Category Archives: Marriage

THE NEW SOUTH AFRICAN IMMIGRATION REGULATIONS TIGHTENS SCREWS FOR FOREIGN SPOUSES

This 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”.

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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

A 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 the law 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 the law 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.

Copyright © Succeed Group. All rights reserved | Contact Us at info@succeedgroup.co.za

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.

ANNULMENT OF A MARRIAGE

Consent is an essential element of a valid marriage and the parties to a marriage must confirm before the marriage officer during a civil ceremony that they voluntarily consent to marry each other.[1] There are certain circumstances where it can be said that consensus was not present, and this will be discussed below.

Six months after John marries Laura they decide that they want to start a family. John finds out from the doctors that he is sterile and cannot have children. Laura is distraught and contacts her attorney, saying that she would never have married John if she had known that he could not have children.

Laura’s attorney explains to her the circumstances in which consensus will either be lacking or materially deficient, in which case the marriage can be annulled (set aside).

Firstly, a material mistake will result in a lack of consensus. A material mistake is limited to where there is a mistake as to the identity of your spouse or a mistake regarding the actual act of marriage in that you did not understand that the ceremony in which you took part resulted in marriage with the other party. In these circumstances there is uncertainty as to whether the marriage never came into existence or if it can be set aside. One may also make mistakes regarding the personal characteristics of your spouse. This may only be a ground on which the validity of the marriage can be challenged if these are material characteristics. The decision whether a mistake regarding a personal characteristic is material or not rests with the Court.[2]

Secondly, a misrepresentation by your spouse may justify the setting aside of a marriage if that misrepresentation relates to a material aspect of the marriage. In the scenario above, if John was aware of the fact that he was sterile before entering into the marriage with Laura, then Laura could attempt to prove that she was misled and state that if she was aware of John’s sterility, she would never have married him. However, if John was unaware that he was sterile, this is not a sufficient ground on which to set a marriage aside.[3]

Thirdly, if one of the parties was unduly influenced or placed under duress to marry the other party by any person including but not limited to the party to which they have been married, then there is no consensus and the marriage can be set aside.[4]

Fourthly, impotence, being the inability to have sexual intercourse, may be a valid ground for setting aside a marriage, but this will not be so if it was reasonably foreseeable at the time that the marriage was entered into that sexual intercourse wouldn’t take place based on factors such as age or illness.[5]

Fifthly, if the scenario above was altered to read that Laura was pregnant with another man’s baby at the time that she married John then he could apply to have the marriage set aside on the basis that this state of affairs would most likely result in an unhappy marriage. He may only make this application if he was unaware of the pregnancy at the time that they were married and if he has not waived his right to have the marriage annulled.[6]

Bibliography:

  • Robinson JA, Human S, Boshoff A, Smith BS, Carnelley M, Introduction to South African Family Law, 4th ed., 2009, 92 – 94.
  • Heaton J, South African Family Law 3rd ed., 2010, 37.
  • Marriage Act, 25 of 1961.

[1] Section 30(1) of the Marriage Act, 25 of 1961.

[2] Robinson JA, Human S, Boshoff A, Smith BS, Carnelley M, Introduction to South African Family Law, 4th ed. (2009) 92.

[3] Robinson JA, Introduction to South African Family Law, 4th ed. (2009) 93.

[4] Robinson JA, Introduction to South African Family Law, 4th ed. (2009) 93.

[5] Heaton J, South African Family Law, 3rd ed. (2010) 38; Robinson JA, Introduction to South African Family Law, 4th ed. (2009) 94.

[6] Heaton J, South African Family Law 3rd ed. (2010) 37; Robinson JA, Introduction to South African Family Law, 4th ed. (2009) 94.

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.

DIE GEMENEREGHUWELIK IN SUID-AFRIKA

Daar is geen gemenereghuwelik in die Suid-Afrikaanse reg nie. Mense glo dat deur vir ‘n aaneenlopende tydperk saam met iemand anders te woon, regte en verpligtinge tussen hulle gevestig word. Hierdie misverstand kom veral voor by jong volwassenes.

Die enigste manier om onder ons reg beskerming te geniet is deur ‘n universele vennootskapooreenkoms tussen die twee partye te sluit. So ‘n ooreenkoms gee duidelikheid oor die regte en verpligtinge van die partye. Hierdie ooreenkoms sal bepaal wat met die eiendom en bates van die partye gaan gebeur as hulle besluit om uitmekaar te gaan.  Hierdie universele vennootskapooreenkoms tussen die partye is nie afdwingbaar teenoor derdes nie. Slegs ‘n geldige huwelik is afdwingbaar teenoor derdes. Dit is belangrik om daarop te let dat vennote soms gesamentlik en afsonderlik aanspreeklik gehou kan word as hulle binne die bestek van die vennootskap optree. ‘n Ooreenkoms soos hierdie sal regtens bindend wees solank die bepalings nie immoreel of onwettig is nie. Sou daar geen ooreenkoms wees oor die ontbinding van ‘n universele vennootskapooreenkoms nie sal ‘n party slegs geregtig wees op die behoud van die bates wat hy of sy gekoop het en besit en sal hy of sy voorts geregtig wees daarop om proporsioneel die bates te deel volgens die bydrae wat elk tot die vennootskap gemaak het.

Om te bewys dat so ‘n ooreenkoms bestaan sal die partye die volgende moet kan aantoon:

  • Die doel van die vennootskap was om wins te maak.
  • Albei partye moes bygedra het tot die vennootskap.
  • Die bepalings moet tot voordeel wees van albei partye.
  • Die bepalings in die kontrak moet nie onregmatig wees nie.
  • Daar moet geldige wilsooreenstemming wees.
  • Daar is ‘n wedersydse voorneme om ‘n regtens geldige ooreenkoms te skep.

Waar daar geen uitdruklike ooreenkoms bestaan nie mag daar wel ‘n stilswyende ooreenkoms wees. So ‘n stilswyende ooreenkoms kan afgelei word as bevind word dat dit waarskynlik is dat sodanige ooreenkoms tussen die partye bereik is ten tye van hul saamwonery.

Omdat die bestaan van ‘n universele vennootskap moeilik is om te bewys is dit raadsaam om ‘n kontrak aan te gaan waarin uiteengesit word hoe daar met eiendom te werk gegaan moet word as die verhouding weens dood of om ‘n ander rede beëindig word. So ‘n kontrak sal ‘n mate van sekerheid vir die saamwoners skep oor die verdeling van bates en die afrekening van verpligtinge by beëindiging van die verhouding.

Sommige gevolge van ‘n verhouding waar daar nie ‘n geldige verbintenis tussen die partye bestaan nie, is:

  • Geen wedersydse verpligting om onderhoud te betaal nie.
  • Geen vrystelling van skenkingsbelasting in die geval van skenkings aan mekaar nie.
  • Geen voordeel ingevolge erfreg as een party intestaat sterf nie.
  • Geen reg op eiendom of bates van die saamwonende nie.
  • Geen wedersydse verpligting om by te dra tot huishoudelike noodsaaklikhede  nie.

Die ‘Domestic Partnership Bill’ van 2008 is steeds in sy formuleringstadium en daar sal gesien moet word hoe dit geïmplementeer word. In die huidige grondwetlike bedeling is dit onwaarskynlik dat ‘n vennoot in wanhoop gedompel sal word as die ‘Domestic Partnership Bill’ in berekening gebring word.

Hierdie is ‘n algemene inligtingstuk en moet gevolglik nie as regs- of ander professionele advies benut word nie. Geen aanspreeklikheid kan aanvaar word vir enige foute of weglatings of enige skade of verlies wat volg uit die gebruik van enige inligting hierin vervat nie. Kontak altyd u regsadviseur vir spesifieke en toegepaste advies.

THE POSITION OF SAME-SEX MARRIAGES IN SOUTH AFRICA

In December 2005 South Africa became the fifth country in the world and the first country on the African continent to recognise the rights of same-sex couples. The Constitutional Court case of Minister of Home Affairs vs Fourie is the ground-breaking decision which legalised homosexual marriages in South Africa.

The legal question in the Minister of Home Affairs vs Fourie was twofold:

Firstly, the court had to decide whether the fact that no provision was made for same-sex marriages in any statute, amounted to the denial of equal protection of the law and unfair discrimination by the state against homosexuals on the basis of their sexual orientation. Secondly, if such unfair discrimination were to be found, the court had to decide on an appropriate remedy.

Judgement

In a unanimous decision the Constitutional Court declared that the common law definition of marriage, and section 30(1) of the Marriage Act, which excluded same-sex marriages, were inconsistent with sections 9(1) and 9(3) and section 10 of the Constitution that dealt with the right to equality and the right to human dignity respectively.

The Court highlighted that South Africa has a multitude of family formations and as such it was held to be inappropriate to enforce any one particular form as the only socially and legally acceptable one. The Court emphasised a constitutional need to acknowledge the long history in South Africa of the marginalisation and persecution of gays and lesbians. Further, the Court acknowledged the lack of a comprehensive legal regulation of the family law rights of gays and lesbians.

It was found that excluding same-sex marriage is an indication that homosexuals are to be considered “outsiders”. In the words of Judge Sachs, writing on behalf of the majority: “To penalise people for being who and what they are, is profoundly disrespectful of the human personality and violators of equality. Equality means equal concern and respect across difference.” In effect the Court acknowledged a “right to be different”.

Religious arguments

Among the various arguments opposed to the issue at hand were inevitable contentions raised by religious institutions, which the Court respectfully heard. However, it was held that judges would be placed in an intolerable situation if they were called upon to construe religious texts and take sides on issues that have caused deep divisions within religious bodies. In the open and democratic society contemplated by the South African Constitution there must be a mutually respectful co-existence between the secular and the sacred. Furthermore, it was held that the recognition of same-sex marriages would in no way force religious institutions to accept or perform such marriages within their chosen belief, nor would the recognition deprive any religion or heterosexual couple from marrying within the tenets of their beliefs.

Civil Union Act 17 of 2006

The final finding of the Court was that the common law definition of marriage was inconsistent with the Constitution and invalid to the extent that it did not permit same-sex couples to enjoy the status and the benefits, coupled with responsibilities it accords to heterosexual couples. Furthermore, section 30(1) of the Marriage Act was declared to be invalid to the extent that it gave effect to the exclusion of same-sex marriages. In order to remedy the situation parliament was given 12 months to cure the defect through the implementation of legislation.

Ultimate relief came in the form of the Civil Union Act 17 of 2006, which makes provision for same-sex marriages and operates alongside the Marriage Act, such that any individual in South Africa may now conclude a marriage either in its traditional form (under the Marriage Act) or in the form of a civil union (under the Civil Union Act). Civil partnerships (or unions) are entirely the same as marriages insofar as legal consequences are concerned but just differ in name.

Conclusion

One of the most important lessons to be learnt from this case is in this statement made by the Court: “At issue is a need to affirm the very character of our society as one based on tolerance and mutual respect. The test of tolerance is not how one finds space for people with whom, and practices with which, one feels comfortable, but how one accommodates the expression of what is discomfiting.”

It goes without saying that the enactment of the new Act changes the discriminatory background of common law in respect of same-sex relationships. The consequences of a civil union are now the same as in a marriage of a heterosexual couple. It must be noted that an unregistered same-sex relationship is not governed by the provisions of this Act, and that the law allows for churches to refuse to perform civil unions.

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.