WHY ANTENUPTIAL CONTRACTS ARE IMPORTANT

Our law determines that if you get married without having entered into an antenuptial contract before the wedding, you are automatically married in community of property. Accordingly, the assets and liabilities of both spouses become part of their joint estate, with shared responsibilities and decision-making.

An antenuptial contract is an agreement signed and notarised before the marriage by parties who intend to marry each other out of community of property. In other words, each person wishes to retain ownership of their own assets as opposed to pooling the assets to form one communal estate.

The decision not to enter into an antenuptial contract may have serious financial consequences, both during the course of the marriage and in the event of its dissolution (whether on death or divorce). It is therefore advisable to obtain proper legal advice from an experienced family law attorney before entering into a marriage.

AMENDING ANTENUPTIAL CONTRACTS

Choosing a spouse is one of the most important choices you will ever make. Connected to this decision is another important consideration: choosing the right matrimonial property system. It may seem like a less romantic discussion than selecting your honeymoon destination, but it is no less important. Although, it is possible to amend your matrimonial regime postnuptially, it is also complicated, time-consuming, and costly.

Section 21(1) of the Matrimonial Property Act provides that spouses may apply jointly to the High Court for leave to change their matrimonial property system. The requirements for such an application are:

The applicant must provide sound reasons for the proposed change
Notice of the intended order must be given to all creditors at least two weeks prior to the matter being heard in court
The applicants must show convincing proof that no other person will be prejudiced by the proposed change
Notice of the change of matrimonial property system must be published in the Government Gazette and two local newspapers
The application must also be served on the Deeds Office

Even if all these requirements are met, the court has discretion whether or not to grant the application.

When spouses agree to terminate their marriage by way of divorce, the process does not always have to be as daunting – or costly – as it may appear. In an uncontested divorce, the spouse on whom the divorce summons is served (the defendant) does not defend the matter within the prescribed period, or the parties enter into a settlement agreement regulating the terms of the divorce.

On the hearing day, the party who initiated the process (the plaintiff) must appear in court to confirm the allegations made in the summons. If the judge is satisfied that the marriage has irretrievably broken down, a divorce order will be granted, incorporating the settlement agreement (if there is one).

The process of  finalising a divorce on an uncontested basis is thus quicker and more cost-effective than the litigation involved with a contested divorce.

In order to reach an agreement on the terms of the divorce, the spouses must, amongst other things, take the following into account:

• If there are minor children involved: with whom will they live post-divorce? What arrangements will be made to ensure acceptable contact between the minor children and the other spouse? And what arrangements will be made with regard to child maintenance?
• Does one of the spouses require spousal maintenance, and if so, to what extent and for how long?
• How will the assets and liabilities be dealt with? Spouses may divide their assets and liabilities as they deem fit, and the division may deviate from the distribution required in terms of their marriage regime provided that the terms of the settlement are enforceable, legal, and not against public policy.

After a proper consultation with you and after obtaining the necessary documentation, your divorce attorney will contact your spouse or their  legal representative to commence settlement negotiations, if it is appropriate, after careful consideration of the facts. In this regard, your attorney’s guidance is fundamental to ensure a fair and workable solution for you, your spouse, and your children.

Reaching a settlement agreement often takes time as it must address your immediate future needs as well as long-term concerns. As soon as a settlement agreement is reached, your attorney will request a hearing date from the court and the matter will be uncontested.

If, however, you and your spouse still disagree on the terms of your divorce settlement, then the divorce action is ‘contested’ and may lead to a trial. A trial may span several days in court to allow witnesses for both sides to testify in support of the relevant spouse’s claims. After hearing and assessing the evidence, the court will make a finding for the parties.

Unfortunately, running a matter to trial is a costly exercise and it could take several years before your matter is heard in court due to all the procedural requirements and the backlog of the courts.

HOW IS CHILD MAINTENANCE CALCULATED?

The duty to support a child rests on both parents, irrespective of whether the child was  adopted or born out of wedlock. Parents’ maintenance obligations are determined by taking into account the reasonable cost of the child and apportioning such costs between the parents according to their respective means. At a minimum, the reasonable costs of a child include the costs of the child’s basic needs, such as food, clothing, accommodation, medical care, and education. The reasonable costs of the child can, however, entail more than the aforementioned necessities, depending on the parents’ standard of living. There is no ‘standard maintenance’ that a parent must pay nor is there a maintenance calculator that can be used to determine what amount is payable. The amount of maintenance payable by each parent is determined on a case-by-case basis.

HOW TO APPLY FOR A MAINTENANCE ORDER

Maintenance Courts were created with the purpose of dealing with all maintenance-related matters, such as applications for maintenance orders, varying existing maintenance orders, and enforcing maintenance orders in the event of non-payment. A person approaching the Maintenance Court for assistance is not required to have a legal representative present but may choose to obtain legal advice prior to doing so, or appoint a legal representative to assist with the entire process.

In order to apply for a maintenance order at the Maintenance Court, one  must complete the standard maintenance application form. The form may be found online or at any Maintenance Court. The clerk of the Maintenance Court or a legal representative should be able to assist with the completion of the application form and the accompanying expense schedule. Prior to approaching the Maintenance Court, it is useful for the applicant to compile a list of their monthly income and expenses (including the monthly expenses of the child) to ensure that the correct information is contained in the application. The following supporting documentation must be submitted to the Maintenance Court with the application form:

•  Three months’ salary slips for the applicant;
• Proof of the applicant’s monthly expenses, such as grocery slips and medical bills;
• A certified copy of the applicant’s identity document;
• A certified copy of the child’s birth certificate (if maintenance is sought for a child);
• Three months’ bank statements for the applicant; and
• Proof of the applicant’s residential or work address, not older than three months.

Once the application is submitted, the Maintenance Court will send a directive to the applicant and the person against an order for maintenance is sought (the respondent) to inform both parties of the date on which they must appear in the Maintenance Court to commence the process.

HOW TO ENFORCE A MAINTENANCE ORDER
When a person who is ordered to pay maintenance fails or refuses to make such payment for a period of 10 days from the date on which the payment is due, the person in whose favour the order is made may approach the Maintenance Court for assistance with the recovery of the arrear maintenance. The Maintenance Court may issue a warrant of execution, an order for the attachment of emoluments (salary or wages), or an order for the attachment of debt to recover the arrear maintenance.

The standard enforcement application may be obtained online or at a Maintenance Court. This form, together with an affidavit from the applicant setting out the maintenance payments that are due, the payments that were received, and the arrear maintenance, must be submitted to the Maintenance Court for the enforcement of an order. If it is the first application submitted at the Maintenance Court, the following documents must also be provided:

• • A certified copy of the applicant’s identity document;
  • A certified copy of the child’s birth certificate (if maintenance is sought for a child);
  • Bank statements of the applicant for the period that the arrear maintenance is claimed;
  • Proof of the applicant’s residential or work address, not older than 3 months; and
  • The existing maintenance order or divorce order.

Failure to pay maintenance is a criminal offence and a criminal complaint may be laid against an alleged offender. This complaint is also submitted to the Maintenance Court together with the aforementioned enforcement application.

HOW TO VARY A MAINTENANCE ORDER

Any party to a maintenance order may apply for a variation of that order, provided that good cause can be shown to justify such variation. Generally, ‘good cause’ constitutes proof that one of the parents’ financial positions drastically changed since the original order was granted or that the reasonable needs of the child changed. To apply for the variation of a maintenance order, the standard application for the ‘Substitution or Discharge of an Existing Maintenance Order’ must be completed and submitted to the clerk of the Maintenance Court. The form can be found online or at a Maintenance Court. The application form must be accompanied by a copy of the current maintenance order (or divorce order) and the supporting documents, unless the supporting documents are already in the Maintenance Court file:

• • • Three months’ salary slips for the applicant;
    • A certified copy of the applicant’s identity document;
    • A certified copy of the child’s birth certificate (if applicable);
    • Three months’ bank statements for the applicant;
    • Proof of the applicant’s residential or work address, not older than three months; and
    • The existing maintenance order or divorce order.

The onus is on the applicant to show good cause for the variation of the current order.

A parenting plan is a written agreement, which sets out clear parental rights and responsibilities in respect of the minor children, usually following a divorce. A parenting plan may  be drawn up with the assistance of  a family law attorney to address where and with whom the child/children will reside, the contact enjoyed by each parent/guardian, the extent of each parent/guardian’s decision-making, which dispute resolution mechanisms should be implemented, and any other issue regarding the child that the parents/guardians wish to regulate.

The Children’s Act requires co-holders of parental responsibilities and rights to attempt to agree on the terms of a parenting plan before either of them seek the intervention of the court. Once the parties are in agreement, it is highly advisable to make the parenting plan an order of court.

VARIATION OF CARE AND CONTACT ARRANGEMENTS

A parenting plan is not cast in stone and may need to be reviewed and amended from time to time as the child/children grow older. The care and contact arrangements in respect of a minor child set out in a divorce order or a parenting plan that has been made an order of court cannot be unilaterally altered by one parent. Such an order may only be amended or terminated by agreement between the parties or on application to court by a person who has parental responsibilities and rights in respect of the child, by the child acting with leave of the court, or by a person acting in the child’s interest.

The court will only vary the care and contact arrangements if it is in the child’s best interest to do so. In determining what would serve the child’s best interest, a child who is of such an age, maturity, and stage of development to participate in decisions affecting them may participate in the process so that their opinions are given due consideration.

WHAT CONSTITUTES DOMESTIC VIOLENCE AND HARASSMENT?

Domestic violence and harassment are two distinct concepts. Domestic violence refers to physical abuse, sexual abuse, emotional, verbal, and psychological abuse, intimidation, harassment, stalking, damage to property, entry into the complainant’s residence without consent, where the parties do not share the same residence, or any other controlling or abusive behaviour towards the complainant, which harms, or may cause imminent harm to the safety, health, or well-being of the complainant. Conversely, harassment occurs where the respondent engages in a pattern of conduct that induces fear of harm, including repeatedly watching, or loitering outside of or near the  complainant’s home, workplace, or place of study, repeatedly making telephone calls or inducing another person to make telephone calls to the complainant, whether or not conversation ensues, repeatedly sending, delivering, or causing the delivery of letters, packages, electronic mail or other objects to the complainant, or making unwelcome sexual advances toward the complainant.

HOW TO APPLY FOR A PROTECTION ORDER

The procedure for obtaining a protection order against domestic violence is regulated by the Domestic Violence Act  and obtaining a protection order against harassment is regulated by the Protection from Harassment Act. A complainant who has suffered an act of domestic violence or harassment, may apply for a protection order in the area in which they live by completing the standard application forms found online or at any Magistrate’s Court. The form must be accompanied by an affidavit written by the complainant stating the facts upon which the request for an order is based along with any proof of the alleged domestic violence or harassment, if available. Anyone may apply for a protection order and does not need to appoint a legal representative to assist them with this process. However, it is advisable to obtain the advice of an experienced family law attorney before approaching the court.

Recently, it has become popular for parties getting divorced to mediate and settle the divorce.
Mediation is a process whereby an impartial third party assists the parties getting divorced in resolving conflict and reaching a settlement using specialised negotiation techniques. A mediator helps disputing parties communicate effectively in order to reach an agreement. All disputing parties must actively and meaningfully participate in the mediation. Mediation, if successful, is more cost-effective than litigation – and is private and confidential. The parties are also more likely to preserve a cordial relationship after the agreement is reached.

Importantly, a mediator does not make a decision and impose said decision on the disputing parties. Instead, a mediator guides the parties in reaching a settlement. The mediator allows the parties to voice their desires while listening to and, if necessary, articulating and restating what each party wants in terms that are more neutral. A good mediator aims to defuse tension between the parties and ensure that all communication is productive and respectful. Sometimes, both a family law attorney and trained mental health practitioner will co-mediate a matter where it is beneficial to help the parties settle a dispute effectively. The mediators assist the parties in drafting a consent paper as well as a parenting plan, if applicable.

It is advisable that once the parties reach a settlement, a consent paper and/or parenting plan is drafted and said agreement is made an order of court. This ensures that the parties can rely on court-sanctioned mechanisms to enforce the agreement if either party does not comply with its terms.

Many people choose to enter into a permanent relationship with another person (whether of the same or opposite sex) with the intention of living together as married persons, without actually getting married. Unfortunately, limited legal protection is afforded to partners in such relationships, and where the relationship terminates, one partner may be gravely disadvantaged by the lack of a prior agreement regulating  assets, maintenance, and the like.

The only way to ensure that both parties are protected in the event that the relationship breaks down, is for them to enter into an agreement in which they regulate their financial and proprietary affairs. This agreement, which is often referred to as a ‘domestic partnership agreement’ or ‘cohabitation agreement’, records the expectations that each partner may have regarding their financial contribution to the joint household and assets acquired individually or jointly. This agreement provides the parties with an opportunity to iron out concerns that may otherwise arise in future, such as the division of movable and or immovable property and maintenance for either party.

A cohabitation agreement, however, cannot contain any provisions that are illegal or contrary to public policy. The agreement is also only enforceable between the parties thereto and is not binding on third parties, as in the case of civil marriages.