Family Law
The Family Law Department of the firm offers a full range of services in all aspects of Family Law, including but not limited to:
- Opposed and Unopposed Divorce
- Antenuptial and Postnuptial Agreements
- Maintenance Applications
- Domestic Violence Applications
- Custody Disputes
- Children’s Rights
- Curatorship Applications
- Travelling with Minor Children
Our team of Family Law attorneys understand the emotional impact which family law matters have on our clients and are sensitive to their needs in this regard.
Types of Marriage
South Africa Common Law provides that a marriage without an antenuptial contract results in the parties being married in Community of Property. On marriage in Community of Property a joint estate is formed with the parties as joint administrators. Assets are equally shared and the parties are jointly and severally liable for all debts incurred by either party to the marriage.
Each party has right of disposal over the assets of the joint estate. Although consent is required from the other party to alienate or encumber estate assets, written consent is only required in certain cases. In the final analysis there is financial equality (at times, to the detriment of the other party, for example in the case of insolvency), but no juristic equality (for example consent is theoretically required in order to trade with estate assets). Certain assets may be excluded from the joint estate, but this category is extremely limited.
This form of marriage is where, by means of a notarial ante-nuptial contract, community of property and profit and loss is excluded. In this case there is, however, juristic equality in that each party has full right of disposal over his/her own assets (in other words without prior consent from the other party). Very basically, this regime is one which stands for the description of “What’s yours is yours and what’s mine is mine”. This model is most often chosen by parties who have substantial estates or incomes at the time of marriage.
Whilst during the subsistence of the marriage this model is essentially identical to being married “Out of Community of Property” the inclusion of the accrual system means that on the dissolution of the marriage, whether by death or divorce, the spouses will share in the accrual accumulated by each other during the course of the marriage. This model is based on the principal that in the majority of marriages both spouses will contribute in various forms to the accumulation of assets, and as such they should both be entitled to benefit therefrom.
Common Law Marriage
We are frequently asked by clients whether, after living together for a certain time period, they are married by common law or not. The only correct answer to such a question is “no”. There is no assumption of marriage in South African law in consequence of cohabitation regardless of the duration of the relationship.
The question which inevitably follows our advise that “common law marriage” is not recognised is, “does any mechanism exist for the division of assets accumulated in a cohabitation situation?” If parties have cohabited and they can prove that a universal partnership exists between them, all property of such a partnership is deemed to be jointly owned by the parties and debts are the joint liability of the parties.
A universal partnership is very much like a business and to prove the existence of such a partnership it must be shown that:
- the aim of the partnership was to make profit;
- both parties must have contributed to the enterprise;
- the partnership must operate to benefit both parties;
- the contract between the parties must be legitimate.
Where there is no express agreement, a tacit agreement may be proved if it is found that it is more probable than not that such an agreement had been reached between the parties at the time of cohabitation.
Some of the other consequences of the absence of common law marriage in South African context are:
- cohabitees have no reciprocal obligation of maintenance;
- cohabitees are not exempted from donations tax in respect of donations between them;
- cohabitees do not benefit from the laws relating to the exemption from estate duty of bequests to spouses;
- a cohabitee is not a recognised claimant if his/her partner dies intestate.
Because the existence of a universal partnership is somewhat difficult to prove, and it may not be a claim which you wish to have to make or defend, it is advisable to consider entering into a contract which spells out how property should be dealt with on termination of the relationship by death or otherwise. Such a contract would provide some certainty for cohabitees regarding the division of assets and settlements of liability on termination of the relationship.
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