FAMILY LAW

Coming to the decision of divorce brings with it extreme emotional stress.  This is an extremely private and personal matter, and you may feel vulnerable, hurt, exposed and betrayed. Each person faces their own unique situation.

With knowledge and peace of mind you will find yourself more empowered to face the decision-making processes you will encounter regarding your future.

Unopposed and Opposed Divorces

Unopposed divorces are usually accompanied by a settlement agreement and parenting plan that is negotiated by our team. The process, once settled, can take as quick as a few weeks to finalise, and ensures that all parties are satisfied that the best interests of their children are taken care of, and that all their financial needs are catered for.

Opposed divorces generally involve complex residency, contact and care battles, and may often involve intricate financial inquiries, the piercing of trusts and a trial involving experts to guide the courts on any of the above aspects. We work closely with and have a network of highly qualified Senior Counsel Advocates to assist you in any matter, no matter how acrimonious.

The Cost of Divorce

The cost is influenced by factors such as whether the divorce is opposed or unopposed, whether there are minor children, where the parties reside, their nationalities etc. 

An unopposed divorce will cost considerably less than an opposed divorce. 

We have a fixed fee for unopposed divorces, the fees are discussed during the first consultation, and we provide a detailed estimate.  

In the event of divorce becoming inevitable, an unopposed divorce is the ideal scenario.  

This can potentially save the couple considerable amounts of time and money. Care should be taken to ensure that a proper settlement agreement is in place to protect all the parties.

The cost of a contested divorce could be considerably higher.  

The speed and efficiency with which a divorce is handled can not only reduce the cost of the process, but also minimize potential emotional damage often associated with divorce, at Visagie Attorney’s this is taken into consideration.

During divorce proceedings, a decision needs to be made with regards to the primary residence of minor children. In instances where legal assistance is required to settle this dispute, Visagie Attorneys has a highly skilled legal team to assist parents in coming to a solution that is in the best interests of the minor children.

Child Care and Contact Disputes

Visagie Attorneys ensure that our client’s rights as parents are protected, safeguarded and entrenched. We have a local off site, independent mediator to assist with negotiating and mediating care and contact disputes. If necessary, we possess the requisite litigation skills and expertise to defend your rights in Court, should the other party not be willing to negotiate or mediate.

We can assist with Child maintenance as well as interim Spousal Maintenance.

Visagie Attorneys can assist clients in enforcing and varying maintenance orders and can advise and assist clients in pursuing criminal sanctions for a failure to pay maintenance.

Our attorneys can also assist you in obtaining interim maintenance orders (Rule 43 in the High Courts and Rule 58 in the Regional Magistrate’s Courts) pending the finalisation of a divorce.

Child Maintenance 

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'.

Who must provide maintenance?

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.

• The duty to support a family member is not limited to supporting a child. Any family member, irrespective of his or her age, can ask any family member to support or maintain him or her, provided that the following two conditions are met:

  • The family member who claims support is unable to maintain himself or herself.

  • The family member from whom maintenance is claimed is able to afford the maintenance that is claimed.

  • The main requirement of the means test is that the person who is liable to pay maintenance must have MEANS and the maintenance claimed must be REASONABLE.

What expenses may be claimed?

You may claim reasonable support that is necessary for providing the child or other person who has a right to maintenance with a proper living and upbringing. This includes providing necessities such as food, clothing and housing, as well as paying for a proper education. The court may also order the father to contribute to the payment of laying-in expenses and maintenance from the date of the child's birth up to the date on which the maintenance order is granted. The court may also grant an order for the payment of medical expenses, or may order that the child be registered on the medical scheme of one of the parties as a dependant. To enable the court to grant a fair maintenance order, both parties must provide the court with proof of their expenses.

Your view of the other parent's behaviour has no effect on your children's right to maintenance. You still have to pay maintenance, even if the other parent:

• remarries

• is involved in another relationship

• does not allow you to see the children or

• if either party later has more children.

Your duty to pay maintenance and your right of access to your children are two entirely separate matters and one has no relation to the other. Furthermore, children of either party do not influence the duty to support. However, the amount of maintenance to be paid may be amended by the court if either of the parties should bring such an application.

In the event of a parent or parents being unable or unwilling to care for a child, or should the parent or parents pass away, Visagie Attorneys can assist with legal guardianship applications.

Visagie Attorneys can facilitate the obtaining or opposing of a protection order or domestic violence order as it is more commonly known, on behalf of our clients.

Domestic violence is now regulated by the New Domestic Violence Amendment Act 14 of 2021.   

The Act was introduced with the purpose of affording women protection from domestic violence by creating obligations on law enforcement bodies, such as the South African Police Service (SAPS), to protect victims as far as possible. The Act attempts to provide victims of domestic violence with an accessible legal instrument with which to prevent further abuses taking place within their domestic relationships.

The Act recognises that domestic violence is a serious crime against our society, and extends the definition of domestic violence to include not only married women and their children, but also unmarried women who are involved in relationships or living with their partners, people in same-sex relationships, mothers and their sons, and other people who share a living space.

Domestic violence can take a variety of forms and generally includes the following acts:

Physical abuse

Any act or threat of physical violence intended to cause physical pain, injury, suffering or bodily harm. Physical abuse can include hitting, slapping, punching, choking, pushing and any other type of contact that results in physical injury to the victim. Physical abuse can also include behaviours such as denying the victim medical care when needed, depriving the victim of sleep or other functions necessary to live, or forcing the victim to engage in drug/alcohol use against his/her will.  It can also include inflicting physical injury onto other targets, such as children or pets, in order to cause psychological harm to the victim.

Sexual abuse

Any conduct that abuses, humiliates, degrades or otherwise violates the sexual integrity of the victim. Sexual abuse is any situation in which force or threat is used to obtain participation in unwanted sexual activity. Coercing a person to engage in sexual activity against their will, even if that person is a spouse or intimate partner with whom consensual sex has occurred previously, is an act of aggression and violence.

Sexual violence is defined by the World Health Organization as: any sexual act, attempt to obtain a sexual act, unwanted sexual comments or advances, or acts to traffic, or otherwise directed, against a person’s sexuality using coercion, by any person regardless of their relationship to the victim, in any setting, including but not limited to home and work.

Marital rape, also known as spousal rape, is non-consensual sex in which the perpetrator is the victim’s spouse. As such, it is a form of partner rape, and amounts to domestic violence and sexual abuse. Marital rape has been described as one of the most serious violations of a women’s bodily integrity and yet it is a term that many people still have a problem comprehending, with some still describing it as a ‘contradiction in terms’.

Emotional, verbal and psychological abuse

Usually a pattern of degrading or humiliating conduct towards the victim privately or publicly, including repeated insults, ridicule, name calling and/or repeated threats to cause emotional pain; or the repeated exhibition of obsessive possessiveness or jealousy, which is such as to constitute a serious invasion of the victim’s privacy, liberty, integrity and/or security.

Other acts that fall under emotional abuse include controlling what the victim can and cannot do, withholding information from the victim, deliberately doing something to make the victim feel diminished or embarrassed, isolating the victim from friends and family, implicitly blackmailing the victim by harming others when the victim expresses independence or happiness, and denying the victim access to money or other basic resources and necessities.

Emotional abuse includes conflicting actions or statements that are designed to confuse and create insecurity in the victim. These behaviours lead victims to question themselves, causing them to believe that they are making up the abuse or that the abuse is their fault.

Emotional abuse also includes forceful efforts to isolate the victim, to keep them from contacting friends or family. This is intended to eliminate those who might try to help the victim leave the relationship and to create a lack of resources for the victim to rely on if they were to leave. Isolation eventually damages the victim’s sense of internal strength, leaving them feeling helpless and unable to escape from the situation. Women and men undergoing emotional abuse often suffer from depression, which puts them at increased risk for suicide, eating disorders, and drug and alcohol abuse.

Economic abuse

Includes the unreasonable deprivation of economic or financial resources to which the victim is entitled under law or requires out of necessity, including household necessities, mortgage bond repayments, rent money in the case of a shared residence, and/or the unreasonable disposal of household effects or other property in which the victim has an interest.

Economic abuse may involve preventing a victim from resource acquisition, limiting the amount of resources available to him/her, or exploiting the victim’s economic resources. The motive behind preventing a victim from acquiring resources is to diminish his/her capacity to support him/herself, thus forcing the victim to depend on the perpetrator financially. In this way, the perpetrator can prevent the victim from obtaining education, finding employment, maintaining or advancing a career and acquiring assets. The abuser may also put the victim on an allowance and closely monitor how he/she spends money. Sometimes the abuser will spend the victim’s money without his/her consent and create debt, or even completely spend the victim’s savings to limit available resources.

Intimidation

Uttering or conveying a threat, or causing a victim to receive a threat, which induces fear. The abuser may use a variety of intimidation tactics designed to scare the victim into submission. Such tactics may include smashing things in front of the victim, destroying property, hurting the victim’s pets or showing off a weapon. The clear message is that if the victim doesn’t obey, there might be violent consequences.

Harassment

Engaging in a pattern of conduct that induces a fear of harm in the victim, including repeatedly watching the victim; loitering outside of or near the building/place where the victim resides, works, carries out business, studies or happens to be; repeatedly making telephone calls or inducing another person to make telephone calls to the victim, whether or not conversation ensues; repeatedly sending, delivering or causing the delivery of letters, emails, texts, packages or other objects to the victim.

Stalking

There is no real legal definition of stalking. Neither is there any specific legislation to address this behaviour. The term is used to define a particular kind of harassment. Generally, it refers to a long-term pattern of persistent and repetitive contact with, or attempts to contact, a particular victim.

Examples of the types of conduct often associated with stalking include: direct communication; physical following; indirect contact through friends, work colleagues, family or technology (email or SMS); and other intrusions into the victim’s privacy. The abuse may also take place on social networks like Facebook, on-line forums, Twitter, instant messaging, SMS, BBM or via chat software. The stalker may use websites to post offensive material, create fake profiles or even make a dedicated website about the victim.

Damage to property

• Wilful damaging or destruction of property belonging to the victim or in which the victim has a vested interest.

• Entry into property

• Entry into the victim’s residence without consent, where the parties do not share the same residence.

• Any other controlling or abusive behaviour

Any conduct that harms, or may cause imminent harm to, the safety, health or well being of the victim. ‘Imminent harm’ includes situations where:

• the perpetrator is in the possession of a firearm and has threatened to use the firearm against the victim, or her dependants or other family members;

• the perpetrator has used a weapon against the victim in previous incidences of domestic violence (not restricted to dangerous weapons, such as firearms or knives);

• the victim was critically injured by the perpetrator on a previous occasion, or on the occasion in question;

• the victim and her children have been ‘kicked out’ of the shared residence by the perpetrator or anyone affiliated with him;

• the victim has sufficient evidence (i.e. witness statements) that the perpetrator has threatened to harm her; and

• the victim fears for the safety of her children.

The protection order

A protection order, also called a restraining order or domestic violence interdict, is a court order that tells an abuser to stop the abuse and sets certain conditions preventing the abuser from harassing or abusing the victim again. It may also help ensure that the abuser continues to pay rent or a bond or interim maintenance. The protection order may also prevent the abuser from getting help from any other person to commit abusive acts.

Helpful organisations:

FAMSA has offices nationwide and gives counselling to the abused and their families. To find your nearest FAMSA branch, call 011 975 7101, email national@famsa.org.za or visit their website www.famsa.org.za.

Lifeline provides 24-hour counselling services. Call the SA National Counselling Line on 0861 322 322.

People Opposing Women Abuse or POWA provides telephonic, counselling and legal support to women experiencing abuse. POWA also accompanies women to court and assists them in filling out documents. Call the POWA helpline on 083 765 1235 or visit www.powa.co.za.

Legal Aid offers legal assistance. To locate your nearest Justice Centre, call 0861 053 425 or visit www.legal-aid.co.za.

Rape Crisis offers free confidential counselling to people who have been raped or sexually assaulted. Call 011 642 4345.

SAPS 10111

University campus law clinics also offer legal assistance.

Steps to obtain a protection order:

Apply for a protection order at a Magistrates Court nearest to where you live and work, at any time, during and outside court hours as well as on public holidays or weekends.

First, apply for the Interim Protection Order by completing Form 6: Interim Protection Order at your nearest Magistrate’s Court or High Court.
Once you have applied for the Interim Protection Order, complete Form 2: Application for Protection Order at your nearest Magistrate’s Court or High Court.

The application must be made by way of an affidavit which states the:

• facts on which the application is based

• nature of the order

• name of the police station where the complainant is likely to report any breach of the protection order.

Where the application is brought on behalf of a complainant by another person, the affidavit must state the:

• grounds on which the other person has a material interest in the well-being of the complainant

• occupation of the other person and capacity in which such a person brings the application

• written consent of the complainant, except in cases where the complainant i a minor, mentally retarded, unconscious or a person whom the court is satisfied that he or she is unable to provide the required consent.

On receipt of the form, the clerk will send your application to the magistrate who will then set a date for you to return to court, so that your application can be considered.

The magistrate will also prepare a notice to inform the abuser about the protection order and when he or she should come to court.
After the court appearance, the magistrate may grant the protection order.

YOU HAVE 3 MARITAL PROPERTY REGIME CHOICES:

1. Marriage in Community of Property (No Contract)

2. Marriage Out of Community of Property without the Accrual System

3. Marriage Out of Community of Property with the Accrual System (Most Popular)

An Antenuptial contract must be signed before the marriage and registered within three months after signature at the deeds office.  

1. MARRIAGE IN COMMUNITY OF PROPERTY. (MARRYING WITHOUT AN ANTENUPTIAL CONTRACT)

The parties do not enter into a Ante nuptial Contract before their marriage. Everything which is mine is yours, and everything which is yours is mine. This may sound lovely and in line with the spirit in which you enter marriage but take a step back and look at the risks and implications of this choice in a modern world.

1.1 Benefit of a marriage in Community of Property:

• On death or divorce, the estate is divided equally.

1.2 Risks and Disadvantages to Marriage in Community of Property

• If one of the spouses fall into debt, creditors have a claim over the assets in the joint estate – that’s the assets of both spouses.

• If one spouse has his/her own business and becomes insolvent, the communal home and all assets, in both the names of the spouses, becomes attachable by creditors.

• There is no financial or even contractual independence as certain transactions, such the sale of shares, need the consent of both parties.

• If one partner should die, the estate of both the deceased and surviving partner will be wound up because it is a joint estate – not great for the surviving spouse who will find themselves in legal limbo, possibly without access to funds in addition to the trauma of losing a loved one.

• Belief founded in common law dictated that property not forming part of the joint estate for instance a property bequeathed in terms of a will, will not be affected should the other spouse become insolvent. However, the judgement in Du Plessis v Pienaar NO and Others 2003 (1) SA 671 (SCA) has overruled this belief.  

2. MARRIAGE OUT OF COMMUNITY OF PROPERTY WITH THE ACCRUAL SYSTEM EXCLUDED

The parties enter into an Ante nuptial Contract and exclude the Accrual System. Assets acquired before or during the marriage remain separate throughout the course of the marriage.

Assets are not shared, and each partner has a separate estate. 

In short: "what's yours stays yours and what's mine stays mine".

2.1 Advantages of a Marriage Out of Community of Property with the Accrual Excluded

• If one of the parties becomes insolvent, creditors may not attach the assets of the other.

• Both parties are still legally obliged to offer financial support to one another, should one of them be unable to support himself/herself.

• Full contractual freedom.

• In second marriages, marriages where the parties already have children and where both parties have already amassed a sizeable estate or in so called marriages of convenience it simplifies matters drastically.

2.2 Disadvantages of a Marriage out of Community of Property with the Accrual System Excluded

• In the case of death or divorce, each spouse is only entitled to those assets accrued in their own name. Should one spouse choose to stay at home to raise the children, that spouse would not normally be entitled to the assets accumulated by the other spouse (there are exceptions to this rule).

3. MARRIAGE OUT OF COMMUNITY OF PROPERTY WITH THE ACCRUAL SYSTEM

The parties enter into an Ante nuptial Contract and include the Accrual System. Each partner states the value of their respective assets (net asset value) at the beginning of marriage. Thereafter any assets accumulated are shared 50/50. One can state that specific assets be excluded from the accrual system, such a property or shares etc.

3.1 Advantages of Marriage out of Community of Property with application of the Accrual System

• Both parties share in the wealth accumulated during marriage.

• If any party owned property before the marriage, it remains the property of the person who owned it.

• Each party has complete financial and contractual freedom.

• If one party incurs debt or liability, it cannot be claimed from the estate of the other party.

• In the case of divorce, any assets accumulated during the marriage are shared – it doesn’t matter who acquired them. Each partner’s current net asset value is calculated by subtracting all liabilities of that partner from his or her assets. The accrual is then shared equally.

• The ante nuptial contract can be tailored to suit your needs.

• It protects the partner who remains at home to care for the family.

• In many ways the safest and fairest marriage regime.

3.2 What is the Accrual System and how is it calculated.

The 'accrual' is the extent to which the respective spouses 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. The spouse with the smaller accrual has a claim against the one with the greater accrual for half of the difference between the two amounts.

3.3 Assets automatically excluded from Accrual Calculation

Certain assets are excluded from the accrual in terms of the Matrimonial Property Act. These include, for example, the following:

• An inheritance received during the duration of the marriage.

• Donations made between the parties during the duration of the marriage.

• Assets explicitly excluded in terms of the conditions of the marriage contract. 

Registration Costs

We register Ante nuptial Contracts for an all-inclusive fee of R2850.00

This includes:

-   1st Consultation

-   Drafting of Contract

-   2nd Consultation (Signing of Contract)

-   Notarising of Contract

-   Registration of Contract

-   Certificate to provide to the Marriage Officer

-   All Courier Fees

TRUST REGISTRATION AND INDEPENDENT TRUSTEE SERVICES 

Who May Need a Trust?

• Minors - If a minor is an heir to an estate where there is no will, or if there is a will but no trust clause, the inheritance must be paid into the Guardians' Fund of the Master of the High Court.

• Persons that cannot take care of their own affairs-If persons are not able to take care of their own affairs due to physical or mental conditions, their assets must be placed under the protection of a curator.

• To protect assets - A trust could be structured in such a way that it does not vest in your hands and will therefore not form part of your estate. In the event of your insolvency, creditors will not be able to lay claim to these assets.

• Complex Family Structure - If you are divorced, or if you want to keep certain assets in your family, it could complicate inheritances and make your will very complex.

Four issues you can resolve with a family trust, but not in your Will.

Wills and Trusts are both estate planning tools. However, there are distinct advantages to using a Trust over a Will. Here are five ways in which a Trust is better than a Will to pass your estate to your beneficiaries.

1. A Trust can be used to potentially save Estate Duty – a Will cannot. Estate administration is the process of changing ownership of assets to beneficiaries when someone passes away. Finalising a deceased estate, takes a protracted period. Living costs and expenses of dependents cannot be paid during this period as the estate is frozen. A Family Trust is an excellent estate administration tool because assets that are owned in the name of a Trust are immediately accessible to the Trust's beneficiaries.

2. A Trust can provide Asset Protection for the inheritance you leave to Beneficiaries – a Will cannot. Many people worry that the inheritance they leave to their children will be lost to their children's creditors such as a divorcing spouse, unpaid credit card bills, a bankruptcy, a business loss, or a lawsuit. Sadly, this is often the case when assets are distributed to beneficiaries via a Will. A Trust allows the founder to safeguard an inheritance from the reach of the beneficiaries' creditors by keeping the assets out of the name of the beneficiary.

Ownership of the assets remains in the Trust. The beneficiary will have access to the assets per the directions in the Trust Deed. By leaving assets to your heirs via a Trust rather than outright via your Will, you can ensure that the assets you worked so hard for will be available to your children and future generations.

3. Leaving assets to a person with disabilities in a Trust is the best way to ensure the preservation of capital and benefits to pay for expenses and necessary living costs

4. A Trust can Administer Assets for Minor Beneficiaries without Court Intervention – a Will cannot. Leaving money directly to a minor creates an administrative nightmare because the law provides that a minor does not have the legal capacity to receive assets. These funds must be paid to the Guardians Fund until the child reaches the age of 18. This means costs and long delays in accessing funds for your children when they need it most. It also means that when the minor turns 18, he or she will be entitled to receive all of those assets and will be free to do with them as he or she wishes.

Creating a Trust to receive assets passing to a minor, or even to a young adult beneficiary, is the best way to ensure that the court is not involved in the process, that the person you want to manage assets for the beneficiary is able to do so, and that the beneficiary can use the assets only for purposes you decide are important and/or at ages that you dictate.

Registration Costs

We register Family Trusts from R4800.00

INDEPENDENT TRUSTEE SERVICES 

What Does a Trustee Do? Independent Trustee.

A Trustee is responsible for managing all of the property owned by a trust for the benefit of the trust beneficiaries. The exact duties of a Trustee will vary based on what assets are owned by the trust. For example, if the trust consists of bank and investment accounts, then the Trustee will be responsible for overseeing these accounts. Or, if the trust owns rental real estate, then the Trustee will be responsible for managing the rental property.

The Trustee can, depending on state law and the terms of the trust agreement, delegate certain duties to others, such as hiring a financial advisor to oversee investments or hiring a property manager to oversee rental real estate. But the Trustee must use good judgment and due diligence when delegating duties and must also avoid any conflicts of interest (such as hiring a sibling as the trust's investment advisor) unless the beneficiaries consent.

An independent trustee is a person who cannot benefit from the income or assets of the trust, nor are they related to a beneficiary of the trust and can thus play a crucial role in the proper separation between ownership of the trust assets and the enjoyment thereof.

In a landmark case in 2005 – Land and Agricultural Bank of South Africa v Parker – the Supreme Court of Appeal ruled that there was no proper separation of ownership or control of the trust assets from their enjoyment or use. As the trustees are entrusted with the control of the assets in the interest of the beneficiaries, inadequate separation may result in the trust being regarded as an extension of the estate of the founder.

The court suggested the appointment of at least one independent outsider as trustee to every trust where all the beneficiaries are related to one another, which resulted in the Master of the High Court enforcing the principle and requiring all newly formed family business trusts to appoint at least one independent trustee.

A simple definition of an independent trustee is someone who is not related to the founder or trustees and who has no beneficial relationship with them. This should ensure adequate separation of control from enjoyment. A trustee must not be swayed to support any decisions of the founder or co-trustees for fear of losing fees. A trustee who is also a service provider of the trust should be subject to the scrutiny of an independent trustee to ensure everything is undertaken at arms’ length and to maintain due care and diligence.

Our outsourced specialist attorney, will consider the appointment as independent Trustee in existing and new trusts to assist founders and Trustees with compliance in respect of the following:

• Trust Property Control Act.

• Income Tax Act.

• Other relevant legislation.

• Compliance will focus on:

• Satisfying the terms of the Trust Instrument;

• Guiding the Trustees on their rights, powers and responsibilities;

Ensuring that proper records are kept as regards:

• Trustee meetings, minutes of such meetings and resolutions;

• Trust documents;

• Annual financial statements;

• Annual tax returns;

• Amendments to the Trust instrument and Trustees as and when required;

• Ensuring that the investment of the Trust Capital is undertaken in a prudent and professional manner having regard to the needs of the beneficiaries, the term of the Trust and investment powers contained in the Trust instrument;

• Ensuring that the interests of one class of beneficiaries (income) does not outweigh the interests of another class (capital). This requires a balance between the production of income and the preservation of capital;

• Ensuring that the Trustees disclose any potential conflict of interest and manage any such potential conflict in accordance with the Trust instrument;

• Fulfilling the role of an honest broker where there may be competing interests between beneficiaries;

• Keeping the Trustees abreast of any changes in the relevant legislation and also informed about relevant Court Rulings;

• Ensuring that the objectives of the Trust are satisfied in accordance with the Trust instrument; and

• Risk management in general.

Whilst our outsourced specialists will not actively manage trust investments, it will guide the Trustees on an appropriate mandate for any investment manager appointed and assist the Trustees with a watching brief over the performance of the trust investments in accordance with the mandate given to any investment manager. 

CO-HABITATION AGREEMENT FOR SPOUSAL VISA PURPOSES

Attested to and drafted by a Notary Public in South Africa. The notarial contract pertaining to a spousal relationship referred to in section 1 (1)(xxxvi) of the Act is a requirement to allow it to legally sanction a permanent conjugal relationship, within the Republic, other than a marriage or a customary union concluded under the laws of the Republic.

The notarial Co-Habitation contract is a formal agreement entered into by a South African citizen/permanent resident and a foreign partner.  The agreement setting out the details of the parties rights and privileges in terms of their relationship is drafted, and notarised by a South African notary.  The parties must also appear and sign the agreement in the presence of the Notary Public.  The Notary then issues a notarial certification relating to the above.  The contract is signed originally, in duplicate and the second original contract is placed in the Protocol of the Notary and a protocol number is allocated.

CO-HABITATION AGREEMENT FOR PROTECTION

Cohabitation, also referred to as a common law marriage, living together or a domestic partnership, is not recognised as a legal relationship by South African law. There is, therefore, no law that regulates the rights of parties in a cohabitation relationship.

Cohabitation generally refers to people who, regardless of gender, live together without being validly married to each other.

Put simply, men and women living together do not have the rights and duties married couples have. Because their relationship is not recognised by the law as a marriage, the rights and duties that marriage confers do not apply. This is the case irrespective of the duration of the relationship. Therefore, contrary to popular belief, the assumption that if you stay with your partner for a certain amount of time a common law marriage comes into existence whereby you will obtain certain benefits is incorrect. 

Although legally cohabitants do not have the same rights as partners in a marriage or civil union, the South African courts have on occasion come to the assistance of couples by deciding that an express or implied universal partnership exists between them. A universal partnership exists when parties act like partners in all material respects without explicitly entering into a partnership agreement. In these cases, where the relationship breaks down, the court awards a share of the assets acquired during the relationship to each party. To prove a universal partnership is very difficult and certain requirements must be satisfied that:

• the aim of the partnership must be to make a profit;

• both parties must contribute to the enterprise; 

• the partnership must operate for the benefit of both parties; and

• the contract between the parties must be legitimate.

 To succeed with a universal partnership claim, it must be proved that:

• both partners contributed to a specific joint venture in some form or other through their labour, capital or skill;

• the venture was conducted for the benefit of both partners;

• the venture was conducted for profit; and

• a universal partnership came into existence.

In one matter before the Supreme Court of Appeal, it was held that the man and woman in question, who had lived together as husband and wife for nearly twenty years, had tacitly entered into a universal partnership in which the female partner had a 30 per cent interest. She was thus awarded an amount equal to 30 per cent of her partner’s net asset value as at the date when the partnership came to an end.

Universal partnerships aside, there is some legislation that places cohabitation and marriage on an equal footing:

• Cohabitation is recognised under the Domestic Violence Act.

• The Medical Schemes Act 131 of 1998 defines a dependant to include a ‘partner’.

• In terms of the Income Tax Act and the Estate Duty Act, cohabitants are treated as spouses for the purposes of tax legislation, and the word ‘spouse’ is defined to include a permanent same-sex or heterosexual relationship.

• Either partner in a cohabitation relationship may name the other as a beneficiary in a life-insurance policy. The nomination will, however, have to be clear, because a clause in an insurance policy that confers benefits on members of the insured's ‘family’ may cause problems. And if a policy, for instance a car insurance policy, covers/excludes passengers who are members of the insured’s family, this provision does not operate to the benefit/detriment of the insured’s partner.

• The law does not distinguish between married and unmarried parents in regard to the obligation to maintain children. Decisions regarding care and contact are based on what is in the best interests of the child. Children are protected if the couple is not married since both biological parents are responsible for the maintenance of their children. The father and mother are both still liable for maintenance if the couple splits up.  This will not apply to same sex couples as both cannot share a biological link with the child.

• A domestic partner may receive pension fund benefits as a nominee. A domestic partner may also receive pension benefits as a factual dependant if he/she qualifies as such under the definition of ‘dependant’ in the regulations or conditions of that particular fund. A domestic partner will, however, not be entitled to their partner’s pension interest on termination of their relationship.

• Under the South African Compensation for Occupational Diseases Act, 1997, a surviving domestic partner may claim for compensation if their partner died as a result of injuries received during the course of work, if at the time of the employee’s death they were living as ‘husband and wife’.

Cohabitation and legislation

Unlike marriage, which is regulated by specific laws that protect the individuals in the relationship, cohabitation offers no such comfort. There is currently no obligation on cohabitants to maintain each other and they have no enforceable right to claim maintenance.

Cohabitation agreements

Life partners (regardless of their sex) are permitted to enter into a contract similar to an antenuptial contract that regulates their respective obligations during the subsistence of their union and the (patrimonial) consequences of the termination thereof. Such agreements are sometimes referred to as cohabitation contracts or domestic partnership agreements.

It’s becoming more common for partners in a cohabitation relationship to draw up a contract. Such an agreement will usually contain regulations regarding finances during the existence of the cohabitation relationship and deal with the division of property, goods and assets upon its termination. Parties may even include an express provision for the payment of maintenance upon termination. If one partner refuses to follow the agreement, the other partner can approach a court for assistance. In most cases, a court will enforce the agreement.

Cohabitants who fail to draw up a cohabitation agreement or contract will have no legal protection, unless they can prove the existence of a universal partnership.

The contents and nature of a cohabitation agreement will depend on the needs of the parties. The parties may include any provision in the agreement that is not illegal, against the morals of society or contrary to public policy.

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