Cohabitation – Can I be apart of a Common Law Marriage

Recently I have been dealing with a matter where parties have lived together for almost 20 years. They have a child together, yet have never been married. Due to various factors the relationship has come to an abrupt end. What do they do? Well first and foremost, let’s get this right, in South African law, there exists no doctrine of common law marriage. This means that there is no legislation that regulates or protects parties living in this type of arrangement. So what exactly happens in such cases? Who gets the children? Are pensions split? Before we get to that, ill will explain what cohabitation is.

Cohabitation is when two people, irrespective of gender, live together and engage in sexual activity but are not married to each other. The main aspect of this relationship is that there exists no duty of support by one partner to the other. You therefore cannot expect the same protection that you would have had, had the relationship been formalised by way of marriage. Often people believe that the duration of the relationship confers them some protection. It does not. The length the parties have been cohabiting does not create a duty or confer any rights.

As a “cohabitant” a partner will have no claim for maintenance under the maintenance act should the relationship end or claim maintenance under the surviving Spouse Act as by definition, you are not defined as a spouse for the purposes of the act. This of course does not hold true if such partnership was Islamic religious marriages (One need only look at: Daniels v Campbell NO and Others [2004] ZACC 14; 2004 (5) SA 331 (CC), Hassam v Jacobs NO and Others 2009 (5) SA 572 (CC) and Khan v Kahn 2005 (2) SA 272 (T) for confirmation of this).  Another pertinent exclusion would be the ability to inherit under intestate succession upon the death of your partner.

The sole way around this would be to attempt to have the relationship declared a universal partnership. In order to invoke such a claim, the Applicant must show the following:

  1. that each of the parties brings something into the partnership or bind themselves to bring something into it, whether it be money or labour or skill.
  2. that the partnership should be carried on for the joint benefit of both parties.
  3. that the objective of the partnership should be to make a profit.

There exists a fourth requirement, being that the contract is legitimate, however our courts have discounted on the pretence that same is common to all contracts. Once the following has been proved, it will then be the courts discretion as to the percentage of the contribution. It may very well be that the court declares a 50/50 division of the estate, however maintenance will still not be payable.

Cohabitants are entitled to enter into formal agreements similar in nature to ante nuptial contracts. This contract will regulate their duty duties during the course of the relationship as well as their obligations should the relationship dissolve.  These agreements are called Cohabitation agreements.

Proving a universal partnership is difficult. If couples are moving in together and have no plans of getting married, or start acquiring assets prior to marriage being discussed, it is advisable that the issue of a cohabitation agreement be raised.

In short, common law marriages do not exist. Either the parties draft a cohabitation agreement or they take their chances with the courts and try to prove a universal partnership exists.

Indian Divorces Statistics

I was recently asked to comment on the increased divorce rates in the Indian community and more particularly the increase in Indian woman being the plaintiff in the action. I thought i would share the questions and answers with you. As always, your thoughts and feedback is important to me.

It stated that more Indian women (54.6%) are filing for divorce than men. What are the reasons? Are they that women are more financially stable?

In the past there was a stigma attached to a woman who dared leave her husband. The reason for the breakdown was irrelevant to many and the resultant effect was that woman were more afraid to enter the divorce court for fear of being ostracised by society. In addition, there were more “home executives” who were financially dependent on their spouses. Our past cultures viewed the education of a woman as being unnecessary and of no importance, which further entrenched the notion by either gender that a woman’s place was at home and a man was the breadwinner. Now, woman have ascended to their rightful place as man’s equal, both at home and in the workplace. They now seek careers of their own and are no longer dependant on their husbands financially. This coupled with divorce no longer holding the same social taboo status it once had, makes the decision of exiting an abusive relationship a much easier decision.

Why are more male divorcees (5193) and widowers able to marry than divorced women? Is there a stigma attached to previously married women?

The stigma of divorce is almost non-existent with everyone knowing at least one other person who has undergone a divorce. It is now less of a question of whether a woman are able to remarry and more of a whether they want to remarry. Research has shown that the stress of a divorce is greater for woman than it is for men and this leaves woman less likely to take the plunge a second time. Also is most instances, the woman ends up with daily care and residence of the minors. The added burden of the children’s well-being, further prevents a woman from entering a new relationship as they are worried about the effect this relationships may have on the children. This is not to say that men don’t care about their children, but rather that its easier for a man to trust a new woman around his kids than it is for a woman to trust a new man. .

How are children affected by divorce? There was a large amount of Indians with children under the age of 18 divorcing.

This is a very broad question and perhaps requires a separate discussion. Children are affected by divorce in different ways. There are a number of contributing factors to this including the relationships between the parents pre and post-divorce. Also the financial implications of the divorce on the parent the child lives with, the maturity level of the child as well as how empathetic the child is in general. A child’s reaction to a divorce can vary from growing up with commitment issues, to having low self-esteem. When they are younger they may act out or become withdrawn as a result of being unable to cope with their emotions. Conversely some kids are able to handle the stress and display no issues growing up with divorced parents.

Why is it that one quarter of Indian marriages end within 10 years?

The simple answer is that in this day and age, no one wants to fix a broken marriage! Previous generations were more willing to work through their problems and saw marriage as more than a legal contract. Instant gratification is the order of the day and when this need is not met, we move on to the next thing to grab out attention. Also as a society we have become more cynical regarding that “happy ever after” fairy tale we heard about as children. The cost of living has increased dramatically, meaning both spouses are now working to support the lifestyle they want. This has a contradictory effect of spending less of that  lifestyle together as the spouses are too tired to have a relationship. Current societal norms place less emphasis on infidelity than previous ones. The label “cheater” no longer carries the humiliation it once did. We have become desensitised to adultery and the statistics prove this.

What is the Legal Rights of Fathers?

The Childrens’ Act has ensured that fathers (both married and unmarried) have rights equal to that of mothers. However, many parents still use their children as bargaining tools in divorce litigation, and this can become extremely challenging and traumatic for the children.

In closing Divorce is difficult for an adult to comprehend, but almost impossible for a child. Kids panic when faced with a new challenge, and the problem with many “loving” parents is that they don’t take their kids into consideration when getting divorced. I am not saying that if you are stuck in a loveless relationship you must “work it out” but rather before making the decision to leave, the needs and feelings of the ones who have no say in the decision are considered. We have become accustomed to living in a world where divorce is a no longer a topic whispered by housewives, but rather a nonchalant everyday manifestation of societies current moral standards.

 

 

Who determines a child’s religion?

I was recently posed with a very vexing question by a client:- What remedies are available to a mother in circumstances where there is a child born out of wedlock and where the father of the child, absent for the bulk of the child’s life, is attempting to coerce that the child, now 7 years old, to live under Islamic Authority.

ISSUE
The central issue to be determined is whether this father has the right to make input or demands as to the upbringing of the child, particularly where religion is concerned.

OBJECTIVES

a. The preliminary step is to establish whether the father has any responsibilities and rights with regard to the child at all.

b. If so, is there a way to prevent him from exercising that right or to terminate it altogether?

c. If that is not possible, how can we prevent the father from dictating the religion of the child without affecting any other responsibilities and rights.

FINDINGS
The Children’s Act 38 of 2005

1. S21 Parental Responsibilities and Rights of Unmarried Fathers

Section 21 states

“…
1. The biological father of a child who does not have parental responsibilities and rights in respect of the child in terms of section 20, acquires full parental responsibilities and rights in respect of the child-

a. if at the time of the child’s birth he is living with the mother in a permanent life-partnership; or

b. if he, regardless of whether he has lived or is living with the mother-
i. consents to be identified or successfully applies in terms of section 26 to be identified as the child’s father or pays damages in terms of customary law;
ii. contributes or has attempted in good faith to contribute to the child’s upbringing for a reasonable period; and
iii. contributes or has attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period.

2. This section does not affect the duty of a father to contribute towards the maintenance of the child.

3.
a. If there is a dispute between the biological father referred to in subsection (1) and the biological mother of a child with regard to the fulfilment by that father of the conditions set out in subsection (1)(a) or (b), the matter must be referred for mediation to a family advocate, social worker, social service professional or other suitably qualified person.
b. Any party to the mediation may have the outcome of the mediation reviewed by a court.

4. This section applies regardless of whether the child was born before or after the commencement of this Act.…”
From the above, it is unequivocally clear that the father of a child born out of wedlock is not automatically vested in parental responsibilities and rights and he must meet certain criteria before he acquires the same.

In Bosch v Van Vuuren, a child was born to these unmarried parents and the Applicant (Father) applied to the South Gauteng High Court that he be granted with full parental rights and responsibilities in respect of the child. Myburgh AJ stated that the child’s best interests are always served by frequent and regular contact with both parents and the Application succeeded.

There can be no doubt that any attempt on the part of the father to have a relationship with the child will be considered to be in the child’s best interest and, unless one could persuade a court otherwise, any effort to veto the instigation of a relationship between a parent and child will not likely hold up in court.
2. S28 Termination, Extension, Suspension or Restriction of Parental Responsibilities and Rights

In the event that this particular father is vested with parental rights and responsibilities in terms of S21, S28 offers recourse.

“S28
1. A person referred to in subsection (3) may apply to the High Court, a divorce court in a divorce matter or a children’s court for an order-

a. suspending for a period, or terminating, any or all of the parental responsibilities and rights which a specific person has in respect of a child; or
b. extending or circumscribing the exercise by that person of any or all of the parental responsibilities and rights that person has in respect of a child.

2. An application in terms of subsection (1) may be combined with an application in terms of section 23 for the assignment of contact and care in respect of the child to the applicant in terms of that section.

3. An application for an order referred to in subsection (1) may be brought-
a. by a co-holder of parental responsibilities and rights in respect of the child;
b. by any other person having a sufficient interest in the care, protection, well-being or development of the child;
c. by the child, acting with leave of the court;
d. in the child’s interest by any other person, acting with leave of the court; or
e. by a family advocate or the representative of any interested organ of state.

4. When considering such application, the court must take into account-
a. the best interests of the child;
b. the relationship between the child and the person whose parental responsibilities and rights are being challenged;
c. the degree of commitment that the person has shown towards the child; and
d. any other fact that should, in the opinion of the court, be taken into account…”
In the matter of V v V 1998 (4) SA 169 (C), the court stated that ‘[t]he child’s rights are paramount and need to be protected, and situations may well arise where the best interests of the child require that action is taken for the benefit of the child, which effectively cuts across the parents’ rights’ (at 189 B–C).
It is my understanding that in order to suspend or terminate parental responsibilities and rights one would have to establish that, in the exercise of those parental responsibilities and rights, some harm may befall the minor child to the extent that it would not be in the child’s best interests that such a relationship be allowed to persist.

3. Allsop v McCann 2001 (2) SA 706 C

In this case, it was advised that the parent having custody of the child was required and entitled to direct the daily lives of the children and that this included the religion of the child.

However, the court also stated that S28(1)(b) of the Constitution of the Republic of South Africa Act No. 108 of 1996 provides that the child has a right to parental care which places a duty on the parent regardless of whether he or she has been awarded any custody rights. Foxcroft J stated that neither parent had a right to dictate the Child’s religion but that both parents were entitled to provide religious instruction to the child.

The court held, amongst other findings, that exposure to both of the religions would place the child in a better position to one day decide which religion to ultimately follow.

4. Opinion

After careful consideration of the facts, my opinions are as follows:

a. It is uncertain whether the father has met with the criteria from S21 of the Children’s Act, therefore such uncertainty surrounds the question as to whether he has or has not, in fact, been vested with any parental responsibilities and rights. However, should this matter go before a court, the Court would most likely rule that it would be in the Child’s best interests to know and be accepted by his father and receive religious instruction from him.

b. There are no grounds on which one could claim that any exercise of parental responsibilities and rights on the part of the father could cause harm to the child and therefore such rights would not be terminated on application. The fact that the father has, in the past, abandoned the child and his responsibilities and rights in respect of the same will not bear enough weight to warrant such termination as the father is now attempting to do so and this will always be viewed as being in the best interests of the child.

c. The Allsop case makes clear that no parent has a right to religiously instruct a child to the exclusion of the other parent, regardless of who is vested with parental responsibilities and rights. The most important and striking consideration is the “best interests of the child” standard. The only manner in which to restrict the father’s duty to give religious instruction to the child is to prove that it is in the best interests of the child that such instruction be prohibited.
I would suggest that an expert witness Child Psychologist be asked to give expert evidence to the effect that the child would be harmed or confused by religious instruction from both parents and that he should continue to receive religious instruction from his mother only.

LLP

Maintenance Claim Marriage in terms of Islamic Law

A polygamous marriage is where somebody marries more than one person. This is legal when parties are married according to Islamic Rights and various other customary marriages, and occurs frequently in South Africa. The Maintenance Act 99 of 1998 requires a spouse to maintain an ex-spouse.

In Ryland v Edros, 1997 (2) SA 690 (C) it was decided that a monogamous Muslim marriage was recognised as a valid contract that is enforceable under the Constitution. However we need to ascertain the validity of a claim for spousal support in circumstances where there is a polygynous Muslim marriage.

Prior to 1994, Polygynous marriages, regardless of where they were contracted, were void in terms of South African law, although they may have had certain legal consequences. Since the form of an Islamic marriage does not preclude further simultaneous marriage(s) by the husband, South African law regarded it as potentially polygynous, even if neither party had more than one partner, and even when the parties intended their marriage to be monogamous.

The final Constitution appears to guarantee the right to freedom of religion all South Africans, which entrenches the right to live according to the customs

and traditions prescribed by those religions. The Constitution, therefore, sets the groundwork for the recognition and application of religious family law systems. The Constitutional Court specifically considered legal recognition and protection of Muslim marriages in two decisions, Daniels and Hassam. These cases dealt with the

entitlement of spouses in both monogamous and polygamous Muslim marriages to inherit under the Intestate Succession Act and to receive benefits under the Maintenance of Surviving Spouses Act, legal rights they had been traditionally denied. In both cases, the Court found that denying these legal protections to spouses in Muslim marriages was unjustifiable discrimination on the grounds of gender, marital status and religion, and therefore unconstitutional.

In Daniels, Sachs J noted that partners to Muslim marriages have been traditionally denied equal protections under the law, a legal situation that is no longer tenable under the Constitution. We look now to a decision that directly relates to the question of the duty of a spousal to provide maintenance in a Muslim marriage. In the decision of Khan v Khan 2005 (2) SA 272 (T) the court faced the question as to whether the Maintenance Act, more specifically the provisions of Sec 2(1), the legal duty to maintain an ex-spouse, also extends to polygamous marriages. The court decided that partners in a Muslim marriage, married in accordance with Islamic Rights, whether monogamous or not, were entitled to maintenance, and that the Maintenance Act therefore also applied to these marriages.

The Judge in this case, relied heavily on the constitution when arriving at his decision. This is because the Maintenance act emphasises a fair and equitable system based on the rights enshrined in our Constitution.

In arriving at its decision in the abovementioned case, the court referred to the decision in Satchwell v President of the Republic of South Africa and Another 2002 (6) SA 1 (CC). In this case the court said that in determining maintenance the courts should look at how others perceived the couple and whether family responsibilities were shared. The court explained the purpose of “family law” as being to protect vulnerable family members and to ensure fairness in disputes that arose at the end of relationships.

The judicial officer when delivering his decision expressly stated, “In any event, the purpose of the Act would be frustrated rather than furthered if partners to a polygamous marriage were to be excluded from the protection the Act offers, just because the legal form of their relationship is not consistent with the Marriage Act. I am therefore of the opinion that partners in a Muslim marriage, married in accordance with Islamic rites (whether monogamous or not) are entitled to maintenance and thus fall within the ambit of the Act”

However simply falling within the jurisdiction of the act, one is not guaranteed success when stating a claim under same. The court has specific requirements that must be met in order for once to succeed in a claim for spousal support from an ex. We see this from the same Khan case, mentioned above whereby the court stated “The common-law duty of support is a flexible concept that has been developed and extended over time by our Courts to cover a wide range of relationships…The questions that Courts consider in determining whether a particular relationship gives rise to a duty of support include: 1) Does the complainant require financial aid 2) Does the relationship between the two parties create a duty to maintain?”

It can therefore be said that every person has a right to lodge an application for maintenance regardless of their religious beliefs, however the courts base their decisions primary on a system of the applicants need for maintenance versus the affordability of the other party to pay for same.

In the current situation, the parties were married to each other in Islamic law on the 1st December 2010. However Faizal only started paying spousal support a year later, being December 2011. The amount payable was R50 000 per a month towards maintenance. Due to an extra-marital affair by Faizal, Nazira request dissolution of the marriage. During August 2013, the credit card was removed from Nazira. She was then asked to vacate the marital home, which she did at the end of September 2013.

In making an order the Court will primarily weigh the need of the person to be supported against the resources of the person who is called upon to provide the maintenance.

Section 7(2) of the Divorce Act confers discretion upon a court to make a maintenance order which it finds just, having regard to the following factors:

(a)   The existing or prospective means of each of the parties;

(b)   the respective earning capacities of the parties;

(c)   the financial needs and obligations of the parties;

(d)   the age of each of the parties;

(e)   the duration of the marriage;

(f)   the standard of living of the parties prior to the divorce;

(g)   the conduct of the parties insofar as it may be relevant to the breakdown of                the marriage;

(h)   any redistribution order made in terms of s 7(3) of the Divorce Act; and

(i)   any other factor which in the opinion of the court should be taken into account.

Maintenance will not be ordered by reason solely of the fact that the parties were married to each other, and that one party is now unable to maintain the standard of living to which he/she has become accustomed to during the marriage.

In the case of Botha v Botha 2009(3) SA 89, the judgement confirms that, taking into account so-called “clean break” and constitutional principles, there is no automatic right to maintenance after a divorce. Entitlement to maintenance must first be shown before a court can determine the quantum and duration thereof.

The Court appears to award little or no maintenance where one or more of the following factors are present: The woman is young or reasonably young; she is well qualified; she has no children or no young children; she has worked throughout her married life; she is working at the time she applies for maintenance; she is in good health; and the marriage was not of long duration. On the other hand, older, unqualified women who have been married for a long time are likely to be more sympathetically treated by our courts. If the wife has not worked for a while, the Court may consider rehabilitative maintenance. Rehabilitative maintenance is awarded to a woman for a limited period while she trains or re-trains for a job or profession.

When considering the existing or prospective means of each party, the Court will look at how much money and how many assets each party has, including any property that can be used to produce income. When considering the standard of living, it is generally recognised that neither spouse is entitled to maintain the same standard as during the marriage unless money is not an object. Where money is no object, it has been argued that there is no reason why a divorced wife and her minor children should not continue to enjoy the same standard of living as during the marriage.

Divorce In South Africa

There is no magic wand to wave when one wants to get a divorce in South Africa. Here, when one party wants out, they need simply apply to a competent court (being the high court and certain regional courts) and they are divorced. Is it really that simple you may ask? Well, yes and no. Let me elaborate.

In terms of South African law, one cannot oppose the “getting divorced”, however they can oppose the terms of that divorce. For example if a wife serves a husband with a divorce summons, she claims maintenance of R x per a month. The husband can oppose the amount of money which is being claimed.

A divorce can either go one of two ways.

  1. Uncontested; or
  2. Contested

Uncontested

This is what is deemed a simple divorce. The parties here have accepted the fact that their marriage has come to an end. They either have no assets to divide, have an ante-nuptial contract in place and/or have entered into a settlement arrangement that takes care of the proprietary consequences of the marriage. The children’s act also makes provision for a parenting plan to be drawn up which deals with the rights and responsibilities of the parent as well as the needs of child. One spouse become the plaintiff, the other becomes the defendant strictly for identification of the court. The defendant is served with a summons and is given 10 days to defend the action. Once the 10 days has elapsed, the matter is enrolled on the unopposed roll,  If there are kids involved and a settlement agreement is signed, this agreement must be viewed by the family advocate and endorsed to be in the best interest of the minor children. The matter is then heard, generally, with the plaintiff leading evidence, and the divorce is finalised.

Contested

This is when the parties cannot agree on how the divorce action should proceed be it for legitimate or vindictive reasons. Once the divorce summons is served, the other spouse then issues a notice of intention to defend. He/she must then with 20 days issue a plea to the summons detailing which part of the summons they agree and which parts they disagree. They may also choose to lodge a “counter-claim”. This is where they state how they believe the matter should proceed. If there is a counter-claim, the other side is afforded the write to respond to same, however may not raise any new issues. The pleadings are then deemed to have closed and the matter may be placed on the awaiting trial roll. Due to the congestion at the courts, a date is not obtained immediately.

On paper, both avenues don’t appear to unreasonable, however it is easy to forget that this entire procedure is coupled with intense emotion. A feeling of being betrayed or even fear. The range of emotion that one would endure is unpredictable at the best of times, There are financial implications as well as emotional which need to be considered.

For any advice, please feel free to contact me.

Who really suffers?

In a divorce, emotions run high. You are making the conscious decision to leave the person you swore to spend the rest of your life with. Irrespective of the reason for the divorce, this was the man/woman you had chosen to commit your life to. “in sickness and in health….for richer or for poor…. TILL DEATH DO US PART”. So why now has incompatibility become the equivalent of death? Well so far, I’ve witnessed, infidelity, abuse and poverty result in incompatibility between “soul mates”. I often get the “older generation” telling me, they are from the old school, where if something is broken, they try to fix it and not just toss it out. Is this really what we do now?  The simple answer is yes. I have noticed an ever growing trend of divorces, where the length of marriage is under 10 years. Well, they were no longer in love, so its “ok”. luckily they found out early and didn’t waste their life with someone they didn’t want. All excellent points, but…. what about the 7 year old who has just started school.

The simple reality of the matter is that divorce is difficult for an adult mind to comprehend, but almost impossible for a little one. Kids panic when faced with a new challenge, and the problem with many “messy” divorces is that the kids are placed squarely in the middle. Not only do they see their parents fighting all the time, but they are often feel they are the “reason” for the fight.

Children learn by imitation. They do what they see and not what they are told. So trying to comfort them after a nasty argument has just happened, is good, but effectively pointless.

My advise, don’t argue in front of your kids. A divorce is painful enough, why some people seek to prolong the effects are beyond me. Today, there are much better options available so that your divorce is as quick and places the least amount of impact on those involved. Get a mediator, seek counselling, most of all, choose an attorney that wants to help you get divorced, and is not just looking to make a fee.