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.

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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:

1. the marriage is dissolved by death after the commencement of the Act;
2. 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.

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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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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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It is said that a divorce is a post mortem of a dead marriage.

Many couples find themselves in a position where it is apparent that there is no more romance or other feelings left in a relationship but one or both spouses or partners do not have the will or inclination to find a solution to the apparent issues or problems experienced.

For those who choose not to take the brave step to seek help in their relationship a divorce or uncoupling will be the likely outcome invariably with heartache and the unpleasantness of a post mortem.

However, for those couples who do want help to assist them in rekindling the romance or lost feelings, then there is help when you need it. Couples mediation is available for those who wish to save their relationship or resolve problems holding them back.

Experience shows that taking the first step in looking for help in troubled relationships is the most difficult. Thereafter once you’ve engaged in a process with an experienced attorney the possibilities of rediscovering the romance and lost feelings turn into probabilities by engaging in open and frank discussions towards finding the solutions which both parties seek. At the outset of the process it is best to determine if both parties actually want to try to save the relationship, and if so the chances of doing so are greatly enhanced.

If it transpires that there is no joint inclination to save the relationship then experience shows that it is best to move on with your respective lives so as to improve your prospects of rehabilitating yourselves and not wasting time by losing years of your lives in a dead marriage.

After all, in the final analysis, is there anything worse than lost time?

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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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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.

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