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Category: Marriage (page 1 of 2)

Tying the knot, no matter your beliefs

January 25, 2022 / / Comments Off on Tying the knot, no matter your beliefs

Post-1994, the lawmakers in South Africa have attempted to be inclusive of religion and gender, by passing the Recognition of Customary Marriages Act 120 of 1998, allowing for the registration of marriages under African customary law as well as the Civil Union Act, 2006, for the solemnisation of a civil partnership between two people regardless of gender.

Albeit there are currently three different types of Acts that govern marriages in South Africa, the Marriage Act 25 of 1961, the Recognition of Customary Marriages Act, 1998 and the Civil Union Act 17 of 2006, there are still inequalities in these Acts, as Hindu, Muslim and Jewish marriages are still not legally recognised. The fact that these religious marriages are not legally recognised is tantamount to saying that these marriages are inferior, which infringes on one’s rights to dignity, religion, and equality. The fact that Hindu, Muslim, and Jewish marriages are in the minority, does not make it right not to recognise the marriages legally, as the obstacles arise when the husband and wife want to divorce or to benefit from upon death of the husband. In a typical Muslim marriage, when the parties divorce, the wife has no right to her share in her husband’s estate, she has no legal protection in the South African law and may be left impoverished with no money to look after herself and/or the children born of the marriage. The wife is excluded from sharing in benefits such as pension, maintenance and rights to claim the marital home.

With the above at the forefront and recognising South Africa has a diverse population, that it is not possible to have laws governing every single religion, the Minister of the Department of Home Affairs is in the process of developing a new policy which will close the gaps of inequalities in the current Marriage Acts and have all-encompassing single legislation.

This new single legislation is aimed at South Africans of different sexual orientation, religious and cultural affiliations to conclude legal marriages and to be treated equally and to be given the due respect regardless of religion, customary, gender beliefs, aligned with Section 15 of the Constitution. It will further address and introduce stringent rules around the age of marriage including the alignment of the age of majority in the marriage legislation to the Children’s Act. It will align the marriage, matrimonial property, and divorce legislation to address matrimonial property and intestate succession matters in the event of the marriage dissolution. It will deal with the union and registration of marriages that involve foreign nationals and customary marriages that involve non-citizens, in particular citizens of our neighbouring countries.

Our country is twenty-six years post-apartheid, we are in the twenty-first century, we have a progressive Constitution, new generations are being born, the fourth industrial revolution is upon us and yet some of our laws are stuck in the apartheid era. Women regardless of their religion, race and beliefs are crying out to be heard and to be recognised as equals.
The new proposed Bill is to be submitted to cabinet in March 2021.

Reference List:

• Marriage Act 25 of 1961
• Recognition of Customary Marriages Act 120 of 1998
• Civil Union Act 17 of 2006
• 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)

Updating marriage legislation in South Africa

January 12, 2022 / / Comments Off on Updating marriage legislation in South Africa

Post-1994, the lawmakers in South Africa have attempted to be inclusive of religion and gender, by passing the Recognition of Customary Marriages Act 120 of 1998, allowing for the registration of marriages under African customary law as well as the Civil Union Act, 2006, for the solemnisation of a civil partnership between two people regardless of gender.

Albeit, there are currently three different types of Acts that govern marriages in South Africa, the Marriage Act 25 of 1961, the Recognition of Customary Marriages Act, 1998 and the Civil Union Act 17 of 2006, there are still inequalities in these Acts, as Hindu, Muslim and Jewish marriages are still not legally recognised. The fact that these religious marriages are not legally recognised is tantamount to saying that these marriages are inferior, which infringes on one’s rights to dignity, religion, and equality. The fact that Hindu, Muslim, and Jewish marriages are in the minority, does not make it right not to recognise the marriages legally, as the obstacles arise when the husband and wife want to divorce or to benefit from upon death of the husband. In a typical Muslim marriage, when the parties divorce, the wife has no right to her share in her husband’s estate, she has no legal protection in the South African law and may be left impoverished with no money to look after herself and/or the children born of the marriage. The wife is excluded from sharing in benefits such as pension, maintenance and rights to claim the marital home.

With the above at the forefront and recognising South Africa has a diverse population, that it is not possible to have laws governing every single religion, the Minister of the Department of Home Affairs is in the process of developing a new policy which will close the gaps of inequalities in the current Marriage Acts and have all-encompassing single legislation.

This new single legislation is aimed at South Africans of different sexual orientation, religious and cultural affiliations to conclude legal marriages and to be treated equally and to be given the due respect regardless of religion, customary, gender beliefs, aligned with Section 15 of the Constitution. It will further address and introduce stringent rules around the age of marriage including the alignment of the age of majority in the marriage legislation to the Children’s Act. It will align the marriage, matrimonial property, and divorce legislation to address matrimonial property and intestate succession matters in the event of the marriage dissolution. It will deal with the union and registration of marriages that involve foreign nationals and customary marriages that involve non-citizens, in particular citizens of our neighbouring countries.

Our country is twenty-six years post-apartheid, we are in the twenty-first century, we have a progressive Constitution, new generations are being born, the fourth industrial revolution is upon us and yet some of our laws are stuck in the apartheid era. Women regardless of their religion, race and beliefs are crying out to be heard and to be recognised as equals.
The new proposed Bill is to be submitted to cabinet in March 2021.

Reference List:

  • Marriage Act 25 of 1961
  • Recognition of Customary Marriages Act 120 of 1998
  • Civil Union Act 17 of 2006
  • 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)

High court reverses the discriminatory Black Marriage Law

October 26, 2021 / / Comments Off on High court reverses the discriminatory Black Marriage Law

In the Edelstein judgment, which was handed down in 1952, the Appellate Division (as it then was) held that there is a rebuttable presumption that all civil marriages are deemed to be in community of property by default. In other words, should a couple not conclude an antenuptial contract before they get married, their marriage will automatically be in community of property.

However, the Appellate Division went on to hold that civil marriages in terms of the Black Administration Act 38 of 1927 (an Act that is no longer in force in our law) were an exception to this rule, as marriages in terms of the Black Administration Act were out of community of property by default.

On 2 December 1988, the Marriage and Matrimonial Property Amendment Act 3 of 1988 repealed section 22(6) of the Black Administration Act, and section 21 was inserted into the Matrimonial Property Act 88 of 1984.

Section 21(2)(a) of the Matrimonial Property Act held that spouses who entered into an out of community of property marriage before 2 December 1988, in terms of section 22(6) of the Black Administration Act, may cause the Matrimonial Property Act to apply to their marriage by the execution and registration in a registry within two years after the commencement of a notarial contract to that effect.

In other words, section 21(2)(a) gave persons married in terms of the Black Administration Act prior to 2 December 1988, a two-year grace period to make the Matrimonial Property Act applicable to their marriage. If the Matrimonial Property Act was not made applicable to their marriage within the two-year grace period, their marriage remained out of community of property.

In essence, the effect of section 21(2)(a) of the Matrimonial Property Act was that if persons were married in terms of the Black Administration Act before 2 December 1988 and did not change their marital regime to be one of in community of property, their marriage would remain out of community of property.

In a nutshell, after 2 December 1988, any civil marriage entered into without the signing of an antenuptial contract before the marriage, would automatically be in community of property.

On 24 January 2020, the KwaZulu-Natal High Court held that section 21(2)(a) of the Matrimonial Property Act does not pass constitutional muster, in that it discriminates unfairly on the grounds of gender and race.

On 14 April 2021, the Constitutional Court confirmed the High Court’s order and held that section 21(2)(a) of the Matrimonial Property Act is unconstitutional and invalid for perpetuating the discrimination created by section 22(6).

The Constitutional Court ordered that all civil marriages prior to 2 December 1988 are henceforth declared to be in community of property. The Constitutional Court went on to hold that a couple married in terms of the Black Administration Act who does not wish to be married in community of property and wishes for their marriage to remain out of community of property, essentially “opting out” of this order, is required to notify the Director-General of the Department of Home Affairs in writing accordingly.

The Constitutional Court further provided that in the event of a disagreement between spouses in a marriage that becomes a marriage in community of property in terms of the order, either spouse may apply to the High Court for an order that the marriage shall not be in community of property.

The evidence adduced in the Constitutional Court was that there could be more than 400 000 marriages that are affected by the order. The effects of this order are therefore far-reaching.

Reference List:

  • Edelstein v Edelstein NO and Others 1952 (3) SA 1 (A)
  • Black Administration Act 38 of 1927
  • Matrimonial Property Act 88 of 1984
  • Marriage and Matrimonial Property Amendment Act 3 of 1988
  • Sithole and Another v Sithole and Another 2020 ZAKZDHC 1
  • Sithole v Sithole and Another 2021 ZACC 7

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)

Are Muslim marriages recognised in SA?

September 13, 2019 / / Comments Off on Are Muslim marriages recognised in SA?

All marriages entered in terms of Islamic law, are currently not recognised as valid marriages.

For a valid marriage to be recognised in South Africa one must get married in terms of civil law which is regulated by the Marriage Act 25 of 1961 or two people can enter into a civil union partnership under the Civil Union Act 17 of 2006.

Everyone has the right to freedom of religion, belief and opinion. The Constitution allows for legislation to recognise marriages that are entered under any tradition or religion and there are certain rights and obligations that arise from a civil marriage.

Couples married in terms of Islamic law will not be able to benefit from these rights and therefore this non-recognition and non-regulation violate the rights of women and children when it comes to divorces as well as the law of succession. Leaving them unprotected and in a vulnerable state.

The law has developed to some extent over the years and a surviving spouse as defined in the Law of Intestate Succession includes a spouse in a Muslim marriage, therefore he or she can inherit a portion of the estate of the deceased spouse.

Dissolution of an Islamic marriage which is not registered under civil law would have the same effect as the dissolution of a marriage out of community of property with no accrual or a civil union without a contract. One party would not have any lawful claim to institute against the estate of the other upon divorce as there was no valid marriage and therefore the Divorce Act 70 of 1979 (“Divorce Act”) will not be applicable.

The Women’s League Centre Trust (“WLCT”) brought an application in the Cape High Court to which a full bench heard the case. The WLCT prayed for a Bill to provide for the recognition of Muslim marriages as a valid marriage for all purposes in South Africa and to make an order that the government failed to fulfil their constitutional obligation to protect, promote and fulfil various constitutional rights. The Judgment was handed down and it makes provision for legislation to be enacted within 24 months of the date of Judgment.

The new legislation will recognise marriages solemnised in accordance with Sharia law as valid marriages and to regulate the consequences of such recognition. It was founded in the Judgment that the President, Cabinet and Parliament failed in their constitutional obligation as set out above.

If legislation is not enacted within 24 months of the date of Judgment, a union validly concluded as a marriage in terms of Sharia law and which is still in force when the order becomes operative, may be dissolved in accordance with the Divorce Act and all the provisions of that Act will be applicable. It will not apply to marriages that were validly terminated in terms of Sharia law prior to the order becoming operative.

It is also ordered that in the case of a husband who is a spouse in more than one Muslim marriage, the court will consider all relevant factors. This includes any contract or agreement and must make any order that it deems just and may order that any person who, in the court’s opinion, has a sufficient interest in the matter, be joined in the proceedings.

This is a major step in family law as women and children will finally have the protection they need.

 

Reference List:

Women’s Legal Centre Trust v President of the Republic of South Africa and Others, Faro v Bingham N.O. and Others, Esau v Esau and Others (22481/2014, 4466/2013, 13877/2015) [2018] ZAWCHC 109; [2018] 4 All SA 551 (WCC); 2018 (6) SA 598 (WCC) (31 August 2018)

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)

Maintenance of surviving spouse

April 30, 2019 / / Comments Off on Maintenance of surviving spouse

The idea of freedom of testation is a core value of South African law and enjoys wide protection. The Maintenance of Surviving Spouses Act, 27 of 1990, was drafted to give a spouse legal recourse if disinherited or negatively affected by the wishes of the testator, or in the case of intestate succession. The goal of this piece of legislation is to ensure a person is not left destitute after the death of their spouse.

Who can claim?

The definition of the Act describes a surviving spouse as follows:

“survivor means the surviving spouse in a marriage dissolved by death.”

What can be claimed?

Section 2(1) of the Act determines as follows:

“If a marriage is dissolved by death after the commencement of this Act the survivor shall have a claim against the estate of the deceased spouse for the provision of her reasonable maintenance needs until her death or remarriage in so far as she is not able to provide therefor from her own means and earnings.

What is the definition of own means?

“own means” include any money or property or other financial benefit accruing to the survivor in terms of the matrimonial property law or the law of succession or otherwise at the death of the deceased spouse.”

What is reasonable maintenance means?

Section 3 of the Act determines as follows:

“Determination of reasonable maintenance needs – In the determination of the reasonable maintenance needs of the survivor, the following factors shall be taken into account in addition to any other factor which should be taken into account:

  • The amount of the estate of the deceased spouse available for distribution to heirs and legatees;
  • The existing and expected means, earning capacity, financial needs and obligations of the survivor and the subsistence of the marriage; and
  • The standard of living of the survivor during the subsistence of the marriage and age at the death of the deceased spouse.”

The executor of the deceased estate has to take the requirements above into account when determining the amount of the claim against the estate.

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)

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

March 27, 2019 / / Comments Off on 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)

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

October 26, 2018 / / Comments Off on 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)

THE RIGHTS OF A DOMESTIC PARTNERSHIP

July 6, 2018 / / Comments Off on THE RIGHTS OF A DOMESTIC PARTNERSHIP

Domestic partnerships, also known as cohabitation relationships, are becoming more common in our modern day society, and it therefore becomes ever more important for parties to understand the different legal implications of being married and merely cohabiting. Parties to a domestic partnership do not enjoy the same legal protection as married couples upon termination of the partnership with regards to maintenance claims, property division or succession.

In the South African legal system, there are three forms of fully legally recognised unions, namely marriages, civil unions and customary marriages. However, in our modern society it is becoming more common for couples to live together in domestic partnerships, without ever getting married. It is important for parties to these partnerships to realise that little to no legal protection is provided upon the termination of such a relationship, either by agreement or due to the death of either party.

The general rule for domestic partnerships was laid down in Butters v Mncora:A domestic partnership does not give rise to any special legal consequences, such as that of a marriage or a civil union.

In 2006, the South African Law Reform Commission acknowledged the need for legal protection to be granted and drafted the “Draft Domestic Partnership Bill.” Parliament has however shown no urgency to pass the Draft Bill, and the legal position in South Africa thus remains unchanged.

Maintenance claims

The Maintenance of Surviving Spouses Act entitles a surviving spouse of a marriage, and a surviving civil partner of a civil union, to institute a claim for maintenance against the estate of the deceased. This provides for a claim of any reasonable maintenance needs that they cannot provide for by their own means, until such time that they remarry or pass away.

Parties of a domestic partnership should note that this protection does not extend to domestic partnerships, and thus no such maintenance claim can be made. Should the Domestic Partnership Bill be enacted in the future, section 28 will offer such an opportunity to claim for maintenance. However, at this stage no such protection is afforded.

Property Division

Parties to a marriage have a choice of two matrimonial property regimes.  Simply put this is to be married either in community of property, or out of community of property. Each property system will have different consequences flowing from it either by law or contractually due to an Antenuptial contract. However, no property regimes exist for domestic partnerships, and thus no joint estate can exist as it would in a marriage.

The Supreme Court of Appeal has recently portrayed an increased willingness to extend contract-based legal protection to parties of a domestic partnerships. Contracts can be concluded by parties in domestic partnerships to govern aspects such as division of property upon termination of the partnership. Although these types of contracts are legally enforceable, they may give rise to potential problems. The contract may be concluded solely for the benefit of one of the parties, or circumstances may occur that the parties had not anticipated when the contract was drawn up. In practice however, it seldom happens that parties to a domestic partnership actually enter into a contract.  This may be due to a mutual decision, or due to the fact that parties did not foresee a need for such contract.

Intestate Succession

In terms of the Intestate Succession Act, a spouse of a marriage will inherit if the deceased spouse dies without making a will. This has been extended to include partners of a civil union and customary marriage. Provision for inheritance by a partner of a permanent same-sex partnership has also been made in terms of this Act. This has however not been extended to the termination of heterosexual domestic partnerships, and thus no claim can be made in terms of the Intestate Succession Act on the estate of a deceased partner of a domestic partnership.

Couples living together in cohabitation relationships do not have similar rights to institute claims against the other party upon termination as they would have in a marriage or civil union. This could leave financially dependent parties in unanticipated vulnerable positions.

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)

Reference List:

  • Butters v Mncora 2012 (4) SA 1 (SCA).
  • Barratt A “Private contract or automatic court discretion? Current trends in legal regulation of permanent life-partnerships” (2015) 26 Stellenbosch Law Review 110-131.
  • Clark B “Families and domestic partnerships” (2002) 119 South African Law Journal 634-648.
  • Intestate Succession Act 81 of 1987.
  • Maintenance of Surviving Spouse Act 27 of 1990.
  • Skeleton A (ed) Family Law in South Africa (2010), Cape Town: Oxford University Press.

The Domestic Partnership bill in GG 30663 of 14-01-2008.

CUSTOMARY MARRIAGES AND COMMUNITY OF PROPERTY

August 21, 2017 / / Comments Off on CUSTOMARY MARRIAGES AND COMMUNITY OF PROPERTY

Since the promulgation of the Recognition of Customary Marriages Act, 120 of 1998, the position has changed in that customary marriages are now recognised in our law. A marriage that is valid in terms of customary law and was in existence at the time of commencement of the Act, is for all purposes recognised as a marriage in terms of the Act. In the case of a person being in more than one customary marriage, all valid customary marriages entered into before the commencement of the Act, are for all purposes recognised as valid marriages in terms of the Act.

This also means that customary marriages will fall under community of property. For a customary marriage not to fall under community of property, an ante nuptial contract must be in place.

What is a customary marriage?

  • It is a marriage entered into between a man and a woman, negotiated and celebrated according to the prevailing customary law in their community.
  • A customary marriage entered into before 15 November 2000 is recognised as a valid marriage, however, it will be regulated in terms of the specific traditions and customs applicable at the time the marriage was entered into.
  • A customary marriage entered into after 15 November 2000 is recognised as a valid marriage and will receive full legal protection irrespective of whether it is monogamous or polygamous.
  • A monogamous customary marriage will automatically be in community of property, unless it is stipulated otherwise in an ante nuptial contract.

In a polygamous marriage, the husband must apply to the High Court for permission to enter into such a marriage and provide the court with a written contract stating how the property in the marriages will be regulated (to protect the property interests of both the existing and prospective spouses).

Registering Customary Marriages

Customary marriages must be registered within three months of taking place. This can be done at any office of the Department of Home Affairs or through a designated traditional leader in areas where there are no Home Affairs offices.

The following people should present themselves at either a Home Affairs office or a traditional leader in order to register a customary marriage:

  • The two spouses (with copies of their valid identity books and a lobola agreement, if available).
  • At least one witness from the bride’s family.
  • At least one witness from the groom’s family.
  • And/or the representative of each of the families.

In the event that the spouses were minors (or one was a minor) at the time of the customary marriage, the parents should also be present when the request to register the marriage is made.

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)

Reference:

https://www.legalwise.co.za/help-yourself/quicklaw-guides/marriages

https://www.westerncape.gov.za/service/customary-marriages

http://www.legalcity.net/Index.cfm?fuseaction=RIGHTS.article&ArticleID=5331587

ANTENUPTIAL CONTRACTS: WITH OR WITHOUT THE ACCRUAL SYSTEM?

June 30, 2017 / / Comments Off on ANTENUPTIAL CONTRACTS: WITH OR WITHOUT THE ACCRUAL SYSTEM?

If you don’t have an ANC, you are automatically married in community of property. This means that there is one estate between a husband and a wife. Everything is shared equally between spouses, which includes debts. However, with an antenuptial contract, the estates of each spouse remain separate. The difference comes with the addition of the accrual system.

What is an antenuptial contract?

An ANC determines whether a marriage will be out of community of property with/without the accrual system. It must be signed by the persons entering into a marriage, two witnesses and a notary public, and it must be registered in the Deeds Registries office within the prescribed time period.

What is the accrual system?

The accrual system is a formula that is used to calculate how much the spouse with the larger estate must pay the smaller estate if the marriage comes to an end through death or divorce. Only property acquired during the marriage can be considered when calculating the accrual.

  • If there is no accrual system, then the spouses have their own estates which contain property and debts acquired prior to and during the marriage – nothing is shared.
  • The underlying philosophy of the accrual system is that each spouse is entitled to take out the asset value that he or she brought into the marriage, and then they share what they have built up together.
  • The accrual system only applies if the marriage ends – either by divorce or death. You cannot claim your share of the joint estate while you’re still married.

Whether or not you decide to include the accrual system in your antenuptial contract depends on the couple. Some may see the relevance while others do not.

It’s important that both of you consult the lawyer who’s drawing up the ANC because both spouses need to be fully aware of the consequences. It’s also important to see someone who’s neutral, and who can mediate what goes into your ANC, because emotions can cloud your judgment, and it can be a stressful negotiation if one spouse has a lot of assets and the other doesn’t, for example.

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.biznews.com/thought-leaders/2014/11/09/nine-things-need-know-antenuptial-contracts/

https://www.legalwise.co.za/help-yourself/quicklaw-guides/marriages/

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