At Campbell Attorneys we understand the sensitivity surrounding the many areas of family and matrimonial law. We accordingly will approach your mandate within this framework.
We will be able to assist you in the most effective way in respect of the following areas:
- Other family related matters
- Co-habitation Agreements
- Domestic Violence
- Ante Nuptial Contracts
Matrimonial Property Regimes
There are three types of matrimonial property regimes: -
A) Marriage in community of property
B) Marriage out of community of property
C) Marriage out of community of property, with accrual.
A) MARRIAGE IN COMMUNITY OF PROPERTY
If an Ante-nuptial contract (ANC) is not signed prior to the marriage, the marriage is automatically in community of property. Any property owned or acquired prior to the marriage or acquired during the marriage ceases to be privately owned by the spouses and forms part of the Joint Estate. Each spouse has equal powers with regard to the disposal of the assets of the joint estate. Assets are equally shared and spouses are jointly and severally liable for all debts incurred by either spouse.
Advantage: each spouse enjoys financial equality. Consent of spouses are required before certain assets can be disposed off or alienated and in some cases, formal consent is required.
Written consent is essential for example when selling property, obtaining a mortgage bond, alienating or pledging investments or binding oneself as surety etc.
In addition, spouses married in community of property, require written consent of a spouse to institute or defend legal proceedings against third parties except:-
a) in respect of separate properties of either spouse,
b) for recovery of damages other than financial loss caused by a delict and
c) matters relating to his/her profession, trade or business.
If consent is unreasonably withheld, spouses have the option of approaching the High Court for relief.
On death or divorce the joint estate will be divided equally between the spouses.
Disadvantage: spouses are jointly and severally liable for expenses/debts of the other spouse. Should one spouse be declared insolvent, for example, the assets of the joint estate are attached and sold to settle the debts of the insolvent spouse.
B) MARRIAGE OUT OF COMMUNITY OF PROPERTY
Prior to the marriage, spouses will sign an Ante-nuptial Contract, whereby community of profit and loss is specifically excluded. Each spouse retains exclusive ownership of assets acquired prior to and during the marriage.
Spouses have absolute autonomy to deal with property / assets as they will. They can however jointly own assets / property should they wish to.
A fundamental advantage of this matrimonial property regime is each spouse is only liable for their own debts. Creditors, even in an insolvent estate of a spouse, cannot attach assets of the other spouse.
On death or divorce the estates of the spouses remain separate. Any assets owned by the spouses prior to marriage, stays their property at the end of the marriage. If a spouse dies, the surviving spouse does not have a claim against the deceased estate.
Couples married in terms of an ANC, without accrual, still owe each other a duty of support and are legally obliged to financially support a spouse who is unable to support himself.
This type of property regime is recommended for parties who have acquired substantially large estates/ incomes, which they wish to protect.
C) MARRIAGE OUT OF COMMUNITY OF PROPERTY, WITH ACCRUAL
In terms of the Matrimonial Property Act of 1984 the accrual system will automatically apply to any marriage, after 1984, unless the parties specifically exclude the accrual in an ANC.
The accrual system recognises that both spouses, during the lifespan of the marriage, will contribute to the joint estate, be it financially or by other means.
In addition the accrual system recognises that disadvantages could occur to one spouse, where for example, one spouse makes the decision to stay at home to care for the children/home and the other spouse continues working. Usually the spouse who remains at home has made a lesser financial contribution to the joint estate, despite having contributed in other ways to the growth of the joint estate.
The accrual system allows for both spouses to benefit from the growth of the joint estate, whether they contributed directly or indirectly to the growth of the estate.
During the marriage each party has complete control over their assets. Each party is liable for their own debts and creditors cannot attach the assets of the other spouse.
On death or divorce, any increase to the value of both estates is shared equally between the spouses. The benefit of the accrual system is that the spouse who shows a smaller accrual has a claim against the other spouse for an amount equal to half the difference between the accrual of the respective estates of the spouses.
If a spouse feels that the other spouse has entered into a transaction that might prejudice the accrual, the aggrieved spouse can apply to court for an immediate division of the accrual.
Parties can be divorced on one of two grounds
1. the irretrievable breakdown of the marriage or
2. the mental illness or continuous unconsciousness of one partner.
A marriage can irretrievably breakdown for a number of reasons, including but not limited to the parties having not lived as man and wife for a period of time, where there is abuse by one party of another (physical, sexual, verbal etc), the abuse of drugs and/or alcohol, parties no longer share any common interests, have lost all love and affection for one another and wish to be divorced.
In respect of the mental illness, the spouse seeking the divorce will be obliged to show to the court that the other spouse was admitted to or detained in a mental institution. In addition it must be shown that the person was institutionalised for at least two years and medical experts’ judge there is no chance of recovery.
Issues arising from a divorce action can include maintenance, access and care to the children, division of the joint estate etc.
Often defended divorce matters take more than a year to be finalised and in Durban, parties can wait between 18 months – 2 years for a trial date to be allocated. However if spouses act sensibly and are receptive towards negotiation, a settlement agreement can be expeditiously drafted and concluded. In such instances, the divorce is unopposed and spouses can be divorced within months of conclusion of the agreement.
In some instances, while waiting for a trial date or finalization of negotiations, spouses require maintenance and the resolution of the issue of care and access to the children.
Rule 43 Applications, in the High Court, are often utilised to bring interim relief to litigants and frequently result in settlement of the main action.
A Rule 43 Application can be instituted to obtain an order for maintenance pende lite (maintenance for spouse and/or children), interim care and access as well as to attain an order for a contribution towards legal costs.
Where spouses are unable to agree on the arrangements regarding care and access of the minor children, the Office of Family Advocate will be called upon to intervene. The Family Advocate will conduct an investigation and will compile a Report for the High Court, setting out its recommendations for care and access arrangements.
Further more a Rule 43 Application can be brought prior to summons having been issued.
PARENTAL RIGHTS AND RESPONSIBILITIES OF UNMARRIED FATHERS OF CHILDREN BORN OUT OF WEDLOCK
Prior to the Children’s Act, a natural father of children born out of wedlock would not have had an automatic entitlement to parental authority and rights over the minor child. The rights of unmarried fathers were previously regulated by the Natural Fathers of Children Born out of Wedlock Act of 1997. This act has since been repealed in entirety by the Children’s Act 38 of 2005.
As the law currently stands, natural fathers need longer apply to the High Court to acquire parental rights and responsibilities. Section 21 of the Children’s Act (which came into operation in July 2007), allow natural fathers to automatically acquire parental rights and responsibilities if the following requirements are met: -
1) he must be or have been living in a permanent life partnership with the child’s mother at the time the child was born or
2) if he does not meet the requirement above then
a) he must consent to being identified as the child’s father or must apply to be identified as the father or must pay
damages in terms of customary law and
b) he contributes or has tried to contribute to the child’s upbringing for a reasonable period and
c) contributes or tried to contribute towards the child’s maintenance for a reasonable period.
If the parties are in dispute regarding the satisfaction of the aforementioned requirements, the matter can be referred for mediation. In the event of mediation being unsuccessful, the parties can approach the High Court for appropriate relief.
APPLYING FOR A MAINTENANCE ORDER
Parents, whether married or not, are under an obligation and have a legal duty to support their children, until the children have reached an age of majority or is self supporting.
Application, on behalf of the minor child, is made by the parent (applicant) who has care of the minor child, to the Magistrate’s Court having jurisdiction. This is established according to the area in which the minor child resides.
The application, which can be obtained from the Maintenance Court, is accompanied by a sworn affidavit, in which the Applicant confirms that he/she requires maintenance from the other party (Respondent), either for himself/herself and/or for the minor child. The Applicant will be obliged to make a full disclosure regarding her financial status (i.e. income and investments) and to detail the monthly expenses of both the minor child and that of the Applicant.
The papers are then served on the Respondent, who is entitled to oppose the application on the basis that the needs of the child do not warrant a contribution, towards the upkeep of the child and/or the Respondent is unable to afford the contribution being claimed.
In the event of a dispute the matter is referred to a Maintenance Officer for mediation. If the matter is incapable of settlement it will be enrolled for trial and presided over by a Magistrate.
An application for maintenance is designed for persons to commence the procedure without the assistance of an attorney, especially in circumstances where finances are a concern. However it is advisable that should the matter be enrolled for trial, you engage the services of an attorney.
Once a child has reached the age of majority, has been emancipated or becomes self supporting the Respondent is no longer under a legal duty to support the child. However once the child has reached the age of majority, but is not self supporting, the child is entitled to bring an application, in their own name, for maintenance. The same procedures as above will apply.
In addition to claiming maintenance for the minor child, the Maintenance Act makes provision for the application for spousal maintenance. Spouses, who are married, divorced or persons, who have a legal duty to support one another, will be permitted to bring an application for maintenance.
Note however, in the case of divorce, the Maintenance Court has concurrent jurisdiction, with the High Court, to enforce an order for maintenance.
A word of caution, ensure that the Order for Divorce makes provision for the claim of maintenance. Once parties have been divorced, and no provision for maintenance was obtained in the order, the duty to support each other no longer exists. You may be faced with a situation of being unable to support yourself and without recourse to claim assistance from your previous spouse.
Domestic violence is described as brutal and aggressive behaviour in families and relationships, where there should normally be care between the persons concerned. Domestic violence takes place where the complainant, who is in a domestic relationship with the perpetrator, suffers harm by the perpetrator, who commits the acts of domestic violence. These acts include, but are not limited to: -
1. physical abuse;
2. sexual abuse;
3. emotional / psychological or verbal abuse – which is described as a pattern of degrading or humiliating conduct
which may consist of:-
repeated insults, ridicule, name calling and/or
threats to cause emotional pain
4. intimidation by uttering or conveying threat or causing the complainant to receive a threat which induces fear;
5. harassment (including stalking) – consisting of a pattern of conduct which induces fear of harm to the complainant,
making telephone calls, whether or not conversations ensue and/or inducing another to do so
sending, delivering or causing the delivery of letters, telegrams, packages, faxes, e-mails or objects to the complainant
6. economic abuse (including destruction or damage to property)
Note: threats or attempts to carry out any of the above acts will be considered by the court as domestic violence.
If a complainant suffers harm, in a manner, as aforementioned, he/she will be entitled to make application, on oath, to court, for the granting of a Protection Order, against the perpetrator. The court will order the perpetrator to immediately stop his/her abusive behaviour, to stay away from the people being abused and in some cases, to leave the home altogether. Should the perpetrator fail to comply with the court order, it will be considered an offence and he/she will be arrested.
To obtain the protection of the court, as aforementioned, the parties concerned, must be in a domestic relationship, which is defined as: -
- a civil or customary marriage, a former marriage or an engagement to be married;
- a cohabitation relationship, where two people are or who were living together as if they were married;
- parents who have a child together, or are expecting a child together (regardless of whether they have ever lived together)
- parent and child
- any family member related by blood, marriage or adoption, as long as there is some actual connection between them, such
as financial dependency or sharing a household (including people who would be family members if a cohabiting couple
- any two people who are or were in an intimate or romantic relationship
In the event of the complainant and the abuser not falling into any of the above categories, the complainant has the option of laying a complaint with the police and requesting the abuser be charged with an offence alternatively request the police to issue a warning to the abuser.
Once it has been established that the complainant is entitled to apply for a Protection Order, the complainant will make the necessary application. Application forms will be obtained from the Magistrate’s Court, having jurisdiction in the matter.
If the magistrate is satisfied, that prima facie, there has been domestic abuse, an Interim Protection Order will be issued. The perpetrator (now called the Respondent), will be served with the court papers and given a date on which to appear at court, to oppose the Interim Order being confirmed. Until such time as the Protection Order is confirmed or set aside, the interim order has the effect of a final order. Should the Respondent act in contempt of the order he can be arrested.
If the Respondent intends opposing the Finalization of the Interim Order, he must serve on the Applicant (the complainant) a copy of his Affidavit, setting out the reasons for his opposition and file with the court the original affidavit.
The court having due regard to the affidavits, and after interviewing the parties can decide to confirm or set aside the interim order or can set the matter down for the hearing of oral evidence (which is essentially a trial)
Although the procedure for applying for a Protection Order is designed for complainants to act without legal representation, it is advisable to seek legal advice when preparing for the interview with the magistrate and to obtain legal representation when the matter is set down for the hearing of oral evidence.
Should you have any further queries or require assistance in respect of any matrimonial issues, please feel free to contact our office, to speak to our Family Law attorneys or to arrange a consultation.
We guarantee absolute discretion and empathy when dealing with all our clients, as we fully understand the sensitivity of each matter and the often traumatic experiences that have been endured.