October 2024 | Family Law
“That which we call a rose, by any other name would smell as sweet.” (Shakespeare, in Romeo and Juliet)
Your wedding to-do list will be a long one, and getting all the “boring legal bits” in order before you marry may not seem like a huge priority. But it is. Choices you make now will affect both of you (and your families) forever.
One of those choices is what surname/s you want to adopt in your marriage. We’ll discuss your options below. And although they’re currently available only to women, there’s good news on that front – a recent High Court decision has set the stage for men to be given the same choices as women.
What’s the current position?
In terms of our Births and Deaths Registration Act, as a man you can only change your surname by application to the DHA (the Department of Home Affairs) but as a woman you can automatically:
- Take your husband’s surname, or
- Revert to or retain your maiden surname or any other prior surname, or
- Join your surname with your husband’s as a double-barreled surname.
Those choices are of course a huge improvement on the old default position of wives automatically having to take their husband’s surnames. But there’s still inherent inequality in the law: while women have these choices as of right, a man still has to apply to the DHA for authority to change his surname. Worse still, he must give a “good and sufficient reason” for his application, and the applicable regulations say that in this context your reason “must relate to a change in the marital status of a woman”. These regulations have previously been declared invalid as “ultra vires” (made without authority) but they are very specific in excluding men from the equation.
Two couples challenge the status quo – and win
The groundbreaking High Court decision stems from the resolve of two couples to challenge that remnant of gender inequality:
- J… and H… (their full names aren’t used in the judgment to respect their privacy) wanted to use J’s birth surname as it symbolized her connection to her parents who died when she was four. H pledged his unwavering support for her stance and wanted her surname to be their family name in which their children would be raised. The DHA agreed that J could retain her surname but said it was unable to allow H to adopt the same name.
- Jess and Andreas (their names were included in the judgment) decided that, because Jess is an only child whose maiden surname is important to her, they would both combine their surnames into a hyphenated surname. They wanted their names to be the same and to reflect their familial unit. It was only when the time came to complete their marriage certificate that they realised only Jess could go the double-barrel route. The DHA again said they couldn’t do the same for Andreas.
In a joint application, the couples asked the High Court to declare that the relevant sections of the Act and regulations are unconstitutional. Our Constitution states, after all, that the right to equality includes full and equal enjoyment of all rights and freedoms, with the State being prohibited from unfairly discriminating directly or indirectly against anyone based on, among other things, gender or marital status. They argued that that “the Act has retained an archaic and patriarchal default position that only women are entitled, as of right, to assume a different surname.”
The Court with little ado issued the order of unconstitutionality, giving parliament two years to remedy this and ordering that in the interim men will have the same rights as women to change their surnames and to resume previous surnames on marriage, divorce or the death of a spouse. It also specifically ordered the DHA to amend these two couples’ surnames as requested.
Now it’s over to the Constitutional Court, then on to parliament
The order of unconstitutionality only comes into force as and when confirmed by the Constitutional Court so for now unfortunately your choices remain limited as above.
Whatever you settle on, before making your final decision you might want to ask us about the legal consequences. Then tell the marriage officer upfront what your choice is so that your marriage certificate, marriage register and National Population Register all reflect your married names correctly.
If you need assistance with this, or any other legal aspect of marriage, please contact us. (But please don’t ask us for help with the flowers!)
Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.
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August 2024 | Family Law
“Divorce is the one human tragedy that reduces everything to cash.” (Rita Mae Brown)
How will the new “Three-Pot Retirement System” (often referred to as a “Two-Pot System”) affect financial arrangements on divorce? Retirement savings can amount to a significant portion of a marriage’s assets, so it’s important to understand the implications of the new system.
First, a quick refresher
Have a look at our graphic below for a neat summary of the three “pots” and what they’re all about.
- The “Vested Pot”: This will hold most of your existing (as at 1 September 2024) retirement investments, and the current regulations continue to apply.
- The “Savings Pot”: You will be able to withdraw funds from this pot before you retire. Rules apply and you should avoid depleting this pot except in real need.
- The “Retirement Pot”: You will (with only a few limited exceptions) only have access to these funds when you reach retirement age (usually 55, depending on the fund).
What happens to these three pots on divorce?
This is of course a brand-new system, and there have been concerns raised about a number of grey areas that may arise in a divorce context. Only time will tell if these will have any meaningful practical effect on divorcing spouses. These exceptions aside, the overriding sentiment seems to be that not much will change other than that your marriage’s “pension interests” will be made up of three distinct pots, rather than just the current one pot.
As such, all three pots will be dealt with as follows:
- If you are married in community of property, they will be divided equally between you.
- If you are married out of community of property with the accrual system, they will fall into the accrual calculations unless you expressly excluded them in your ante-nuptial contract.
- If you are married out of community of property without the accrual system, they might still be taken into account if the court orders an asset redistribution.
And remember, you can always agree between yourselves on a different split upfront in your ante-nuptial contract or on divorce in a settlement agreement.
One new risk to manage
Until now, there has been no “Savings Pot” for a member spouse to potentially deplete as soon as the possibility of divorce raises its ugly head.
While we all know that families should never risk missing their retirement goals by dipping into their long-term savings in any but genuine emergencies, it goes without saying that an acrimonious divorce could quickly change the focus from “let’s save for the future” to “grab it while you can”.
If the worst happens and your marriage hits the skids, be aware that the new legislation states that only when pension funds are given formal written notice, with proof, of divorce proceedings or pending asset divisions, are they legally prohibited from allowing a withdrawal (or granting a loan or guarantee) without your consent as the non-member. That formal prohibition lasts until the divorce is finalised or a court order is issued.
Some have suggested that even before you get to that formal stage, you should alert the pension fund administrators that they should assess any withdrawal requests in light of possible future divorce claims. How that will actually play out in practice remains to be seen, but it is worth noting.
The new system is a lot to get your head around and it’s natural to have questions. Don’t hesitate to ask us for help!
Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.
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July 2024 | Family Law
“Love is grand. Divorce is a hundred grand.” (Anon)
In the boiler room that is the divorce court, it’s common to hear accusations and counter-accusations of one spouse disposing of or concealing marital assets to hide them from the other spouse.
The good news is that our law provides effective ways to protect yourself in such a situation – but the onus is on you to prove your case. The outcome of a recent fight in the Supreme Court of Appeal (SCA) provides an excellent example.
“You can’t do that!”
- Married out of community of property (with accrual), a Northwold couple divorced after their 27-year marriage failed. The question of splitting the assets per the accrual agreement was held over for later determination.
- Two years after the divorce the ex-husband sold his immovable property without telling his ex-wife. She was having none of that and applied to the High Court for an “anti-dissipation interdict” on the basis that her ex-husband “would dissipate his assets with the objective of frustrating her claim.” The High Court ordered the conveyancing attorneys to retain the proceeds of the sale in an interest-bearing account until the accrual aspect had been finalised.
- The ex-husband, unemployed at the age of 64 and needing to settle his debts with the R1.6m proceeds of the property sale, lodged an appeal to the SCA.
- The SCA dismissed the wife’s interdict, holding that it was for the ex-wife to prove that her ex-husband was “intentionally secreting or dissipating assets, or [was] likely to do so with the intention of defeating [her] claim.”
- The SCA found that she had not produced any evidence that her ex-husband had sold his house with the intention of frustrating her claim. He had explained his need for funds to pay his debts, and there were no allegations that he had acted in bad faith.
- Nor did the Court accept the ex-wife’s argument that, this being a dispute over matrimonial rather than commercial issues, there were “exceptional circumstances” which would exempt her from having to prove an intention to defeat her claim. “To qualify as exceptional”, said the Court, “the circumstances must be out of the ordinary and of an unusual nature, something which is excepted in the sense that the general rule does not apply to it; something uncommon, rare or different.” It was not enough to say that she had been married under the accrual system and therefore had an accrual claim against his assets.
- The Court accordingly set aside the anti-dissipation order. The ex-husband gets to keep the proceeds of the property sale (which will now be taken into account in the final accrual calculations).
It all comes down to intention
The ex-wife failed in her claim for lack of any proof that her ex-husband had sold his property with “an intention to render [her] claim hollow”. If you want to achieve a different outcome (in the absence of exceptional circumstances), you’ll have to gather proof that your spouse or ex-spouse is intentionally hiding or dissipating assets, or is likely to do so, with the intention of frustrating your claim.
Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.
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May 2024 | Family Law
“It is the purpose of this Act to afford the victims of domestic violence the maximum protection from domestic abuse that the law can provide” (Domestic Violence Act)
When sibling rivalry escalates into physical or psychological abuse, victims should take advantage of the very strong protections offered to them by the Domestic Violence Act (“DVA”). As the Supreme Court of Appeal (SCA) has put it: “…the primary objective of the Act is to provide victims of domestic violence with an effective, uncomplicated, and swift legal remedy … and placing upon the courts and law enforcement functionaries’ extensive obligations to assist and protect victims of domestic violence.” (Emphasis supplied)
The DVA, as its name suggests, is there to protect victims where the parties are in a “domestic relationship”. Victims of abuse in business or commercial relationships have other legal remedies, but they aren’t nearly as effective, quick or accessible as a DVA protection order.
So, are the DVA’s protections available to siblings who are not just closely related but are also in some form of commercial or business relationship? A recent High Court decision addressed just that question…
An abusive brother, threats of murder, and a family-owned deli business
- A 59-year-old brother and his 56-year-old sister were not just siblings, but also had a commercial/business relationship in that the brother and his sister’s husband had been 50/50 partners in a deli business managed by the brother.
- When her husband died, the sister tried to discuss with her brother payment of monies due to her late husband’s estate from the deli business. The resultant abuse at the hands of her brother led her to obtain a final protection order from the magistrate’s court based on (disputed) allegations of –
- Sexual molestation by her brother when he was 15 and she was 12;
- A continuing pattern and history of abuse into adulthood, including an assault in the presence of her two children, minors at the time;
- Thereafter numerous threats towards her and her adult daughter, including serious threats of murder (with repeated statements that he had actually ordered a “hit” on her for trying to take his business away from him), stories of stalking her and the children with a drone, and intimidating phone calls to her daughter by third parties.
- The brother appealed the protection order, asking the High Court to set it aside. He denied any wrongdoing and also argued that the DVA did not apply anyway, because he and his sister were not in a “domestic relationship” as defined in the DVA. Their dispute, he said, was really of a commercial nature.
- The High Court, noting a SCA decision to the effect that “a mere blood relationship” was not enough to establish that the DVA applies, found that in this case the siblings not only had a business relationship as regards the deli, but were also in a “domestic relationship” because of their ongoing meetings about their parents’ wellbeing and care. That brought their relationship and dispute within the realm of the DVA’s protections.
- As regards the facts, the brother had baldly denied any wrongdoing but had not addressed the various detailed allegations made against him, leading the Court to find him guilty of verbal, emotional, or psychological abuse, harassment and stalking.
- The main objective of a protection order being “not to punish past misdeeds, but to prevent future misconduct”, the Court confirmed the final protection order accordingly.
Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.
© LawDotNews
January 2024 | Family Law, Wills and Estate Planning
“Marriage is the chief cause of divorce” (Groucho Marx)
This Valentine’s Day, think about the legal aspects of your romantic relationship. They’re a lot less exciting than the traditional declarations of love backed up by chocolates and flowers, but they’re just as important in ensuring a strong, committed life partnership in which both of you is clear as to how your respective financial and legal responsibilities are defined.
A recent High Court decision once again puts a spotlight on the fact that “life partner” couples are at ongoing legal and financial risk unless they sign both cohabitation agreements and updated wills.
The problem – there’s no such thing as a “common law marriage”
Our law does not recognise the concept of a “common law marriage”. Either you are formally married, or you miss out on many of the legal protections available to married couples. The result – if you split, or when (not if) one of you dies, the less financially strong life partner could well be prejudiced, perhaps even left destitute after many decades of life together.
The solution – a cohabitation agreement with updated wills
Luckily these two documents give both of you quick and effective protection –
- A cohabitation agreement tailored to meet your particular circumstances and needs. It should at the minimum cover questions such as whose name assets and liabilities will be in, who will cover what expenses, how you will split your financial affairs if you part ways, your undertakings to each other regarding financial support and maintenance, parental rights and duties regarding children and so on.
- A will (“Last Will and Testament”). You could make two separate wills or one joint one but either way make sure to comply with all formalities to ensure validity and set out your respective wishes clearly and unambiguously. A vital (and all-too-often overlooked) aspect here is to diarise regular reviews of your will/s in case they need updating to take account of ongoing life and financial changes.
Let’s turn now to a “second prize” alternative – proving a “universal partnership”.
What is a “universal partnership” and how do you prove it?
If for whatever reason you don’t have both a cohabitation agreement and wills in place, you may still have a “get out of jail free” card in the form of a universal partnership.
These extracts from the High Court judgment (formatting supplied) set out what you’ll need to prove –
- “A universal partnership is an agreement between individuals to share their property and their gains and losses. The partnership need not be formed for a commercial purpose.
- It regularly comes into existence, whether expressly or tacitly, between unmarried cohabitees, although cohabitation is not essential.
- The requirements for the existence of a universal partnership are the same as those for partnership in general.
- Where a tacit universal partnership is alleged, a court will confirm its existence if the conduct of the parties is such that it is more probable than not that such a partnership agreement had been reached between them.
- A partnership exists if “each of the parties brings something into the partnership or binds themselves to bring something into it, whether it be money, or labour, or skill”; if the agreement is struck for “the joint benefit of both parties”; and if the object of the partnership is material gain.
- The question is … whether, on evaluating those facts as a whole, the probable inference is that there was a universal partnership.”
A bitter family fight shows why it’s second prize
- In the case in question, life partners had for 26 years shared all their assets “akin to a marriage in community of property”. Importantly, they had shared the “benefits and burdens” of a number of property development ventures. They had, said the Court, each brought something into the partnership, her contribution being mostly financial, his (as an architect) mostly in “sweat equity”. Their partnership was not just a life partnership, it “was also plainly at least partly about material gain.”
- Their relationship was terminated by the death of the one partner, who died “intestate” (leaving no will in place) after developing dementia. The other partner had suggested they each execute wills leaving everything to each other and he had done so, but she had declined as she was unwilling to contemplate her mortality
- Her daughter as executor of her mother’s deceased estate refused to recognise any claim by the surviving life partner. Quarrels and evictions followed, with ultimately a hard-fought High Court battle.
- The Court found that the survivor had on the facts succeeded in proving the existence of a universal partnership. Critically, it held that the parties’ partnership “was also plainly at least partly about material gain” and that the surviving partner should anyway inherit half of the deceased’s estate in terms of a principle previously accepted by our courts that “partners in a permanent life partnership in which the partners have undertaken reciprocal duties of support are entitled to inherit as spouses would.”
- Accordingly, the survivor gets a full half of the deceased partner’s entire estate, whilst the daughter is removed as executor and ordered her to pay the legal costs.
The winner is…
The bottom line however is that the element of “material gain” which so clearly applied to the joint acquisition of assets in this particular life partnership will be absent (or at least extremely difficult to prove) in many other cohabitation agreements.
First prize must therefore always be to avoid the risks, delay, stress and cost of trying to prove the existence of a universal partnership and/or reciprocal duties of support by having in place both a comprehensive cohabitation agreement and a joint will or reciprocal wills.
Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.
© LawDotNews
October 2023 | Family Law
Media reports of the recent Constitutional Court decision holding a section of the Divorce Act unconstitutional and giving Parliament 24 months to remedy that haven’t always been clear about who needs to be aware of this, and who doesn’t.
Firstly, understand the three “marital regimes” available to you
Legally, marriage amounts to a binding contract, and you have the right to choose between three possible “regimes” –
- Marriage in community of property: All of your assets and liabilities are merged into one “joint estate” in which each of you has an undivided half share. On divorce or death the joint estate (including any profit or loss) is split equally between you, regardless of what each of you brought into the marriage or contributed to it thereafter. This is the “default” regime – so you will automatically be married in community of property if you don’t specify otherwise in an ANC (ante-nuptial contract) executed before you marry.
- Marriage out of community of property without the accrual system: Your own assets and liabilities, both what you bring in and what you acquire during the marriage, remain exclusively yours to do with as you wish. Note here that the “accrual system” (see option 3 below) will apply to you unless your ANC specifically excludes it.
- Marriage out of community of property with the accrual system: As with the previous option, your own assets and liabilities remain solely yours. On divorce or death however you also share equally in the “accrual” (growth) of your assets (with a few exceptions) during the marriage.
Secondly, what’s the new ruling all about?
If you were married out of community of property (a) without the accrual system (option 2 above) after (b) 1 November 1984, you previously could not ask the court for a “redistribution order” – a reallocation of assets between spouses to ensure a fair split. Your marriage could end (be it through divorce or death) with one of you in a strong financial position and the other in a dire financial position, with a court having no discretion to help the spouse with less or no assets. You could literally be left destitute after possibly decades of marriage, with no redress and no claim against your spouse’s assets.
A 2021 High Court order (now confirmed in a Constitutional Court decision) declared unconstitutional the section of the Divorce Act which led to that unhappy state of affairs, so that you can now ask the court for a redistribution order no matter when you were married.
What does it mean in practice?
About to marry?
Which all confirms the importance of making the correct legal choices before you marry to avoid uncertainty, heartache and dispute down the line. Take professional advice on which option is best for you!
Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.
© LawDotNews