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The Children’s Act (Act 38 of 2005) gave birth to parental responsibilities and rights (formerly “custody”), a principle which encapsulates the legal foundation for all parent – child* relationships. The cornerstones of this foundation, are:

1) Guardianship 2) Maintenance 3) Contact and 4) Care.

A person can have either full or specific parental responsibilities and rights. These can be restricted, suspended and even terminated.

* These rights and responsibilities are not confined to parents but rather any person who has an interest in the child’s wellbeing.

BIOLOGICAL MOTHERS

Biological mothers are automatically and unconditionally, holders of full parental responsibilities and rights.

MARRIED BIOLOGICAL FATHERS 

Biological fathers are automatically and unconditionally, holders of full parental responsibilities and rights, should they be (i) married to the biological mother;  OR (ii) were married to the biological mother at the time of the child’s conception or birth; OR (iii) married to the biological mother anytime in between.

UNMARRIED BIOLOGICAL FATHERS

If the father does not fall within one of the categories relating to marriage,  he is not automatically and unconditionally a holder of full parental responsibilities and rights, but rather acquires these rights should certain conditions be fulfilled as set out in the Children’s Act.

A divorce action can be instituted in either a High Court or a Regional Magistrate’s Court (Divorce Court).

UNCONTESTED DIVORCE

In the event that parties are able to settle the terms of their divorce, a divorce settlement agreement is entered into and the matter proceeds on an undisputed basis.

Before jumping into litigation, it is ideal to first determine whether or not a matter can potentionally be settled, or at least, streamline what needs to be litigated and what can be negotiated.

If negotiations do not unfold favourably, or in the event that it is deemed futile to even initiate such discussions, then litigation is the only option.

Whichever course of action is taken, it is vital to consider the family unit as a whole, especially if there are minor children involved. After all is said and done, parents will need to be able to co-parent as effectively as possible and unfortunately, once litigation gets going, people tend to lose perspective of the bigger picture.

CONTESTED DIVORCE

A contested divorce can take months or even years to finalise, depending on the circumstances.

Anja Schramm Attorneys has experience in handling all types of divorces as well as international divorces, which can be complex with each country having their own set of laws. The same applies to the way in which arrangements with children are handled as this too differs from one country to the next.

It is imperative that both parties have a comprehensive understanding of their matrimonial regime. It is especially important for couples to appreciate the consequences of being married out of community of property with accrual, to avoid future pitfalls should the marriage dissolve by death or divorce.

Anja Schramm Attorneys insist on consulting with both parties before drafting an ANC, to assess each party’s individual circumstances and their joint goals, in order to advise on what regime is best suited.

IN COMMUNITY OF PROPERTY

In South Africa, should you not enter into an ANC, the marriage is automatically one of “in community of property“. The effect of this is that the assets and liabilities belonging to each party, is combined and falls under their joint estate.

OUT OF COMMUNITY OF PROPERTY

To be married “out of community of property“, an antenuptial contract must be entered into before the solemnisation of the marriage. The ANC can either be with or without the inclusion of the accrual regime.

Where the parties choose not to implement the accrual regime, their individual estates remain entirely separated from one another (opposite to “in community of property”) before and after the marriage dissolves.

ACCRUAL REGIME

The accrual regime does not mean that each party’s estate retains autonomy before marriage (like ‘out of community of property’ and after marriage, the estates are joined (like ‘in community of property’). This is a common misconception.

Instead, the accrual system is based on a calculation that takes place when a marriage dissolves either due to death of one/both parties or divorce. The calculation intends to compare the growth in each party’s net worth in pursuant to establishing whether or not a monetary payment is owed from one spouse to the other, to ‘equalise the scales’.

Anja Schramm Attorneys does not specialise in deceased estates or trust law, but we have an excellent working knowledge insofar as it relates to family law. Should more specialised services be required, we have a large pool of resources and know where clients can obtain the expert assistance they need.

TRUSTS

It is vital to understand how your matrimonial set up effects your assets and that includes any affiliation one has, to a Trust. Inasmuch as Trusts are independent entities, these instruments are not necessarily immune to the divorce process and can come under the spotlight should the right set of circumstances exist.

WILLS AND ESTATES

We frequently draft Wills and offer advice in relation to same, as a divorce changes one’s legal status from married to unmarried, and the Will needs to be updated accordingly. Ideally, the Executor of a Will should be someone who the Testator has a personal relationship with and can  trust, instead of electing a third-party institution.

RELEVANCE TO FAMILY LAW

Both of these areas of law play a role when couples are considering entering into a marriage out of community of property with accrual, as the application of the accrual regime applies not only upon divorce but also upon death.

Moreover, it is possible to set up a Trust within a Last Will and Testament (Testamentary Trust), a common practise when minor children are nominated as beneficiaries. Testamentary Trusts need to be handled very carefully to make sure that what is recorded can actually be implemented when a minor could inherit.

DUTY OF SUPPORT FOR MINOR CHILDREN

A minor child has the right to be maintained by his/her biological parents.  It is the biological link between parent and child, which gives rise to this right and it has no bearing on whether or not a parent has parental rights and responsibilities as set out in the Children’s Act.

The right to be maintained is that of the child and not of the parent. Whilst a minor (under the age of 18 years), a child has no legal standing and relies on his/her guardian to act on the child’s behalf.

When a child attains the age of majority, it does not preclude him/her from seeking financial assistance as the obligation on the parents exists until the now ‘adult child’ is self-supporting. However, once the child is an adult in the eyes of the law, he/she does not require a guardian to “stand in his/her shoes” and that ‘adult child’ is then required to take action in their own name.

SPOUSAL MAINTENANCE

South African law does not recognise the principle of “alimony”. The reciprocal duty of support between spouses exists up until the marriage dissolves. Thereafter, there is no such obligation. Unlike children, there is no automatic obligation to support an ex-spouse.

However, legislation does make provision for spouses who are undergoing divorce proceedings, to ask the Court to make an order for maintenance post-divorce.

Most commonly, should a maintenance order be granted with a divorce, it is limited to a certain period of time to allow the person who is being maintained, to get “back on their feet”. This is known as rehabilitative maintenance. There is no prescribed period of time or value as each case is judged individually, whilst considering an array of factors.

The promulgation of the Children’s Act has significantly altered the way in which our legal society views unmarried fathers and the children born to couples who are not married. The fact that the parents are not married, neither negates the father’s parental rights nor does it detract from the child’s legitimacy.

Unmarried father’s do however, do still have certain hurdles to overcome when claiming to have parental responsibilities and rights.

AUTOMATIC PARENTAL RESPONSBILITIES AND RIGHTS

The biological father of a child will automatically have the same responsibilities and rights as the mother, if the parents are married or were married at the child’s conception or birth or any time in between.

ACQUIRING PARENTAL RESPONSIBILITIES AND RIGHTS

Failing marriage,  if the father was living with the mother in a permanent life partnership when the child was born, , he acquires these responsibilities and rights but does not automatically have them. The distinction may seem only semantic but in practise, it effects the way in which a dispute on these grounds, is resolved.

CONDITIONS

Should the father not have parental responsibilities and rights by way of marriage or life partnership, he acquires them if all of the following conditions are met:

1)  he consents to being the child’s father or has proven such;

2) he has contributed or tried to contribute towards the child’s upbringing       for a reasonable period of time;

3) he has contributed or attempted to contribute towards the child’s expenses for a reasonable period of time.

In the event that the father does not fulfil any categories, yet the mother agrees that he is to acquire responsibilities and rights, the parties can enter into a Parental Responsibilities and Rights Agreement.

Our Courts are becoming increasingly insistent that before parties litigate in family law matters, they do whatever they can to mediate their disputes. This can be dealt with by an accredited mediator, counsellor or an attorney.

FAMILY ADVOCATE’S OFFICES

The Children’s Act introduced an institution known as the Office of the Family Advocate which has a significant impact on cases where minor children are involved. These institutions are found in every province in South Africa and they have a variety of roles to play. Their primary function is to ensure that whenever matters involve minor children, their best interests are kept at the forefront.  These Offices are also used in mediating issues, predominantly disputes concerning the exercise of parental responsibilities and rights.

MEDIATION

Mediation is an ideal alternative to litigation but the key to its success, is having the right mentality. Parties subject to a mediation, or any other conciliatory process, must be prepared to  compromise in pursuant to resolving the dispute.

Importantly, parties need to understand that a Mediator’s role is not to make a decision on behalf of the parties or to take sides. He/she is only tasked with helping the parties make decisions that suit them, whilst staying within the confines of the law.

Provided that both individuals are prepared to accept the premise that they are trying to conciliate a middle ground and not to prove the other wrong, mediation is a way to achieve results with the least amount of emotional distress and legal expenses.

In South Africa, the concept of “common law husband and wife” no longer exists.

This means that no matter how much a relationship mimics a marriage, if the relationship has not been solemnised as such, the contractual laws of marriage do not protect either party in that relationship.

This can pose problems in the event that the relationship dissolves or upon death as there are no laws currently in place to protect the erstwhile relationship.

COHABITATION AGREEMENT

A cohabitation agreement seeks to set out certain provisions like any other type of contract, dictating what would take place in the event that the relationship dissolves. Albeit that it does offer the same degree of protection, it is the next best thing until legislation can provide the protection to those couples who choose not to be married.

UNIVERSAL PARTNERSHIP

Should no such agreement have been entered into and a dispute arises after the relationship has terminated, one can argue that a universal partnership existed. This is a complex argument and by no means a quick fix as it requires strict conditions to be met to qualify.

LEGISLATION

Legislation is in the process of catching up with Judgements granted in our Court rooms, being precedents set by Presiding Officers when disputes of this nature come before them. The need for revision has been accepted and the legislation writers are working on amending the status quo to recognise relationships other than the traditional “husband and wife”.

New laws seek to provide security spanning across all cultures, religions and preference so that vulnerable parties to a relationship which are not protected by our existing laws, are awarded the same rights and legal recourse.

DUTY OF SUPPORT DURING MARRIAGE

Whilst legally married, even if the relationship has ended and spouses are separated, a reciprocal duty of support continues to exist. The same remains true during divorce proceedings and exists up until the day the Order of Divorce is granted.

It is not uncommon for parties going through a divorce, to reduce or even cease financial support to their spouse and/or their children. This is unlawful as the status qou needs to be maintained insofar as possible.

INTERIM ORDER (RULE 43/ RULE 58)

Should this happen, the aggrieved spouse is entitled to apply for interim relief to ensure that he/she and/or the children are maintained. Whether the divorce is instituted in the High Court (Rule 43) or the Magistrate’s Court (Rule 58), either spouse may bring such an application.

Interim Orders like these are not only for financial support but can also address the practical issues regarding minor children, e.g. with whom and where they will reside whilst the divorce is pending and contact arrangements.

In some cases, the aggrieved spouse is unable to pay for legal fees and they can then use this avenue to have the Court grant an Order that the offending spouse contribute towards the aggrieved spouses’ legal fees.

ALTERNATIVE RECOURSE

Should divorce not be pending or even imminent, and one spouse fails to adhere to the duty of support principle, the aggrieved spouse can seek recourse in either the Maintenance Court or Domestic Violence Court.

The Domestic Violence Act is designed to protect people who are currently or who were previously involved in a domestic relationship, and are suffering from abuse. A “domestic relationship” refers to a variety of relationships, such as: people who are married to one another, people who are divorced from one another, family members, house mates.

Abuse is not only defined as physical, but also emotional, psychological, verbal and financial. Domestic Violence Courts are designated to handling cases when a Protection Order is sought.

An Interim Protection Order is granted if the applicant has made out a sufficient case on face value, by way of an affidavit. This is however not the end of it as the alleged “abuser” still has the right to a defense and is awarded an opportunity to defend him/herself at a return date. The Interim Order however, protects the applicant from the time the Interim Order is served on the offending party, until it is made Final or discharged.

Protection Orders are not criminal in nature. Should the Order (Interim or Final) be contravened, the applicant will then be able to approach the authorities to act accordingly.

Any form of abuse is considered a crime and domestic violence applications do not prohibit a victim from pursuing criminal action against the offender simultaneously, before or after the proceedings.

This legislation is fairly new and serves the same function as the Domestic Violence Act, however it assist those people who are not currently and or were never in what the law considers “domestic relationship”. It furthermore deals with harassment via social media and alike.