequately demonstrate the need for private international law. Men and women of different domiciles and nationalities may fall in love and marry in the country where they happen to reside. Generally speaking, the formal validity of a marriage is determined by the law of the place where the marriage was solemnized. This is based on the common law doctrine of thelaw of the country were the marriage was solemnized ( lex loci celebrationis).

This rule is also subject to the  fraud of the law (fraus legis) doctrine that will prevent parties from deliberately solemnizing their marriage elsewhere to escape some essential requirements of thelaw of the place of a party’s dwelling house (lex domicilii). Kassim v Ghumran & another 1981 Zimbabwe LR 22, may be considered more fully to illustrate the principle of evasion. Here Ghumran and Kassim had eloped from Zimbabwe to Malawi in order to marry. Kassim was only 15 years old and the consent of her parents, which was not obatined, was required for her marriage under the law of Zimbabwe. Kassim’s father sought an order declaring that the Malawian Marriage is void. The court held that where one or both parties were domiciled in the area of the court and had their marriage deliberately solemnized elsewhere to escape an essential requirement of the lex domicilii acted in fraudem legis. 

The last exception to the lex loci celebrationis is the principle of public policy. The marriage will be against public policy if it offends fundamental moral principles of that society. Since the marriage relationship is one of the fundamental institutions of our society, it follows, none the less, that public policy will raise its head here. It does so primarily in two broad areas; marriages tainted by incest, want of age, or lack of consent and polygamous marriages, especially before the recognition of customary marriages is South Africa. The consensus seems to be that the union of siblings (whether of half or full blood) and the union of any blood relatives in the direct line will be against public policy (contra bonis mores).

Therefore their marriage will be valid in South Africa if they complied with the abovementioned international private law principles and that the marriage was legally conclude in accordance with the laws of England. It is also important to note that the legal consequences of the marriage will be governed by different international private law principles and the validity of the marriage will be determined according to the abovementioned principles.

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.

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