Living together, make sure you have a cohabitation agreement, otherwise you leave with nothing!

Personal finance: If you don’t say ‘I do”, get it in writing – Interview with Bertus Preller – Family Law Attorney

Gone are the days of “single” or “married”. You only have to look at Facebook’s relationship declaration options to know that today’s partnerships come in all shapes and sizes.

But what are the financial risks of being involved in a long-term relationship that is not formally recognised as a marriage?

We quizzed some experts to find out the best ways to protect yourself if you don’t fancy walking down the aisle with your life partner.

Family law attorney Bertus Preller said patterns of marriage, divorce and cohabiting without marriage had been changing for years.

“The incidences of domestic partnerships are growing throughout the world.”

Preller said that, according to the 1996 census, 1.3million people described themselves as living with a partner. When the 2001 census came around, this figure had almost doubled to nearly 2.4million.

Many people believe that, if they live together for some time, the relationship will be recognised by the state, and there will be legal rights, duties and protection.

But Preller said there was no such thing as common-law marriage – because the concept has been abolished worldwide.

“The time a couple spend living together does not translate into a default marriage. The consequence is that, at the dissolution of the relationship, the assets or any obligations are determined or distributed on a basis of the arrangement that parties used during their relationship,” he said.

Domestic partnerships were never prohibited in South African law – but neither did they enjoy any noteworthy recognition or protection, Preller said.

“In SA, marriage laws traditionally provided parties with a variety of legal protections. These laws governed what happened to the property of the parties during the marriage and on dissolution, either by divorce or death, and also meant that certain benefits were automatically acquired, such as membership of medical aid funds, pension funds, etc.

“Married spouses also had a reciprocal duty of support under the common law.”

Preller said South African courts had occasionally helped couples by deciding that an express or implied universal partnership existed, but this was usually difficult to prove.

“The only way to be protected in our law is to enter into a cohabitation agreement. Such an agreement clarifies the expectations of the partners and also serves as an early warning of future problems.

“A cohabitation agreement will determine what would happen to the property and assets of the couple if they should decide to separate. The agreement is, however, not enforceable in so far as third parties are concerned.”

However, in terms of the 2005 Children’s Act, the parents of children born out of wedlock had a duty to maintain their offspring, “irrespective of the living arrangements”, Preller said.

“Basically a cohabitation agreement regulates rights and duties between the partners.

“It could almost be compared to an antenuptial contract entered into prior to the conclusion of a civil marriage.

“The agreement can provide for the division and distribution of assets upon dissolution: for instance, the formal agreement may set out the rights and obligations towards each other; the respective financial contributions to the joint home; clarify arrangements regarding ownership of property that they may purchase jointly and the division of their jointly owned assets should they separate,” said Preller.

“An agreement such as this will be legally binding as long as it contains no provisions that are immoral or illegal.

“If there is no agreement on the dissolution of a domestic partnership agreement, a party would only be entitled to retain those assets which he or she has purchased and owns and further would be entitled to share in the assets proportionately in terms of the contribution which they have made to the partnership.”

Preller said, however, that problems arose if a partner tried to enforce a domestic partnership agreement if the partner being sued was married to someone else.

“It has been argued that in such cases domestic partnership agreements violate public policy to the extent that they impair the community of property rights (where applicable) of the lawful married spouse.”

He said the Domestic Partnerships Bill was still being formulated, and it wasn’t clear how it would be implemented.

“In the current constitutional dispensation it is unlikely that a partner will be left in despair, taking into account the Domestic Partnerships Bill,” Preller said.

Fiona Renton, head of the legal services department at financial and risk services provider Alexander Forbes, said: “My advice would be for cohabiting couples to enter into a contract – a written partnership agreement that states exactly what will happen in the event of death or a split, protecting their rights and outlining their obligations.

“For example, when it comes to the ownership of property, the contract should state what happens to ownership of the property (such as one spouse buying out the other) or payments in the event of death or a split.

“Putting any relationship into writing is always helpful, even if it’s just adding someone on your medical aid as a dependant.

“Having said that, in the event of death, having a will is always the best idea.

“Out of the bounds of a legally recognised marriage there is no intestate succession – meaning there is no automatic participation in the estate to make sure the other partner is looked after.”

Joint accounts never a good idea

Money is one of the most important matters a couple needs to resolve when contemplating living together or marriage, according to Sugendhree Reddy, director of banking products at Standard Bank.

“One issue that often comes up in these kinds of discussions is whether to have a joint bank account. In many ways, this can seem like an appealing option.

“However, most financial experts don’t recommend having a joint account at all. We never encourage a joint account because whether you are married or living together, you both need to grow your assets and get a good credit rating. Having a joint account invariably makes it difficult for one of the partners to do so. Besides, a joint bank account puts one partner at great risk in the event of a break-up, death or financial difficulties.”

Reddy said there was no joint bank account with two equal account holders. “A ‘joint’ account is actually an account in one person’s name, to which the other person is a signatory. This causes a number of complications for that signatory. The most important of these is that without a bank account in your name, you will have no credit record at the bank – which makes it difficult to get credit at shops, open a cellphone account or apply for a loan.”

In the event of a break-up, Reddy said, the joint account could be emptied by one partner or the person in whose name the bank account is held could remove the second signatory.

If one partner dies, “banks tend to freeze the account until the estate is resolved – leaving the signatory partner with no access to the funds for an extended time”, said Reddy.

Reddy advises couples to split responsibility for monthly expenses, or open an account for the household into which both pay a portion of their salaries for general expenses.

Who gets your pension?

There are typically two types of benefits payable to “spouses”, says Fiona Renton, head of legal services at Alexander Forbes.

“Firstly pensions, which are payable to those who qualify as spouses – and that would depend on how each fund defines an ‘eligible spouse’: people must check the fund rules to see if their partner/spouse would qualify.

“Fund rules may stipulate that you must be married to the same person at date of retirement and date of death for them to qualify for a spouse’s pension. This prevents so-called ‘death-bed marriages’ where a pensioner marries someone much younger than them after they have already retired – and on their death the fund realises that there is a much younger spouse to whom they have a liability to pay a pension for many years.”

The second benefit type is the typical fund benefit (fund credit or share of fund) plus an insured multiple of a salary (three times annual salary, for example).

“This is allocated by the trustees, to your dependants and nominees.

“A dependant includes a spouse; the Pension Funds Act defines a spouse as ‘a person who is the permanent life partner or spouse or civil union partner of a member in accordance with the Marriage Act, Recognition of Customary Marriages Act, Civil Union Act or the tenets of a religion. A very wide definition.”

To ensure that no partner is overlooked, the pension fund member should always nominate a beneficiary in the relevant form to help the trustees – although trustees are not absolutely bound to follow that nomination, said Renton.

“Unfortunately, when it comes to death and money such decisions by fund trustees are often contested.”

Divorce Questions: Interview with Bertus Preller Family and Divorce Law Attorney Cape Town

Bertus Preller

Divorce Questions: Interview with Bertus Preller Family Law Attorney

Most couples going through the end of their marriage ask the same divorce questions. Regardless of how long people were married, they still need to find a Family Law Attorney and sort through issues regarding property, finances, children, and emotional trauma. Having accurate information is a crucial part of the divorce and healing process.

Family and Divorce Law Attorney Bertus Preller is a Family Law Specialist. A graduate of the Free State and University of Johannesburg, he represents celebrities and other high-net worth individuals in their divorce proceedings in South Africa.

How does one choose a good divorce lawyer?

Everyone differs in what type of attorneys suits them. For instance, do they want an attorney who will parent them or an attorney who will partner with them? Naturally, there are other variables to consider as well, like reputation, credentials, experience, and background. Getting references from contacts a person knows and trusts, especially from one’s accountant, business attorney, estate planning attorney or therapist, is the best way to find a good divorce attorney.

Does the end of a marriage have to turn into a battle?

“No, it does not,” Bertus Preller said. However, there often is some battle over one issue or another-like the division of property or who gets custody of the children. It is normally the battles over control in one area or another that precipitated the divorce in the first place. If a couple could not get along during the marriage, often the divorce is simply an amplification of those problems. “I tend to try to follow a more collaborative approach in dealing with divorce matters, and consider a number of ways to settle issues, whether through mediation or negotiating the best possible outcome for the client. We tend to see a number of ill experienced mediators offering services such as divorce mediation, offering a quick break with less emotional trauma and less costs. This may be a good option, but the reality is that mediation can be more expensive than an uncontested divorce; the other problem is that some mediators have absolutely no understanding of the legal consequences of the patrimonial issues of the divorce. You simply can’t mediate a divorce with a degree in psychology when there are legal issues involved and it frequently happens that one party is in fact at the end of the day in a much worse position”.

How can parents minimise the affect of divorce on their children?

“They can and should leave the children out of their immediate battles at all times,” Bertus Preller said. “Whether during the divorce process itself or long after it has ended. Spouses have no right bringing children into the differences that they have with each other. They should also give the children support and understanding throughout the divorce trauma and always show the utmost respect to the other spouse no matter how hard that may seem.”

How do courts determine the distribution of assets if one spouse is a stay at home parent or earns substantially less than the other?

In a marriage in community of property, it is important to establish the net value of the communal estate at the date of divorce. Then one can establish what each party is entitled to. Often, spouses can’t agree on a division on the joint estate and a Receiver or Liquidator needs to be appointed to divide the assets. When a marriage in community of property dissolves through divorce, each spouse is entitled to 50% of the joint estate, which includes the parties’ pension benefits.

In a marriage out of community with accrual, an auditor often needs to be appointed to determine the accrual. Preller said however he’s been involved in a number of divorce matters where extremely wealthy people were married in community of property. They may not have received the proper legal advice, “or became so focussed on the wedding ceremony that they forget about the consequences of a failed marriage.

We’re getting divorced because my spouse cheated on me. How do I make him/her “pay” for this mistake?

“Seeking vengeance is never the answer,” Bertus Preller said. “There is an old Spanish proverb: ‘Living well is the best revenge,’ is what the injured party should focus on and strive for. There is no win in trying to make someone pay for any betrayal in a marriage. However, in terms of South African law an aggrieved spouse is able to claim compensation against a third party who was the cause of the divorce.

I’m trying to be reasonable, but my spouse and I just can’t agree on major issues like who gets custody of the kids or who should keep the house. What should I do?

“Seek the advice of your attorney,” Bertus Preller said. “A mediation session might help with a respected attorney. This is what you pay your attorney to do: resolve major issues and help you come to reasonable solutions. If all else fails you may have to take your case to court and have the judge decide, but this is not always the best possible way, settlement soon in the proceedings is always the best outcome for everyone”

Bertus Preller is a Divorce and Family Law Attorney in Cape Town and has more than 20 years experience in law and 13 years as a practising attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. in Cape Town. Bertus is also the Family Law expert on Health24.com and on the expert panel of Law24.com. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Custody (care and contact) of children, same sex marriages, unmarried father’s rights, domestic violence matters and international divorce law.

No maintenance for a sacked lover

Not so long ago I wrote an article about the fact that in South African law there is in fact no such thing as a common law marriage and that partners that cohabitates or live together in a domestic partnership will in fact have no right to claim maintenance from one another. In fact, this was exactly what the Supreme Court of Appeal ruled this week in the matter of McDonald v Young (292/10) [2011] ZASCA 31 on 24 March 2011.

The facts of this case were as follows.

The parties were involved in a relationship and had cohabited, as man and wife, for approximately seven years from June 1999 until May 2006. After the relationship broke down, the appellant instituted an action against the respondent in the Western Cape High Court (Cape Town) for an order declaring that a joint venture agreement existed between the parties in respect of immovable property (the property) situate at Port Island, Port St Francis, in the Eastern Cape, alternatively, for an order that the respondent pay maintenance to the appellant. The high court (Veldhuizen J) found that the appellant had failed to prove the existence of a joint venture agreement and, in respect of the maintenance claim, that there was no duty on the respondent to support the appellant. The appellant appealed to the Supreme Court with the leave of the high court.

The issues on appeal, as in the high court, wer whether the appellant has established the existence of a joint venture agreement between the parties, alternatively, whether the respondent is under a duty (by operation of law, or alternatively, by virtue of a tacit contract) to support the appellant subsequent to their cohabitation.

Shortly after the parties were introduced to each other the appellant took up residence with the respondent at her farm in Knysna. The appellant’s main business interest was the promotion and marketing of surfing and surfboard products. During 1999, the appellant and his Durban-based brother had been in the process of establishing a new business, Inter Surf Africa Exporters (ISAE), which was involved in the manufacture and export of surfboards. The appellant did not possess any meaningful assets and had very limited income. The respondent, on the other hand, was a woman of considerable means. She had an annual cash income in excess of R1,3m and possessed substantial assets. When the appellant and the respondent met, they were 59 and 54 years of age, respectively. It was common cause that the appellant had not been in receipt of a regular income and had, for a time, during the course of the relationship, received a monthly allowance from the respondent.

The appellant’s claim to a half-share in the property was based on an express oral joint venture agreement concluded by the parties. The appellant testified that the terms of the agreement were that the respondent would contribute financially to the acquisition, completion and refurbishment of the property while the appellant would contribute his time and expertise to oversee the development of the property. According to the appellant, it was agreed that they would each share jointly in the property. The appellant testified that the primary objective of the agreement was to ensure that he gained financial independence. Despite the fact that the property was to have been registered in both their names, it was subsequently agreed, according to him, that the property would be registered in the respondent’s name for tax purposes. It was common cause that the initial written agreement had reflected both their names as purchasers of the property.

It was contended, on behalf of the appellant, that the high court had erred in failing to accept and rely on the appellant’s evidence regarding the agreement, having particular regard to the fact that his evidence was unchallenged. It was further contended that the respondent’s failure to testify was fatal to her case and that this court was obliged to accept his unchallenged evidence in respect of both the agreement and the claim for maintenance.

In our law it is settled that uncontradicted evidence is not necessarily acceptable or sufficient to discharge an onus. In Kentz (Pty) Ltd v Power, Cloete J undertook a careful review of relevant cases where this principle was endorsed and applied. The learned judge pointed out that the most succinct statement of the law in this regard is to be found in Siffman v Kriel, where Innes CJ said:

‘It does not follow, because evidence is uncontradicted, that therefore it is true . . . The story told by the person on whom the onus rests may be so improbable as not to discharge it.’

It was thus necessary to consider the appellant’s evidence in detail. It was clear from the judgment of the high court that it was mindful that the appellant’s evidence, in order to be reliable, had to be credible. The high court, on the evidence, reached the conclusion that the respondent had ‘initially intended that the contract should reflect the [appellant] as one of the purchasers’. However, it did not accept his evidence in its entirety and went on to find that the appellant had failed to prove the existence of a joint venture agreement.

In the Judge’s view, there were a number of unsatisfactory aspects in the appellant’s evidence. It was significant noted by the court how the appellant’s claim against the respondent has developed over time. During May 2006 and shortly after the parties parted ways, they met, in the presence of their respective attorneys, with a view to settle the disputes between them. The appellant’s evidence regarding the claim he had advanced at that meeting, was as follows:

‘So the idea was to try and settle the split between yourself and Mrs Young? — I accept ─ I looked at it like that because it did look like we weren’t going to get together again, so I assumed that that was the reason.

And what were your claims that day? — My claims that day with regards to my share of Port St Francis, with regards to my contribution I had made over the seven years and discussion on my contract with the bakkie.’

This was in stark contrast to his testimony in the magistrate’s court to the effect that he had, at the time of the meeting, been under the impression that he did not have a claim against the respondent and that the claim had ‘materialised some time afterwards when I . . . approached some attorneys for advice’. The appellant’s explanation for the contradiction, that he had meant to convey that he had not yet ‘implemented’ his claim, is, in my view, unsatisfactory. The very purpose of the meeting was an attempt to resolve the dispute between himself and the respondent without the need to resort to litigation.

On 17 July 2006, and following upon the May 2006 meeting, the appellant’s attorney wrote a letter to the respondent’s attorney, which was intended to ‘motivate and substantiate’ the appellant’s claim against the respondent ‘as comprehensively as possible’. (The Court’s emphasis.) It was recorded in the letter that the appellant believed that a universal partnership had existed between the parties and that he was entitled to ‘some form of compensation’ (The Court’s emphasis.) for his contribution to the partnership. It is instructive that no mention was made of the appellant’s half-share in the property, despite the fact that the appellant testified that he had given his attorney instructions in this regard and that he (the appellant) had had sight of the letter prior to it being dispatched. The development of the appellant’s claim over time is not without significance.

During the period that the parties were cohabiting, the appellant drafted numerous agreements and proposals, the purpose of which was to define the financial relationship between him and the respondent. On 24 July 2003, the respondent executed a sole agency mandate in terms of which she appointed the appellant as agent to sell the property and undertook to pay a commission of ten per cent to him. It was the appellant’s testimony that the commission he would have earned was to have provided him with financial security. The appellant agreed that he had, during October 2004, drafted an agreement, aimed at resolving the constant disputes he and the respondent had had regarding his financial security. The salient terms of this agreement were that (i) he was appointed as sole agent to sell two properties, including the property which is the subject of this dispute; (ii) he would be paid a commission of ten per cent for securing the sale of the properties; and (iii) the respondent would purchase government retail bonds to the value of R500 000 on behalf of the appellant. It was also his evidence that the relationship between him and the respondent had been particularly volatile at that time and his intention, in drafting this agreement, was to achieve clarification regarding his financial position.

It was surprising that the appellant failed to mention his half-share in the property in the October 2004 proposal. This was even more surprising when regard is had to his evidence that he was at that time concerned, as there was uncertainty regarding his financial future. The wording of this proposal, as well as the agency agreement, excludes the possibility that he had acquired a share in the property. It was in the court’s view extremely improbable that had the parties agreed in 1999 when the property was purchased that they would be joint owners thereof, the appellant would not, in 2004, have recorded his right to, or even a claim for, a half-share in a proposal aimed at settling outstanding matters between him and the respondent.

Counsel for the appellant attached great importance to the fact that the initial agreement had recorded both parties’ names as purchasers. The appellant assumed that both names were inserted on the instructions of the respondent. There was no evidence to support this assumption. Even if such instructions did emanate from the respondent, it does not necessarily follow, as was found by the high court, that this meant that there was an agreement between the parties as alleged by the appellant. The recording of both parties’ names is nothing more than an indicator pointing towards the conclusion of an agreement and it is a factor to be considered in conjunction with the probabilities.

There were a number of factors that support the respondent’s denial of the existence of a joint venture agreement between the parties. These included: the claim as articulated at the meeting with their legal representatives shortly after the break-up, the letter written after that meeting, various agreements drafted by the appellant, and the unsatisfactory and often contradictory evidence given by the appellant. The court mentioned that the appellant contradicted himself on one of the essential terms of the agreement, namely, whether it was agreed that he would be entitled to half of the proceeds of the sale of the property only or the property together with its contents.

The appellant bore the onus of proving the agreement upon which he relied as well as the terms thereof. Having regard to the deficiencies in the appellant’s evidence and the probabilities, it cannot be said that it measures up to the standard required for acceptability in respect of the existence of the joint venture agreement. In Da Mata v Otto NO, Van Blerk JA, dealing with the approach to be adopted when deciding probabilities, said:

‘In regard to the appellant’s sworn statements alleging the oral agreement, it does not follow that because these allegations were not contradicted ─ the only witness who could have disputed them had died ─ they should be taken as proof of the facts involved. Wigmore on Evidence, 3rd ed., vol. VII, p. 260, states that the mere assertion of any witness does not of itself need to be believed, even though he is unimpeached in any manner, because to require such belief would be to give a quantative and impersonal measure to testimony. The learned author in this connection at p. 262 cites the following passage from a decision quoted:

“It is not infrequently supposed that a sworn statement is necessarily proof, and that, if uncontradicted, it established the fact involved. Such is by no means the law. Testimony, regardless of the amount of it, which is contrary to all reasonable probabilities or conceded facts ─ testimony which no sensible man can believe ─ goes for nothing; while the evidence of a single witness to a fact, there being nothing to throw discredit thereon, cannot be disregarded.”’

The appellant’s testimony was contrary to all reasonable probabilities and, despite the fact that it was unchallenged, counts for ‘nothing’. In assessing the probabilities, the conclusion seems to be inescapable that the appellant has not discharged the onus resting on him. It follows that the appellant was not entitled to the relief sought in respect of the main claim.

The court considered the alternative claim for maintenance and dealt first with the argument that such a duty existed by operation of law. In South African law, certain family relationships, such as parent and child and husband and wife, create a duty of support. The common law has been extended in line with the Constitution to protect contractual rights of support in the same way as the common law duty of support. In Amod v Multilateral Motor Vehicle Accidents Fund (Commission for Gender Equality Intervening), this High Court of Appeal recognised a contractual right to support arising out of a marriage in terms of Islamic law for purposes of a dependant’s action. In Du Plessis v Road Accident Fund, the common law action by a spouse, for loss of support against the wrongdoer who unlawfully kills the other spouse, was extended to partners in a same-sex permanent life relationship similar in other respects to marriage, who had tacitly undertaken reciprocal duties of support. The Constitutional Court in Satchwell v President of the Republic of South Africa & another, found that the common law duty of support, could, in certain circumstances, be extended to persons in a same-sex relationship. Madala J, writing for the court, commented as follows:

‘The law attaches a duty of support to various family relationships, for example, husband and wife, and parent and child. In a society where the range of family formations has widened, such a duty of support may be inferred as a matter of fact in certain cases of persons involved in permanent, same-sex life partnerships. Whether such a duty of support exists or not will depend on the circumstances of each case.’

Counsel for the appellant relied on Kahn, Amod and Du Plessis in support of his contention that a legal duty of support rests on the respondent. This contention was misplaced. In both Amod and Khan, the parties in respect of whom a duty of support had been alleged had been married to each other in terms of Islamic law. The ratio of the court, in both cases, was that the marriage between the parties had given rise to reciprocal contractual duties of support on the part of the parties to that marriage. In Du Plessis, Cloete JA, having had regard to the facts of that matter, concluded that the plaintiff had proved that the deceased had undertaken to support him and that the deceased had owed the plaintiff a contractual duty of support. The learned judge of appeal said:

‘In the present case the case for drawing an inference that the plaintiff and the deceased undertook reciprocal duties of support is even stronger. The plaintiff and the deceased would have married one another if they could have done so. As this course was not open to them, they went through a “marriage” ceremony which was as close as possible to a heterosexual marriage ceremony. The fact that the plaintiff and the deceased went through such a “marriage” ceremony and did so before numerous witnesses gives rise to the inference that they intended to do the best they could to publicise to the world that they intended their relationship to be, and to be regarded as, similar in all respects to that of a heterosexual married couple, ie one in which the parties would have a reciprocal duty of support. That having been their intention, it must be accepted as a probability that they tacitly undertook a reciprocal duty of support to one another.

Further support for this finding is the fact that the plaintiff and the deceased thereafter lived together as if they were legally married in a stable and permanent relationship until the deceased was killed some 11 years later; they were accepted by their family and friends as partners in such a relationship; they pooled their income and shared their family responsibilities; each of them made a will in which the other partner was appointed his sole heir; and when the plaintiff was medically boarded, the deceased expressly stated that he would support the plaintiff financially and in fact did so until he died.’

Amod, Khan and Du Plessis were decided on the basis of contracts entered into by the respective parties, and are not authority for the contention that there is a duty of support, by operation of law, on the respondent to maintain the appellant.

The question whether the relationship between the parties, a heterosexual couple who choose to live together, free from the bonds of matrimony, gives rise to a legal duty of support, could in the Judge’s view, be answered with reference to Volks NO v Robinson & others. In that matter the Constitutional Court was concerned with the interpretation and constitutionality of s 2(1), read with s 1, of the Maintenance of Surviving Spouses Act 27 of 1990, which confers on surviving spouses the right to claim maintenance from the estates of their deceased spouses if they are not able to support themselves. The court had to determine whether the exclusion of survivors of permanent life partnerships from the protection of the Act constituted unfair discrimination. Skweyiya J, writing for the majority, referred with approval to the comments made by O’Regan J in Dawood & another v Minister of Home Affairs & others; Shalabi & another v Minister of Home Affairs & others; Thomas & another v Minister of Home Affairs & others that:

‘Marriage and the family are social institutions of vital importance. Entering into and sustaining a marriage is a matter of intense private significance to the parties to that marriage for they make a promise to one another to establish and maintain an intimate relationship for the rest of their lives which they acknowledge obliges them to support one another, to live together and to be faithful to one another.

The institutions of marriage and the family are important social institutions that provide for the security, support and companionship of members of our society and bear an important role in the rearing of children. The celebration of a marriage gives rise to moral and legal obligations, particularly the reciprocal duty of support placed upon spouses and their joint responsibility for supporting and raising children born of the marriage. These legal obligations perform an important social function.’

The Constitutional Court was of the view that the law may distinguish between married people and unmarried people and may, in appropriate circumstances, accord benefits to married people which it does not accord to unmarried people. The learned justice reasoned as follows in para 55:

‘There are a wide range of legal privileges and obligations that are triggered by the contract of marriage. In a marriage the spouses’ rights are largely fixed by law and not by agreement, unlike in the case of parties who cohabit without being married.’

The court found that whilst there was a reciprocal duty of support between married persons, ‘no duty of support arises by operation of law in the case of unmarried cohabitants’. This was an unequivocal statement of the law by the Constitutional Court. Skweyiya J went on to state that to the extent that any obligations arise between cohabitants during the subsistence of their relationship, these arise by agreement and only to the extent of that agreement.

The court also considered whether a contractual duty of support towards the appellant existed. The argument, presented as a second alternative to the claim based on a joint venture, was that the court should find that the parties had entered into a tacit agreement in terms of which the respondent had agreed to support the appellant even after the end of their relationship.

The facts upon which the appellant relies in support of his claim that the respondent had assumed a duty of support towards him are the following:

(i) He and the respondent had lived together as if they were legally married in a stable and permanent relationship;

(ii) The respondent had supported him during the seven-year period that they had resided together and the appellant had been dependent on such support. She had given him an allowance, provided transport for him and paid for entertainment and overseas holidays;

(iii) The respondent had, in a series of wills, made extensive provision for financial support of the appellant in the event of her death;

(iv) The respondent was a wealthy woman while he had no assets and very limited income;

(v) He had contributed to the maintenance of and increase in value of the respondent’s estate, often at the expense of his own business interests; (vi) The appellant was reliant on an income from employment and could not, due to his advanced age, guarantee for how much longer he would be able to earn a living; and

(vii) The respondent had advised the appellant that she had sufficient funds to support both of them.

The argument that the parties had entered into a tacit agreement regarding maintenance cannot be sustained for a number of reasons. First, the reliance on a tacit contract is inconsistent with the appellant’s evidence. The appellant believed and gave evidence to the effect that he and the respondent had concluded an express agreement in respect of the property, the aim of which was to ensure that he was financially independent. Implicit in this is the intention that he would not have to rely on the respondent, or any other person, for financial support. In the circumstances, the appellant could not have formed the intention to contract tacitly with the respondent. Having regard to his evidence that the purpose of the joint venture agreement was to render him financially independent, the appellant could not at the same time have contemplated, that the respondent would continue to support him for the rest of his life. A tacit contract must not extend to more than the parties contemplated. In Rand Trading Co Ltd v Lewkewitsch the parties had erroneously assumed that there was a contract in existence between them. The court did not accept the argument that the company’s conduct in recognising the existence of the lease, paying the rent and otherwise performing in terms of the contract had created a binding contract. Solomon J said:

‘But I think the answer to that argument is a very clear one, and it is this ─ that all these facts are explained on the simple ground that both parties erroneously assumed that there was a contract in existence between them . . . And the mere fact . . . that both parties erroneously assumed that there was a contract in existence at that date altogether precludes us from now inferring a new contract.’

The appellant’s stated belief, that there was an express contract between him and the respondent in respect of the property, precludes this court from drawing an inference to the effect that the parties had entered into a tacit agreement the terms of which were inconsistent with the express agreement to which he testified. It was not open for the appellant to contend that if the court disbelieved his evidence that a joint venture agreement had been concluded, the court should infer from the proved facts that a tacit contract had come into existence, because such an inference cannot be drawn where it would conflict with what he said was the actual position. A litigant can plead, but not testify, in the alternative.

Secondly, the appellant’s evidence was that the respondent’s attitude had always been that in the event that their relationship ended, he would receive no financial benefit from her. This conduct, on the part of the respondent, is inconsistent with a tacit agreement to support the appellant. The appellant’s explanation for drafting the various proposals regarding the financial relationship between him and the respondent was as follows:

‘Well, the motivation behind it at that particular time, we were going through quite a patchy period; we were arguing and not agreeing on a lot of things. And it appeared to me that all of a sudden my situation could alter and I’d be left standing high and dry. And I discussed it with Lesley [the respondent] and I felt that if we had something in writing, and if that did occur at least I had something to fall back on . . . ’. (Emphasis added.)

It is trite that a tacit contract is established by conduct. In order to establish a tacit contract, the conduct of the parties must be such that it justifies an inference that there was consensus between them. There must be evidence of conduct which justifies an inference that the parties intended to, and did, contract on the terms alleged. It is clear from the appellant’s evidence that there was no consensus between the parties. The appellant, on his own testimony, was uncertain about his financial future. He realised that he would only be entitled to what had been agreed between the parties, hence his desire to have a written contract ‘to fall back on’. The respondent’s attitude, as testified to by the appellant, that he would leave the relationship without any financial benefit, is an indicator that she had not, tacitly or otherwise, agreed to support the appellant. I am not satisfied that this court can conclude, from all the relevant proven facts and circumstances, that a tacit contract, in terms of which the respondent undertook to financially maintain the appellant, for as long as he needed such maintenance, came into existence.

For those reasons, the appellant’s maintenance claim which is premised on a legal, alternatively, a contractual duty, failed.

Bertus Preller is a Divorce and Family Law Attorney in Cape Town and has more than 20 years experience in law and 13 years as a practising attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. in Cape Town. Bertus is also the Family Law expert on Health24.com and on the expert panel of Law24.com. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters and international divorce law.

Divorce now less costly and easier through the Magistrate’s Courts

The Department of Justice and Constitutional Development has amended the Magistrate’s Courts Act of 1944 giving powers to Regional Courts to now deal with divorce cases as well. President Jacob Zuma announced the commencement of the Jurisdiction of Regional Courts Amendment Act which came into effect on 9th August 2010, the National Woman’s Day. The Regional Courts were established in 1952 to deal with divorces, serious criminal offences and mete out harsher penalties. The amendments increase access to justice to members of the public, in particular, women and children who go to courts daily for the resolution of family related disputes relating to divorce; maintenance; adoption; and matters relating to custody of minor children.

These amendments are good news for people utilising the eDivorce process, a DIY online divorce service at http://www.edivorce.co.za for the mere reason that it offers parties in a divorce action the opportunity to conclude their divorce in their area of residence, faster and with wider access to the courts. Previously divorces in South Africa were handled by just a few Family Courts and the High Court and through the implementation of the new system; it will be not only more cost effective but also quicker as a result of the spread in the workload.

BENEFITS OF THE AMENDMENT

Reduced time of finalisation of cases:

  • There are now 62 more Regional courts to deal with same workload that the 3 former divorce courts.
  • This will assist in reducing case backlogs both at the High Courts and Magistrates Courts.

Reduced Costs:

  • Proceedings in the High Courts are complex to the extent that attorneys and advocates are usually instructed resulting in high litigation costs.
  • Regional courts have a reduced scale of costs in relation to the High Court, and simplified proceedings which include the use of mediation in resolving civil disputes.
  • Registrars and assistant registrars appointed at each regional court to provide assistance to member of the public.

The Courts are located in the diagram below:

 

Province New seat of civilRegional Court Areas in respect of which the civil Regional Court has jurisdiction
Eastern

Cape

East London East London, Komgha and Mdantsane
Grahamstown Albany, Adelaide, Alexandria, Bathurst, Bedford and Somerset East.
Graaff-Reinet Graaff-Reinet, Aberdeen, Cradock, Hofmeyr, Jansenville, Middelburg, Pearston and Willowmore.
King William’sTown King William’s Town, Cathcart, Fort Beaufort, Keiskammahoek, Middledrift, Peddie, Stutterheim, Victoria East andZwelitsha.
Mthatha Umtata, Bizana, Butterworth (Gcuwa), Elliot, Elliotdale (Xhora), Engcobo, Flagstaff (Siphaqeni) , Idutywa, Kentani (Centane), Libode, Lusikisiki, Maclear, Matatiele, Mount Ayliff (Maxesibeni), Mount Fletcher, Mount Frere (Kwabacha) , Mqanduli, Nqamakwe, Ngqeleni, Port St Johns (Umzimvubu), Qumbu, Tabankulu, Tsolo, Tsomo and Willowvale (Gatyana)
Port Elizabeth Port Elizabeth, Kirkwood, Motherwell and Uitenhage.
Queenstown Queenstown, Albert, Aliwal North, Barkley East, Glen Grey (Cacadu) (Lady Frere), Herschel, Hewu, Indwe, Lady Grey, Mo;teno, Mpofu (Seymor) (Stockentrom), Ntabethemba, Sterkstroom, Steynsburg, St Marks (Cofimvaba), Tarka, Venterstad, Wodehouse and Xalanga (Cala).
Humansdorp Humansdorp, Hankey, Joubertina, and Steytlerville.
Free State Bethlehem Bethlehem, Ficksburg, Fouriesburg, Frankfort, Harrismith, Lindley, Reitz, Senekal, Villiers, Vrede and Witsieshoek.
Bloemfontein Bloemfontein , Bethulie, Boshof, Botshabelo, Brandfort, Clocolan, Dewetsdorp, Edenburg, Excelsior , Fauresmith, Jacobsdal, Jagersfontein, Koffirfontein, Ladybrand, Marquard, Petrusburg, Philippolis, Reddersburg, Rouxville, Smithfield, Trompsburg, Thaba Nchu, Wepener and Zastron
Kroonstad Kroonstad, Heilbron, Koppies, Parys, Sasolburg, Viljoenskroon and Vredefort.
Welkom Welkom, Bothaville, Bultfontein, Hennenman, Hoopstad, Odendaalsrus, Theunissen, Ventersburg, Virginia, Wesselsbron and Winburg.
Gauteng Ekangala Ekangala, Bronkhorstspruit and Cullinan.
Johannesburg Johannesburg. [Can also go to Kliptown Regional Court]
Kempton Park Kempton Park, Benoni, Boksburg, Daveyton and Tembisa.
Kliptown (Canalso go to Johannesburg

Regional

Court)

Armadale, Chiawelo, Comptonville, Devland, Dhlamini, Diepkloof, Dobsonville, Dobsonville Gardens, Doornkop, Dube, Emdeni, Jabavu, Jabavu Central Western, Jabulani, Klipriviersoog, Klipspruit, Klipspruit West, Lenaron, A.H., Lougherin A.H., Lufhereng, Mapetla, Meadowlands, Meredale, Mofolo Central, Mofolo North, Mofolo South, Molapo, Moletsane, Moroka, Moroka North, Naledi, Naturena, Nomzamo, Noordgesig, Orlando, Orlando East, Orlando Ekhaya, Orlando West, Phiri, Pimville Ext & Zones, Power Park, Protea City, Protea Glen, Protea North, Protea North Ext.1, Protea North Ext.9, Protea South Ext.1, Racecourse, Riversdale, Senaoane, Stesa A.H, Slovoville, Slovoville Ext.1, Tladi, Zola, Zola Ext.1 and Zondi.
Oberholzer Oberholzer and Westonaria.
Pretoria Pretoria, Atteridgeville, Mamelodi, Soshanguve and Wonderboom.
Randburg Randburg and Alexandra.
Roodepoort Roodepoort, Krugersdorp and Randfontein.
Germiston Germiston and Alberton.
Vereeniging Vereeniging, Meyerton and Vanderbijlpark.
Springs Springs, Brakpan, Heidelberg and Nigel.
KwaZulu-Natal Durban Durban, Chatsworth, Inanda, Lower Tugela, Ndwedwe, Pinetown, Umbumbulu, Umlazi and Ntuzuma.
Empangeni Empangeni (Lower Umfolozi), Eshowe, Hlabisa, Kranskop, Mahlabatini, Mapumulo, Mtonjaneni,Mtunzini and Nkandhla.
Newcastle Newcastle, Dannhauser, Dundee, Estcourt, Glencoe, Klip River, Madadeni, Msinga, Utrecht and Weenen.
Vryheid Vryheid, Babanango, Ingwavuma, Ngotshe, Nongoma, Nqutu, Paulpietersburg, Piet Retief and Ubombo.
Pietermaritzburg Pietermaritzburg, Bergville, Camperdown, Impendle, Lion’s River, Mooi River, New Hanover, Polela, Richmond, Umvoti and Underberg.
Port Shepstone Port Shepstone, Alfred, Ixopo, Mount Currie, Umzimkulu and Umzinto.
Limpopo Giyani Giyani, Bolobedu, Malamulele, Sekgosese, Tshitale and Vuwani.
Lebowakgomo Thabamoopo.
Sekhukhune Sekhukhuneland, Nebo and Praktiseer
Modimolle Waterberg, Ellisras, Northam, Phalala, Thabazimbi and Warmbaths.
Polokwane Pietersburg, Bochum, Mankweng, Mokerong, Potgietersrus and Seshego.
Tzaneen Letaba, Lulekani, Namakgale, Naphuno, Ritavi and Phalaborwa.
Thohoyandou Thohoyandou, Dzanani, Hlanganani, Messina, Mutale, Sibasa, Soutpansberg, Tiyani and Tshilwavhisiku.
Mpumalanga Eerstehoek (Elukwatini) Eerstehoek, Carolina, Ermelo, Piet Retief and Wakkerstroom.
Evander Highveld Ridge, Amersfoort, Balfour, Bethal, Delmas, Standerton and Volksrust.
KwaMhlanga Kwamhlanga, Mathanjana, Mbibana, Mdutjana and Mkobola.
Middelburg Middelburg, Groblersdal, Kriel, Moutse and Witbank.
Mbombela Nelspruit, Barberton, Belfast, Lydenburg, Mapulaneng, Mhala, Nkomazi, Nsikazi, Pilgrim’s Rest, Waterval-Boven and White River.
Northern Cape De Aar De Aar, Britstown, Carnarvon, Colesberg, Hanover, Noupoort, Philipstown, Richmond and Victoria West.
Kimberley Kimberley, Barkly West, Hartswater, Douglas, Hopetown, Jan Kempdorp and Warrenton.
Springbok Calvinia, Fraserburg, Garies, Namaqualand, Port Nolloth, Sutherland and Williston.
Upington Gordonia, Groblershoop, Hay, Kakamas, Kathu, Keimoes, Kenhardt, Kuruman, Olifantshoek, Pofadder, Postmasburg and Prieska.
North West Brits Brits and Warmbaths.
Ga-Rankuwa Odi and Pretoria.
Klerksdorp Klerksdorp, Bloemhof, Christiana, Schweizer-Reneke and Wolmaransstad.
Mmabatho Molopo (Mafikeng), Atamelang, Ditsobotla, Mafeking, Lehurutshe, Lichtenburg, Mafeking, Ottosdal and Zeerust
Potchefstroom Potchefstroom, Coligny and Ventersdorp.
Rustenburg Rustenburg, Bafokeng, Koster, Madikwe, Mankwe, Marico and Swartruggens.
Temba Moretele
Vryburg Vryburg, Delareyville, Ganyesa, Kudumane (Tlhaping-Tlharo), Kuruman and Taung.
Western Cape Atlantis Atlantis, Clanwilliam, Hopefield, Malmesbury, Moorreesburg, Piketberg, Van Rhynsdorp, Vredenburg and Vredendal.
Bellville Bellville, Bluedowns and Kuils River.
Cape Town Cape and Goodwood.
George George, Heidelberg, Knysna, Mossel Bay, Riversdale, Thembaletu and Uniondale.
Mitchells Plain Mitchells Plain and Khayelitsha.
Oudtshoorn Oudtshoorn, Beaufort West, Calitzdorp, Ladismith, Murraysburg and Prince Albert.
Somerset West Somerset West, Bredasdorp, Caledon, Grabouw, Hermanus, Paarl, Stellenbosch, Strand,Tulbagh, Wellington and Wolseley.
Worcester Worcester, Bonnievale, Ceres, Laingsburg, Montagu, Robertson and Swellendam.
Wynberg Wynberg, Athlone, Phillipi and Simon’s Town.

For further info and how to conclude your divorce through the online eDivorce process at a fraction of the normal cost, visit http://www.edivorce.co.za or email info@edivorce.co.za, you can also call the eDivorce hotline on 0835334428

Compiled by Bertus Preller

Family Law Attorney

Abrahams and Gross Inc.

info@divorceattorney.co.za

 

Parenting Plans, all that you should know

Parental Responsibilities and Rights – Parenting Plans

By Bertus Preller – Family Law Attorney, Abrahams and Gross Inc.

As a family law attorney I am daily involved in drafting, negotiating and implementing parenting plans or parental responsibilities and rights agreements. Parenting planmeans a document created to govern the relationship between the parties relating to the decisions that must be made regarding the minor child and shall contain a time-sharing schedule for the parents and child. The issues concerning the minor child may include, but are not limited to, the child’s education, health care, and physical, social, and emotional well-being.

When a divorce is inevitable, a couple must decide who will be awarded primary residency of the minor children or whether the parties will share residencies and who may regularly contact them at reasonable times, how this will be exercised and so forth. Prior to the new Children’s Act 38 of 2005 (the Act), the parental rights were referred to as custody and access. Now those terms have been abolished and have been extended to include ‘parenting responsibilities and rights’, which include the obligation to care for the children and the responsibility and the right to maintain contact with the children.

Where parents were not married to each other, the question of parental responsibilities and rights may arise and an agreement pertaining to parental responsibilities and rights may be reached and certain procedures provided in the Act have to be followed.

Where a dispute arises regarding the implementation of the agreed parental responsibilities and rights, parents may, with or without the assistance of the family advocate, create a parenting plan to detail what is required from each other regarding parental responsibilities and rights. The parenting plan has to be registered with the family advocate and/or be made an order of the court.

Parental Responsibilities and Rights Agreements – s 22

In terms of Sections 19 and 20 of the Act both parents have equal responsibilities and rights with regard to the children. When separating, both parents have to decide with which parent the children are to reside and what the contact rights of the other parent will be.

Unlike before the promulgation of the Children’s Act where one parent had full custody of the children, according to the new Act both parents have full capacity to care for their children after divorce.

However, a situation may arise where parents of a child or children were not married and the question of paternity arises that result in parental responsibilities and rights becoming a dispute.

Section 22(1) of the Act provides that, subject to subs (2), the mother of a child or other person who has parental responsibilities and rights in respect of a child may enter into an agreement providing for the acquisition of such parental responsibilities and rights in respect of the child as are set out in the agreement, with –

‘(a)    the biological father of a child who does not have parental responsibilities and rights in respect of the child in terms of either section 20 or 21 or by court order; or

(b)     any other person having an interest in the care, well-being and development of the child’.

Section 22(2) provides that the mother or other person who has parental responsibilities and rights in respect of a child may only confer by agreement on a person contemplated in subs (1) those parental responsibilities and rights that she or that other person has in respect of the child at the time of the conclusion of such an agreement. That is, the biological father or any other person that has an interest in the care, well-being and development of the child may conclude an agreement with the biological mother of the child whereby the latter will confer such responsibilities and rights to the former.

It is provided in s 22(3) that

‘[a] parental responsibilities and rights agreement must be in the prescribed format and contain the prescribed particulars’.

In terms of s 22(4), subject to subs (6), a parental responsibilities and rights (PRR) agreement takes effect only if –

‘(a)    registered with the family advocate; or

(b)     made an order of the High Court, a divorce court in a divorce matter or a children’s court on application by the parties to the agreement’.

Thus where parties have concluded a PRR agreement without the assistance of the family advocate, a social worker or psychologist, such PRR agreement will not take effect until it is registered with the family advocate or made an order of the High Court, a divorce court in a divorce matter or a children’s court where the parties made an application to register the agreement. A new development is that divorce matters may now be dealt with by a regional court and therefore a PRR agreement will take effect when registered at the regional court in a divorce matter.

Before registering a PRR agreement or before making a PRR agreement an order of court, subs (5) provides that ‘the family advocate or the court concerned must be satisfied that the parental responsibilities and rights agreement is in the best interests of the child’.

The family advocate is therefore required by the Act to ascertain that – where a PRR agreement was made by the parties without its assistance and subsequently registered with it – it must satisfy the provisions of s 7 of the Act in addition, in terms of s 9, in all matters concerning the care, protection and well-being of a child, the standard that the child’s best interest is of paramount importance, must be applied. The court is in the same vein required to ascertain, before it makes it an order of the court, that the PRR agreement meets the best interests standard set out in s 7 and that standard is applied in terms of s 9 of the Act.

In terms of subs 6(a) a PRR agreement registered by the family advocate may be amended or terminated by the family advocate on application –

‘(i)        by a person having parental responsibilities and rights in respect of the child;

(ii)        by the child, acting with leave of the court; or

(iii)       in the child’s interest by any other person, acting with leave of the court’.

The subsection therefore provides that the child concerned or any person acting in the child’s interest, may, with the leave of the court, make an application to the family advocate to amend or terminate the PRR agreement. Other than that, a person who does not have parental responsibilities and rights in respect of the child does not qualify to make an application that the family advocate amend or terminate a PRR agreement registered with it.

In terms of subs 6(b) a PRR agreement that was made an order of court may only be amended or terminated on application –

‘(i)        by a person having parental responsibilities and rights in respect of the child;

(ii)        by the child, acting with leave of the court; or

(iii)       in the child’s interest by any other person, acting with leave of the court’.

Subsection 6(b) also requires the court that granted the PRR agreement to observe that, other than the child concerned or any other person with the child’s interests, both acting with the leave of the court, a person with no PRR in respect of the child cannot make application for that court to amend or terminate it.

In terms of subs 7:

‘[O]nly the High Court may confirm, amend or terminate a [PRR] agreement that relates to the guardianship of a child’.

This is by virtue of the High Court being the upper guardian of all minor children.

Parenting plans

Sections 33 and 34 of the Children’s Act make provision for ‘parenting plans’. Many parents, legal practitioners, social workers, psychologists, social services professional and other suitably qualified persons are now faced with the task of acting in accordance with ss 33 and 34 of the Act.

What is a parenting plan?

The Act does not provide a definition of a parenting plan. However, looking at the provisions of the Act and its regulations dealing with parenting plans, one could define it as a written agreement between co-holders of parental responsibilities and rights, outlining in detail their respective responsibilities and rights of care, contact, guardianship and maintenance with regard to a child.

Who should agree on a parenting plan?

Not all holders of parental responsibilities and rights need to agree on a parenting plan and have it registered with a family advocate or made an order of the High Court. Parenting plans should be entered into only if there is a need for it. However, the choice is always there for the parties should they wish to formalise one.

Section 33 of the Act provides for two situations in which a parenting plan comes into play. They are the optional situation and the mandatory situation.

Optional situation – s 33(1)

Section 33(1) of the Act states the following:

‘(1)    The co-holders of parental responsibilities and rights in respect of a child may agree on a parenting plan determining the exercise of their respective responsibilities and rights in respect of the child.’

This situation would apply when the parties want to have a structured parental plan in place but none of them intends to go to court on any issue. You could say they are not experiencing difficulties in exercising their responsibilities and rights but want to have a formalised structure on paper. This optional situation may apply where the parents of the child do not live together and there is no document in place regulating their respective care and contact responsibilities and rights in respect of the child.

Mandatory situation – s 33(2)

The other situation where a parenting plan comes into play is where the parties are experiencing difficulties in exercising their responsibilities and rights. In this case the Act prescribes to them to first try to agree on a parenting plan before going to court. Section 33(2) states:

‘If the co-holders of parental responsibilities and rights in respect of a child are experiencing difficulties in exercising their responsibilities and rights, those persons, before seeking the intervention of a court, must first seek to agree on a parenting plan determining the exercise of their respective responsibilities and rights in respect of the child.’

Therefore, all holders of parental responsibilities and rights in respect of a child do not need to enter into a parenting plan from the outset as stated. However, should there be problems and one or more of the parties may want to take them to court, before they do so, they should first try to agree on a parenting plan before approaching the court. Should the parties fail to agree on a parenting plan after following the prescripts of the Act, the court may then be approached.

What must the parenting plan deal with according to the Act?

The contents of both optional and mandatory parenting plans can vary, however, according to s 33(3) of the Act:

‘A parenting plan may determine any matter in connection with parental responsibilities and rights, including –

(a)     where and with whom the child is to live;

(b)     the maintenance of the child;

(c)     contact between the child and –

(i)  any of the parties; and

(ii) any other person; and

(d)     the schooling and religious upbringing of the child.’

Furthermore, the regulations to the Act prescribe child participation, bearing in mind the child’s age, maturity and stage of development. Regulation 11, which deals with participation of a child in preparation of parenting plans states the following:

‘(1)    Bearing in mind the child’s age, maturity and stage of development, such child must be consulted during the development of a parenting plan, and granted an opportunity to express his or her views, which must be accorded due consideration.

(2)     When a parenting plan has been agreed [on] the child … bearing in mind the child’s age, maturity and stage of development, [must] be informed of the contents of the parenting plan by the family advocate, a social worker, social service professional, psychologist, suitably qualified person or the child’s legal representative.’

Therefore, before an optional or mandatory parenting plan can be registered with the family advocate or made an order of court, reg 11 must be applied.

Section 34 of the Children’s Act

This section deals with the formalities of a parenting plan that need to be adhered to before it can be registered with the family advocate or made an order of court. It states the following:

‘(1)    A parenting plan –

(a)     must be in writing and signed by the parties to the agreement; and

(b)     subject to subsection (2), may be registered with a family advocate or made an order of court.

(2)     An application by co-holders contemplated in section 33 (1) for the registration of the parenting plan or for it to be made an order of court must –

(a)     be in the prescribed format and contain the prescribed particulars; and

(b)     be accompanied by a copy of the plan.

(3)     An application by co-holders contemplated in section 33 (2) for the registration of a parenting plan or for it to be made an order of court must –

(a)     be in the prescribed format and contain the prescribed particulars; and

(b)     be accompanied by –

(i)    a copy of the plan; and

(ii)   a statement by –

(aa)   a family advocate, social worker or psychologist contemplated in section 33(5)(a) to the effect that the plan was prepared after consultation with such family advocate, social worker or psychologist; or (bb) a social worker or other appropriate person contemplated in section 33 (5)(b) to the effect that the plan was prepared after mediation by such social worker or such person.

(4)     A parenting plan registered with a family advocate may be amended or terminated by the family advocate on application by the co-holders of parental responsibilities and rights who are parties to the plan.

(5)     A parenting plan that was made an order of court may be amended or terminated only by an order of court on application –

(a)     by the co-holders of parental responsibilities and rights who are parties to the plan;

(b)     by the child, acting with leave of the court; or

(c)     in the child’s interest, by any other person acting with leave of the court.’

Once the parties decide to proceed to try to agree on a parenting plan, they need to have the parenting plan prepared.

If s 33(2) applies, they would need to do it with the assistance of the relevant party. However, for both optional and mandatory parenting plans, the best interests of the child principle apply.

According to s 33(4) of the Act:

‘A parenting plan must comply with the best interests of the child standard as set out in section 7’.

Approval of parenting plans in court

Should parents agree on a proposed parenting plan, the court will usually approve it. If the parents do not agree, the court will decide on a parenting plan after a hearing or trial. The court looks at various factors when coming to a decision, but the most critical issue is that the plan serves the best interests of the child.

Enforcement of the parenting plan

Once the court signs a parenting plan, both parents must adhere to it. For example, a parent may not deny the other parent access if his child support is outstanding.

If one parent does not allow the other to see the child when he has the right to do so, he may be found in contempt of court. If a parent is found in contempt, the court could order jail time, fines or another type of punishment.

Is it possible to alter a permanent parenting plan?

It is difficult to alter a parenting plan after it is final. Usually, it may be changed if the parents agree to the change. If the parents do not agree, the court may make major adjustments, such as whom the child lives with, only if a major change has occurred in the child’s life or the other parent’s since the original parenting plan was final. It is not sufficient that the parent wanting the change thinks that his life has improved so much that the children should now live with him. Should the parents not agree on the change, one of these things must have occurred before the court will order a change in where the child lives

  • the child has gone to live with one parent for an extended period of time with permission of the other parent;
  • the parent who does not want the change has been held in contempt of court or has been convicted of interfering with the other parent’s time with the child; or
  • the child’s present life with a parent has been shown to be physically or emotionally harmful.

A party may ask to change a parenting plan through his attorney or on his own through the family courts, but must remember that whatever changes are made, the court must find them to be in the children’s best interest.

What if a parent wants to move with the child?

All parenting plans must state what will happen if one of the parents wants to relocate with the child. The law requires the parent who wants to move the child to give the other parent written notice before a move. The notice gives the other parent a chance to object to the move and to ask the court to change the existing parenting plan.

Conclusion

The conclusion of a PRR agreement and the registration of a parenting plan, which is subsequently made an order of the court requires the family advocate and the court to take into account the best interest of a child. Section 7 of the Act lists factors to be taken into account to determine the best interest’s standard, which is applied in terms of s 9.

It is important to note that our courts will not be looking for the so-called ‘perfect parent’, as no such type of parent exists. Our courts will opt for a solution that is ‘the least detrimental available alternative for safeguarding a child’s growth and development’. Our courts have also emphasised that the concept of parenting is a gender neutral function, and the mother or father are seen as equally capable to care for a child. The residence and contact regarding children is determined by the High Court with assistance of the family advocate. Agreements concerning the care of children and arrangements for contact by the parent who does not have the residency of the child should be incorporated into the parenting plan.

Bertus Preller is a Divorce and Family Law Attorney in Cape Town and has more than 20 years experience in law and 13 years as a practising attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. in Cape Town. Bertus is also the Family Law expert on Health24.com and on the expert panel of Law24.com. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters and international divorce law.

Source De Rebus

Children Custody Matters, what we can learn from Charlie Sheen

As an attorney I often advise clients regarding what they should and should not do during a contested divorce where care and contact of the children or custody as we know it is at stake. Here are some important lessons learned from the hours of Charlie Sheen interviews attracting media attention the past few weeks.

Call me old fashioned, but a judge typically do not let 2-year-old twins return to a house where the dad is having a 2 ½ -some.

If you are going to partake in “extracurricular activities” during a custody dispute, at least find a hotel, there are lots of these in South Africa. It is much easier explaining to a judge this charge on a credit card, as opposed to justifying why this behaviour is appropriate in the home.

When determining child custody issues, South African courts have accepted through the years the “Best Interest of the Child” standard. This means that courts are free to consider whatever facts they believe to be relevant when making a child custody determination. This standard is based upon the legal theory “in loco parentis,” which basically means that the court stands “in the place of the parent” when asked to determine a child custody matter. Accordingly, the court takes the place of both the parents when determining what is best for the children in the circumstances.

In the Sheen matter, the analysis will be slightly more complicated. Sheen and Brooke Mueller recently signed a custody agreement or as we know it in South Africa a parenting plan. By signing this document, both the parents essentially stated that they believed the terms of the agreement will be in the best interest of the children. Mueller has asked the court to set aside the recent custody agreement because of a change of circumstances (e.g. Sheen’s recent strange and disturbing behaviour), and because the change would be in the best interest of the children. Because of all the interviews that Sheen has given, there is no shortage of proof that Sheen has new or exasperated issues (whether it be manic episodes, bipolar symptoms, drug use or just poor parenting decisions), and that the agreement granting Sheen unsupervised visitation rights should be re-examined.

At the very least, Sheen’s decision to expose the two-year-old twins to his two so-called “goddesses” will be seen as an important change of circumstances to cause the court to make a thorough analysis of what future care and contact arrangements is in the best interest of the children.

A Porn star is not a qualification to be a nanny.

If you are wealthy and fighting custody battles rather hire someone akin to Mary Poppins. She would be a great witness at trial and people may even love the accent.

Admitting taking substantial amounts of cocaine in the past months, when you claim that your wife has a sobriety problem; it’s almost like the pot calling the kettle “Charlie Sheen.”

Courts appreciate when a parent admits that there is a problem and attempts to get help for that problem and Judges will recognize that people are fallible. If a parent, such as in Sheen’s case goes on national television to proclaim that he is not fallible and in fact has tiger blood, he has not helped his case.

If you have already shot your fiancé and threatened your second wife, been arrested on a violent charge, you probably shouldn’t threaten to kill your current wife during a custody case.

Violence against the other parent will be considered when determining custody and visitation arrangements. This is because courts do recognize that a child’s psyche is significantly affected when watching or learning that there have been acts of domestic violence between his or her parents. If a parent threatens (or is violent against) the other parent, courts may surmise that this parent may threaten (or become violent against) the child in the future.

If we have learned nothing else from Napoleon, you probably shouldn’t fight a two-front war at the same time.

If you have your hands full with a custody battle with wife number three, maybe now is not the time to make threatening and derogatory statements against wife number two. I know it is a recession, but your divorce attorneys may not be that hard up for work.

So what should Sheen do now? The answer is clear….do what is in the best interest of the children.

Bertus Preller is a Divorce and Family Law Attorney in Cape Town who deals with divorce matters all over South Africa and has more than 20 years experience in law and 13 years as a practising attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. in Cape Town. Bertus is also the Family Law expert on Health24.com and on the expert panel of Law24.com. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters and international divorce law.

Cohabitation Law in South Africa – if you don’t have an agreement you may leave with nothing

Cohabitation Trends

Patterns of marriage, divorce, and cohabitating without marriage have been changing. The incidences of domestic partnerships are growing throughout the world. In America 45% of all couples living together are unmarried.

In Sweden, 9/10 couples marrying for the first time already live together, while in Denmark, more than 1/3 of women in their early 20’s are living with a partner without the ties of marriage. As a rough estimate, around one million heterosexual couples are living together without being married in Britain, while in France the number has reached 2.5 million.

South Africa

South African statistics demonstrate a rising trend in cohabitation. Somewhat conservative statistics indicate that a very large number of people live in domestic partnerships in South Africa. The census of 1996 found that 1, 268,964 people described themselves as living together with a partner while the 2001 Census estimated that nearly 2.4 million individuals were living in domestic partnerships, almost doubling the figures of 1996.

In South African law, there is no such thing as a Common Law Marriage. There is no common law marriage in South African law and therefore the duration that a couple spend living together does not translate into a default marriage. The consequence is that at the dissolution of the relationship the assets or any obligations are determined or distributed on a basis of the arrangement that parties used during the subsistence of their relationship.  Many people believe that simply living together with another person for a continuous period of time establishes legal rights and duties between them. Some people believe that the duration of the relationship creates legal protection while others think that having children together entitles the cohabitation relationship to legal protection. Many people do not know that there is actually no legal recognition of domestic partnerships.

The lack of awareness of legal rights may be as a result of the still prevalent belief in the existence of common-law marriage, despite the fact that this concept has been abolished worldwide.

In South Africa marriage laws have traditionally provided parties to a marriage with a variety of legal protections. These laws governed what happened to the property of the parties during the marriage and on dissolution, either by divorce or death it also means that many State were automatically acquired, such as membership of medical aid funds, pension funds etc. Married spouses also had a reciprocal duty of support under the common law.

Domestic partnerships have never been prohibited by South African law, but nor have they enjoyed any noteworthy recognition or protection by the law.

The South African Courts have on occasion come to the assistance of formerly married couples and couples in domestic partnerships by deciding that an express or implied universal partnership exists between the couple. The problem is that it is extremely difficult to prove such a partnership in South African Law.

The only way to be protected in our law is to enter into a cohabitation agreement. Such an agreement clarifies the expectations of the partners and it also serve as an early warning of future problems. A cohabitation agreement will determine what would happen to property and assets of the couple if they should decide to separate. The agreement is, however, not enforceable in so far as third parties are concerned.

With regard to children, the Children’s Act 38 of 2005 provides that the father of a child who is not married to the child’s mother acquires responsibilities and rights. These responsibilities and rights include caring for the child, maintaining contact with the child, acting as a guardian of the child, and contributing to the maintenance of the child. Notably, a parent to a child born out of wedlock, regardless of whether he or she lives with that child at the birth of the child, has a duty to maintain that child. Thus there is an absolute legal duty to maintain a child irrespective of their living arrangements.

Cohabitation Agreements

Basically a cohabitation agreement regulates rights and duties between the partners. It could almost be compared to an antenuptial contract entered into prior to the conclusion of a civil marriage. The agreement can provide for the division and distribution of assets upon dissolution, for instance the formal agreement may set out:

  • The rights and obligations towards each other;
  • The respective financial contributions to the joint home;
  • Clarify arrangements regarding ownership of property that they may purchase jointly;
  • The division of their jointly-owned assets should they separate.

An agreement such as this will be legally binding as long as it contains no provisions that are immoral or illegal. If there is no agreement on the dissolution of a domestic partnership agreement, a party would only be entitled to retain those assets which he or she has purchased and owns and further would be entitled to share in the assets proportionately in terms of the contribution which they have made to the partnership.

Problems arise with the enforcement of a domestic partnership agreement – express or implied – where the partner being sued is still legally married to a third party. It has been argued that in such cases domestic partnership agreements violate public policy to the extent that they impair the community of property rights (where applicable) of the lawful married spouse.

Domestic Partnerships Bill of 2008

The Bill is still at its formulation stages and it remains to be seen how it is to be implemented. In the current constitutional dispensation it is unlikely that a partner will be left in despair taking into account the Domestic Partnerships Bill.

Bertus Preller is a Divorce and Family Law Attorney who acts in Divorce matters in Cape Town, Johannesburg, Durban and Pretoria and has more than 20 years experience in law and 13 years as a practising attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. in Cape Town. Bertus is also the Family Law expert on Health24.com and on the expert panel of Law24.com. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters and international divorce law.