MATRIMONIAL PROPERTY SYSTEM ADVICE (Drafting Of Antenuptial Contracts) 

Benatar Attorneys Inc. in the initial consultation provides our clients with an overview of the various contracts that parties can enter into when getting married.

We provide our clients with an understanding of the benefits and disadvantages of each respective regime. This enables our clients to make an informed decision as to what would be applicable and most appropriate for their particular circumstances. Usually, a first consultation is arranged in order to inform  couples of the options, and a follow-up consultation held in order to sign the documentation which is thereafter lodged at the Deeds Office for registration. A letter is provided to the couple at the second consultation for presentation to the marriage officer, which indicates the matrimonial regime that the couple has chosen.

We can assist you with your choice of marriage contract which is best suited to your circumstances. Listed below are three matrimonial property           regimes:

  • Marriage in Community of Property
  • Marriage out of Community of Property
  • Marriage out of Community of Property subject to the accrual system

MAINTENANCE (Child And Spousal) 

Maintenance is the obligation to provide another person, for example, a minor, with housing, food, clothing, education and medical care, or with the means that are necessary for providing the person with these essentials. This legal duty to maintain is called ‘the duty to maintain’ or ‘the duty to support’. The duty to maintain is based on blood relationship, adoption, or the fact that the parties are married to each other. A child must be supported or maintained by  his or her parents, whether married, living together, separated or divorced, including parents who have adopted the child; and/or his or her grandparents, whether or not the child’s parents were married to each other.

However, this varies from one case to another. As a parent, your financial responsibility for your child does not end when your relationship with the other parent ends.

Child maintenance is regular financial support towards a child’s everyday living costs. It is paid by the parent without the main day-to-day care of the child to the parent with the main care.

PARENTAL RIGHTS AND RESPONSIBILITIES OVER A CHILD IN SOUTH AFRICA

The rights and responsibilities of a parent are set out in the Children’s Act 38 of 2005 (the “Children’s Act”) and can be defined as a complex set of rights, duties and responsibilities which have to be performed in the best interest of the child. These rights and responsibilities include the following elements namely: care of the child, maintaining contact with the child, to act as a guardian of  the child and to contribute to the maintenance of the child. The following can also be seen as a set of parental rights; the right to care for a child; to have and to maintain contact with the child; and the right to act as a guardian of the child.

Contact between the parent and the child can also be termed, access to the child in South African law. This can be explained as the maintenance of a personal relationship between the child and the parent with whom the child does not live. This entails communicating with the child on a regular basis through visits, letters, telephone calls, Skype, or any other form of communication.

The last element of parent rights and responsibilities is maintenance. This can be defined as the duty of a parent to support the child financially, by contributing towards the child’s education, upbringing, accommodation, food, clothing etc.

An overriding principle that is of utmost importance in South African law is that the best interests of the child are of paramount importance in any matter involving the child; whether it be a dispute between the child’s parents regarding the care of the child, the contact or guardianship or even regarding the maintenance of the child.

You automatically have Parental Responsibility if:

  • You are the biological mother of the child.
  • You are the father of the child and are married to (or later marry) the mother.
  • You are an unmarried father and are registered on the birth certificate; this applies only to those births registered since December 1 2003.
  • You have – adopted the child.

PARENTING PLAN AGREEMENTS

The Children’s Act offers parenting plans as a method to assist parents in exercising their parental responsibilities and rights after separation or divorce. Parenting plans are a relatively new concept in South Africa but are already popular in countries such as the United States and Australia, and in certain European countries. A parenting plan sets out how parents will exercise their respective responsibilities and rights. It must comply with the best interests of the child principle as set out in the Act, and must be in terms of a prescribed form and include the following issues:

  • Where and with whom the child is to live;
  • the maintenance of the child;
  • contact between the child and any other person; and
  • the schooling and religious upbringing of the child.

A parenting plan is essentially a roadmap directing how children will be raised after separation or divorce. As a co-parenting solution, it is a written agreement drafted by both parents with the help of a neutral third party, usually a family lawyer.

Parenting plans should minimise loss and maximise relationships for children, and both parents should realise that they are more important to their children than alternative care providers. Ultimately, the role of parents is to cooperate and to provide as many opportunities for their children as possible.

DOMESTIC VIOLENCE

Domestic violence and abuse can happen to anyone, yet the problem is often overlooked, excused, or denied. This is especially true when the abuse is psychological, rather than physical. Noticing and acknowledging the signs of an abusive relationship is the first step to ending it.

Domestic violence is the willful intimidation, physical assault, battery, sexual assault, and/or other abusive behavior as part of a systematic pattern of power and control perpetrated by one intimate partner against another. It includes physical violence, sexual violence, psychological violence, and emotional abuse. The frequency and severity of domestic violence can vary dramatically; however, the one constant component of domestic violence is one partner’s consistent efforts to maintain power and control over the other.

DIVORCE

We’ll meet with you and hold your hand throughout the process, help you decide on how to divide your assets fairly and work out what is best for your children. We’ll help you to minimize the cost and stress of a divorce. Our fee includes all consultations and putting together a settlement agreement that will be made a court order. This agreement regulates how you split assets, who your children live with, maintenance, visitation rights and responsibilities and rights of the parents regarding the children.

DRAFTING OF COHABITATION AGREEMENTS

A cohabitation agreement is a form of legal agreement reached between a couple who have chosen to live together (whether they are heterosexual or homosexual).

Don’t let romance cloud the practicalities of moving in with your partner if your partner has asked you to share a home with him or her without getting married, it is important to remember that this decision could have practical consequences. Living with a partner without getting married carries a range of legal and financial risks that need to be managed.

Living with your partner does not grant you the legal rights and protections of marriage. There is no such thing in South Africa as a common law marriage, even if you and your partner have lived together for decades.

The best way to protect yourself is to sign a cohabitation agreement that will protect your rights if the relationship ends.

Such an agreement helps ensure that both parties understand what their rights and assets will be if the relationship ends. It is wise to ask for a lawyer’s help in drafting the agreement. You and your partner should also ensure that your wills are up to date and that you have provided for each other in the event one of you dies. There are many cases of people being left with nothing after blood relatives swoop in to claim all their partner’s assets – even if they were accumulated through the work of both partners in the relationship.