Another Constitutional Challenge in Family Law

On 4 December 2023, the Pretoria High Court will determine whether Section 10(2) of the Recognition of Customary Marriages Act is unconstitutional and should be referred to the Constitutional Court.

The Court invited Adams & Adams Attorneys, together with the Gauteng Attorney’s Association, to join the proceedings as Amicus Curiae to assist the Court in coming to a just and equitable decision.

In the matter before the Court, a spouse in a divorce action raised an argument in the form of a Constitutional issue in relation to Section 10(2) of the Recognition of Customary Marriages Act.

The parties entered into a customary marriage during 2011, which is automatically a marriage in community of property in the absence of an antenuptial agreement. Some 10 years thereafter, the parties then entered into a civil marriage with each other out of community of property in terms of an antenuptial agreement.

The constitutionality of Section 10(2) of the Recognition Act has been placed in issue in as far as it purportedly allows for the changing of a matrimonial regime without judicial oversight, to the severe prejudice of the creditors of the joint estate, as well as the protection, recognition, and acknowledgement of spouses’ vested ownership in the joint estate.

A question that arises is that if parties married customarily are entitled simply to enter into a civil marriage and change their marital regime without any judicial oversight, what protection is afforded to the wife who may for various reasons not be on the same footing as her husband to negotiate a “new” matrimonial property system which may be prejudicial towards her? There also seems to be some inequality in respect of parties in a civil marriage who are not entitled to change their marital regime without any judicial oversight.

The Court will have to decide whether, in addition to the technical and legal arguments raised, Section 10(2) discriminates against women in customary marriages which constitutes discrimination based on gender, race, and marital status.

Customary Law is a complex part of the South African Family Law and should not only be recognised but also understood and developed to allow for equality in accordance with our Constitution.

Adams & Adams represents the Amicus Curiae (The Gauteng Attorney’s Association) together with Advocate M Haskins SC and Advocate SM Stadler.

Constitutional Court Changes the Divorce Act

CONSTITUTIONAL COURT CHANGES THE DIVORCE ACT

On 10 October 2023 the Constitutional Court of South Africa confirmed the Pretoria High Court Order. It was declared that Section 7(3)(a) of the Divorce Act is inconsistent with the constitution and invalid to the extent that the provision limits the operation of Section 7(3) of the Divorce Act to marriages out of community of property entered into before the commencement of Matrimonial Property Act.

The Constitutional Court concluded that the differentiation between individuals who entered into a marriage (and an antenuptial agreement) before and after the commencement of the Matrimonial Property Act constitutes unjustifiable and indirect discrimination on the grounds of gender.

Simply put, individuals married out of community of property without the accrual will now be entitled to claim a redistribution of assets despite the content of their signed antenuptial contract.

It should however be kept in mind that such a redistribution claim is not an automatic entitlement. A spouse instituting a Section 7(3) claim will still need to prove their direct or indirect contributions made towards the estate of the other spouse to be successful. The Court hearing such a claim will then have to decide upon not only whether such a spouse is entitled to a claim, but also the extent thereof which may differ greatly from matter to matter.

In the Constitutional Court judgment it is highlighted that the remedy in terms of Section 7(3) can only be granted if the Court deems it equitable and just having regard to the claimant’s contribution and other relevant factors. This simply means that a Section 7(3) claim is not simply for the taking and that a Court hearing a matter will have to consider all of the circumstances of that specific case.

The amicus curiae in the proceedings raised concerns about the weight and validity of an antenuptial agreement should the Constitutional Court confirm the High Court decision. The Constitutional Court responded to this issue by specifically stating that in terms of Section 7(5)(d) of the Divorce Act a Court considering a redistribution claim can take into account any other factor which should in the opinion of the Court be taken into account. The fact that the parties concluded an antenuptial contract excluding the accrual regime could and should be taken into account and the weight this factor should receive would however depend on the circumstances.

In the Judgement the Court also noted that other jurisdictions for example England and Canada have adopted this approach. In the Judgement the leading England case in which the fundamental test was incapsulated was quoted as follows: “The Court should give affect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement”.

The Order granted by the Constitutional Court on 10 October 2023 has far reaching consequences on the patrimonial consequences of many marriages and the outcome is of significant importance to the South African society at large and surely paves the way for exciting litigation in the future.

Adams & Adams acted on behalf of the amicus curiae who was represented by a team of Advocates consisting of Adv Sybrand Stadler, Adv Sonica Mentz, Adv Adrian Thomson and lead by Adv Liezl Haupt S.C.

GUARDIANS OF THE GALAXY…

The needs and requirements of minor children are a vast galaxy of intricate concepts regulated by a minor child’s guardian.

In terms of the South African Children’s Act (38 of 2005) a minor child’s biological parents automatically have parental rights and responsibilities, which include guardianship. A guardian must administer and safeguard a child’s property, assist or represent a child in contractual or legal matters and consent or refuse any consent required by law.

In South Africa, single parents are often faced with the predicament of being unable to solely consent for their children to travel, apply for a passport or visa, undergo certain medical procedures etc. The minor child’s biological mother and father, regardless of whether both parents have any involvement in the child’s life, must jointly consent to these major decisions.

The Adams & Adams Family Law team recently came to the rescue of a single mother and her minor child. The father abandoned the child before the age of one and has not exercised any of his automatic rights and responsibilities as the biological father for years. The mother was unable to apply for the child’s passport without the biological father’s consent resulting in the child being unable to enjoy a trip to Disney Land with his mother and other family members.

The biological father was requested to attend the Department of Home Affairs to sign the required paperwork to allow the child the opportunity to travel, however due to his lack of interest in the child he simply ignored the requests.

The mother’s legal team lodged an urgent application to the High Court in Pretoria requesting that the court order that the mother has sole guardianship of the child. The Court considered the best interest of the child and agreed that a child should not be held at ransom by an uninvolved parent. The order was granted and the mother is now able to solely apply for the child’s passport and visa.

The Adams & Adams family law team has extensive experience and knowledge and are able to assist parents in ensuring the child’s best interest is safeguarded.

ANOTHER WIN FOR WOMEN

The legislature continues to play catchup in Family Law to ensure that the law is aligned with the Constitution and the goals which South Africa wishes to receive as a democracy, including equality.

Our legislation as it stands does not regulate some religious marriages in South Africa, such as Muslim marriages.

As a result, Muslim couples who choose to marry according to Islamic or Sharia law are not afforded statutory protection in terms of South African Family Law, unless they have registered their Islamic marriage as a civil marriage with Home Affairs. Those marriages not formally registered as civil marriages are therefore simply not recognised.

This differs from the recognition of customary marriages, which are recognised as marriages and are subject to South African family law, even in the event that the marriage is not registered as a civil marriage.

Certain sections of the Divorce Act 70 of 1979 were therefore declared unconstitutional in the Constitutional Court case of Women’s Legal Centre Trust v President of the Republic of South Africa and Others heard on 28 June 2022 for failing to uphold the Constitutional values of equality, dignity and the best interests of children.

The aim of the Divorce Amendment Bill is to extend the application of the Divorce Act to include Muslim marriages, in order to protect Muslim women in Muslim marriages, as well as their children, at the dissolution of a marriage.

The proposed amendment are as follows:

    1. The definition of a Muslim marriage is to be included in the Divorce Act, which has been defined as a marriage entered or concluded in accordance with the tenets of Islam.
    2. Courts are to be granted the power to dissolve Muslim marriages.
    3. Mechanisms are to be included to safeguard the welfare of minor or dependent children born of Muslim marriages, in the same or similar manner as it provides for mechanisms to safeguard the welfare of minor or dependent children born of other marriages. That would include dealing with the maintenance, guardianship, care and contact in respect of minor and dependent children in a divorce.
    4. The redistribution of assets on the dissolution of a marriage will become applicable to Muslim marriages in circumstances where it would be fair. The factors to be considered in this regard are proposed to be extended to include any contract or agreement between the parties in a Muslim marriage where the husband is a spouse in more than one Muslim marriage. This amendment aims to protect women in Muslim marriages where their husband is a spouse in more than one Muslim marriage.
    5. The forfeiture of the patrimonial benefits of a marriage will become applicable to Muslim marriages at dissolution in the same or similar terms as it does in respect of other marriages that are dissolved.

Pending the amendment, Muslim marriages may be dissolved in accordance with the Divorce Act if the marriage existed on 15 December 2014, or if the marriage had already been terminated in terms of Sharia law on 15 December 2014, but legal proceedings were pending in respect of the termination of the marriage.

The Divorce Act therefore applies to the dissolution of Muslim marriages in the interim, with the proviso that Muslim marriages shall be considered to be concluded out of community of property, except where there are agreements to the contrary.

This is a win for another vulnerable group of society who have been previously disadvantaged and inadvertently discriminated against as a result of the failure to recognise Muslim marriages.

As this is an all-new concept in our law, we expect that there will be teething issues as the law continues to develop. Be that as it may, it is definitely a step in the right direction.

All for One, One for All

Twenty-nine years into democracy, our society continues to evolve and undertake efforts to reverse the injustices of our past. The legislature plays a huge role by changing legislation to ensure that it is in line with the goals South Africa wishes to achieve.

The most recent proposed change, which we welcome, is the Draft Marriage Bill of 2022.

Historically, Family Law has developed in a fragmented manner, resulting in three different pieces of legislation dealing with marriages, namely the Marriages Act, the Civil Unions Act and the Recognition of Customary Marriages Act.

The purpose of the new Marriages Bill is to have a single act that recognises all marriages, regardless of the spouses’ sex, gender, sexual orientation, religious, cultural or other beliefs.

The ultimate goal is to bring the legislation regarding marriages in line with the Constitution. The State has an obligation to respect, promote, protect and fulfil the Bill of Rights, which includes promoting equality, dignity and freedom of religion and belief, which the Bill aims to achieve.

Once in force, the new Marriages Act will deal with the requirements to enter a valid marriage, registration of a marriage, dissolution and legal consequences of a marriage, consent to marriages, age determination, equal legal status of spouses, and solemnisation of a marriage.

To name but a few highlights of the Bill:

1. The Bill aims to eradicate child and forced or arranged marriages, in line with international standards and obligations. Any person who enters, consents to or solemnises a marriage where one spouse is under the age of 18 will be guilty of an offence in terms of the Bill, which offence may carry criminal sanctions.

2. The Act will not operate retrospectively and will therefore have no effect on any marriages which are currently deemed valid in terms of the existing laws. Any marriages entered after the Act has come into force will have to comply with the requirements prescribed by the Act to be considered valid. If the requirements are not met, the marriage will be null and void.

3. Polygamous marriages are also recognised and the requirements for a valid polygamous marriage are prescribed.

4. All spouses will have equal legal status and capacity subsequent to entering into a marriage. Spouses will therefore be able to acquire and dispose of assets, enter into contracts and litigate, whereas this was previously limited in certain circumstances.

The Bill is very clear that no matter the form of marriage, any person who wishes to enter a marriage must be 18 years or older, must have the necessary legal capacity to enter the marriage and must have given free and informed consent to be married. In addition, a customary or religious marriage is required to be negotiated, entered, or celebrated in terms of the respective custom or religion.

It must further be noted that the Bill requires all marriages to be registered. It was not previously required for customary marriages to be registered in terms of the Recognition of Customary Marriages Act. Those that are in marriages which are not registered but entered before the Act comes into force will have a grace period of 12 months to register their marriages. In future, it will be the duty of the marriage officer to submit all documentation for registration of a marriage within 14 days of the marriage being solemnised.

Cabinet has approved the publication of the Draft Marriage Bill of 2022 for public comment on or before 31 August 2023. Public comments are critical as they will shape the development of the new legal framework.

WHAT IS FORFEITURE of ASSETS IN A DIVORCE?

In most divorces, either one of or both the parties feel wronged and aggrieved by either having to share their assets, or having any assets included in the calculation of the accrual.

The Pretoria High Court recently ruled that a woman’s infidelity amounted to substantial misconduct and, as such, she forfeited her right to share in her husband’s pension fund. The judgment received extensive media coverage and divorce attorneys are now inundated with queries regarding forfeiture.

It is quite correct that our law allows a court to make an order that one party forfeits the patrimonial benefits of a marriage. This means that a specific asset or even all benefits can be forfeited, regardless of the content of the parties’ ante-nuptial agreement. This legal position is, however, nothing new and has existed for years.

Prior to the introduction of the Divorce Act, a forfeiture order was based on the principle that no one ought to benefit financially from a marriage that he/she wrecked. Under our current Divorce Act, conduct of the parties is but only one of the factors that a court will consider when deciding to grant a forfeiture order.

In terms of Section 9 of the Divorce Act, a court may make an order that the patrimonial benefits of the marriage be forfeited by one party in favour of the other, either wholly or in part, if the court, having regard to the duration of the marriage, the circumstances which gave rise to the breakdown thereof and any substantial misconduct on the part of either of the parties, is satisfied that, if the order for forfeiture is not made, the one party will in relation to the other be unduly benefited.

The law does not favour either a man or a woman, any spouse can claim forfeiture. It should, however, be kept in mind that each matter will be considered on its own merit. The fact that your spouse engaged in an extra-marital affair does not simply result in forfeiture. The court will take into account all of the factors that led to the breakdown of the marriage, whether it resulted in substantial misconduct as well as the duration of the marriage. The court may very well find that the infidelity was merely a symptom of a poor marital relationship, which was actually the cause of the divorce rather than the infidelity itself.

In a recent appeal case (M V M) the appellant’s appeal for a forfeiture of assets was dismissed. The court, inter alia, found that the onus is on the party who seeks a forfeiture order to prove the nature and the ambit of the benefit to be forfeited. A forfeiture order is not simply for the taking. A claim must be properly pleaded and proved.

Contact the Adams & Adams Family Law team (shani.vanniekerk@adams.africa or 076 037 6571) to assess the merits of your potential forfeiture claim.

Can a parent claim maintenance for an adult dependent child

In many broken marriages the parties elect to remain married until their children have reached the age of majority or left the matrimonial home to obtain a tertiary education. The reality of the situation is, however, that many children between the age of 18 and 22 or even older in some instances, are still in the process of obtaining their tertiary qualification and are financially dependent on their parents.

In this day and time, it has become an inescapable fact that marriages often end in divorce, however, the dissolution of a marriage does not terminate a parent’s common law and statutory duty to support their minor or major dependent children. Many of our High Courts have handed out conflicting judgments when it comes to the issue of whether a parent can claim maintenance on behalf of a child who has reached the age of majority but is still financially dependent on his or her parents.

The Supreme Court of Appeal (“the court”) in Bloemfontein has given clarity to the issue in the case of Z v Z and ruled that a parent can claim maintenance for an adult dependent child from the other parent upon divorce. In the matter before the court the mother (Appellant) and the father (Respondent) were married to each other and at the time of divorce had two major children born of the marriage. The mother initiated divorce proceedings against the father and claimed, inter alia, maintenance for the major children. The father raised a special plea (Locus standi), alleging that the mother lacked capacity to lodge the claim for maintenance or to appear on behalf of the major children. The mother approached the Supreme Court of Appeal, appealing against an order of the Eastern Cape High Court, relying on section 6 of the Divorce Act which she contended gives her the capacity to claim maintenance of behalf of the major dependent children.

The Supreme Court of Appeal held that section 6 of the Divorce Act is clear and should be read as is, as it serves as a safeguard to the welfare of both major dependent and minor children of a marriage. The court further stated that there is no requirement for a major dependent child to be joined as a party to the divorce proceedings, since the court order will only be binding on the parents. The court gave an order, were by the appeal was upheld and the order of the Eastern Cape High Court set aside. Seeking Professional Legal Assistance Adams & Adams has extensive experience in dealing with the full range of family law matters. Our experts have a history of achieving justice for clients and ensuring that the best interests of the child are treated as of paramount importance in any matter concerning children.

High court judge finds spousal visa rules unconstitutional

Gone are the days where spousal visas of a foreigner, who has parental responsibility and rights in South Africa, expire upon the termination of the spousal relationship which formed the basis of the visa.

Foreign parents and caregivers of South African children shall now be allowed to remain in South Africa, even after their relationship with their South African spouse has come to an end.

This is as a result of a ground-breaking judgement by Honourable Justice Sher in the Western Cape High Court, in which certain provisions of the Immigration Act and the Regulations thereto were declared unconstitutional. The relevant provisions have been found to be a violation of the dignity and other constitutional and parental rights of foreign parents and children.

Prior to the judgement, foreign parents whose relationships with their South African spouses had come to end, were no longer allowed to work or live in South Africa, and were forced to leave the country, or face deportation.

Honourable Justice Sher remarked as follows:

“In effect, the applicants have the Hobson’s choice of either breaking the law by continuing to live and work in the country in order to maintain their parental responsibilities and relationships and contact with their children, or to uphold the law by leaving the country, thereby breaching their parental duties and severing their contact and relationships with their children.”

The Judge went on to state that:

One can expect that they [foreign parents] should, if possible, continue to be accommodated in the country so that they can continue to support their children and care for them, both financially and emotionally.

This is a welcomed solution to avoid a South Africa which is overburdened with children who are destitute and need to be provided for at state expense, as a result of the absence of one or both of their parents, a situation which is beyond their control.

The declaration of invalidity has been suspended for 24 months to allow Parliament an opportunity to remedy the inconsistencies and the new provisions will, in the interim, be read into the Act.

Court Changes divorce act

On 11 May 2022 the Pretoria High Court ordered that Section 7(3)(a) of the Divorce Act, 70 of 1979, is declared inconsistent with the Constitution and invalid to the extent that the provision limits the operation of Section 7(3) of the Divorce Act to marriages out of community of property entered into before the commencement of the Matrimonial Property Act. Simply put, individuals married out of community of property without the accrual will now be entitled to claim a redistribution of assets despite the content of their signed antenuptial contract. It should, however, be kept in mind that such a redistribution claim is not an automatic entitlement. A spouse instituting a Section 7(3) claim will still need to prove their direct or indirect contributions made towards the estate of the other spouse to be successful. The court hearing such an application will then have to decide upon not only whether such a spouse is entitled to a claim, but also the extent thereof which may differ greatly from matter to matter. The relief granted in the application will have far reaching consequences on the patrimonial consequences of many marriages. The outcome of the application is as such of significant importance to the South African Society at large .

Adams & Adams acted on behalf of the amicus curiae who was represented by a team of Advocates consisting of Advocate Sybrandt Stadler, Advocate Sonika Mentz, Advocate Besty Nchabaleng and lead by Advocate Liezl Haupt SC.