FAMILY LAW

 

 

 family law is our passion

 

 

We resolve family issues.

 

We understand that all family law issues facing our clients are important, no matter how large or small.  Therefore we believe that it is very important to first fully understand issues before helping clients resolve matters.  Solutions which are outside the box are often only possible if the attorney truly listens and understands the issues.  But at the same time, not every problem can be resolved through negotiations.  At those times, clients can rest assured that their interests will be protected aggressively.

 

Family law is an area of law that deals with family matters and domestic relations, which may include

 

  • marriage, civil unions and domestic partnerships

 

  • adoption and surrogacy

 

  • child abuse and child abduction

 

  • termination of relationships including divorce, annulment, property settlements

 

  • paternity tests, maintenance, parental rights and responsibilities

 

  • contact rights to children

 

  • parenting plans and mediation

 

  • settlement agreements

 

  • family violence and harassment

 

  • ante nuptial contracts

 

  • liquidation of joint estates

 

 

In a diverse society like South Africa, relationships between people can take numerous forms. People can enter into civil marriages, same-sex marriages, customary marriages, religious marriages or domestic partnerships (cohabitation/living together).  Marriage, also called matrimony or wedlock, may be defined as a legally recognised, life-long, voluntary union between a man and a woman, or two people of the same sex. The definition of marriage differs according to culture, but is commonly an institution in which an interpersonal relationship, usually intimate and sexual, is acknowledged through the exclusion of all other persons.  

 

Civil marriages have always been recognised and fully protected by the law, and now so are same-sex and customary marriages. Religious marriages are recognised by our courts only in some instances, and domestic partnerships have no legal protection.  The formalisation and registration of civil marriages, customary marriages and same-sex marriages (civil unions) are all managed by the Department of Home Affairs. For nearly five decades, civil marriage in South Africa has been governed and regulated by the Marriage Act 25 of 1961. 

 

Customary marriages are recognised through the Recognition of Customary Marriages Act 120 of 1998, which came into effect in November 2000. Following the acceptance of the Civil Union Act 17 of 2006, South Africa became one of very few countries to give legal protection and marriage benefits to partners in same-sex relationships. The legislation was adopted as a direct response to a landmark decision made by the Constitutional Court.  

 

Although purely religious marriages are not recognised as valid marriages by South African law, the courts and the legislature have in the past been prepared to grant piecemeal extensions of the law of marriage to such relationships.  Domestic, cohabitation or life partnerships, where two people, regardless of gender, live together without marrying under the Civil Union Act, are not regulated by law. Until domestic partnership legislation is enacted, the position of unmarried domestic partners will continue to be fragmented, inconsistent and fraught with uncertainty.

 

The statutes that currently regulate the formalities of marriages and civil unions in South Africa are:

 

The Marriage Act 25 of 1961
Only monogamous, heterosexual civil marriages may be solemnised in terms of this Act. As a general rule, both prospective spouses must have reached the age of majority (18 years) in order to marry in terms of this Act, but the Act does make provision for minors to be permitted to marry under certain circumstances.
The Recognition of Customary Marriages Act 120 of 1998
This Act makes provision for the legal recognition of both monogamous and polygamous customary marriages, provided they are concluded according to ‘the customs and usages traditionally observed among the indigenous African peoples of South Africa and which form part of the culture of those peoples’. A customary marriage concluded in accordance with this Act is currently the only means by which a polygamous marriage can be clothed with complete legal validity in South African law.
The Civil Union Act 17 of 2006
Marriages: This Act caters for a specific form of marriage, providing for both opposite and same-sex couples. Both prospective spouses must be at least 18 years of age; in contrast with the Marriage Act, no provision is made for persons younger than 18 to marry each another.
Civil partnerships: Over and above marriage, the Act also provides for persons (irrespective of gender) involved in a monogamous relationship to enter into a civil partnership with each other. This is the legislature’s attempt to create a mechanism whereby two people can formalise their relationship in instances where they do not wish to marry but nevertheless wish to ensure that their relationship has legal recognition. An example of such a relationship may occur within the context of more conservative same-sex couples, who view marriage as an institution exclusively associated with heterosexual relationships. The civil partnership provides an alternative to those who view marriage as an oppressive institution marked by rigid gender roles and expectations by providing couples with a means of themselves determining the social meaning of their relationship.

 

If you wish to get married, you must:

 

  • ensure that you are legally allowed to marry;
  • understand the legal consequences of a marriage, particularly that marriages in South Africa are automatically in community of property, unless a valid antenuptial contract has been entered into before the marriage; and
  • make sure that your marriage will comply with all the legal requirements for a valid marriage.

 

 On the day of the wedding, the couple must submit the following documents to the person officiating at the wedding:

 

  •  identity documents (for each person getting married);
  • if a foreign national is marrying a South African citizen, they must both present their valid passports, as well as a completed Declaration for the Purpose of Marriage, Letter of No Impediment;
  • if the wedding is for a minor (a person under the age of 18 years), written consent of either both the parents/legal guardian or a Commissioner of Child Welfare OR the Minister of Home Affairs or a judge must be submitted.  If the minors getting married are under the ages of 18 years for boys or 15 years for girls, written consent from the Minister of Home Affairs is also required;
  • if any of the persons getting married are divorced, then the final decree of divorce must be furnished; and
  • if any of the persons getting married are widowed, the deceased spouse’s death certificate must be submitted.

 

Only marriage officers authorised in terms of the Marriage Act to perform marriages may do so. In addition to a marriage officer, the marriage must be conducted in the presence of at least two witnesses:

 

  •  in a church or another building used for religious services;
  • in a public office or private house, with open doors; or
  • in the case of serious illness or injuries, in a hospital or any concerned facility.

 

 In terms of the Marriage Act, the following persons may conduct civil marriages:

 

  •  Every magistrate, special justice of the peace and commissioner, in the territory or other area in respect of which, and for as long as he or she holds office.

 

  • Any other officers or employees in the public service or the diplomatic or consular service of South Africa, whom the Minister of Home Affairs, or any officer in the public service authorised to do so, has designated as marriage officers by virtue of their office. A marriage officer of this class may have a general authority to perform marriages, or an authority limited to a particular group or class of persons or country or region.

 

  • Any minister of religion or any person holding a responsible position in any religious denomination or organisation, who has been designated to perform marriages by the Minister of Home Affairs or an officer in the public service authorised by him/her according to Christian, Jewish or Muslim rites, or the rites of any Indian religion. A pastor’s authority may be limited to the solemnisation of marriages within a specified area or for a specific period.

 

 Anyone who purports to solemnise a marriage without having the necessary authority to do so, will be guilty of an offence. All marriage officers, special justices of the peace and commissioners are ex officio marriage officers for the district or region in respect of which they hold office. The Minister of Home Affairs may also appoint other persons as marriage officers.

 

Anyone who wishes to raise an objection to an intended marriage must submit their complaint to the marriage officer who is to solemnise the marriage. The marriage officer may only perform the marriage if he/she is satisfied that there is no lawful impediment to it.

 

Both parties must be personally present at the solemnisation of their marriage. A marriage may be solemnised at any time and on any day of the week, but a marriage officer is not obliged to solemnise a marriage at any other time than between 08:00 and 16:00.
The couple, the two witnesses and the marriage officer must sign the marriage register immediately after the solemnisation of the marriage. Then the marriage officer must issue the parties with a handwritten marriage certificate free of charge. The marriage officer must then submit the marriage register to the nearest office of the Department of Home Affairs, where the marriage details will be recorded in the National Population Register. Non-fulfilment of these requirements does not affect the validity of the marriage and registration of the marriage can be affected postnuptially. A duly signed marriage certificate serves as prima facie proof of the existence of the marriage. In the absence of a marriage certificate, the existence of the marriage may still be proved by other evidence.
A marriage concluded outside the borders of South Africa will only be valid if it was concluded in terms of the formalities of the jurisdiction where the marriage was concluded.

 

Marriage in community of property is undoubtedly the cheapest and most popular form of all the matrimonial regimes, although deeply flawed. No antenuptial contract is required, so if you marry without an antenuptial contract, you will by default be married in community of property. In this form of marriage, the spouses’ estates (what they own/assets and any debt/liabilities) are joined together and each has the right of disposal over the assets; they are equal concurrent managers of the joint estate. Each has an undivided or indivisible half share of the joint or communal estate.

 

 A marriage out of community of property is achieved by drawing up an ante nuptial contract (ANC). The ANC will be the most important contract that a married couple will sign in their lifetime. Entered into before marriage, the purpose of the contract is to change some or all of the automatic financial consequences of marriage.

 

The ANC allows the husband and wife to tailor-make their very own matrimonial property regime. They can include any provisions they like in their ANC, as long as the provisions are not against the law, good morals or the nature of marriage. ANC’s are problematic to change as they dictate the financial and proprietary consequences of the couple’s future and can affect the rights of the couple’s creditors. 

Couples may enter into one of two types of ante nuptial contracts:

 

  •  an ANC that excludes community of property, community of profit and loss, and the accrual system; or
  • an ANC that excludes community of property and community of profit and loss, but includes the accrual system.

 

 The ‘accrual’ is the extent to which the husband and wife have become richer by the end of the marriage, in other words, the amount by which the spouses’ joint wealth has increased over the period of the marriage. When married according to the accrual system, each spouse acquires a certain right to the other’s property on divorce. Neither system is superior to the other. The marital property regime chosen (i.e. with or without accrual) must suit the couple’s relationship dynamic and specific needs. Note that the ANC is a normal contract, so all the rules as to fraud, duress and mistake apply.
 
Only an attorney who is a notary public may execute an ANC. It is important that both parties consult with the notary public beforehand and request an explanation of the various marital regimes, and the implications of each on divorce. It is important to properly understand the implications.   In fact, it is desirable that the parties obtain independent and separate legal advice before committing to the terms of an ANC.

Once the ANC has been drafted, both parties and the notary public must sign it in duplicate prior to the marriage. The ANC will then be forwarded to the deeds office in the area where the parties reside to be registered. Registration must be affected within three months of the date it was signed by the notary public. Apart from the usual fees, a prescribed fee is payable to the deeds office upon registration of the contract.

In the event that the ANC is not signed or registered timeously, the couple can approach the High Court in terms of the Deeds Registries Act 47 of 1937 by means of a joint application to grant condonation for the late signing and/or registration of the ANC after the conclusion of the marriage. The application must be made within a reasonable time after it was discovered that the contract was not properly registered. Notice must also be given to the registrar of deeds of the applicants’ intention to bring such an application.
 After 1984, anyone entering into an ANC that excludes community of property and community of profit and loss is automatically married under the accrual system. Spouses may, however, exclude the accrual system in their ANC, but if they do not do so expressly, the accrual applies. When the accrual is included, a spouse will be entitled to share in the growth of the two estates at divorce.  This is surely the most appropriate and ideal way to marry.  All assets that each party owns prior to the marriage can either be excluded or included in the accrual.  If no assets are excluded in the ANC, the value of each party’s estate at the commencement of the marriage is deemed to be nil.

 

 

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