Divorce, Child and Family law
Family Law encompasses a wide range of legal matters that require the assistance of a skilled attorney. Our experienced Family and Divorce Law team is able to deal with any family law issues that arise, including:
• Antenuptial contracts
• Applications for interim support and/or contact arrangements pending a divorce
• Applications for the change of spouses’ matrimonial property regime
• Applications for the recognition of foreign divorce orders
• Applications regarding parental rights and responsibilities
• Child abduction
• Cohabitation agreements
• Contested and uncontested divorces
• Divorce mediation
• Domestic violence and harassment applications (Protection Orders)
• Enforcement of maintenance order and recovery of arrear maintenance
• Maintenance application
• Parenting plans
• Surrogacy agreements
• Variations of maintenance Agreements
At STBB we believe that it is vital – to ensure a smooth, quick and uncomplicated resolution of family law issues – to ensure that you have a skilled attorney to represent you in matters concerning your divorce, as there are many consequences of divorce that you may not be aware of or may underestimate. Areas that are often problematic include obtaining immediate payment from pension funds, ongoing contact and access arrangements in respect of minors, and updating of maintenance agreements.
Furthermore, other areas where assistance may be required include spousal abuse and domestic violence. We are able to assist with protective orders and advise on the process involved.
We are also able to provide advice and assistance with contracts for adoption and surrogacy and assist with parenting plans.
We can assist and provide valuable information and efficient assistance with all of the above.
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.
Simply agreeing to the contrary with a spouse may constitute a valid agreement between the spouses, but will not be enforceable against third parties.
If spouses want to address the risk of exposure to each other’s long term financial well-being, it is necessary to do so before the marriage, in an antenuptial contract.
An antenuptial contract is an agreement signed 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 his or her 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 consequences, both during the course of the marriage and in the event of its dissolution (whether on death or divorce) and it is therefore advisable to obtain proper advice well before entering into a marriage.
AMENDING ANTENUPTIAL CONTRACTS
Choosing a spouse is one of the most important choices you will ever make; but you have another very important choice to make – the right matrimonial property system. It may seem like a less romantic choice than say, your honeymoon destination, but it is no less important as, while changing it postnuptially is absolutely possible, 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 Deeds Office.
Even if all these requirements are met, the court has a discretion whether or not to grant such an application and may still refuse to do so.
BREACH OF ENGAGEMENT
Historically, the termination of an engagement could give rise to a claim for damages (actual damages and prospective damages) based on breach of contract, if there was no just cause for ending the engagement.
Furthermore, it can give rise to a claim for sentimental damages based on actio iniuriarum. Sentimental damages requires that the party who breached the engagement acted wrongfully and that the reputation of the other party was tarnished.
In 2010, the case of Van Jaarsveld v Bridges addressed a claim for breach of promise to marry, and the effects thereof. The judge commented that he believes the time has come to recognise that the historic approach to an engagement is outdated, the law relating to breach of promise must be reconsidered and it must be tested against the prevailing norms of society. Due to the persuasive comments of the aforementioned judgment, it will difficult to succeed with a claim for prospective losses due to breach of promise to marry. In separate judgments in the Western Cape High Court and the South Gauteng High Court, it was found that a claim for prospective damages based on breach of promise is no longer permissible.
In order to be successful with a claim for actual damages, you would have to show that the damages suffered where a direct result of the breach of promise and not merely due to breach of a separate agreement reached between the parties during their engagement.
This is South Africa’s default matrimonial property regime and it means that everything that was brought into the marriage or acquired during the marriage automatically falls in your joint estate. There are certain exceptions though, such as inheritances, which may be specifically excluded in terms of the will of the deceased.
A person married in community of property will require his or her spouse’s consent prior to certain transactions being concluded. For example, in terms of the Matrimonial Property Act, a spouse married in community of property shall not without the written consent of the other spouse alienate or mortgage any immovable property forming part of the joint estate or bind himself as surety.
Not all transactions require written consent from the other spouse. For example, when a you pledge or otherwise burden any furniture or other effects of the common household forming part of the joint estate or receive any money due or accruing to that other spouse or the joint estate by way of remuneration, earnings, bonus, allowance, royalty, pension or gratuity, the Matrimonial Property Act requires the other spouse’s consent, but such consent does not have to be in writing.
MARRIAGE OUT OF COMMUNITY OF PROPERTY WITHOUT THE ACCRUAL SYSTEM
If persons enter into a marriage out of community of property, their estates remain separate throughout the marriage. There are two variations of this, being a marriage out of community of property with accrual, and one without accrual. In both these variations, the spouses have contractual independence.
This contract is often understood as “What’s his is his, and what’s mine is mine”, which is almost correct. It is however closer to the truth to explain it as “you keep what you brought into the marriage, and you keep what you earn during the marriage”. More importantly however, is that the marriage partners have contractual independence. They do not need each other’s signatures on contracts; they own property and can deal with that property independently and without consulting or co-operating with each other. They can dispose of their property by way of sale, donation or bequeath it in their will – without prior reference to the other party.
The system is most useful where one of the partners has a high-risk, high-income lifestyle: the assets of the other partner are protected from negative consequences of that lifestyle.
The concern with this system is that it does not automatically assure a financially weaker partner of any share in the proprietary benefits of the marriage and this can become more serious the longer the marriage continues. Normally, partners to this type of marriage would take care of these issues by way of their wills, which would be regularly updated, and by way of other agreements between them regarding the share and control of assets in the marriage. For example, they may decide that notwithstanding the marriage out of community of property, they will own certain assets (like the matrimonial home) jointly.
This system is most suitable, as mentioned above, in cases where partners need greater independence, or enter into the marriage already having children, or are older and may have plans to bequeath parts of their estates to other people on their deaths.
MARRIAGE OUT OF COMMUNITY OF PROPERTY WITH THE ACCRUAL SYSTEM
This type of antenuptial contract was created to rectify some of the injustices of the old style contract: it takes into account the fact that the partners may start out in life fairly equal in wealth, but at some stage one of them stops working (say, to have children), while the other keeps growing his or her estate by earning an income. Under a marriage out of community excluding the accrual system, one partner can be left much richer than the other, and the poorer partner is pretty much at the mercy of the richer partner.
A practical example of including the accrual system would be the following: A and B married out of community of property and included the accrual system in their antenuptial contract. The property that A owned before his marriage (unless it was specifically excluded from the accrual) will remain A’s own asset. But on dissolution of the marriage (on divorce or death), the increase in value of the property will be part of A’s accrual and will be included when an assessment is made to equalize the accrual between A and B’s estates. If A acquired the property during the marriage, the same principle applies: the value of A’s estate is then increased by the value of the property and this forms part of the accrual, which is shared between the spouses. Effectively, half the difference in value between their separate estates accrues to the smaller estate when the marriage ends.
This is a modern option, only having come into existence in South Africa in 1984. The prospective partners sign an antenuptial contract and the contract provides that when the marriage ends, a calculation will be done to make sure each party shares equally in the joint accrual. The contract does not operate any differently from the marriage out of community excluding the accrual during the existence of the marriage. The difference lies only in what happens when the marriage ends. This option requires each of the prospective partners to take an inventory of their estates as at the date of entering into the marriage. The value of this inventory is called your commencement value. At the end of the marriage, each partner (or the partner’s executor) takes an inventory and values that inventory again. This is called the final value. The commencement value is then adjusted to allow for inflation according to the consumer price index, and the adjusted commencement value is deducted from the final value.
The result is then compared with the result of the same calculation in the other partner’s estate. The lesser result is then subtracted from the greater result, the difference is divided by half, and that half is then transferred (“paid”) from the greater estate to the lesser estate. That figure is, in fact, the accrual.
These are the basic principles, but it can be more complicated. Parties can, for example, exclude certain assets from the accrual by naming them specifically when they sign the contract. These assets may be things which they own at that stage, or which they expect to acquire afterwards. In addition, there are certain classes of assets, which by law is automatically excluded from the accrual calculation, namely inheritances and money awarded as personal injury damages. The first class (inheritances) speaks for itself. As for the second class, think of it like this: it’s your pain, so it’s your money.
MARRIAGES IN TERMS OF THE CIVIL UNION ACT
The Civil Union Act came into effect in November 2006. It was a ground-breaking piece of legislation in that it granted same sex married couples the same rights, protection and status as those enjoyed by heterosexual couples in a civil marriage. South Africa, at the time, thereby became the fifth country in the world, and the first in Africa, to legalize same sex marriage.
Civil unions are modelled parallel to other civil marriages and the legal consequences flowing from the union are equivalent to those flowing from heterosexual marriages: just as heterosexual couples would be married either in community of property or out of community of property (with or without accrual), the same options are available to same sex spouses that enter into a civil union in terms of the Civil Union Act.
A customary marriage is a marriage concluded in terms of customary law. Customary marriages are regulated in terms of the Recognition of Customary Marriages Act 120 of 1998.
If prior to the commencement of the Act, parties were in an existing, validly concluded customary marriage, that customary marriage is recognised under the Act. The same applies for a person who is a spouse in more than one validly concluded customary marriage before the commencement of the Act.
For a customary marriage entered into after the commencement of the Act to be valid, both parties must be at least eighteen years old; both parties must consent to the marriage and the marriage must be negotiated and entered into or celebrated in accordance with customary law.
A customary marriage entered into after the commencement of the Act will automatically be in community of property, unless the spouses concluded an antenuptial contract prior to getting married.
According to section 7(6) of the Act, a husband in an existing customary marriage who wishes to enter into a further customary marriage must apply to the Court to approve a written contract, which will regulate the matrimonial property regime of his subsequent customary marriages.
Spouses married in terms of Muslim rites do not receive the same rights, protection and status as those spouses who concluded a civil marriage. Therefore, hundreds of Muslim Imams are registered as marriage officers under section 3 of the Marriage Act and Muslims entering into a religious marriage before such an Imam may elect to simultaneously register their civil marriage. The civil marriage can be concluded in community of property or out of community of property with or without the accrual. During 2018 the Cape Town High Court ordered that the legislature has two years to address the lack of recognition of Muslim marriages. Until then, the aforementioned status quo remains unchanged.
COMMON LAW MARRIAGE?
South African law does not recognise the concept of a “common law marriage”. This means that no amount of time spent living with another person will convert that cohabitation relationship into a marriage. Many people are nonetheless under the mistaken belief that such “common law marriages” are legally recognised and that legal rights and duties automatically flow from the relationship. Although our Courts have, in specific instances, recognised that certain reciprocal duties flow from such relationships, it is not a given. Partners in such relationships are urged to conclude a ‘domestic partnership agreement’, to safeguard their investment in the relationship.
DEBT IN TERMS OF YOUR MARITAL PROPERTY REGIME
I’m married out of community of property so I’m not affected by my spouse’s sequestration, right? Wrong!
Not only the spouse of a person married out of community of property, but also a spouse married according to any law or custom, and even those who are unmarried but have been living together as husband and wife for some years, can be subjected to the consequences of the other party’s insolvency.
The Insolvency Act empowers the Trustee to deal with the property of the solvent party as if it belongs to the insolvent’s estate and both parties’ assets will initially vest in the Trustee. Only on application by the solvent spouse to the Trustee, can assets belonging to the solvent spouse be released to that spouse. A solvent spouse is therefore unable to transfer property belonging to him or her before it has been released by the insolvent’s Trustee.
In terms of South African law, there are two grounds for divorce, the most common of which is irretrievable breakdown of the marriage. There are a number of reasons why this can happen, including that for a substantial period you and your spouse have not been living together as a married couple; or either party has committed adultery with the effect that you strongly believe that you cannot continue with the marital relationship; or communication between you and your spouse has broken down and you no longer love each other; or the presence of any physical, verbal, alcohol or drug abuse within the marriage.
If one spouse can show that a marriage has irretrievably broken down, then a Court will grant the divorce order. It is therefore irrelevant whether or not your spouse agrees to divorce: if you can show the Court that the marriage relationship with your spouse has failed and the Court is satisfied that there is no reasonable possibility that you and your spouse can be reconciled, then the Court will grant you the order.
The second ground for a divorce is the mental illness or continuous unconsciousness of a spouse. In such an instance you will have to prove that for a certain prescribed time period, your spouse was admitted to, or still is, in a mental institution; or that your spouse is in a state of continuous unconsciousness.
When two spouses agree to terminate their marriage by way of divorce, the process does not always have to be as daunting as it appears. An uncontested divorce is where the spouse on whom the divorce summons was served (the Defendant) does not defend the matter within the prescribed period or where the parties entered 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 essentially in order to confirm to the Court the allegations made in the summons. If the judge is satisfied that your marriage has irretrievably broken down, a divorce order will be granted, incorporating the settlement agreement (if there is one).
The process involved with finalising a divorce on an uncontested basis is 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, spouses must, amongst other things, take into account the following:
- 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 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 proper consultation with you and after obtaining the necessary documentation from your, your attorney will contact your spouse or his/her legal representative in order to commence settlement negotiations, if it is appropriate given the facts of your matter. 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, since it needs to 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 said to be ‘contested’ and may lead to a trial.
A trial can span several days in Court to allow witnesses for both sides to come forward and 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 can take a couple of years before your matter is heard in court due to all the procedural requirements that must be met and the backlog of the courts.
JURISDICTION AND DOMICILE
In South African law, the patrimonial consequences of a marriage is governed by the husband’s domicile at the time the wedding ceremony is concluded. Therefore, if the husband was domiciled in South Africa at the time of the marriage, the patrimonial consequences of the marriage will be governed by South African law, irrespective of where you got married. The marriage will thus be in community of property, unless the spouses entered into an antenuptial contract beforehand.
Domicile is not only relevant when it comes to determining what country’s legislation will be applicable, but it is also relevant when determining what court has jurisdiction to finalise the divorce. In terms of the Divorce Act, any court has jurisdiction to hear the matter if at least one of the parties are domiciled within the court’s jurisdiction when the matter is instituted or if at least one of the parties are ordinarily resident within the area of jurisdiction of the court and has been so resident for a period of 12 months.
A person is domiciled in the place where he or she intends to settle for a undefined period of time or in the country that the person considers to be his or her permanent home. The question of where a person is domiciled is thus a subjective one. A person’s place of birth will be your domicile of origin and it will remain your domicile until you elect to change it.
VOID AND VOIDABLE MARRIAGES
Void marriages are those that are invalid from the start. For example, a marriage will be void if the marriage officer, who solemnized the marriage, did not have the legal capacity to do so; where one of the parties are already married at the time of the conclusion of the marriage; or where the marriage was concluded without witnesses.
You do not have to approach the court to declare a marriage void, however in certain circumstances it might be advisable for legal certainty. A void marriage does not attract any legal consequences and does not affect a person’s status.
However, where one or both of the parties are unaware of the fact that they entered into a void marriage and one or both of them believed, in good faith, that they were entering into a valid marriage, the marriage may be regarded as a putative marriage, which, although the marriage itself is void, it may attract certain limited legal consequences.
On the other hand, a marriage will be voidable if, at the time of the conclusion of the marriage, there were grounds that will justify the marriage being declared void. A voidable marriage will be valid until it is declared void by a court and it will attract legal consequences.
A marriage will be voidable if, amongst other things, one of the spouses was a minor at the time of the conclusion of the marriage and the prescribed consents were not obtained; one of the spouses entered into the marriage under duress; at the time of the conclusion of the marriage the wife was pregnant with third party’s child and the other spouse was unaware thereof; or, the marriage was entered into based on a fraudulent misrepresentation e.g. where a spouse misled the other by using a fraudulent identity.
UPDATING YOUR WILL AFTER YOUR DIVORCE
An important aspect to consider when going through a divorce or after a divorce is whether or not your existing will correctly reflects your wishes.
If your former spouse is still the beneficiary of your will signed prior to the dissolution of your marriage, and you pass away within three months of the date on which your divorce is made final by the court, then in terms of Section 2B of the Wills Act, he/she will be disqualified from inheriting your assets.
However, if your death occurs after the expiry of the said three-month period and if you have not yet changed your will in the meantime, then your former spouse will be entitled to inherit.
On the presumption that most divorced spouses would not want their estate to devolve upon their former spouse, it is essential to review your will and to make the changes required to correct this situation.
Often parties are faced with having to transfer a property after a divorce, either to a third party or to one of the ex-spouses.
In instances where the Divorce Order provides that a property must be sold, the parties must jointly appoint an estate agent or agents to market and sell the property. Once the property has been sold, the transfer will be referred to a conveyancer to attend to and the general rule is that the Sellers appoint the conveyancer. A sale of this nature is similar to any normal sale and transfer of a property.
However, if the Divorce Order provides that one of the parties must take transfer of the other party’s share in the property, the process that must be followed is slightly different, depending on the parties’ marriage regime.
If the parties were married out of community of property (with or without the accrual), the one party’s share in the property must be transferred to the other party by way of a formal transfer but if the parties were married in community of property, the Deeds Registries Act makes provision for an endorsement to be made on the Title Deed of the property to the effect that the one spouse shall be entitled to deal with the property as if he/she has taken formal transfer thereof.
A conveyancer must be appointed to attend to either the half share transfer or the application for endorsement.
TRANSFER DUTY AND CAPITAL GAINS TAX IMPLICATIONS OF DIVORCE TRANSFERS
Where a party acquires sole ownership of the whole or a portion of the property registered in the name of his or her divorced spouse in terms of a Divorce Order, the transaction is exempt from transfer duty. The conveyancer attending to the transfer or title deed endorsement would still have to obtain a transfer duty exemption certificate from SARS prior to the transfer being lodged at the Deeds Office.
This exemption applies only where the spouse held sole ownership in his or her personal capacity.
The party transferring a property to a spouse pursuant to a Divorce Order will also not be liable to pay Capital Gains Tax (CGT), as a disposal of this nature is subject to a rollover, which means that the CGT liability is deferred to a later stage. The spouse acquiring the property may be liable to pay CGT in the future if the property is transferred to a third party.
PENSION PAY-OUTS POST DIVORCE
A divorce settlement agreement can include a provision whereby one spouse is awarded a share in the benefits of the other spouse’s pension. Previously the receiving spouse had to wait for the other spouse to retire before being able to claim payment of the share in the ex-spouse’s pension.
However, the Pension Funds Act was since amended to allow the receiving spouse immediate access to the ex-spouse’s pension, meaning you can claim payment of a share in your spouse’s pension interest on the date of divorce. Certain pension funds are, however, not subject to this change in legislation. This provision can be applied retrospectively. Therefore, the position is now that even if you divorced prior to the amendment of the Pension Fund Act and was awarded a share in your ex-spouse’s pension interest in the settlement agreement, you may be eligible to receive payment of the pension interest immediately. Much depends on the wording of the settlement order.
The spouse receiving the payment from the pension fund will be tax on the amount that is being paid out, in accordance with the applicable table.
It is common 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. There is currently limited legal protection afforded to partners in such relationships and were the relationship terminates, a party may face dire consequences due to the fact that there was no prior agreement with regard to assets, maintenance and the like.
The only way to ensure that both parties are protected if the relationship breaks down, is for them to enter into an agreement in which they regulate their affairs – often referred to as a ‘domestic partnership agreement’ or “cohabitation agreement”. This agreement will record the expectations that each partner may have with regard to his/her financial contribution to the joint household and assets acquired individually or jointly, and is 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 cannot contain any provisions that are illegal or contrary to public policy.
Such an agreement is only enforceable between the parties thereto and is not binding on third parties, as in the case of civil marriages.
A BILL FOR LIFE PARTNERS
In South Africa, regardless of the duration of cohabitation, the parties in a permanent cohabitation relationship do not attain rights and responsibilities similar to that of a married couple. There is currently a draft Domestic Partnerships Bill, which was published in 2008. However, it has not been brought into effect yet.
The Bill aims to regulate the position of persons who live together outside of a legally valid marriage or civil union. However, it was promulgated in 2008 already and little has happened since. It is therefore uncertain, if and when it will be enacted into law. If the day comes, it will bring significant change in the lives of partners in domestic partnerships.
According to section 28(1) of the Constitution of the Republic of South Africa every child has a right to a name and nationality, every child has the right to family care or parental care, or to appropriate alternative care when removed from the family environment; every child has the right to basic nutrition, shelter, basic health care services and social services; every child has the right to be protected from maltreatment, neglect, abuse or degradation; every child has the right to be protected from exploitation in labour practices and from being expected to render services or perform work that is inappropriate for the child’s age or put him/her at risk; every child has the right not to be detained, unless as a last resort; every child has the right to have a legal practitioner assigned to them by the state, at state expense, in civil proceedings affecting them, if substantial injustice would otherwise result and every child has the right to be protected during armed conflict.
Furthermore, Section 28(2) of the Constitution states that a child’s best interests are of paramount importance in every matter concerning the child.
These rights are afforded to a child in order to protect them, as children are part of the most vulnerable members of society. The Children’s Act 38 of 2005 was promulgated partly to give effect to the rights of children as set out in the Constitution.
PARENTING COACHING AND CO-PARENTING RESOURCE
An acrimonious divorce can have lasting negative effects on children. After a divorce some parents may find it difficult to put their differences aside for the sake of co-parenting their children in a harmonious manner and the continuing conflict can damage the children’s emotional, intellectual, physical and spiritual well-being.
It is for this reason that various co-parenting resources have been created by numerous professionals. Parents can participate in parenting education and make use of numerous co-parenting resources in order to help them co-parent effectively and mitigate the negative effects of the divorce on the children.
Co-parenting coaching, therapy and dispute resolution platforms are mechanisms that can help parents effectively move on from their issues and help each be the best parents they can be. Parenting and divorce education courses are increasingly becoming available in South Africa and parents going through an acrimonious divorce are encouraged to look into these courses.
A parenting plan is a written agreement, which sets out clear parental rights and responsibilities of the minor children. A parenting plan can be drawn up with the assistance of the Family Advocate, a family law attorney, a social worker or a child psychologist.
Topics that can be addressed in a parenting plan include with whom the child will live; where the child will live; the contact enjoyed by each parent/guardian; what dispute resolution mechanisms should be in place and how decision making between parents should take place and any other issue regarding the child that the parents/guardians want 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.
A parenting plan is not cast in stone and it may need to be reviewed and amended from time to time as the child grows older. If parties agree to amend the terms of their existing parenting plan it is advisable to make the amended agreement an Order of Court.
VARIATION OF CARE AND CONTACT ARRANGEMENTS
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 acting with leave of the Court.
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 whom is of such an age, maturity and stage of development to be able to participate in decisions affecting him/her may participate in the process and have his/her opinions given due consideration.
CONSENT TO TRAVEL OUT OF SOUTH AFRICA
A parent or guardian of a minor child, who shares parental rights and responsibilities with another parent or guardian, may not simply leave South Africa with the minor child, whether to emigrate or go on a holiday.
According to section 18(3)(c)(iii) of the Children’s Act, a parent or other person that acts as a guardian of a minor child must give their consent for the minor child to depart temporarily or to be removed permanently from South Africa.
According to section 139 of the Children’s Act it is unlawful for any person to remove a child or depart with a minor child from South Africa without the consent of all the child’s guardians or an Order of Court.
If a child’s guardian is unreasonably refusing to consent to a child traveling outside of South Africa, a High Court application may be instituted to obtain the Court’s consent. If such an Order is obtained, the consent of the refusing guardian is no longer required.
CHASTISING YOUR CHILD
The question of whether parents should be allowed to chastise their children has been a heavily debated topic over the past couple of years. In terms of South African common law, parents were allowed to chastise their children, provided that such chastisement was reasonable. Parents could then raise a special defence of reasonable chastisement against assault charges arising therefrom. This principle was confirmed in the judgment of R v Janke and Janke 1913 TPD 382 and in numerous judgments thereafter.
It has, however, been argued (after the promulgation of the interim Constitution and later the 1996 Constitution, which focuses on human rights) that chastisement constitutes an infringement on these very rights. In line with this reasoning, the promulgation of the Schools Act 84 of 1996, prohibits chastisement at schools.
The judgment in the Gauteng High Court, YG v S 2018 (1) SACR 64 (GJ), took a stance against the defence of reasonable chastisement when it was tasked with determining whether this defence is unconstitutional. In the 2019 Constitutional Court judgment of Freedom of Religion South Africa v Minister of Justice and Constitutional Development the Court found that the common law defence of reasonable and moderate chastisement is inconsistent with the Constitution and it is therefore disallowed. Therefore, parents are no longer allowed to chastise their children
In recent years, it has become popular for parties getting divorced to mediate and settle the divorce by embodying said settlement in the form of a consent paper, which can then be made an Order of Court.
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 it is private and confidential. Parties are also more likely to preserve a cordial relationship after the agreement is reached.
A mediator does not make a decision and impose said decision on the disputing parties. A mediator guides the parties in reaching a settlement. The mediator allows the parties to voice their desires while listening 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. A mediator will often help the parties draft the settlement agreement.
A matter can be mediated over more than one session. Sometimes both a family law practitioner and a trained mental health practitioner will co-mediate a matter in matters where co-mediation would be beneficial to help the parties effectively settle a dispute. The mediators assist the parties in drafting a consent paper as well as a parenting plan.
It is advisable that once parties reach a settlement and a consent paper and/or parenting plan is drafted, said agreement must be made an Order of Court. This will ensure that the parties will have court-sanctioned mechanisms to enforce the agreement if either party does not comply with the terms of the agreement.
PARENTING CO-ORDINATOR / FACILITATORS
The concept of shared parental rights and responsibilities (introduced by the Children’s Act) focuses on the benefit to the children of having both parents participate in their everyday lives. Shared parental rights and responsibilities also imposes an obligation on the parents to consult with each other when making major decisions about their children.
Usually parents agree to a parenting plan in terms of the Children’s Act. The parenting plan determines how their respective responsibilities and rights over the child will be exercised. A parenting plan cannot be cast in stone or necessarily predict what the changing needs of the children and the parents will involve in the future.
New relationships, geographical proximity, changes to parental working circumstances and the changing needs and preferences which the children develop over time all require some parenting flexibility.
All is well when parents agree with these changes. If the parents do not agree on a decision, mediation is often helpful. Mediation involves sitting down with a skilled professional – usually a lawyer, psychologist or social worker, and working through the possibilities and ventilating each parent’s perspective.
What happens when mediation fails and the parents cannot agree? Litigation is expensive and is time-consuming. Our Courts will not make decisions without allowing both sides an equal opportunity to explain their position. In practice, fairness requires an equal opportunity for each side to state their case, which in turn can mean long delays waiting for Court dates.
In an endeavour to address this problem, a practice was developed a number of years ago in an attempt to keep parenting disputes out of Court by enhancing the powers of a mediator and elevating the position to what was called (in the Western Cape) “facilitation”. A facilitator was appointed by agreement between the parties in their parenting plan. A facilitator’s job involved first trying to mediate the dispute between parents but, if after making every effort to assist the parents in reaching agreement and finding that they were still in dispute, a facilitator was authorised in the parenting plan to make a binding directive or ruling. The parties undertook to be bound by this ruling. Thus, a facilitator’s directive was thought to determine many things which the parents could not agree on, from changes to contact arrangements to other big and small parenting decisions.
Over time, the term “parenting co-ordinator” replaced the term “facilitator”, but the powers and the role of the professional concerned was the same. Frequently, the name of a particular professional is not included and these parenting plans state that if the parents in dispute cannot agree upon which facilitator to appoint, the Chairperson/s (for the time being) of the Family Mediators Association of the Western Cape (FAMAC) would appoint the facilitator. FAMAC developed facilitation training and a system of accreditation over time but there is no legal obligation to appoint a facilitator with any particular training or accreditation. Without regulation or standardisation of facilitation training or qualifications, appointing a facilitator could become a somewhat random process without any assurance that your facilitator or parenting co-ordinator would necessarily be qualified or competent to attend to such an important role.
Facilitators are not appointed in terms of any particular provision of the Children’s Act and are not currently regulated by law, and in the absence of statutory law, it was inevitable that appropriate cases would come before the Court for clarification. The Western Cape High Court case of TC vs SC has shone much needed light on this issue, through the detailed judgement of Acting Judge Diane Davis. Judge Davis’s decision makes it clear that parenting co-ordinators do not have an unlimited discretion to make decisions about parental conflict. The Judge emphasises that there are some decisions which only a Court can determine and which cannot be delegated to other professionals. The judgement distinguishes between decisions which are ancillary to the original Court Order and those which operated as an amendment of the Court Order.
A Court Order may stipulate that a child will spend alternate weekends with her parents but that Mother’s Day will be spent with the mother and Father’s Day with the father. Should Mother’s Day fall on the father’s weekend and he will not agree to a change of schedule, the parenting co-ordinator, in those circumstances, can direct that the child spends the day with the mother, but the rest of the weekend with the father. In the words of the Judge, “such a decision would not amount to a permanent variation of the terms of the Consent Order since the default position of alternating weekends remains the same” (at paragraph 62 of the judgement).
The judgement makes it clear that facilitators can make minor changes aimed at implementing, rather than changing, the rights set out in the parenting plan. A parenting co-ordinator cannot change primary residence of a child, or permanently alter the contact arrangements with both parents as to how time is allocated between them, or impose material conditions on the contact, such as the condition of supervision. In order for a parenting co-ordinator to be appointed, there must be a Parenting Plan in which the parenting rights have been agreed to by the parties or the parenting rights must be contained in an Order of Court. Judge Davis’s judgement stresses that parenting decisions are still subject to judicial oversight and their decisions are subject to appeal by a competent court.
The effect of Judge Davis’ judgement is to put the responsibility for making decisions about children squarely back into the hands of their parents who are enjoined to make greater effort to focus independently on the interests of their children. Disputes regarding major decisions about the child will need to be determined by a competent Court and parents will need to carefully weigh up the financial and the human cost of embarking on litigation of this nature.
It is trite law that the duty to support a child rests on both parents of a child, irrespective of whether a child is adopted or born out of wedlock. Parents’ maintenance obligation is determined by taking into account the reasonable cost of the child and apportioning such costs between the parents according to their respective means. The reasonable costs of a child at the very least 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 costs 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 will have to be determined by looking at every matter individually.
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. 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 approaching the Court or may choose to appoint a legal representative to assist with the entire process. In order to apply for a Maintenance Order at the Maintenance Court, you must complete the standard maintenance application form. The form can be found online (https://www.justice.gov.za/forms/maintenance/MNT_Form%20A.pdf) or at any Maintenance Court. The clerk of the Maintenance Court or a legal representative will be able to assist with completing the application form and the accompanying expense schedule. The form and supporting documents must be submitted to the Maintenance Court in order to launch your application. Prior to approaching the Maintenance Court it will useful to make a list of your monthly income and expenses (including the monthly expenses of the child) to ensure that the correct information is contained in your application. The following documentation must also be submitted to the Maintenance Court with the application form:
- 3 month’s salary slips of the Applicant;
- Proof of the Applicant’s monthly expenses, such as grocery slips etc.;
- 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);
- 3 months’ bank statements of the Applicant; and
- Proof of the Applicant’s residential or work address, not older than 3 months.
- 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.
- 3 month’s salary slips of the Applicant;
- A certified copy of the Applicant’s Identity Document;
- A certified copy of the child’s birth certificate (if applicable);
- 3 months’ bank statements of the Applicant;
- Proof of the Applicant’s residential or work address, not older than 3 months; and
- The existing Maintenance Order or Divorce Order.
Once the application is submitted the Maintenance Court will send a directive to the Applicant and the respondent (person against whom you are seeking an order) informing both parties of the date that they must appear in the Maintenance Court in order for the process to commence.
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 emolument or an order for the attachment of debt to recover the arrear maintenance. The standard enforcement application, which can be obtained online (https://www.justice.gov.za/forms/maintenance/MNT_Form%20K.pdf) or at a Maintenance Court, 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 a Maintenance Order. If it is the first application submitted at the Maintenance Court, the following documents must also be provided:-
Failure to pay maintenance is a criminal offence and a criminal complaint may be laid against such a person, this complaint is also submitted to the Maintenance Court together with 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. Good cause normally constitutes proof that either one of the parents’ financial position drastically changed since the original Order was granted or the reasonable needs of the child changed. To apply for a variation of a Maintenance Order the standard Application for the Substitution or Discharge of Existing Maintenance Order must be completed and submitted to the clerk of the Maintenance Court. The form can be found online (https://www.justice.gov.za/forms/maintenance/MNT_Form%20B.pdf) 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:-
The onus is on the applicant to show good cause for the variations of the current order.
POST-DIVORCE SPOUSAL MAINTENANCE
In terms of our common law, spouses have a reciprocal duty to support each other during their marriage and this includes financial support. This duty ends when the marriage is terminated either by death or divorce. In terms of the Maintenance of Surviving Spouses Act, a surviving spouse may claim reasonable maintenance from a deceased spouse’s estate. The Divorce Act, on the other hand, makes provision for a spouse to claim maintenance on divorce. This is not an automatic right to spousal maintenance post divorce and the Divorce Act states that a Court may grant an order for spousal maintenance. The factors that the court will take into account when determining whether or not a maintenance order should be made include, the financial means, earning capacity, financial obligations, needs and age of both spouses, the duration of the marriage, the spouses’ standard of living prior to the divorce, their conduct relating to the breakdown of the marriage and any other factor that the Court may deem relevant.
Domestic violence and harassment are two distinct concepts. Domestic violence means physical abuse; sexual abuse; emotional, verbal and psychological abuse; economic 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, where such conduct harms, or may cause imminent harm to, the safety, health or wellbeing of the complainant. Harassment is where the respondent engages in a pattern of conduct that induces fear of harm, including behaviour such as repeatedly watching, or loitering outside of or near the building or place where the complainant resides, works, carries on business, studies or happens to be; 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 behaviour which amounts to sexual harassment.
HOW TO APPLY FOR A PROTECTION ORDER
The procedure for obtaining a Protection Order in a case of domestic violence is regulated by the Domestic Violence Act 116 of 1998 and obtaining a Protection Order against harassment is regulated by the Protection from Harassment Act 17 of 2011. The victim of domestic violence or harassment is called the ‘complainant’ and the perpetrator is called the ‘respondent’. In a case of domestic violence, a complainant is any person who is or was in a domestic relationship with the respondent and who is or was subjected to an act of domestic violence, including any child in the care of the complainant. In the case of harassment, a complainant is any person who alleges that he or she is being subjected to harassment. 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. A complainant applies for an Protection Order by completing the standard application forms that can be found online or at any Magistrate Court. The form must be accompanied by an affidavit written by the complainant stating the facts upon which the order is based and attaching any proof of the alleged domestic violence or harassment, if available. Any person can apply for a Protection Order and does not need to appoint a legal representative to assist them with this process, however they may elect to do so or to obtain advice before approaching the Court.