Is a husband obliged to pay maintenance when his wife lives with another man?

 

A recent judgment concerned the issue whether a husband is obliged to pay maintenance to his former wife, who is involved in a relationship with another man, after divorce. The plaintiff issued summons against the defendant, her husband, during 2003, for a decree of divorce, maintenance for herself and their son and ancillary relief.

The parties had not lived together as man and wife for a continuous period of at least two years prior to the date of the institution of the divorce action. In terms of the provision of s 4(2)(a) of the Divorce Act 70 of 1979 (the Divorce Act), this is proof of the irretrievable break-down of the marriage. The remaining issues were whether the plaintiff is entitled to maintenance, and if so, what such maintenance should be. The defendant’s case in respect of the plaintiff’s entitlement to maintenance was that it is against public policy that a woman should be supported by two men.

The maintenance post-divorce Section 7(1) and (2) of the Act sets out when a court may order the payment of maintenance and the factors that should be taken into account when making such determination.

It provides as follows:

‘7(1) A Court granting a decree of divorce may in accordance with a written agreement between the parties make an order with regard to the division of the assets of the parties or the payment of maintenance by the one party to the other.

(2) In the absence of an order made in terms of subsection (1) with regard to the payment of maintenance by the one party to the other, the Court may, having regard to the existing or prospective means of each of the parties, their respective earning capacities, financial needs and obligations, the age of each of the parties, the duration of the marriage, the standard of living of the parties prior to the divorce, their conduct insofar as it may be relevant to the break-down of the marriage, an order in terms of subsection (3) and any other factor which in the opinion of the court should be taken into account, make an order which the court finds just in respect of the payment of maintenance by the one party to the other for any period until the death or remarriage of the party in whose favour the order is given, whichever event may first occur.’

Through a long line of cases dealing exclusively with maintenance pendente lite, it has become customary not to award maintenance to a spouse who is living in a permanent relationship with another.

In Drummond v Drummond the Appellate Division agreed with the definition of the phrase ‘living as husband and wife’ as stated by the full bench. The parties agreed that the husband would pay maintenance towards the wife and that maintenance would ‘cease should the plaintiff prove that the defendant was living as man and wife with a third person on a permanent basis’. The said phrase has the following meaning: ‘. . . the main components of a modus vivendi akin to that of husband and wife are, firstly, living under the same roof, secondly, establishing, maintaining and contributing to a joint household, and thirdly maintaining an intimate relationship.’ The plaintiff and S clearly live together as husband and wife according to the said definition.

In Cohen v Cohen the parties determined in a deed of settlement that the maintenance payable by the plaintiff (the husband) would cease if the defendant lived with another man as husband and wife for a certain specified period. This order was varied by a maintenance court in respect of the amounts the husband had to pay towards maintenance. In the maintenance court’s order the condition in respect of the cohabitation was left out. In a subsequent action it was decided that, where the magistrate had left out the said clause, the condition was no longer enforceable as it had been substituted by the maintenance court.

In Carstens v Carstens the wife claimed maintenance pendente lite in a rule 43 application while she lived with another man as husband and wife. Mullins J found: ‘It is in my view against public policy that a woman should be entitled to claim maintenance pendente lite from her husband when she is flagrantly and deliberately living as man and wife with another man. Not only is applicant in the present case living in adultery, but she and her lover are maintaining a joint household complete with the addition of an adulterine child. She has by her conduct accepted the support of Clarkson in lieu of that of her husband. The fact that Clarkson is unable to support her to the extent that she may have been accustomed in her matrimonial home with respondent does not appear to me to affect the position.’

In SP v HP (another rule 43 application) it was found, on the strength of Carstens, that ‘(t)he objection is not so much about the moral turpitude attaching to the illicit cohabitation, but more about the notion of a woman being supported by two men at the same time’.

In the unreported judgment of Qonqo v Qonqo dealing with a rule 43 application for maintenance pendente lite, the court, in spite of the fact that the applicant cohabited with her lover, ordered the respondent to pay maintenance pendente lite. The reason for ordering the payment of maintenance was that there was no proof that the lover supported the applicant in that instance.

It is also clear from the wording of s 7(2) of the Divorce Act that the legislature did not determine that maintenance should cease when the person receiving the maintenance is in a relationship akin to a marriage but only on remarriage. It is usually by way of an agreement between the parties that the additional condition relating to the cessation of payment of maintenance on the cohabitation with a third party is added.

Marriage entails that the parties 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’. One of the effects of marriage is the reciprocal duty of support. This duty of support does not exist, in circumstances such as these, if there is no marriage.

In Volks NO v Robinson and Others the proceedings had been initiated by Mrs Robinson who had been a partner in a permanent life partnership with Mr Shandling for a period of 16 years until his death in 2001. The couple had not been married, although there was no legal obstacle to their marriage. Following the death of Shandling, Robinson submitted a claim for maintenance against his deceased estate. The executor of the estate, Volks, rejected her claim because she was not ‘a survivor’ as contemplated by the Act. Skweyiya J said at paras 55 – 56: ‘Mrs Robinson never married the late Mr Shandling. There is a fundamental difference between her position and spouses or survivors who are predeceased by their husbands. Her relationship with Mr Shandling is one in which each was free to continue or not, and from which each was free to withdraw at will, without obligation and without legal or other formalities. There are a wide range of legal privileges and obligations that are triggered by the contract of marriage. In a marriage the spouse’s rights are largely fixed by law and not by agreement, unlike in the case of parties who cohabit without being married. The distinction between married and unmarried people cannot be said to be unfair when considered in the larger context of the rights and obligations uniquely attached to marriage. Whilst there is a reciprocal duty of support between married persons, no duty of support arises by operation of law in the case of unmarried cohabitants. The maintenance benefit in section 2(1) of the Act falls within the scope of the maintenance support obligation attached to marriage. The Act applies to persons in respect of whom the deceased person (spouse) would have remained legally liable for maintenance, by operation of law, had he or she not died.’

If regard is had to the decision of Cohen, that it cannot be read into s 7(2) of the Act that the maintenance will cease when the recipient of the maintenance lives as husband and wife with another, as an express agreement to that effect can be amended by the maintenance court. Having regard to the factors that should be taken into account when determining whether the defendant ought to pay maintenance for the plaintiff, in terms of s 7(2) of the Act, the factors mentioned are not exclusive.

When taking into consideration the factors mentioned in s 7(2) of the Act to determine whether the defendant is liable to pay maintenance the following emerge:

(a) The existing and prospective means of each of the parties and the parties’ respective earning capacities.

(b) The financial needs and obligations of the parties. It is clear that neither of the parties can live lavishly, but they are not destitute.

(c) The age of the parties.

(d) The duration of the marriage.

(e) The standard of living of the parties prior to the divorce.

(f) The conduct of the defendant insofar as it may be relevant to the breakdown of the marriage.

The facts of this matter differed materially from Carstens; SP v HP; and Qonqo. It is immaterial whether the defendant was unable to support the plaintiff and their son, or whether he was merely unwilling to do so. Other legislation also makes it clear that the legislature envisaged that a man can be supported by two women. In terms of the provisions s 8(4) of the Recognition of Customary Marriages Act 120 of 1998, a court dissolving a customary marriage has the powers contemplated in ss 7, 8, 9 and 10 of the Act. This has the effect that with polygamous customary marriages a husband will have the right to be supported by more than one wife, post-divorce, if circumstances demand it. Although it might have been a concept that was unacceptable in a previous dispensation, the concept is not unacceptable today. The court was of of the opinion that in the circumstances of this case it could not be said that it is against public policy that the defendant should be liable to pay maintenance to the plaintiff; there is no legislative prohibition and the court found that there was no general public policy to that effect or moral prohibition.

Adultery, Infidelity, Extra-marital Affairs and Divorce

From a moral, ethical and religious view adultery is a sin and an act contrary to the basis of trust between married spouses and so is the behaviour of that a third party that break up the marriage seen as immoral.  This article is purely focussed on the law and not the public view or for that matter any moral or religious viewpoint.

Adultery may be defined as extramarital sex that wilfully and maliciously interferes with marriage relations which renders the irretrievable breakdown of the marriage relationship. It is often cited as grounds for divorce. In our law, both the married person and the lover will be regarded as adulterers.

South African law has recognised  claims for damages that can be instituted by an aggrieved spouse against a mistress, but is our law not evolving away from the historic public and religious views? Damages may still be awarded on the basis of the insult caused to the innocent party and of the loss of consortium. Compensation can be claimed for financial loss caused by break-up of the marriage, as well as for the loss of the affection. A court will consider the spouse’s financial and social situation, their moral reputation and the state of the relationship before the adultery was committed. When an innocent spouse’s behaviour was partly responsible for driving his or her partner into another person’s arms, the damages awarded can be considerably lower.

It can however be argued that the South African common law on which a Plaintiff’s claim is predicated for damages against a spouse who committed adultery in a marriage must be developed to promote the spirit, purport and objective of the Bill of Rights contained in Chapter 2 of the Constitution of South Africa, 1996 (“the Constitution”) and the interests of justice (under Section 39 (2) and section 173 of the Constitution).

According to the view expressed above it is argued that the time has come to develop the common law so as to remove or curtail claims for damages by a married person, utilising the actio iniuriarum, against a person involved in an intimate relationship with the married person’s spouse. The actio iniuriarum is used to claim for the impairment of one’s personality.  The purpose of this action is to compensate for the intentional injury to one’s mental integrity.

The argument against such a claim is that it breaches the right to human dignity (of the adulterer and mistress) under Section 10 of the Constitution, in that:

  • The relationship and love between the adulterer and mistress is treated as morally reprehensible or without opprobrium;
  • The mistress is held wholly responsible for damage caused to an aggrieved spouse by the other spouse’s marital infidelity; and
  • The mistress is treated as an instrument, in that her human relationship with the adulterer is used as a means to express condemnation for the adulterer’s marital infidelity, and/or to generate sympathy for the aggrieved spouse.

It is further argued that such a claim breach the adulterer and mistress’s rights to equality and freedom from discrimination under Section 9 of the Constitution on basis of marital status, conscience and belief in that:

  • No similar claim for damages is possible against a person who begins an intimate relationship with a man or a woman involved in a long-term homosexual or heterosexual relationship, customary law marriage or religious union;
  • The emotional consequences and loss for the aggrieved partner (i.e the person who learns of the infidelity of his or her partner with a third person) in all of the above relationships may be no more or less serious than a spouse in a marital relationship;
  • The law accordingly differentiates between a person who enters a relationship with a married person; and a person who enters a relationship with a person in other types of committed, long-term relationships;
  • The differentiation amounts to unfair discrimination on the basis of marital status and on the basis that it impairs, or has the potential to impair, the fundamental human dignity of an adulterer and a mistress.

It can further be argued that an adulterer and mistress’ right to privacy under Section 14 of the Constitution is violated in that it causes a public inquiry into the details of their relationship, how it formed and its strength.

Furthermore it seems that an adulterer and mistress’ rights to freedom of conscience, thought, belief and opinion under Section 15 of the Constitution, expression under Section 16 (1) of the Constitution and freedom of association under Section 18 of the Constitution also come into play for the following reasons:

  • Burdening people such as the mistress with damages will have a detrimental effect on her ability to honestly and openly express her emotions and love for another person;
  • The expression of emotions and love between the adulterer and mistress will be treated as morally reprehensible or tainted with moral opprobrium.

Therefore it seems that the common law must be developed in the interests of justice taking in to account the recognition that both parties contribute to the breakdown of the marriage relationship, which is inherent in the ground for divorce introduced in Section 4 of the Divorce Act 70 of 1979, namely “the irretrievable breakdown of the marriage”.

It is so that many foreign jurisdictions don’t tolerate such claims anymore and that there seems to be developments in South African case law to that effect. The historic view in our law that damages are awarded on the basis of the insult caused to the innocent party and of the loss of consortium seems to be outdated and time will tell on how our courts will develop the common law.

About the Author

Bertus Preller is a Divorce Attorney in Cape Town and has more than 20 years experience in most sectors of the law and 13 years as a practicing attorney. He specializes in Family law and Divorce Law at Bertus Preller & Associates Inc. in Cape Town. Bertus is also the Family Law expert on Health24.com and on the expert panel of Law24.com and is frequently quoted on Family Law issues in newspapers such as the Sunday Times and Business Times. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Parenting Plans, Parental Responsibilities and Rights, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters, international divorce law, digital rights, media law and criminal law.

www.divorceattorney.co.za

info@divorceattorney.co.za

Adultery and the emergence of the Alpha Woman…

Adultery and the emergence of the Alpha Woman

New research reveals that it’s not just powerful men who become sexual predators, but women too…

Sipping her glass of chilled Chablis, Erica Waddington’s eyes wandered slowly around the bar. It didn’t take her long to find what she was looking for. In the opposite corner, blond hair falling foppishly onto the collar of his Paul Smith shirt as he idly scrolled through his BlackBerry, was a stranger. And he was alone, like her.

As Erica’s eyes locked with his just an instant too long, she felt a surge of excitement. Crossing her legs suggestively, she knew all she had to do was wait. Sure enough, two minutes later, the stranger was standing casually at the bar beside her. For Erica, the thrill of the chase had begun.

‘Two hours later we were making passionate love in my hotel bedroom,’ Erica, 50, recalls with a smile. ‘After a long day at work, the release was exactly what I needed — my little treat to myself.’

Whether her husband and three children would agree with her is doubtful. But then, Erica’s not alone. In fact, she’s just one among a growing band of women who’ve been dubbed the Alpha Adulteresses.

These high-earning, successful women are every bit as willing as men to use their power to attract younger lovers for quick flings.

Newspapers are crammed with sex scandals involving powerful men. This past week alone, Dominique Strauss-Kahn — of late the world’s most powerful banker — has been accused of rape, megastar Arnold Schwarzenegger has admitted having a love-child with his housekeeper and the scandal surrounding MP Chris Huhne’s past indiscretions continues to rumble on.

However, a new academic study suggests women are inherently no more virtuous than men. It’s just that, in the past, they have lacked the confidence or opportunity to stray.

Like men, women are finding that power is a potent aphrodisiac. And just like men, they are giving in to the thrill of illicit lunchtime assignations and the sheer excitement that accompanies their transgression.

Nor do they feel any more guilty or ashamed about it than a man would — if anything, less so.

Professor Joris Lammers, of Tilburg University in the Netherlands, who conducted an anonymous survey of more than 1,500 readers of a business magazine, has found being powerful makes women more prone to be unfaithful.

He questioned people, from top executives to ordinary employees, about whether they’d had affairs. They were asked how powerful they thought they were and quizzed on other factors including their feelings of confidence, and what they thought their risk of being caught was.
The results revealed a strong link between power and infidelity, regardless of gender.
‘The strongest predictors are not religion or moral belief, but power and opportunity,’ says Professor Lammers. ‘Power can undermine your morality and increase your risk-taking, and the effect of power on women is just as strong as on men.’

Certainly, women like Erica are happy to admit they feel no shame in going all out to get what they want — not just in the boardroom but in the bedroom.

For Erica — for obvious reasons names in this article have been changed — treating herself to a night of illicit sex is on a moral par with her regular shopping trips to Paris, her facials and her gym membership. For her, and many other alpha females, sex is simply another trapping of success, a reward for hard work.

A millionaire businesswoman who runs her own chain of travel agencies, she lives in Cheshire with her husband, Thomas, 52, who works for her, and their three children aged from 11 to 17.

She says, ‘I love walking into a boardroom, wearing a beautiful tailored suit, knowing that every man’s eyes are on me. The success of my business — we had a turnover of £2million last year — gives me such a feeling of power and confidence, and that has translated into my attitude towards relationships.

‘I don’t feel guilty: my family have a lovely life, in a five-bedroom detached house with a swimming pool, thanks to my hard work, and my children are privately educated.

‘I suspect there are a lot more alpha women like me who but who simply aren’t prepared to admit they are using their power and money to have affairs.

‘I have had the best sex of my life in the past decade. None of these affairs, or flings, have meant anything to me, they are simply exciting and flattering.

‘My “shenanigans”, as I call them, are my way of de-stressing after my long working day. Inevitably they take place in hotels when I am away from home, and I have discovered that I can completely divorce my emotions from my sex life. I can be on the phone to my daughter talking about her homework one minute, and then gazing into the eyes of a handsome young man in a dimly-lit bar half an hour later.

‘I know men approach me because I am rich and successful, and I often end up paying the bar bill and for the meal. But that doesn’t bother me. In fact, it gives me a sense of achievement that I am totally in control of the situation.’

Lucy Kellaway, a columnist on the Financial Times, wrote her novel In Office Hours after observing the increasingly similar traits of male and female executives. Her main character, Stella, is a highly successful economist in her mid-40s who has an affair with her twentysomething trainee.

Kellaway says her character is typical of a new breed. ‘Climbing the career ladder can do weird things to people and it can corrupt both men and women,’ she says. ‘I think it’s very plausible that it makes women more sexually promiscuous.’

This is borne out by the volume of traffic on Illicit Encounters. The internet site which caters for married professionals looking for adulterous affairs has nearly 600,000 members, and women looking for extra-marital sex outnumber men by 3½ to 1. Most are married with children, aged between their early 30s and mid-40s, and pursuing a well-paid career.

‘Alpha women look for a partner and conduct their encounters in a very business-like fashion. They will often grill prospective partners as though they were conducting a job interview,’ says the website’s Rosie Freeman-Jones.

‘I was naïve when I joined this business. I thought women would be looking for a Brief Encounter-style romantic love affair. But it really is all about sex.’

Wealthy businesswoman Sarah Pattinson holds her hands up to that. She’s embroiled in an affair with a man eight years her junior. He give her the high-octane, high-risk sex she craves; she gives him expensive gifts and treats him to lovely holidays.

‘We met through friends and I fancied him instantly,’ admits Sarah, 49. ‘I think he was very impressed by my status and success.

‘He likes all my “toys” — the Range Rover Sport and my disposable income. I love to buy him clothes, and I recently paid for him to fly to India with a friend. In a way, he is my kept man. I have a phone that I use only to communicate with him which I keep hidden from my husband.

‘At work, I am the boss. I make tough decisions, I hire and fire, and I have to maintain this air of control. I get a buzz from the power and the adrenaline, and that has translated into my sex life.’

Sarah, a mother of two teenagers, runs her own head-hunting business in London and lives in Islington with her husband Robert, 52.

Like most Alpha Males, she regards her affair as a healthy distraction. And, like most Alpha Males, her success has given her an intoxicating sense of invincibility; she simply can’t imagine being caught out.

‘Before I ran this company, I don’t think I would have contemplated being unfaithful. But you do start to think no one can touch you and you are invincible,’ she admits.
‘On the surface, Robert and I have the perfect marriage — he works in the City in insurance, we have a beautiful five-bedroom home in Islington, our children are at a high-achieving private day school and our social life revolves around like-minded wealthy couples.

‘But sex is unfulfilling. If we didn’t have the children, I might have considered leaving Robert for my lover, but our lives are just too complicated to  un-pick. Besides, we do get on reasonably well and we have a fabulous lifestyle, including a villa with a swimming pool in Portugal.

‘We have a live-in nanny who also acts as our housekeeper so my domestic duties are quite light. I work thirteen or fourteen hour days, and I have evening meetings too. This gives me the freedom to meet my lover, who also works in the City.

‘Sometimes I take risks. Once my lover Nick rang me at home and Robert could have picked up. I’ll make excuses to walk down the garden and phone Nick at the weekends, and often I ring his phone just to hear his voice.

‘The sex is incredible, and I think the “edge” of ours being an illicit affair makes it even more enticing.

‘Nick makes me feel beautiful and alive, and he keeps me young. I need to feel vibrant to stay on top of the game, especially during this recession, and that adulterous sex gives me that kick, that energy, to keep me motivated at work. Sex with Nick is my reward for my success and exhausting hard work. I would die, though, if Robert or the children ever found out.’

So why do women, who have worked so hard to achieve professional success, risk losing everything for the sake of adulterous sex, however electric?

According to Rosie Freeman-Jones, risk is a key element. ‘Both men and women at the top are addicted to risk. It is part of the DNA of successful people that they are more prone to take risks and more prone to cheat,’ she says.

But you have only to look at golfer Tiger Woods to see how quickly an affair can destroy not just a marriage but a career and reputation.

Even if he is found not guilty of rape, will former International Monetary fund head Dominique Strauss-Kahn ever be able to rebuild his reputation? Meanwhile, Schwarzenegger has shelved plans for a career comeback in order to deal with the fallout from his affair.

And Lucy Kellaway warns that Alpha Adultresses are risking even more than their male counterparts.

‘There is a double standard,’ she says. ‘A man having an affair might be seen as a bit of a lad, whereas a woman like Stella in my book is likely to be seen as pathetic, or a bitch and a slapper.

‘Because there are so few women executives, the ones that do succeed are put on a pedestal — and they have a lot farther to fall. The message of my book is that affairs end badly for everyone.’

And, while the figures demonstrate very clearly that increasing numbers of successful women are being tempted to stray, can women really divorce sex from commitment in the same way as a man?
Article Source:  http://www.dailymail.co.uk/femail/article-1389812/Adultery-Alpha-Woman-Its-just-powerful-men-sexual-predators.html#ixzz1NMzBRiE9

Compiled by: www.divorceattorney.co.za

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.”

Can a father reclaim maintenance when it is found that he is not the natural father of the child?

The following case illustrates that a father who pays maintenance under the impression that he is the natural father of a child may not have a claim to sue the mother of the child to repay the maintenance when he eventually finds out through a paternity DNA test that he is not the natural father of the child.

The case of Nel v Jonker in the High Court in Cape Town concerned an appeal from the Magistrates Court. The Appellant (the Defendant in the court a quo) and the Respondent (the Plaintiff a quo) were married to each other on 25 February 1989.  Their union bore a daughter, Nicole, who was born in June 1990.  For the sake of convenience I shall refer to the parties as in the court a quo.

On 3 February 1995 the parties were divorced by order of this Court and pursuant thereto the Plaintiff was directed to maintain Nicole by effecting payment of the sum of R350,00 per month and to retain her on his medical aid fund.

It was common cause that during the period February 1995 to June 2006 the Plaintiff paid to the Defendant the sum of R50050,00 in respect of maintenance for  Nicole.  The said sum included payment of an amount of R1000,00 to the Edgemead Primary School in January 2000.

In June 2006 Nicole underwent a paternity test which showed conclusively that the Plaintiff was not her natural father. On 30 July 2007, pursuant to an application brought by the Plaintiff, this Court issued an order declaring that he was not the natural father of Nicole and, inter alia, varying the divorce order in terms of Section 8 of the Divorce Act, 70 of 1979, by the deletion of the Plaintiff’s maintenance obligations towards Nicole. At the same time the Plaintiff instituted action in the Magistrate’s Court for recovery of the sum of R50050,00  His claim was upheld and the Defendant now appeals against the order of the magistrate.

It was common cause that the parties were married on 25 February 1989 and that Nicole was born on 12 June 1990.  Assuming a normal pregnancy of nine months, this would mean that the Defendant committed an act of adultery around September/October 1989 during which the child would have been conceived.

We know nothing about the circumstances of this dalliance because there was no evidence put before the magistrate in that regard.  The Plaintiff testified that he had always believed that he was the natural father of the girl and that he raised her as such with the Defendant until they were divorced in February 1995. The Plaintiff further testified that he did not oppose his wife’s claims at divorce because he regarded the marriage as irretrievably broken down and because he believed that he was obliged to maintain the child whom he regarded as his daughter. After the divorce the Plaintiff maintained Nicole for more than ten years.  He testified that he later became resentful about the Defendant’s persistent claims for maintenance increases and eventually decided to ask for a paternity test.  The Plaintiff also testified that he was urged by certain family members to go for such tests.  They evidently had reason to suspect that the Plaintiff was not the father and eventually he succumbed to their entreaties.

The Plaintiff concluded by saying that the Defendant never confessed her adultery to him and that his impression was that she never had any idea of who the real father of the child was. Under cross-examination the Plaintiff accepted that he had defaulted on his maintenance obligations over the years but said that he had then paid up in full from time to time.  He confirmed that he had paid the maintenance because he was obliged to do so in terms of the divorce order. As I said earlier, the Defendant did not testify and so one does not know the circumstances surrounding her pregnancy.  Importantly, there is no evidence to suggest that she knew that her adultery had resulted in the birth of Nicole and that she intentionally withheld that information from the Plaintiff.  Had that been the case her claim in the divorce action for maintenance for the child would have been fraudulent and would have afforded the Plaintiff a different cause of action.

The Plaintiff’s legal obligation to pay the maintenance in respect of Nicole arises directly from an order of this Court and was accordingly an obligation he could not avoid.  The basis therefor was his assumption that a child born during the subsistence of the marriage was fathered by him.  This is in accordance with the rebuttable common law presumption: pater est quem nuptiae demonstrant.

While it cannot be contended that the Plaintiff laboured under a mistake of law, the divorce order was underpinned by an erroneous factual assumption, (paternity) either by the parties jointly or, at least, by the Plaintiff.  The Judge demonstrated  that the Supreme Court of Appeal has disregarded any notional distinction between mistakes of law and fact:  the focus is essentially on whether the payment was made indebitum i.e. without legal ground.While the parties were still married the Plaintiff maintained the child as a member of the household, believing that she was his child and that he was duty bound to do so.  When the Defendant issued the divorce summons and claimed payment of maintenance for the child, the Plaintiff still believed that Nicole was his daughter.  As stated, by not contesting the divorce action, he effectively consented to the Defendant’s claims, which included claims in compliance with the provisions of Section 6 of the Divorce Act which preclude the granting of a decree of divorce until the Court is satisfied that adequate provision has been made for the care and maintenance of any child born of the marriage.

Given the findings which the Judge made, it was not necessary to come to a final decision on this aspect of the case.  Suffice it to say that courts may in the future be wary of recognising claims in circumstances such as the present which necessitate an enquiry into paternity and which may have the tendency to destroy an otherwise loving and caring parental relationship with a child whose rights to family and parental care are protected under section 28 of the Constitution.

The Judge found that the court a quo erred in finding that the Plaintiff had established a claim of enrichment.

Pastor Benny Hinn and Paula White’s adultery?

Even Pastor’s don’t practice what they preach it seems. Evangelist Benny Hinn recently admitted at a crusade in 2010 in Oakland, Calif., to having a “friendship” with fellow minister Paula White while he’s still married after a tabloid pictured them holding hands in Rome on July 13. But the well-known healing minister says the relationship is over.

“A friendship did develop,” Hinn said of White in Oakland on July 30. “Hear this: No immorality whatsoever. These people out there are making it sound like we had an affair. That’s a lie.”

Hinn invited his daughters Natasha and Eleasha on stage in Oakland and asked the crowd to pray for him, his estranged wife, Suzanne, and their four children. He said he and his wife had problems in their marriage for years and “could no longer exist in the same house.”

Hinn’s wife, Suzanne, filed for divorce in February after the couple had been separated for years, but it has not been finalized.

Hinn aired segments from the Oakland crusade and made additional personal comments on his This Is Your Day program on TBN Aug. 5, the day after his 31st wedding anniversary. A ministry executive said the program will air on other networks this week, including on Daystar Friday.

Hinn told the crowd in Oakland that the Vatican made him a Patron of the Arts and invited him to visit Rome. He said patrons are asked to find donors to help maintain the Vatican’s art collections, and he wanted White to become a donor.

“I let her come with me to Rome so she can donate money,” Hinn said. “That was stupid on my part. And for that I do ask forgiveness.”

The National Enquirer published photos in its Aug. 2 issue of Hinn walking hand-in-hand with White in Rome. The article, which released July 23, claimed the two spent three nights in a five-star hotel Hinn booked under a false name.

Hinn said in Oakland that he and White found “common ground” after she appeared on This Is Your Day in late May. White and her ex-husband, Randy, went through a public divorce in 2007. She now leads the Tampa, Fla., church they founded, Without Walls International Church, and has her own national television show called Paula Today.

He said he and White were never alone in Rome, but claims he ended his friendship with her after the tabloid report was published. “I said, ‘Paula, we can’t even be friends right now.'”

Hinn admitted that he contributed to the demise of his marriage by putting ministry over his family. “I was so busy in the ministry, I was so caught up with the ministry, I forgot about my family,” Hinn said. “That’s probably what broke the whole thing up.”

He said he often preached that ministry comes first, acknowledging that he knew that teaching hurt his children. “You know what? It’s wrong,” he said of the teaching. “I’m here to admit I was wrong because the call of God first should touch the family. If you have no family, you can’t go on anyways.”

Hinn admitted he and his wife had “challenges” but said he didn’t expect her to end the marriage.

“We had troubles for a long time, and I would ask her often, ‘Would you ever divorce me?'” Hinn said. “She said, ‘Never because I fear God too much.’ She said, ‘My covenant is with God, not you.’ And I guess she could no longer handle it. One day she did it to my shock.”

Hinn said it’s painful to talk about his marital problems, noting that he and his wife were separated long before the divorce filing.

“We’ve had to be very quiet to protect the ministry, the work of the Lord,” he said. “But sadly when you are a public person, everything you do becomes public.” “I don’t care how strong you are,” Hinn added. “I don’t care if the anointing of God is mighty on you. Nobody wants to be alone. I don’t care who you are. I am a human being just like you.”Hinn said he is “still focused on the Lord’s work,” adding, “I’m going to go on serving Jesus with all my being, and whatever the future holds, that’s His business.”

Source: charismamag.com

Is adultery in South African Law still a basis for a claim against the mistress?

From a personal, moral, ethical and religious perspective adultery is a sin and an act contrary to the basis of trust between married spouses and so is the behaviour of that infamous third party that broke up the marriage seen as immoral.  The purpose of this article is to revisit the law in respect of an aggrieved parties’ right to institute a claim for damages against the third party that was privy in the break-up of a marriage, i.e a claim against the mistress for monetary relief, to make good the hardship caused by the affair and the enticement of the spouse to leave the communal home in search of the greener pastures. The article is purely focussed on the law and not the public view or for that matter the religious viewpoint.

Our law has recognised in the past a claim for damages that can be instituted by an aggrieved spouse against a mistress. But what does our law say on the subject and is the law evolving away from the public view and religious views.

It is argued that the South African common law on which a Plaintiff’s claim is predicated for damages against a spouse who committed adultery in a marriage must be developed to promote the spirit, purport and objective of the Bill of Rights contained in Chapter 2 of the Constitution of South Africa, 1996 (“the Constitution”) and the interests of justice (under Section 39 (2) and section 173 of the Constitution).

According to the view expressed above it is argued that the time has come to develop the common law so as to remove or curtail claims for damages by a married person, utilising the actio iniuriarum, against a person involved in an intimate relationship with the married person’s spouse. The actio iniuriarum is used to claim for the impairment of one’s personality.  The purpose of this action is to compensate for the intentional injury to one’s mental integrity.

The argument against such a claim is that it breaches the right to human dignity (of the adulterer and mistress) under Section 10 of the Constitution, in that:

(a)               The relationship and love between the adulterer and mistress is treated as morally reprehensible or without opprobrium;

(b)               The mistress is held wholly responsible for damage caused to an aggrieved spouse by the other spouse’s marital infidelity; and

(c)                The mistress is treated as an instrument, in that her human relationship with the adulterer is used as a means to express condemnation for the adulterer’s marital infidelity, and/or to generate sympathy for the aggrieved spouse.

It is further argued that such a claim breach the adulterer and mistress’s rights to equality and freedom from discrimination under Section 9 of the Constitution on basis of marital status, conscience and belief in that:

(a)               No similar claim for damages is possible against a person who begins an intimate relationship with a man or a woman involved in a long-term homosexual or heterosexual relationship, customary law marriage or religious union;

(b)               The emotional consequences and loss for the aggrieved partner (i.e the person who learns of the infidelity of his or her partner with a third person) in all of the above relationships may be no more or less serious than a spouse in a marital relationship;

(c)                The law accordingly differentiates between a person who enters a relationship with a married person; and a person who enters a relationship with a person in other types of committed, long-term relationships;

(d)               The differentiation amounts to unfair discrimination on the basis of marital status and on the basis that it impairs, or has the potential to impair, the fundamental human dignity of an adulterer and a mistress.

It can further be argued that an adulterer and mistress’ right to privacy under Section 14 of the Constitution is violated in that it causes a public inquiry into the details of their relationship, how it formed and its strength.

Furthermore it seems that an adulterer and mistress’ rights to freedom of conscience, thought, belief and opinion under Section 15 of the Constitution, expression under Section 16 (1) of the Constitution and freedom of association under Section 18 of the Constitution also come into play for the following reasons:

(a)               Burdening people such as the mistress with damages will have a detrimental effect on her ability to honestly and openly express her emotions and love for another person;

(b)               The expression of emotions and love between the adulterer and mistress will be treated as morally reprehensible or tainted with moral opprobrium.

Therefore it seems that the common law must be developed in the interests of justice taking in to account the recognition that both parties contribute to the breakdown of the marriage relationship, which is inherent in the ground for divorce introduced in Section 4 of the Divorce Act 70 of 1979, namely “the irretrievable breakdown of the marriage”.

It is so that many foreign jurisdictions don’t tolerate such claims anymore and that there seems to be developments in South African case law to that effect. The historic view in our law that damages are awarded on the basis of the insult caused to the innocent party and of the loss of consortium seems to be outdated and time will tell on how our courts will develop the common law.

Bertus Preller

Family Law Attorney

Abrahams and Gross Inc