by slamatattorneys | Aug 4, 2021 | Family Law
Is the New Rule 43 application procedure in South African law, unconstitutional? This is the question which we are asked so many times in recent months.
The Rule 43 applications procedure in the high courts has existed for many years as a means for divorcing parties to obtain interim relief in regard to specified interim (or interlocutory) issues involving the divorce as a whole.
This well-known, tried and trusted procedure, was changed recently[1] to enable parties to have what seems to be more effective relief and it seems for the procedure to be more robust and effective in regard to the determination of Rule 43 application issues which have been frustrated and abused in the past by unnecessarily combatant litigants looking to strike ‘low blows’.
[1] E v E 12583/2017; R v R 20739/2018; M v M 5954/2018.
In essence, the new ‘robuster’ Rule 43 applications procedure requires and enables upfront or earlier legal discovery of information which was previously not permitted. Those educated in law will be aware of the importance of discovery of information in trial matters and when such discovery is to occur.
This earlier discovery is in effect an overall, very granular particularisation of the financial positions of the respective parties to the divorce litigation.
In terms of the prevailing law applicable to the new ‘robuster’ Rule 43 procedure both parties are required to deliver to each other, their respective FINANCIAL DISCLOSURE DOCUMENT together with annexures in support thereof, which is certainly in effect a microscopic detailed account of their finances and financial positions and which is a declaration under oath.
The prescribed FINANCIAL DISCLOSURE can be seen to be a definite intrusion into the financial position of parties at the outset of the litigation and which was certainly not available in terms of the previous procedure. This amounts undoubtedly to ‘earlier’ discovery of information ostensibly necessary in the interests of the parties’ resolution of the divorce action, the interests of the parties themselves and those of any minor children involved in the divorce action.
While these apparent motives may hold some water, it remains to be seen whether or not the new procedure survives constitutional muster or review, as it is most certainly an apparent violation of the right to privacy not to mention other rights and/or freedoms. This is particularly so as all documents filed in an action or motion are public documents (unless the court determines otherwise which may be too late or if excluded by another rule eg. surrogacy matters) and thus a party’s privacy in regard to their personal information and financial information in particular, is placed openly in the public domain for all and sundry to have access to.
Also significantly, where parties are married in terms of an antenuptial contract or prenuptial contract and choose not to disclose their assets in the contract itself (as they are entitled to do) the privacy enjoyed by such parties is now effectively abolished in divorce proceedings in that such parties have to furnish their financial information ‘microscopically’ in the FINANCIAL DISCLOSURE documentation under oath.
While it can be argued that discovery in the ordinary course in terms of the previous procedure could have resulted in the same apparent violation of the right to privacy, and other rights and freedoms, there were many ways of safeguarding against same and/or avoiding same which is no longer the case in terms of the new Rule 43 procedure.
Constitutional review of the new Rule 43 application procedure shall be necessary to determine if the procedure amounts to a violation of, inter alia, the right to privacy entrenched in the Bill of Rights to the South African Constitution and other rights such as:
- the right to a fair trial,
- the right not to incriminate oneself,
- the right to remain silent,
- the right to due process,
- the right to fair administration of justice.
In terms of basic constitutional law considerations, surely there are many other less intrusive means to achieve the apparently ‘children-motivated’ motives and objectives behind the new Rule 43 procedure.
In addition, it certainly brings into question material and profound evidential issues such as prior or previous (in)consistent statements and/or acts, hearsay evidence, the exclusionary rule, and the use of declarations in a civil proceeding in subsequent matters involving the State and an individual or a company or a trust in regard to criminal matters and tax laws.
Undoubtedly, constitutional review of the new Rule 43 procedure is necessary to safeguard the rights entrenched in the Bill of Rights and the further rights and entitlements embodied in those very special rights. Otherwise what was the point in having those rights in the first place?
www.slamatlaw.co.za ASHLEY SLAMAT ATTORNEYS – Copyright
by slamatattorneys | Jul 8, 2021 | Family Law
MAINTENANCE ACT 1998 & DOMESTIC VIOLENCE ACT 1998
WITHHOLDING OF MAINTENANCE IS FINANCIAL ABUSE IS SOUTH AFRICA
We receive so many calls on a daily basis for assistance with maintenance and domestic violence matters.
Recently, there is a sad trend in regard to the withholding of maintenance payments due for ex-partners, ex-spouses and children.
We point out that maintenance payable in terms of divorce orders, other court orders or in terms of the Maintenance Act 99 of 1998 or in terms of the Domestic Violence Act 116 of 1998, must be paid timeously to the beneficiary. One of the primary purposes of such orders is for the beneficiary to be placed in a position to manage the costs and expenses of the beneficiary when the cost or expense has to be paid.
Withholding of maintenance is not only a social injustice in light of the serious consequences for beneficiaries in not being able to pay for their monthly bills, incurring credit judgments and credit listings for non-payment of debit orders and other bills.
In terms of the Domestic Violence Act 116 of 1998, as amended[1], domestic violence is defined to be:
- any form of abuse which includes physical, sexual, emotional, psychological or economic abuse;
- damage to property;
- stalking;
- entry into a person’s home without their consent;
- any other abusive or controlling behaviour where such conduct (acts or omissions) causes harm or may cause harm to your health, safety, or well-being.
Economic abuse is defined to be the “unreasonable deprivation of economic or financial resources to which a complainant is entitled under law…required for household necessities… mortgage bond repayments or payment of rent in respect of a shared residence”.
Not only is it a contravention of the Maintenance Act to withhold maintenance due and payable but it also constitutes domestic violence as defined in the Act because it is obviously a form of abuse.
If you are experiencing delays in payment of maintenance which is due and payable to you and /or your child(ren) it is imperative to approach the courts for assistance.
One of the remedies available is to apply for an Emoluments Attachment Order against the employer and earnings of the maintenance debtor so that you have a greater prospect of receiving the maintenance due on the expected date.
FREQUENTLY ASKED QUESTIONS?
How do I obtain a protection order in terms of the Domestic Violence Act?
Who can apply for a protection order?
- Any person who has been in a domestic relationship with the abuser/respondent.
When is there a domestic relationship between the complainant and the respondent?
- If they are or were married to one another;
- if they live or lived together in a relationship in the nature of a marriage, though they are/were not;
- if they share parental responsibility over a child;
- if they are/were engaged, dating or in a customary relationship;
- if they are blood relatives or related by affinity or adoption;
- if they share or recently shared the same residence.
Against whom can a protection order be obtained?
- Any person who is or has been in a domestic relationship with a complainant and who has committed an act of domestic violence against the complainant.
Where can a complainant apply for a protection order?
- At any Magistrates Court or Family Court;
- Any court in the area where the complainant permanently resides, carries on business or is employed;
- In the area where the respondent resides, carries on business or is employed or any court in the area where the abuse took place or is taking place.
Can a complainant be represented by a lawyer when applying for a protection order?
Yes.
With whom must the application for a protection order be lodged at the Magistrates’ Court?
The Clerk of the Court.
Can a minor apply for a protection order without the assistance of a guardian?
Yes.
When is it allowed for an application for a protection order to be brought outside ordinary court hours or on a day that is not an ordinary court day?
If the court is satisfied based on the allegations of facts and evidence that the complainant will suffer undue hardship if the application is not dealt with immediately.
What documents must the complainant submit when applying for a protection order?
- An application substantially corresponding to Form 2 of Regulation 4 of the DVA regulations for a protection order.
- Supporting affidavits by persons who have knowledge of the matter.
What happens if the court does not issue the Interim protection order?
The court must direct the clerk of the court to cause certified copies of the application and any supporting affidavits to be served on the Respondent in the prescribed manner, with the prescribed notice (Form 5 of Regulation 7) thereby calling on the Respondent to show cause why a protection order should not be issued.
When does the court issue a final protection order?
A final protection order will be issued if the Respondent does not appear on the return date as set out in the interim protection order, or if the Respondent does not appear on the return date as set out in the notice when an interim protection order was not granted.
If the Respondent appears on the return date as set out in the interim protection order or notice and opposes the issuing of a protection order, then the court will proceed to hear the matter.
A protection order issued by the court must be in the prescribed form and it must be served on the Respondent.
What happens after a protection order has been issued?
The clerk of the court must send certified copies of the protection order and warrant of arrest to the police station of the complainant’s choice.
Issuing of the warrant of arrest?
The warrant of arrest must be authorised and issued in accordance with Form 8 of Regulation 9.
Whenever a court issues a protection order, the court must make an order authorising the issue of a warrant of arrest.
The execution of the warrant of arrest is suspended subject to compliance with any prohibition, condition, obligation or order imposed by the court.
SOUTH AFRICAN POLICE SERVICE Family Violence, Child Protection and Sexual Offences Units (FCS).
The FCS Units can assist with allegations in regard to:
- sexual offences against children,
- person-directed crimes (where the family is involved),
- illegal removal of children under the age of 12,
- crimes facilitated through the use of electronic media.
For help, call SAPS Crime Stop: 08600 10111 or your local SAPS police station.
[1] Amended by Act 1 of 2011, Act 31 of 2008, Act 55 of 2003.
ASHLEY SLAMAT ATTORNEYS – Success is the Only option™
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by slamatattorneys | Jul 6, 2021 | Family Law
CO-HABITATION IN UNIVERSAL PARTNERSHIPS – IS IT THE BOULEVARD OF BROKEN DREAMS?
ASHLEY SLAMAT ATTORNEYS – no games, Just Law™
Evidently, since our initial law article in 2011 and over the years dealing with so many matters involving co-habitation or the living together by persons in a relationship, this practice has emerged yet again in that we are receiving daily contact from clients regarding their rights and responsibilities.
Perhaps it is the uncertainties of the Covid-19 times or because people have more time on hand to consider their lives and realities. Nonetheless, the number of enquiries for legal assistance demands that we provide a further article regarding co-habitation partnerships.
This article is therefore furnished to draw attention to a few of the more pertinent ‘reality’ aspects of co-habitation partnerships or living together in a universal partnership or relationship, i.e. where there is no marriage between the parties/partners.
For decades, the British ‘common-law’ marriage term and indeed the practice thereof has been known in South Africa and the fact that it was not recognised in South African law. This meant that there were no ‘divorce’ or other legal consequences for either party in this relationship on termination of the relationship or as understood in terms of a civil marriage.
Co-habitating partners do not have the same ex lege automatic rights as married couples under the law. Should parties live together ‘as man and wife’ but don’t conclude any form of agreement regulating their respective legal rights and obligations, on dissolution of the co-habitation, a party that believes he or she is ‘entitled to something’ from the other party (who disagrees), must proceed to court to prove that ‘entitlement’.
To do so, the claiming party must prove they were in a so-called Universal Partnership (which is in essence the same as any partnership at common law) so that one party is entitled to certain property and assets of the other party, on separation of the parties.
The requirements for constituting a Universal Partnership in law are elementary.
The requirements for filing a claim(s) on the basis of a de facto Universal Partnership or otherwise are well-known and such claims have come before the courts on many occasions, some with overwhelming success and others failing to meet the basic requirements for the claim.
It is imperative that one employs the services of an expert attorney dealing with such matters based on substantial experience as the practice of law is 99% experience.
The principle issue, to bear in mind at all times, is that any such relationship must be dealt with in a written agreement to safeguard the interests of both parties. Simply living together is the recipe for disaster especially if one of the parties is the earner in the relationship and other is not. While this may seem distasteful to some, it is clear that the law does not concern itself with taste, as it is useless to argue taste and even more futile to litigate it.
Over the years, we have advised clients to ensure that the terms of the relationship is recorded in a document which is a collaboration of both parties who understand and accept the realities of life and the importance of being open and honest with each other in all respects to enjoy the happiness of the relationship simultaneously.
It is only when such advice is or was not heeded that disputes arise and matters end up in the courts bringing with it a bitter end to the relationship.
In a recent matter, we were consulted by a client who lived together with a partner for 12 years bearing him 4 children. Despite numerous promises of marriage, no marriage occurred and there was no written agreement to rely on. This factual scenario is not without legal recourse, but the client understood the difficulties of the legal remedies after she was put out of the joint household at 02h00 on a Monday morning. The realities of life hit very hard as did the boulevard of broken dreams.
The legal consequences of failing to heed sound experienced legal advice in regard to co-habitation can be life-changing and hold you back years in your life.
It is therefore only a matter of seat-of-the-pants wisdom to listen to your expert lawyer to ensure that you have the best legal position available to you at all times.
www.slamatlaw.co.za ASHLEY SLAMAT ATTORNEYS – COPYRIGHT
by slamatattorneys | Jul 6, 2021 | Family Law
MAINTENANCE OF SURVIVING SPOUSES ACT 27 OF 1990
ASHLEY SLAMAT ATTORNEYS – Success is the Only option™
A surviving spouse has a claim against the estate of the deceased spouse for the provision of reasonable maintenance until his or her death or re-marriage, subject also to whether or not the surviving spouse is unable to provide for him/herself from their own means.
Essentially, the Act created a statutory right and permits such a claim for maintenance against estate of deceased spouse in circumstance where:
- the marriage is dissolved by death after the commencement of the Act;
- The surviving spouse shall, in respect of his/her claim for maintenance, have no right of recourse against any person (beneficiary or heir) to whom money or property has been paid, delivered or transferred in terms of section 34(11) or 35(12) of the Administration of Estates Act, 1965 (Act No. 66 of 1965), or pursuant to an instruction of the Master in terms of section 18(3) or 25(1)(a)(ii) of Act No. 66 of 1965.
Determination of reasonable maintenance needs in regard to maintenance of surviving spouses
In the determining the ‘reasonable maintenance needs’ of the surviving spouse, the following factors shall be taken into account in addition to any other factor which should be taken into account:
- The amount in the estate of the deceased spouse available for distribution to heirs and legatees;
- the existing and expected means, earning capacity, financial needs and obligations of the survivor and the subsistence of the marriage; and
- the standard of living of the survivor during the subsistence of the marriage and his age at the death of the deceased spouses.
Scenarios and case law
The law stipulates that, if a person, whether in error or with intent, fails to make provision in his or her will for the maintenance of a person to whom they owe a legal duty of support (for example, a minor child) the latter can lodge a claim against the deceased estate for maintenance.
At South African common law, a surviving spouse had no right to claim maintenance from the estate of the first-dying spouse, even if the survivor was left destitute. (rf Glazer v Glazer N.O. 1963 (4) SA 694 (A) and in Hodges v Coubrough N.O. 1991 (3) SA 58 (D)). Neither could a court make an order in terms of the Divorce Act to bind the estate of the deceased spouse to maintain the surviving spouse. This could however be achieved by creation in a contract, for example in a divorce agreement.
Statutory right
In 1990, the enactment of the Maintenance of Surviving Spouses Act 27 of 1990 changed the law in this regard and afforded a surviving spouse a claim for maintenance against the estate of the first-dying spouse in respect of reasonable maintenance until death or remarriage, but only in so far as he or she is unable to provide for their maintenance from his or her own means and earnings.
Various cases have come before the courts since then in regard to certain aspects of the legislation and all of these have a significant bearing on the claim of the surviving spouse which requires expert legal knowledge and experience to deal with to avoid heartache and disappointment.
The right to claim is also is applicable to same-sex partners in a permanent life relationship, as was confirmed in the case of Ripoll-Dausa v Middleton N.O. 2005 (3) SA 141 (C).
In the acrimonious case of Feldman v Oshry N.O. 2009 (6) SA 454 (KZD) a few notable provisions of the Act arose for interpretation and adjudication by the high court and subsequently by the Supreme Court of Appeal.
Firstly, the high court ruled that, in determining whether the surviving spouse was in need of maintenance, no account should be taken of contributions towards the claimant’s maintenance needs by the claimant’s own children.
Secondly, the high court also held that any award of maintenance made by the court in terms of this Act had to be in the form of periodical payments and cannot take the form of a lump-sum payment. This finding was subsequently overturned by the Supreme Court of Appeal which held that a lump sum payment is competent. The appeal court also held at that a donation made to the claimant, but not paid prior to the deceased’s death, had to be paid from the deceased estate.
The appeal court also ordered that the two executors of the deceased estate pay the substantial costs of the appeal de bonis propriis and the cross-appeal de bonis propriis.
It is essential to act expeditiously in the event that you wish to lodge a claim in terms of the Act as deceased estates invariably experience significant delays in the administration thereof and in addition thereto family disputes and litigation occurs very frequently which depletes the assets or value in the estate itself.
www.slamatlaw.co.za ASHLEY SLAMAT ATTORNEYS – Copyright
by slamatattorneys | Jun 22, 2021 | Family Law
IRON SULPHIDE – THE INTOLERABLE CRUELTY OF NO ANTENUPTIAL CONTRACT
When wedding bells are in the air following a marriage proposal being accepted, and romance is the order of the day, one sometimes can forget the importance of a rock solid, watertight antenuptial contract to avoid being a sitting-duck at a later time.
It is said that an antenuptial contract is an intolerable cruelty in the lives of would-be spouses, but is this truly the case or is it simply the cold hard fact of reality? Or is it in fact the converse which is true?
An antenuptial contract is intended to be the record of an agreement entered into between would-be spouses to regulate the financial or proprietary aspects of their marriage.
In essence, it is one in which the would-be spouses record their agreement as to whether or not the marriage will be out of community of property and, if so, to what extent and in what respects.
Any term which is legal and in accordance with public policy values can be agreed to and incorporated in an antenuptial contract. Thus, it affords the would-be spouses with an opportunity to protect their respective assets acquired before and in some cases after the marriage and can provide for, inter alia, donations between the spouses, periodic payments to be made by one spouse to the other, assets to be transferred from one spouse to the other and so forth.
Whether or not it is morally correct to contract for marriage having regard to finances and patrimonial gains or losses is not the essence of the subject, but rather whether or not one should part with your assets or gains in life where your spouse has caused a subsequent divorce for whatever reason, in other words, should you have to pay for your spouse’s indiscretion(s) causing a divorce? This is the cruelty which so often is intolerable and suffered by so many spouses who did not understand how critical it is to have an antenuptial contract in place and ended up being a sitting duck.
Isn’t it wise, responsible and best to ensure that your assets are protected and that you do not suffer the intolerable cruelty of walking a tightrope with your assets in the balance. Surely, there isn’t much romance in that.
Long is the way and hard that out of hell leads up to Light – Milton J, Paradise Lost 1667.
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by slamatattorneys | Jun 22, 2021 | Family Law
Step-parents and step-children? Are their any “rights”. The answer is no.
Evidently, this question is becoming more prominent in the contact we are receiving from clients. Perhaps the question is being asked more frequently due to the times which we are living in or because it is a question which has become more irritating or upsetting to couples in a relationship where one or both of the partners have a child(ren) from another relationship.
It is said that once a relationship is over, then it is over.
However, it appears that many couples are plagued by the incessant demands or issues from a disgruntled ex step-parent, which causes this question to be raised with us more and more frequently.
In lay man’s terms, a step-parent is one whom has no biological nexus to the child concerned and is married the child’s biological mother or father.
In South African law prior to the coming into law of the Children’s Act in 2007 such a step-parent never obtained any ‘rights’ to the step-child. While the step-parent is bound by the common law duties and responsibilities owed to their spouse this did not include any duties or responsibilities to the step-child per se as a father or mother. Had the step-parent adopted the step-child, the legal position would be somewhat different. However, absent an adoption or other court order, the step-parent never obtained any rights to the step-child by virtue only of the marriage to the child’s mother or father. Once the marriage is over, there are no ‘rights’ which automatically exist for the step-parent in respect of the step-child no matter how long the marriage endured. It is simply one of the aspects of life which a step-parent accepts when entering into a relationship with the child’s parent, be it the child’s mother or father.
In the case of the parent of the child being in a relationship with a ‘partner’, i.e when there is no marriage but merely a relationship, the above legal position is exactly the same except for there being no common law duties and responsibilities between the adults.
Since the coming into operation of the Children’s Act in 2007, the above legal position in South African law remains the same. While there are provisions in the Act which enable certain persons to bring matters pertaining to children before the courts (with the intention being at all times that such matters are brought in the child’s best interests) and not in the interests of the adults filing such matters, the Act itself, despite being a very liberal piece of legislation, does not provide at all for any substantive statutory ‘rights’ of a step-parent in regard to step-parents and step-children.
This is certainly the correct approach and legal position in regard to step-parents and step-children. One can only imagine the chaos and social upheaval that would arise if step-parents acquired any substantive ‘rights’ to children who are not their own.
After all, bearing and rearing one’s own children in accordance with your will is a God given right for the child’s biological parents, unless such parent(s) is unfit or otherwise unable to exercise those special God given rights.
We point out that in the context of parenting plans, we advocate our firmly held view that it is insensible and injudicious to include any terms pertaining to step-parents in parenting plans which should, in the normal course, remain the plan of only the child(ren’s) biological parents at all times.
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