by slamatattorneys | Jun 21, 2021 | Family Law
International marriages – which law applies to international marriages?
Marriages between persons from different countries have increased over the years and certainly in recent times.
An important aspect to understand is which country’s law applies to the marriage and in the event of the death of one of the spouses or divorce. eg. one of the most important differences in South African law in comparison with the Law of England is, namely, that in English law a marriage entered into is by default out of community of property while in South Africa the default is in community of property and profit and loss unless an antenuptial contract is entered into and registered by the spouses.
In terms of the rules of conflict of laws (also known as international choice-of-laws), the international principles of legal systems governing cross-border legal events are applied to international marriages depending on the relevant factual circumstances and provided the court in question has jurisdiction.
In South African law, the lex causae common law principles of conflict of laws apply to international marriages and the various legal consequences thereof. We mention a few in this regard.
The formal validity of the marriage is governed by the lex loci celebrationis. This is subject to the statutory exception and the law pertaining to consular marriages.
The lex loci celebrationis also governs the essential/intrinsic or material validity of the marriage. The narrow exceptions are in respect of firstly, the Prohibition of Mixed Marriages Act 55 of 1949 (repealed by the Immorality and Prohibition of Mixed Marriages Amendment Act 72 of 1985), secondly public policy considerations and thirdly the fraus legis doctrine applying the lex domicilii as the lex fori.
The lex domicilii of the spouses determines the personal legal consequences of the marriage at the date of the transaction. The lex fori may be applicable in narrow circumstances and override the lex domicilii, for example, in circumstances which fall peculiarly within the ambit of public policy.
The lex domicilii matrimonii (ie. the matrimonial domicile is the law of the domicile of the spouses at the date of the marriage) determines the proprietary/patrimonial consequences of the marriage. If the spouses have different domiciles, then the domicile of the husband will be the lex domicilii matrimonii, despite the application of the amendment to the Domicile Act 3 of 1992 which abolished the wife’s domicile of dependence. The doctrine of immutability will not affect the position or indeed an intention to assume a new domicile.
It is thus imperative that when entering into an ‘international marriage’ that the would-be spouses secure sound legal advice in regard to their marriage, the validity thereof and the consequences thereof.
In our next article, we shall focus on conflicts of law pertaining to the Law of Succession, Wills and Deceased Estates.
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by slamatattorneys | May 26, 2021 | Family Law
Claiming Child Maintenance or Child Support – your right to have legal representation
By law a child is entitled to reasonable maintenance for essential needs such as food, clothing, housing, education and medical care. Section 28 of the Bill of Rights in the South African Constitution guarantees these fundamental rights for each child.
Every parent bears an obligation in law to provide for the needs of the child according to their means. This is their legal duty in law to maintain their child.
Child maintenance is also known as child support and the basic principles are the same the world over. The calculation of the requisite maintenance is a relatively simple exercise.
Maintenance Court
Every Magistrate’s Court in South Africa also has a Maintenance Court, which deals specifically with all maintenance issues. The High Courts also deal with maintenance matters in limited circumstances.
It is imperative that when filing a maintenance application in the maintenance court, that you come to terms with the fact that it is a process which will endure for approximately three to four months for elementary cases with appearances typically once a month.
Engaging the services of an experienced attorney will stand you in good stead and enable you to obtain the best result in the process. Experience cannot be gained without legal knowledge and actual court appearances in the process itself as there are very specific nuances for each legal claim filed in the courts.
There are different applications that can be dealt with in the Maintenance Court and different processes are applicable to each one.
These applications are typically:
- the applications for maintenance for a child(ren),
- applications for increases in maintenance already ordered previously,
- applications for variations pertaining to such orders and applications for reduction of such orders,
- applications pertaining to recovery of arrear maintenance,
- applications for attachment orders.
Each application has its own unique requirements which must be fulfilled.
If an applicant is not satisfied with the outcome of any application, the applicant may appeal the case to the High Court.
A maintenance court order stays in effect or operation until the child reaches the age of 18 years.
Applications for Child Maintenance or Child Support
If you are a single parent, and the child’s other parent does not pay maintenance support in respect of the child or children and there is no court order, the first step is to go the maintenance court to start the process by completing the statutory “Application for Maintenance Order” which is a prescribed document obtained from the maintenance court.
Particular information must be furnished in order that the application can be processed by the maintenance court officers.
Once you have completed the form, you will then make a declaration under oath and sign the form in front of a Commissioner of Oaths.
You are required to provide a copy of the child(ren) birth certificate(s), together with a copy of your identity document, information pertaining to the expenses for the child(ren), proof of your salary or income and FICA documentation.
You have the right to legal representation at any stage during the process.
Do not be overwhelmed by the process or accept terms which you do not believe are in the best interests of your child(ren).
If you encounter difficulties with the maintenance officers, you are entitled to request a meeting with the Senior Magistrate of the Court.
Once your application is processed, you will receive a copy of same and an original subpoena and copy thereof for service by the Sheriff of the Court on the other parent.
The Sheriff will serve the maintenance court documents on the other parent and on your court return date the maintenance court process will proceed to run in accordance with its standard procedures.
It is important to stay the course of the process to obtain the maintenance court order in the best interests of your child(ren). Be patient and resolute.
If you are in the process of divorce, it is absolutely necessary to ensure that in your divorce agreement or court order that maintenance for your child(ren) is provided for so that the maintenance is determined in the divorce proceedings to save you considerable time and effort in applying for maintenance subsequently.
Do not accept token or trivial maintenance amounts for your child(ren) as the expenses and costs for children are significant and increase year on year.
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by slamatattorneys | May 26, 2021 | Family Law
DOMESTIC VIOLENCE PROTECTION – ENFORCING YOUR RIGHT NOT TO BE ABUSED
We receive so many calls on a daily basis for assistance with domestic violence matters.
Many people still regard domestic violence as a private matter and are embarrassed to institute legal proceedings against their abuser.
It is apposite to understand that domestic violence is a criminal offence and that is punishable by law. In addition, collateral criminal charges can be filed against the abuser who will then have to face criminal charges in addition to the domestic violence civil case.
What is domestic violence?
In South Africa in terms of the Domestic Violence Act 116 of 1998, as amended[1], it is defined to be:
- any form of abuse which includes physical, sexual, emotional, psychological or economic harassment;
- 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.
Domestic Violence can only occur in respect of a complainant if that complainant is or was in a domestic relationship with the Respondent.
If you are abused, you have the right to apply for an Interim protection order at the nearest police station or Magistrates’ Court. This Interim order may be made a Final order at a later date. A final order ensures for five years and has significant legal consequences for the abuser or Respondent.
A domestic violence protection order is a legal document that the court issues and it protects the victim(s) from further abuse by the abuser.
FREQUENTLY ASKED QUESTIONS?
How do I obtain a protection order in terms of the Domestic Violence Act in South Africa?
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.
www.slamatlaw.co.za
[1] Amended by Act 55 of 2003 and Act 31 of 2008.
by slamatattorneys | May 24, 2021 | Family Law
Parenting Plans – seek engagement of an expert attorney for common sense approach
A parenting plan is a useful collaborative contract in regard to the parenting arrangements agreed to by parents at the end of a relationship.
In this instance it is also important to note that it is not exclusive to divorce proceedings but can be applied to un-couplings and indeed also to relationships where the parents have never lived together in one household or at all.
In the event that a parenting plan is agreed to it is apposite to note that a parenting plan has greater impact in law when it has been made an order of a competent court than when it has only been registered with the Family Advocate’s Office.
Thus, it is imperative that an expert such as an attorney specializing in family law be engaged to attend to, inter alia, the consultations, drafting of and registration of parenting plans.
Competent, thoughtful and skilled drafting of legal documents is a pre-requisite for any legal agreement that is reduced to writing and these attributes are only acquired through years of knowledge and experience gained in the practice of law.
In cases where a divorce has already been decreed, a parenting plan can still be drafted thereafter and registered with the Family Advocate’s Office following the engagement and attendance of the attorney who is an expert is such matters as this provides the clients with an assurance that the matter will be dealt with professionally.
It is important to comply with the applicable law and standard documentation prescribed by law.
Various terms must be documented in regard to, inter alia, living arrangements, maintenance and parental contact and so forth with the pertinent issues being inter alia:
- where and with whom the child(ren) is(are) to live;
- how responsibility for the maintenance of the child(ren) is to be divided;
- contact arrangements in regard to the child(ren);
- daily routines;
- behavioural aspects;
- provisions regarding mutual respect and co-operation;
- frequency of communications;
- provisions in regard to schooling and religious upbringing of the child(ren).
Most if not all of the material issues in regard to the above will be included the parties settlement agreement, in the event of a divorce, with a parenting plan providing slightly more detail in that regard. Once the plan is finalized and signed by both parents, it becomes a legally binding agreement inter partes.
Upon filing with the Family Advocate’s Office, the agreement will be perused and considered in various respects and recommendations may be made if necessary and the parties can apply for the plan to be made an order of the court.
It is apposite to understand that there is no one type fits all parenting plan or set list of terms in regard to a parenting plan.
Equally important is that the parties to the parenting plan are permitted by law to re-assess the parenting plan from time to time to adapt to changing circumstances and life events.
There is also no need to go overboard in regard to the particularity of the terms of parenting plans such as the brushing of the child(ren)’s hair, clothes to be worn and styling thereof, lacing of shoes, etc etc as these are within the individual parents discretion in terms of their views on life and the child(ren)’s feelings, which are in a constant state of flux.
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by slamatattorneys | May 22, 2021 | Family Law
The Parenting Plan basics – in collaboration with an expert attorney
A parenting plan is modern, useful method of enabling parents who experience difficulties to manage the rearing of their child(ren) post a divorce or uncoupling. This can be achieved with the input of an expert attorney.
Introduced into South African law by the Children’s Act 38 of 2005 (the Act), it originated in many western civilised countries as a means by which these difficulties can be managed towards a non-confrontational mindset and practical solution post the end of a relationship.
A number of pieces of legislation were repealed by the Act when it essentially came into law on 01 June 2007, these include the following:
- the Children’s Act 33 of 1960;
- the Age of Majority Act 57 of 1972;
- the Child Care Act 74 of 1983;
- Children’s Status Act 82 of 1987; as well as
- the Guardianship Act 192 of 1993.
The implementation of certain chapters of the Act was delayed and those sections applicable to parenting plans were promulgated in 2010.
A parenting plan is the subject of regulation in sections 33 to 35 of the Act. While it is not mandatory in divorces or un-couplings, the Act does suggest that it be used when parents are experiencing difficulties in the decision-making pertaining to their children. Usually these difficulties arise or manifest more when parents are at the end of a relationship and when there are social or family related influences which affect their children, such as upbringing of the respective parents, differences in ideology, religion, race, financial means, culture, language and other social factors.
While the Act, in terms of sections 18(1) and (2) provides for the parental rights and responsibilities of both parents regarding the care and contact of the child(ren) and to have input in the major decisions regarding the child(ren)’s future, as well as the pivotal daily decisions pertaining to the care, contact, welfare, and personal development of the child, sometimes it does happen in life that parents do not or can no longer cooperate with each other on all or any of the decisions in regard to their child(ren), such as those like living arrangements, health, education, financial obligations, the involvement of new partners, step-parents, discipline, way of life, after school time, what the child(ren) do in the evenings and so forth. Some of these issues may seem trivial but invariably the aforesaid issues are actually the most frequent and hotly disputed.
The involvement of new partners or step-parents in the decision-making pertaining to a child(ren) is one which has always been contentious and recently the escalation of this issue has reached an unprecedented level and is one which must be considered very carefully when the terms of a parenting plan are considered and implemented.
While the primary objective of the parenting plan is to regulate the how, when, where parents will exercise their respective rights and responsibilities under the changed set of circumstances it is also intended to cater for the ever-changing needs of the minor child(ren) involved by considering the age, maturity and developmental stage of the child(ren), and always applying the best interests of the child principle in each particular case.
While the Act does not compel parents who are in agreement on co-parenting measures to conclude a parenting plan, it does stipulate that, in the event of disagreements and to avoid the risk of further litigation that they first attempt to on a parenting plan, prior to approaching the court for a determination on these rights and responsibilities. This implies meaningful consensus seeking from both parties.
From a purely legal perspective, certain basics would be attributes of a parenting plan. These are, inter alia, the following:
- The plan needs to be customised to a particular family and their circumstances.
- Full participation of both parents will be essential and nuances appreciated.
- Child(ren) participation to a reasonable, logical extent with age appropriateness.
Common sense and the practicalities of modern life remain invaluable guiding principles.
Compromise and the acceptance of the other parent’s wishes and way of life are also attributes of a sensible parenting plan and the methodology to be applied in drafting the terms of the parenting plan in a collaborative manner with an expert attorney.
www.slamatlaw.co.za
by slamatattorneys | Mar 17, 2021 | Family Law
The Matrimonial Property Act 88 of 1984
Section 1: Definitions
“joint estate” – is the joint estate of a husband and wife married in community of property.
“separate property” – property which does not form part of the joint estate.
Section 2 – 10: The Accrual system
- A marriage concluded out of community of property with an antenuptial contract by which community of property as well as community of profit and loss is excluded is subjected to the accrual system.
- At the dissolution of the marriage by death or divorce the accrual from the spouse which is least gets subtracted from the accrual from the spouse which is more, ad the difference gets divided between the two spouses. If the one spouse died his/her estate gets a claim for half of the difference between the two accruals against the other party’s estate.
The following will be left out of the calculation of the accrual:
- Amounts accrued to the estate because of damages other than damages for patrimonial loss (also damages recovered from the other spouse for bodily injuries suffered by him/her and attributable wholly or partly to the fault of the other spouse and these damages do not fall into the joint estate),
- Any asset which is excluded from the accrual system in terms of the antenuptial contract,
- The total value of each spouses’ estate at the commencement of the marriage,
- Any testamentary disposition, donation mortis causa or succession out of the estate in terms of the law of intestate succession.
- Any inheritance, legacy, donation accrued during the marriage or asset which he/she acquired by virtue of possession or former possession of such inheritance, legacy or donation.
The net commencement value of a spouse’s estate will be nil if his/her liabilities exceeds his assets or the value was not declared in an antenuptial contract and not declared, certified by a notary, in a statement within 6 months after the commencement of the marriage.
The division of the accrual may also be ordered or changed by an order of court and the rights to share in the accrual may be forfeit, wholly or in part.
Section 11 – 13: Abolition of Marital Power
The Matrimonial Property Act 88 of 1984 repeals and abolishes the common law rule that a husband obtains marital power over the person and property of the wife. This Act will apply to every marriage in community of property irrespective of the date on which the marriage was entered into.
Section 14 – 17: Marriages in Community of Property
- The spouses in a marriage in community of property will both have the same powers regarding the disposal of assets of the joint estate, contracting of debts which lie against the estate and management of the joint estate.
- A spouse in a marriage in community of property can perform any juristic act with regards to the joint estate without the consent of the other spouse.
- Section 15(2) describes which actions a spouse in a marriage in community of property can’t do.
- According to Section 16 a Court may also give consent to a spouse if the other spouse withholds consent from him/her, can’t give consent or withholds consent unreasonably.
- A spouse may not institute or defend legal proceedings without the written consent of the other spouse, except to defend his own property, for the recovery of damages, which is not patrimonial losses but by reason of commission of a delict against him/her, or regarding a matter relating to his profession, trade or business.
- If the necessary consent was not obtained by a spouse, the court will make an order which the court deems fit.
- The application for the surrender of a joint estate must be made by both spouses and an application for sequestration of a joint estate must be made against both spouses. Both spouses must be sued together for debt recoverable from the joint estate.
Section 18 – 38: General provisions
- A court may order the division of a joint estate upon the application of that spouse, if the court is satisfied that that person’s interest will be seriously prejudiced by the conduct or proposed conduct of the other spouse, and that other persons will not be prejudiced by the division.
- Parties can jointly apply to change the matrimonial property system which apply to their marriage with a notarial contract if there are sound reason for it, sufficient notice to all relevant parties and if no other person will be prejudiced by this action.
- Spouses married out of community of property are liable to contribute to necessaries for the joint household pro rata according to their financial means. The spouse who contributed more towards the joint household before the commencement of this Act will have a right of recourse against the other spouse in regards to the portion which was contributed more than the other spouse.
- Parties married out of community of property is also jointly and severally liable to third parties for all debts incurred by either of them in respect of necessaries for the joint household.
- The court will have the right to dissolve a marriage, and make an order regarding the division of the matrimonial property, in which a minor entered without the proper consent of their parents, guardian of commissioner of child welfare.
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