January 2022 | Family Law, Wills and Estate Planning
“Census data of 2016 reveals that approximately 3.2 million South Africans cohabit outside of marriage and that this number is increasing steadily.” (Extract from judgment below)
What happens if your life partner dies without leaving you anything in their will (“Last Will and Testament”)? Do you have the same protections as married spouses do?
A lot of the media coverage around the recent Constitutional Court decision dealing with this question may have given the impression that life partners are now as fully protected as if they were in a formal marriage, but that is not so – not yet anyway.
First, some background.
Protections for surviving spouses only, not for unmarried life partners
As a starting point, note that the widely-believed and persistent myth of a “common law marriage” is just that – a myth.
And the hard truth is that if a life partner dies intestate (without making a will), the other cannot inherit on the same basis as can a married spouse. Nor can the surviving life partner claim maintenance from the deceased estate on the same basis as a surviving spouse can.
Spouses enjoy these protections in terms of two Acts –
- The “Maintenance of Surviving Spouses Act” provides for a spouse to claim maintenance from the deceased estate.
- The “Intestate Succession Act” deals with cases where a deceased spouse left no valid will and provides for a spouse to receive only a “child’s share” of the estate (in other words, to share equally with any children) – far from ideal of course if the intention was to leave them more, but a lot better than nothing.
Until now those Acts have left any unmarried life partner high and dry. Incidentally, note here that we are talking about opposite-sex life partners in that same-sex partners have for years enjoyed intestate succession rights – an anomaly of which much was made in this court case.
The Court’s decision, and why life partners must still protect their positions
An unmarried man, although intending to marry his (female) partner, died before doing so. He left substantial assets but his will was outdated, leaving everything to his (since deceased) mother. The executor of his deceased estate rejected, primarily on the basis of existing law, her claims to inherit from the estate or to be granted maintenance from it.
Confirming High Court declarations of constitutional invalidity, the Constitutional Court held the relevant sections of the Acts to be invalid as they stand, and ordered that they be read so as to include life partners in their protections.
However there are critical limitations to bear in mind –
1) The orders of invalidity aren’t in force yet.
The Court suspended the orders for 18 months (to June 2023) to give Parliament time to remedy the defects. Perhaps Parliament will move quickly on this and do the necessary before mid-2023, but perhaps it won’t. And in the meantime, your lack of protection remains.
2) You will still have to prove your entitlement.
You will have to convince the executor and Master of the High Court (possibly in the face of opposition from the deceased’s other family members) that –
- You were in “a permanent life partnership” (our courts apply a number of tests in assessing this),
- As partners you “undertook reciprocal duties of support” (in this case the partners were held to have been “involved in a relationship that comprised most, if not all, characteristics of a marriage”),
- For your maintenance claim, that your claim is for your “reasonable maintenance needs”, and
- For your intestate succession claim, that you have “not received an equitable share in the deceased partner’s estate”.
Even if you think you will have no problem in proving all those things, it is of course much easier and safer to avoid any possible grey areas or dispute by properly recording your status and your agreed undertakings to each other.
3) “Intestate” Succession is always second prize.
As we said above, a “child’s share” of an estate is a lot better than nothing, but if you want your partner to inherit everything, dying without a will risks prejudicing them badly. Leaving a valid will is the only way to nominate the executor of your choice, and to choose for yourself what happens to your estate on death. It could well be the most important document you ever sign.
Life partners: Sign wills and a cohabitation agreement – now!
That’s a lot of uncertainty and potential for conflict and delay, and there could well be a lot at stake (in this case, some R10m worth of assets in total) but the good news is that it is all very easily avoided –
- Have professional wills drawn up (or have your existing wills checked for necessary changes or updates) and
- Enter into a full cohabitation agreement recording exactly what your status is and what undertakings you make to each other. Remember there is no such thing as a “common law” marriage in South Africa – if you aren’t formally married, a cohabitation agreement is the only safe alternative.
A final thought – no one likes to contemplate their own deaths, but Death by its very nature often knocks without warning, and we live in particularly dangerous times.
So don’t delay – get moving on this now!
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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January 2022 | Family Law, Uncategorized
Even if your marriage is collapsing around you, you might be afraid to sue for divorce because you have no money to survive on, plus you know that a hotly contested divorce might take years to finalise while your breadwinner spouse fights you tooth and nail every step of the way.
How will you support yourself and your children until the case is finalised? How will you pay your lawyer to run the case for you? Must you wait for the end of the case before you see a cent?
The answer luckily is “no” in that you have a relatively quick and simple remedy in the form of asking the court for “interim relief” in respect of –
- An order that your spouse pay you –
- Maintenance (for children and/or for yourself) pending finalisation of the divorce,
- A contribution towards your costs in the divorce proceedings,
- Interim care of, and contact with, your children (if there is any dispute over this aspect).
You may well hear this form of relief referred to in High Court divorces as a “Rule 43 application” (or, if your divorce is in the Regional Court, as a “Rule 58 application”), whilst the technical term for the maintenance is “maintenance pendente lite” (“maintenance pending the litigation”).
At this stage the Court isn’t interested in recriminations, or blame-finding, or the itemised details of your and your spouses’ financial positions. Those enquiries come later, during the actual divorce litigation. At this stage all it wants to know is how much you need, and how much your spouse can afford to pay.
A recent High Court judgment illustrates…
A “coy about his wealth” spouse ordered to pay up – now
- The warring spouses here are a senior banking executive and his wife, who qualified as a teacher but gave up that career to become a homemaker and mother to the couple’s two children.
- She asked the High Court for interim maintenance for herself and the children, and for a contribution to her legal costs.
- In assessing these requests the Court laid out some of the general principles involved –
- Unless the care and residence of children is involved the issues are straightforward, relating to “the applicant’s reasonable needs, and the respondent’s ability to meet those needs. The applicant’s entitlement to maintenance must be assessed having regard to the standard of living enjoyed by the parties during the marriage.” This should be “a simple and straightforward calculation of needs and means”. (Emphasis supplied).
- The aim is “to avoid substantial prejudice to either party pending divorce. It is not to provide a precise account of what is due to or from either party, according to the parties’ or the court’s sense of morality, propriety, the blameworthiness of the parties’ conduct during the marriage, or their habits of living after the separation.” The case should be cast in practical rather than moralistic terms, and the “emotional heat of a separation” should be kept out of it.
How much money could you be awarded?
Of course every case will be different, but where the parties have, as in this case, enjoyed a high standard of living, the figures can be substantial.
Here for example the Court’s awards were sizeable, commenting that the husband “is coy about his wealth, but there is little doubt that he has a substantial income” – just under R7m in the previous year – with “considerable resources” and an estimated net worth of just over R40 million. Moreover the couple had enjoyed “a very comfortable lifestyle” together.
The end result is that the husband must pay substantially what his wife asked for in the form of R1.6m immediately and thereafter R108k p.m. –
- R88,701-69 p.m. for the wife and children’s interim maintenance, plus school fees, extra mural activity costs, medical aid and medical costs
- Rental of up to R20,000-00 p.m., plus cost of utilities
- R34 656.39 for house moving costs
- R1,572,945-80 as a contribution towards the wife’s interim legal costs.
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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January 2022 | Family Law
“…sexual harassment is a heinous and horrendous conduct since it undermines the dignity of women and the values enshrined in our Constitution.” (Extract from judgment below)
Employers have a strong duty to provide a safe workplace for their employees, and to protect them from harm – including sexual harassment. An employer who fails in this faces claims for damages and compensation, but as a recent Labour Court judgment shows, the victim must first follow procedure correctly, and without delay.
Delayed reporting kills a claim
A female employee claimed “a just and equitable compensation” from her employer after she was sexually harassed by two male superiors.
Her claim failed, the Court finding that her delay in reporting the incidents to her employer (two years in one case and three in the other) were……
The correct procedure, and the required timing
The employee’s claim was based on an allegation that her employer had contravened section 60 of the Employment Equity Act (EEA), which deems an employer guilty of a contravention and liable for the offending employee’s conduct unless it takes “the necessary steps to eliminate the alleged conduct and comply with the provisions of this Act” and “is able to prove that it did all that was reasonably practicable to ensure that the employee would not act in contravention of this Act.”
The Court set out the required steps by the victim as –
- Allege a contravention at the workplace
- Report the contravention immediately
- Prove the alleged contravention
- Allege and prove failure to take the necessary steps.
A victim who can prove all the above is entitled to a deeming order of liability, and to avoid liability it is then up to the employer to prove that it took the necessary and preventative steps.
The victim in this case had no trouble in proving that the incidents of sexual harassment had taken place, but she failed to convince the Court that she had brought the incidents to her employer’s attention “immediately” as required by the section. The Court referred to a previous decision of the Labour Appeal Court suggesting that the word “immediate” be given a “sensible meaning”. In that case a two-month delay in reporting was found to be acceptable as a “limited delay”. However the Court’s comment that “In my view, a delay is an antithesis of the word as literally defined” is a clear warning to victims – report incidents to your employer without delay!
In any event, held the Court, the victim’s delays in reporting (two and three years respectively) meant she had failed to report “immediately” as required.
The Court was equally unimpressed with her suggestion that she had indeed reported the incidents to her employer in time by discussing them with “colleagues and managers”. That, held the Court, was not enough: “As I see it, to my mind, the reporting must be to an employer through the mechanism in its adopted policy.” She had not done that, so there’s another clear lesson for victims there – make a formal report to the correct person/s in terms of your employer’s policies.
Finally, said the Court, the employer had as soon as it received the reports, promptly investigated them and complied with its obligations in terms of the EEA.
Claiming from the offenders themselves
On a related note the Court mentioned that the victim would have a claim direct against the two employees who harassed her. Once again however, time is of the essence for victims – quite apart from the risk of the claim prescribing, the earlier formal reports are made the greater the credibility likely to be given to them.
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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October 2021 | Family Law
“Whilst the Act no longer uses the term “illegitimate child” this is implied by the reference to so-called children “born out of wedlock” which continues to perpetuate the common law distinction between so-called “legitimate” and “illegitimate” children. This reference is a stark reminder that we, as a nation, are still grappling with outmoded legal terminology which goes to the core of dignity and equality, not only for the child but also the unmarried father, and indeed the unmarried mother as well.” (Extract from judgment below)
New parents, married or not, are obliged by the Births and Deaths Registration Act (“the Act”) to register their child’s birth with Home Affairs within 30 days.
However in regard to the actual process of giving this “notice of birth”, the Act has always distinguished between married and unmarried parents. In particular, unmarried fathers have until now been unable to register the child under their own surname except with the mother’s permission. Given the importance – to the child, to the parents and to their wider families – of what surname is entered into the population register, it is perhaps no surprise that the validity of the Act’s differential treatment of married and unmarried parents has been challenged in the Constitutional Court.
The Court’s decision is that the relevant part of the Act is unconstitutional and is struck down. The Court: “Children born to parents outside the marital bond are blameless, yet the retention of section 10 of the Act serves to harm children born outside of wedlock. The status of being born out of wedlock, in effect, penalises the child and the unmarried father, and of course the mother too. This differential treatment of children born out of wedlock is invidious and unconstitutional. This differential treatment cannot be justified.”
The practical effect of the ruling, and the parents’ 3 surname choices
From now on, unmarried parents are in exactly the same position as married parents, so that either of them can give the notice of birth under –
- The father’s surname, or
- The mother’s surname, or
- The surnames of both the father and mother joined together as a double-barrelled surname.
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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June 2021 | Family Law
“The clean break principle after divorce has found resonance with our courts for many years. The aim of this principle is to ensure that the parties become financially independent of each other as soon as possible after divorce.” (Extract from judgment below)
Our courts always prioritise the interests of children in any marital breakup, and child maintenance orders are accordingly tailored to ensure that both parents honour their obligations to support their children financially – to the extent that each spouse is able to do so, and for so long as is necessary.
Spousal maintenance on the other hand requires a more delicate balancing act. In a nutshell, spouses have a “reciprocal duty” to support each other during the marriage, and although that duty ends when the marriage ends, courts still have a wide discretion to order either “permanent” or “rehabilitative” maintenance of the financially weaker spouse by the financially stronger spouse.
Let’s have a look at a good example of how this discretion is applied in practice –
A bitter divorce and a claim for “permanent” maintenance
- A couple were married “out of community of property with accrual”.
- Their eventual divorce action required the Court to adjudicate a litany of bitter disputes, allegations and counter-allegations of misconduct and abuse.
- Whilst for our purposes we’ll concentrate on how the Court addressed the wife’s claim for “permanent maintenance” and the husband’s (reluctant) counter-offer of “rehabilitative maintenance” for a limited period of time, it is important to note that the maintenance issue was decided against the background of the other financial benefits awarded to the wife. She received 50% of the “accrual” in the estate, including a house, pension, and annuities – i.e. she did leave the marriage with a capital sum of money.
- The wife had previously been granted an interim order of maintenance of R6,500 p.m. “pendente lite” (“pending the litigation”). At the divorce hearing she argued that her chances of ever becoming self-supporting were slim given her age, health, outdated qualification, and limited exposure in the open labour market.
- Her husband on the other hand argued that she had “numerous skills and talents and has the potential to secure employment and earn a salary to support herself which when coupled with what she will receive from the accrued estate constitutes ample income to enable her to become self-sufficient.” Moreover he would retire in two years and his income would seriously decline as he would be dependent on his pension for his own support.
- Before we consider the legal aspects, an important factual finding by the Court was that the wife did indeed have at her disposal “numerous administrative skills and talents which will enable her to secure future employment”, and that there was no medical evidence to suggest that she could not find employment.
The law and the maintenance order
- As the Court put it: “The clean break principle after divorce has found resonance with our courts for many years.The aim of this principle is to ensure that the parties become financially independent of each other as soon as possible after divorce. This principle however has to be applied with due consideration of the particular circumstances of each case and if such circumstances permit.”
- The parties, said the Court, clearly wanted to “cut all ties and put an end to the marriage. In these circumstances, achieving a clean break finds resonance with this court.”
- Its conclusion: “Consistent with [the] principle of a clean break that resonates through our judgments, it is incumbent upon this court to equip the plaintiff to live independently of the defendant and to focus on developing and empowering herself to secure and sustain her future. In the circumstances, I am of the view that the required result which is the ultimate self-sufficiency of the plaintiff will be achieved by rehabilitative maintenance. I am further of the view that a proper analysis of the rationale behind the awarding of rehabilitative maintenance will conclude that an arbitrary period of the payment of rehabilitative maintenance will not address the ultimate achievement of self-sufficiency. A two year period of rehabilitative maintenance is justified in the circumstances.” (Emphasis supplied).
- For a period of 24 months after the divorce therefore, the husband must pay rehabilitative maintenance of R8,000 p.m. in addition to keeping his ex-wife on his medical aid and paying all her medical expenses.
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
May 2021 | Family Law
“A journey is like marriage. The certain way to be wrong is to think you control it” (John Steinbeck)
One of the most important decisions you must make before you marry is what “marital regime” (“matrimonial property system”) you want to apply to your marriage.
To recap, you have three choices –
- Marry in community of property: This is the default in South Africa if you don’t sign an antenuptial contract (“ANC”) before you marry. All your assets and liabilities (with a few specific exceptions) are pooled in one joint estate. It’s probably not the best choice for most couples – you don’t for example want to be lumbered with a poor credit record (and a bank rejecting your bond application for example) or even with a sequestration application because of a spouse’s debts. But as the old saying goes, “it depends…”
- Marry out of community of property with accrual: The most popular option with couples these days, under this regime you keep as your own separate property whatever you brought into the marriage, but in the event of divorce or death you share equally in any subsequent “accrual” (growth in asset value built up during the marriage). You must specify accrual in your ANC, otherwise “without accrual” (as below) will apply.
- Marry out of community of property without accrual: As the name suggests, under this regime you have your own separate estates, and there is no sharing of accrual. The best choice for some couples in some cases, but probably not for most.
“Oops, we made the wrong choice; what now?”
A surprising number of couples tie the knot without any thought for the legal consequences, and only later do they learn that because they had no ANC they are married in community of property with all that that entails.
Or perhaps they did think it through but made the wrong choice at the time. For example, you could find yourself needing to improve your personal credit record, perhaps after applying to a bank for a mortgage bond and being rejected because of your spouse’s debts.
The good news is that all is not lost – you can still change regimes with a “postnuptial contract”. The bad news is that we are talking an expensive application to court here, and there are various requirements which may frustrate your application.
A court order is essential
The Matrimonial Property Act specifically allows a married couple to “jointly apply to a court for leave to change the matrimonial property system, including the marital power, which applies to their marriage”.
You will have to satisfy the court of three things, namely that
- there are sound reasons for the proposed change;
- sufficient notice of the proposed change has been given to all the creditors of the spouses; and
- no other person will be prejudiced by the proposed change.
The couple who didn’t get court authority
- A couple had married out of community of property excluding accrual.
- Thereafter, the wife drew up an agreement as “an ‘insurance policy’, to allay her fears of insecurity in the event of a divorce”. The husband agreed to set aside his marriage contract, specifying that his wife was entitled to half of his estate.
- After some hesitation the husband signed this agreement, but critically it was never sanctioned by a court as required and was merely handed to friends for safekeeping.
- During subsequent divorce proceedings, the wife was forced to abandon her main claim (that the agreement was valid and binding) precisely because of her failure to obtain a court order as set out above.
- She also tried another tack, namely that the agreement was enforceable as an agreement “in anticipation of divorce”. This was rejected by the Supreme Court of Appeal on the facts, finding that the parties had had a “normal marital relationship” after the signing of the agreement, and that the wife had accordingly failed to prove that divorce “was in the parties” contemplation when the agreement was concluded”.
- The Constitutional Court cemented her defeat in this regard by refusing its leave for her to appeal the SCA decision.
Ask your lawyer before you marry which marital regime is best for you. And if you didn’t do that, or if you change your mind later, you must ask a court to authorise your change of regime.
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
