FAMILY LAW

What will a court take into account when making a maintenance order?

When a court makes an order in respect of the maintenance of a child, it will take into account:
the reasonable maintenance needs of the child;
that both parents jointly have a duty to support the child;
and that the parents’ respective shares of their obligation are apportioned between them according to their means or ability.

Which parent must support the child?

Both parents must support their child proportionally according to their means. The duty rests on both parents.

Can I withhold maintenance payments if I am denied contact with my child? 

Your duty to pay maintenance and your right of contact with your child are two entirely separate matters, and one has no relation to the other.
You still have to pay maintenance, even if the other parent:
remarries;
is involved in another relationship;
does not allow you to see the child

Until when must a parent pay maintenance for his/her child?

The duty to pay maintenance continues regardless of the child’s age, and endures until the child is self-supporting, adopted or dead. Once the child reaches the age of 18 years, the onus is on the child to prove how much maintenance he/she needs. A child that is self-supporting cannot claim maintenance from his/her parents.

Is there an obligation on grandparents to support a child?

It is accepted in our law that if neither parent can support or maintain the child, the duty passes on to the grandparents, both maternal and paternal. In circumstances where a father/mother does not pay maintenance to his/her child, the parent holding primary care of the child may lodge an application against the paternal/maternal grandparents.

Is there a duty on siblings to support a child?

If neither the child’s parents nor grandparents are in a position to provide support, then that duty will pass to the child’s siblings, according to their respective means. This is on the proviso that the child who claims maintenance is indeed indigent. This duty of support between siblings applies to sisters, brothers, half-sisters and half-brothers.

Can the maintenance amount be reduced?

it is possible to apply to the courts for a reduction, but this will be subject to a financial investigation to determine if the applicant really can no longer afford to pay the amount in terms of the order. The other party’s circumstances, which may have changed, will be taken into account.

What happens if maintenance is not paid?

When a party fails to comply with the terms of the order, and the order remains unsatisfied for a period of 10 days, the complainant may apply to the maintenance court where the said party resides for:

authorisation to issue a warrant of execution;
an order for the attachment of emoluments (garnishee order); or
an order for the attachment of debt.

Remember, not paying maintenance is a criminal offence and the respondent can be fined or imprisoned for up to 1 year, or both.

WILLS

What is a deceased estate?

A deceased estate comes into existence when a person dies and leaves a property or a document, which is a will or is intended as a will. Such an estate must then be administered and distributed in terms of the deceased’s will or, in the absence of a valid will, in terms of the Intestate Succession Act,1989 (Act 81 of 1989). The procedure that must be followed to administer a deceased estate is prescribed by the Administration of Estates Act, 1965 (Act 66 of 1965), as amended.

What is a Will?

A will is a specialised document, which should preferably be drawn up by an attorney.

Who is competent to make a Will?

The person who draws up a will is called the testator/testatrix. All persons 16 years and older are competent to make a will in order to determine how their estate should devolve upon their death.

Who is competent to act as a witness to a Will?

All persons of 14 years and over are competent to act as a witness to a will, provided that at the time they witnessed the will they were not incompetent to give evidence in a court of law.

What are the requirements for a valid Will?

Since 1 January 1954, all wills must be in writing. They can be written by hand, typed or printed. The signature of the testator/testatrix must appear at the end of the will. This signature must be made in the presence of two or more competent witnesses. The witnesses must attest and sign the will in the presence of the testator/testatrix and of each other. If the will consists of more than one page, each page other than the page on which it ends must be signed anywhere on the page by the testator/ testatrix. Although the testator/testatrix must sign all the pages of the will, only the last page of the will needs to be signed by the witnesses.

What are the requirements for a valid will if the testator/testatrix cannot sign his/her name?

If the testator/testatrix cannot sign his/her name, he/she may ask someone to sign the will on his/her behalf or he/she can sign the will by making a mark (a thumbprint or cross). When the will is signed by someone on behalf of the testator/testatrix or by making a mark, a Commissioner of Oaths must certify that he/she has satisfied him/herself as to the identity of the testator/testatrix and that the will so signed is the will of the testator/testatrix. The Commissioner of Oaths must sign his/her certificate and he/she must also sign every other page of the will, anywhere on the page. The Commissioner of Oaths must also be present when the will is signed and must append his/her certificate as soon as possible after the will is signed even if the testator/testatrix dies soon after signing the will.

 What is a codicil?

A codicil is a schedule or annexure to an existing will, which is made to supplement or amend an existing will. A codicil must comply with the same requirements for a valid will. A codicil need not be signed by the same witnesses who signed the original will.

What if I want to amend my Will?

Amendments to a will can only be made while executing a will or after the date of execution of the will. Amendments to a will must comply with the same requirements for a valid will and, if a testator/testatrix cannot sign it, with the same requirements that apply to persons who cannot sign a will. When amending a will, the same witnesses who signed the original will need not sign it again.

Must I amend my Will after a divorce?

A bequest to your divorced spouse in your will, which was made prior to your divorce, will not necessary fall away after the divorce. The Wills Act stipulates that, except where you expressly provide otherwise, a bequest to your divorced spouse will be deemed revoked if you die within three months of the divorce. This provision is to allow a divorced person a period of three months to amend his/her will, after the trauma of a divorce. Should you, however, fail to amend your will within three months after your divorce, the deemed revocation rule will fall away, and your divorced spouse will benefit as indicated in the will.

Who is disqualified from inheriting under a Will?

The following people are disqualified from inheriting under a will: a person or his/her spouse who writes a will or any part thereof on behalf of the testator; and a person or his/her spouse who signs the will on the instruction of the testator or as a witness. Consult your legal representative for more information in this regard.

What happens if I do not leave a Will (intestate succession)?

If you die without leaving a valid will, your estate will devolve in terms of the rules of intestate succession as stipulated in the provisions of the Intestate Succession Act, 1987 (Act 81 of 1987). In the  case of a marriage in community of property, one-half of the estate belongs to the surviving spouse and, although it forms part of the joint estate, will not devolve according to the rules of intestate succession. For more information on the Intestate Succession Act, please consult the Act or your legal representative.

COHABITATION AGREEMENTS

What legal status does a common law spouse have?

A ‘common law spouse’ has no special legal status. You are either married (or in a civil partnership) or not.

If a relationship breaks down, being a ‘common law’ wife or husband does not give you the right to claim against your ex-partner for maintenance or a share of their assets. However, it may be possible for a parent to make a claim on behalf of a child they continue to look after.

Would drawing up a cohabitation agreement harm our relationship?

Not if you approach it in the right way. Avoid looking at the cohabitation agreement as a way to protect yourself if the relationship breaks down or as a lack of faith in longevity of the relationship. Instead, use drawing up the cohabitation agreement to work through key issues in your lives together. Handled sensitively, this should strengthen your relationship.

In some relationships, one partner has the most income or assets. If the cohabitation agreement is designed solely to protect their financial position if they split up, the other partner may resent it. On the other hand, an agreement that provides some financial protection for the less wealthy partner can increase their sense of security and happiness within the relationship.

What should a cohabitation agreement cover?

Financial issues are key to a cohabitation agreement. It should include what rights each partner has regarding property you live in, who owns other assets and who is responsible for any debts. It’s also common to explain how expenses will be shared while you live together.

Where you have children, either jointly or with a previous partner, the cohabitation agreement should also address this.

Should our cohabitation agreement include relationship rules, such as who does the housework?

You may want to discuss such issues while preparing the cohabitation agreement. For example, if one partner works and the other looks after the home, you might want this reflected in the way you agree financial issues should the relationship break down. You might agree that the ‘house-partner’ would be entitled to a share of assets or maintenance, as happens in divorce or the dissolution of a civil partnership.

It is sensible to state how expenses will be shared. However, it is not generally wise to include rules on behaviour, partly because it would be very difficult to specify exactly what is being agreed in legally enforceable wording (what housework must be done, to what standard, etc). Attempting to include such rules is likely to undermine the agreement’s clarity and enforceability. Instead, deal with such issues between yourselves. If you have to call in a lawyer every time someone leaves the washing up, your relationship is in trouble!

Can we use an informal cohabitation agreement or does it need to be a legal document?

An informal cohabitation agreement will almost certainly not be legally enforceable. Some aspects may also need to be supported by legal documentation: for example, to ensure that your partner inherits in the event of your death.

More broadly, preparing a formal agreement provides a useful framework for considering all the areas that need to be addressed.

Is a cohabitation agreement legally enforceable?

A cohabitation agreement is a contract between you both. To be legally enforceable, it must have been made with the intention of having legal force – the agreement can say so. The document should detail what you are agreeing. It must also be ‘executed as a deed’, signed in the presence of witnesses.

Even so, a cohabitation agreement may not be enforceable if it is unfair. To maximise the chances that it is enforceable, you and your partner should both take independent legal advice. You must also be open about your individual financial positions when you enter into the agreement.

Finally, you should note that the agreement will not overrule other legal rights and requirements. This is particularly the case if children are involved.

Will a cohabitation agreement have any effect if we later get married?

If you get married (or register a civil partnership), your cohabitation agreement might be taken into account by the court if you later divorce (or dissolve your civil partnership). A better solution is for the cohabitation agreement to specifically state that it automatically comes to an end if you get married. If, at that time, you want to have a similar agreement, you can draw up a prenuptial agreement.

What is the legal position if my partner and I live in a property that one of us owns?

There are several possibilities:

One of you might be the sole owner and not want the other to have a share in it. The non-owner would normally have no rights to remain if asked to leave by the owner.
One of you might be the sole owner but now want the other to have a share in it.
You own the home together as a ‘joint tenancy’. When one of you dies, the other automatically inherits the home.
You own the home as ‘tenants in common’. Each of you owns a stated percentage of the home. For example, you might choose percentages that reflect how much each of you contributed to the purchase price. You can each leave your share of the home in your will to your partner, or to anyone else.

You should ensure that your cohabitation agreement clearly states what you have agreed. You may also need to draw up an appropriate deed to put this into effect.

How can I ensure that my rights in relation to a property I share with my partner are legally enforceable?

Ensure that what has been agreed is written into the cohabitation agreement. You may also need to draw up an appropriate deed of trust, setting out your rights to the property and what will happen if you split up. Make sure your wills clearly state what will happen when either of you dies.

Normally, appropriately drafted documents of this kind will ensure that your rights and wishes are respected. However, the situation can be more complex if there are (non-adult) children involved. They have rights that cannot be overruled by an agreement between you and your partner. For example, if you break up and your partner will continue to look after the children, he or she might be able to apply to the court for an order allowing them to continue living in the property, even if you are the sole owner.

 What is the legal position if my partner and I live in rented property?

If you are joint tenants, you have equal rights and responsibilities.

Problems can arise where the tenancy is in only one name. The other partner will not normally have any rights to stay in the property if asked to leave by the named tenant, though it may be possible to apply to the court for short-term protection from this.

If the named tenant dies, the other partner will usually have the right to take over the tenancy. This may not be the case, however, for same-sex couples unless they have registered a civil partnership or it is specifically permitted by the tenancy agreement.

In any case, the best solution is often to convert a sole tenancy to a joint one. This can be done if the existing named tenant and the landlord both agree.

How is ownership of possessions affected if my partner and I live together?

Unless you have agreed otherwise:

if you owned something before you started living with your partner, you still own it;
if you buy something with your own money, it belongs to you alone;
if you are given something or inherit it, it belongs to you alone;
if you buy things together, they are jointly owned.

Are assets my partner and I buy together automatically jointly owned?

When you buy something together, it will normally be jointly owned, but not necessarily equally:

If you purchase the asset using a joint bank account, it will normally be owned in equal shares. If your cohabitation agreement states that you each own a different share of the joint account (such as 60/40), you will each own that share of the asset.

If you purchase an asset together, but pay separately, you will normally own the same proportion of the asset as the proportion of the price you paid.

If you choose, your cohabitation agreement can set out different rules. For example, you could agree to own everything equally regardless of who pays for it, or you could agree to treat specific named assets differently. 

How do shared expenses affect how assets are divided if my partner and I break up?

Ownership of assets is normally determined by who paid for the assets rather than overall contribution to joint living expenses. You can, however, include different rules in your cohabitation agreement.

If either partner contributes to the costs of buying and maintaining the home you live in, this is likely to give them a claim to own a share of the home. If you intend the property to be solely owned by one of you, the cohabitation agreement should clearly state that any financial contribution made by the other partner is a payment towards general living expenses and not for the home. 

How can I ensure that my partner and I are not liable for each other’s debts?

Normally, you will only be liable for your partner’s debts if you agree to be: for example, by borrowing money in joint names or by giving a personal guarantee. Regardless of what you have agreed, both the utility companies and the council have the right to pursue both partners living in a home for unpaid utility and council tax bills.

What rights and responsibilities do I have for my partner’s children?

If you are the child’s natural parent, you automatically have a financial responsibility for that child.

The child’s natural mother automatically has parental responsibility for the child. This means, for example, that you can choose your child’s name, how the child is brought up and so on. You also have the right to look after the child’s property on their behalf (until the child becomes 18).

You, as the child’s natural father, also have parental responsibility if:

you are registered on the child’s birth certificate as the father (for births registered from December 2003 onwards);

you re-register the child’s birth, with the mother’s consent, adding your name as the father;

you marry the child’s mother (either before or after the child’s birth);

you make a parental responsibility agreement with the mother and have it witnessed by the court;

you apply to the court for a parental responsibility order (if the mother refuses to enter into a parental responsibility agreement with you) or a child arrangements order.

If you are not the natural father of your partner’s child, you do not have any automatic rights or responsibilities. You can apply to the court for a child arrangements order giving you parental responsibility.

Note that if your relationship breaks down, both partners have the right to ask the court that the child should live with them or that they should have access, regardless of whether they have parental responsibility. The court will decide what is in the child’s best interests.

How can I give my partner the same rights and responsibilities for my children as a natural parent?

You must apply to the court for a child arrangements order. Normally, this requires the consent of anyone who already has parental responsibility for the child. If, for example, you were married to the child’s natural father and he is still alive, you will need his consent. The court will also need to be satisfied that the child arrangements order is in the child’s best interests.

It may also be possible to get a child arrangements order without the consent of another individual with parental responsibility, provided the child has been living with your partner for three of the last five years, or if the court gives you permission. But getting a child arrangements order can be difficult and expensive if someone with parental responsibility opposes your application.

If you cannot get a child arrangements order (or feel that it would be too difficult), an alternative is to appoint your partner as the child’s guardian. This helps to ensure that your child stays with your partner if you die, unless another individual with parental responsibility disputes this.

How can my partner and I protect ourselves in case one of us suffers from major long – term illness?

Like any other couple, you should make appropriate financial arrangements. The best solution will depend on your circumstances. For example, if one of you is the major earner, you may want to take out insurance in case that person can no longer work.

If you want your partner to take responsibility if you become incapable of making decisions, draw up a lasting power of attorney to that effect.

You may each want to consider drafting a ‘living will’ expressing your preferences should you become terminally ill. This can include a statement that you would like the doctors to consult your partner if appropriate. You may also want to ensure that your partner is named as your next of kin, for example, on any medical forms. While neither of these steps will necessarily have legal effect, in practice they should help to ensure that medical staff treat your partner as if they were your spouse.

How often should my partner and I review our cohabitation agreement?

It is good practice to review your cohabitation agreement every five years, or whenever there are any major changes in your circumstances – in particular, when a child is born.