Cape Town Attorney Bertus Preller writes South Africa’s first book on Divorce and Separation for the general public

Everyone’s Guide to Divorce and Separation – Kindle Version

Everyone’s Guide to Divorce and Separation

WHAT YOU SHOULD KNOW ABOUT DIVORCE AND SEPARATION …With one in three marriages now ending in divorce, it is imperative to be informed of the pitfalls, challenges and legal aspects involved in divorce and separation. Other rules and laws may apply to the many couples who prefer to cohabit rather than get married, but they, too, need to be informed of their rights when the relationship breaks down.

Everyone’s Guide to Divorce and Separation will help with the following crucial aspects:  your rights when you get divorced, and the monetary aspects relating to divorce (including the consequences relating to assets and the divisions thereof); maintenance issues;  all factors regarding the children, including how to implement a parenting plan, how much child maintenance will likely be required, and how to file for maintenance and child support;  the procedures to obtain a protection order when there is domestic violence or abuse; an unmarried father’s rights and how to acquire parental rights; and the law on cohabitation, same-sex marriages, and how to draft a proper cohabitation agreement. 

Everyone’s Guide to Divorce and Separation will prove to be an indispensable and comprehensive guide at a time when everyone needs expert guidance the most.

In the Foreword of the book, Judge Denis Davis says the following:

“Bertus Preller has filled a very significant gap with this timely book, in that in plain language, he provides a comprehensive guide to the broader community through the thicket of law that now characterises this legal landscape. Having said that, many lawyers, particularly those who do not specialise in the field, will also find great assistance in this work.

From engagement, through the legal nature of the ceremony, to the legal consequences of marriage or civil union and on to divorce with all its complex consequences, the reader will find clear explanations for any or all issues which may vex him/her during this journey.

Early on in the text, Mr Preller makes a vital point – litigation is truly the option of last resort in the event of a matrimonial dispute. The adversarial process which is the manner in which law operates is not at all conducive to a settlement of issues, particularly custody of minor children, which have a long-lasting and vital impact on the lives, not only of the antagonists but also the children who have not, in any way, caused the problem giving rise to the forensic battle.

Often in my experience on the Bench, I have wondered how such vicious and counter productive litigation can be allowed to continue. Lawyers will point to clients, whose disappointment in the breakdown of the marriage now powers such adverse feelings to their erstwhile partner, as the core reason for the ‘legal fight to the finish’. I would hope that, in all such or potential cases, the parties consult this work, which may add some rationality to the process or, in the occasional case, will enable the parties to reassess the legal advice they have been given, thereby allowing a non-litigious settlement of proceedings.

Whatever the context, however, it is important that arcane and often incomprehensible legal jargon be made accessible to those affected by the law. In this way, ordinary citizens can ensure that their rights work for them and at the same time they are assisted to grasp fully the implications of the obligations that the law imposes upon them.

In providing such a gateway to those who are or may be affected by this area of law, which given its nature is the vast majority of the country, Mr Preller has made a significant contribution to ensuring that, in this area, access to justice will become a reality.

- Judge Dennis Davis”

The book will be on the shelves of all major book stores on 1 May 2013 and may be pre-ordered on Amazon.com

No maintenance for a sacked lover

Not so long ago I wrote an article about the fact that in South African law there is in fact no such thing as a common law marriage and that partners that cohabitates or live together in a domestic partnership will in fact have no right to claim maintenance from one another. In fact, this was exactly what the Supreme Court of Appeal ruled this week in the matter of McDonald v Young (292/10) [2011] ZASCA 31 on 24 March 2011.

The facts of this case were as follows.

The parties were involved in a relationship and had cohabited, as man and wife, for approximately seven years from June 1999 until May 2006. After the relationship broke down, the appellant instituted an action against the respondent in the Western Cape High Court (Cape Town) for an order declaring that a joint venture agreement existed between the parties in respect of immovable property (the property) situate at Port Island, Port St Francis, in the Eastern Cape, alternatively, for an order that the respondent pay maintenance to the appellant. The high court (Veldhuizen J) found that the appellant had failed to prove the existence of a joint venture agreement and, in respect of the maintenance claim, that there was no duty on the respondent to support the appellant. The appellant appealed to the Supreme Court with the leave of the high court.

The issues on appeal, as in the high court, wer whether the appellant has established the existence of a joint venture agreement between the parties, alternatively, whether the respondent is under a duty (by operation of law, or alternatively, by virtue of a tacit contract) to support the appellant subsequent to their cohabitation.

Shortly after the parties were introduced to each other the appellant took up residence with the respondent at her farm in Knysna. The appellant’s main business interest was the promotion and marketing of surfing and surfboard products. During 1999, the appellant and his Durban-based brother had been in the process of establishing a new business, Inter Surf Africa Exporters (ISAE), which was involved in the manufacture and export of surfboards. The appellant did not possess any meaningful assets and had very limited income. The respondent, on the other hand, was a woman of considerable means. She had an annual cash income in excess of R1,3m and possessed substantial assets. When the appellant and the respondent met, they were 59 and 54 years of age, respectively. It was common cause that the appellant had not been in receipt of a regular income and had, for a time, during the course of the relationship, received a monthly allowance from the respondent.

The appellant’s claim to a half-share in the property was based on an express oral joint venture agreement concluded by the parties. The appellant testified that the terms of the agreement were that the respondent would contribute financially to the acquisition, completion and refurbishment of the property while the appellant would contribute his time and expertise to oversee the development of the property. According to the appellant, it was agreed that they would each share jointly in the property. The appellant testified that the primary objective of the agreement was to ensure that he gained financial independence. Despite the fact that the property was to have been registered in both their names, it was subsequently agreed, according to him, that the property would be registered in the respondent’s name for tax purposes. It was common cause that the initial written agreement had reflected both their names as purchasers of the property.

It was contended, on behalf of the appellant, that the high court had erred in failing to accept and rely on the appellant’s evidence regarding the agreement, having particular regard to the fact that his evidence was unchallenged. It was further contended that the respondent’s failure to testify was fatal to her case and that this court was obliged to accept his unchallenged evidence in respect of both the agreement and the claim for maintenance.

In our law it is settled that uncontradicted evidence is not necessarily acceptable or sufficient to discharge an onus. In Kentz (Pty) Ltd v Power, Cloete J undertook a careful review of relevant cases where this principle was endorsed and applied. The learned judge pointed out that the most succinct statement of the law in this regard is to be found in Siffman v Kriel, where Innes CJ said:

‘It does not follow, because evidence is uncontradicted, that therefore it is true . . . The story told by the person on whom the onus rests may be so improbable as not to discharge it.’

It was thus necessary to consider the appellant’s evidence in detail. It was clear from the judgment of the high court that it was mindful that the appellant’s evidence, in order to be reliable, had to be credible. The high court, on the evidence, reached the conclusion that the respondent had ‘initially intended that the contract should reflect the [appellant] as one of the purchasers’. However, it did not accept his evidence in its entirety and went on to find that the appellant had failed to prove the existence of a joint venture agreement.

In the Judge’s view, there were a number of unsatisfactory aspects in the appellant’s evidence. It was significant noted by the court how the appellant’s claim against the respondent has developed over time. During May 2006 and shortly after the parties parted ways, they met, in the presence of their respective attorneys, with a view to settle the disputes between them. The appellant’s evidence regarding the claim he had advanced at that meeting, was as follows:

‘So the idea was to try and settle the split between yourself and Mrs Young? — I accept ─ I looked at it like that because it did look like we weren’t going to get together again, so I assumed that that was the reason.

And what were your claims that day? — My claims that day with regards to my share of Port St Francis, with regards to my contribution I had made over the seven years and discussion on my contract with the bakkie.’

This was in stark contrast to his testimony in the magistrate’s court to the effect that he had, at the time of the meeting, been under the impression that he did not have a claim against the respondent and that the claim had ‘materialised some time afterwards when I . . . approached some attorneys for advice’. The appellant’s explanation for the contradiction, that he had meant to convey that he had not yet ‘implemented’ his claim, is, in my view, unsatisfactory. The very purpose of the meeting was an attempt to resolve the dispute between himself and the respondent without the need to resort to litigation.

On 17 July 2006, and following upon the May 2006 meeting, the appellant’s attorney wrote a letter to the respondent’s attorney, which was intended to ‘motivate and substantiate’ the appellant’s claim against the respondent ‘as comprehensively as possible’. (The Court’s emphasis.) It was recorded in the letter that the appellant believed that a universal partnership had existed between the parties and that he was entitled to ‘some form of compensation’ (The Court’s emphasis.) for his contribution to the partnership. It is instructive that no mention was made of the appellant’s half-share in the property, despite the fact that the appellant testified that he had given his attorney instructions in this regard and that he (the appellant) had had sight of the letter prior to it being dispatched. The development of the appellant’s claim over time is not without significance.

During the period that the parties were cohabiting, the appellant drafted numerous agreements and proposals, the purpose of which was to define the financial relationship between him and the respondent. On 24 July 2003, the respondent executed a sole agency mandate in terms of which she appointed the appellant as agent to sell the property and undertook to pay a commission of ten per cent to him. It was the appellant’s testimony that the commission he would have earned was to have provided him with financial security. The appellant agreed that he had, during October 2004, drafted an agreement, aimed at resolving the constant disputes he and the respondent had had regarding his financial security. The salient terms of this agreement were that (i) he was appointed as sole agent to sell two properties, including the property which is the subject of this dispute; (ii) he would be paid a commission of ten per cent for securing the sale of the properties; and (iii) the respondent would purchase government retail bonds to the value of R500 000 on behalf of the appellant. It was also his evidence that the relationship between him and the respondent had been particularly volatile at that time and his intention, in drafting this agreement, was to achieve clarification regarding his financial position.

It was surprising that the appellant failed to mention his half-share in the property in the October 2004 proposal. This was even more surprising when regard is had to his evidence that he was at that time concerned, as there was uncertainty regarding his financial future. The wording of this proposal, as well as the agency agreement, excludes the possibility that he had acquired a share in the property. It was in the court’s view extremely improbable that had the parties agreed in 1999 when the property was purchased that they would be joint owners thereof, the appellant would not, in 2004, have recorded his right to, or even a claim for, a half-share in a proposal aimed at settling outstanding matters between him and the respondent.

Counsel for the appellant attached great importance to the fact that the initial agreement had recorded both parties’ names as purchasers. The appellant assumed that both names were inserted on the instructions of the respondent. There was no evidence to support this assumption. Even if such instructions did emanate from the respondent, it does not necessarily follow, as was found by the high court, that this meant that there was an agreement between the parties as alleged by the appellant. The recording of both parties’ names is nothing more than an indicator pointing towards the conclusion of an agreement and it is a factor to be considered in conjunction with the probabilities.

There were a number of factors that support the respondent’s denial of the existence of a joint venture agreement between the parties. These included: the claim as articulated at the meeting with their legal representatives shortly after the break-up, the letter written after that meeting, various agreements drafted by the appellant, and the unsatisfactory and often contradictory evidence given by the appellant. The court mentioned that the appellant contradicted himself on one of the essential terms of the agreement, namely, whether it was agreed that he would be entitled to half of the proceeds of the sale of the property only or the property together with its contents.

The appellant bore the onus of proving the agreement upon which he relied as well as the terms thereof. Having regard to the deficiencies in the appellant’s evidence and the probabilities, it cannot be said that it measures up to the standard required for acceptability in respect of the existence of the joint venture agreement. In Da Mata v Otto NO, Van Blerk JA, dealing with the approach to be adopted when deciding probabilities, said:

‘In regard to the appellant’s sworn statements alleging the oral agreement, it does not follow that because these allegations were not contradicted ─ the only witness who could have disputed them had died ─ they should be taken as proof of the facts involved. Wigmore on Evidence, 3rd ed., vol. VII, p. 260, states that the mere assertion of any witness does not of itself need to be believed, even though he is unimpeached in any manner, because to require such belief would be to give a quantative and impersonal measure to testimony. The learned author in this connection at p. 262 cites the following passage from a decision quoted:

“It is not infrequently supposed that a sworn statement is necessarily proof, and that, if uncontradicted, it established the fact involved. Such is by no means the law. Testimony, regardless of the amount of it, which is contrary to all reasonable probabilities or conceded facts ─ testimony which no sensible man can believe ─ goes for nothing; while the evidence of a single witness to a fact, there being nothing to throw discredit thereon, cannot be disregarded.”’

The appellant’s testimony was contrary to all reasonable probabilities and, despite the fact that it was unchallenged, counts for ‘nothing’. In assessing the probabilities, the conclusion seems to be inescapable that the appellant has not discharged the onus resting on him. It follows that the appellant was not entitled to the relief sought in respect of the main claim.

The court considered the alternative claim for maintenance and dealt first with the argument that such a duty existed by operation of law. In South African law, certain family relationships, such as parent and child and husband and wife, create a duty of support. The common law has been extended in line with the Constitution to protect contractual rights of support in the same way as the common law duty of support. In Amod v Multilateral Motor Vehicle Accidents Fund (Commission for Gender Equality Intervening), this High Court of Appeal recognised a contractual right to support arising out of a marriage in terms of Islamic law for purposes of a dependant’s action. In Du Plessis v Road Accident Fund, the common law action by a spouse, for loss of support against the wrongdoer who unlawfully kills the other spouse, was extended to partners in a same-sex permanent life relationship similar in other respects to marriage, who had tacitly undertaken reciprocal duties of support. The Constitutional Court in Satchwell v President of the Republic of South Africa & another, found that the common law duty of support, could, in certain circumstances, be extended to persons in a same-sex relationship. Madala J, writing for the court, commented as follows:

‘The law attaches a duty of support to various family relationships, for example, husband and wife, and parent and child. In a society where the range of family formations has widened, such a duty of support may be inferred as a matter of fact in certain cases of persons involved in permanent, same-sex life partnerships. Whether such a duty of support exists or not will depend on the circumstances of each case.’

Counsel for the appellant relied on Kahn, Amod and Du Plessis in support of his contention that a legal duty of support rests on the respondent. This contention was misplaced. In both Amod and Khan, the parties in respect of whom a duty of support had been alleged had been married to each other in terms of Islamic law. The ratio of the court, in both cases, was that the marriage between the parties had given rise to reciprocal contractual duties of support on the part of the parties to that marriage. In Du Plessis, Cloete JA, having had regard to the facts of that matter, concluded that the plaintiff had proved that the deceased had undertaken to support him and that the deceased had owed the plaintiff a contractual duty of support. The learned judge of appeal said:

‘In the present case the case for drawing an inference that the plaintiff and the deceased undertook reciprocal duties of support is even stronger. The plaintiff and the deceased would have married one another if they could have done so. As this course was not open to them, they went through a “marriage” ceremony which was as close as possible to a heterosexual marriage ceremony. The fact that the plaintiff and the deceased went through such a “marriage” ceremony and did so before numerous witnesses gives rise to the inference that they intended to do the best they could to publicise to the world that they intended their relationship to be, and to be regarded as, similar in all respects to that of a heterosexual married couple, ie one in which the parties would have a reciprocal duty of support. That having been their intention, it must be accepted as a probability that they tacitly undertook a reciprocal duty of support to one another.

Further support for this finding is the fact that the plaintiff and the deceased thereafter lived together as if they were legally married in a stable and permanent relationship until the deceased was killed some 11 years later; they were accepted by their family and friends as partners in such a relationship; they pooled their income and shared their family responsibilities; each of them made a will in which the other partner was appointed his sole heir; and when the plaintiff was medically boarded, the deceased expressly stated that he would support the plaintiff financially and in fact did so until he died.’

Amod, Khan and Du Plessis were decided on the basis of contracts entered into by the respective parties, and are not authority for the contention that there is a duty of support, by operation of law, on the respondent to maintain the appellant.

The question whether the relationship between the parties, a heterosexual couple who choose to live together, free from the bonds of matrimony, gives rise to a legal duty of support, could in the Judge’s view, be answered with reference to Volks NO v Robinson & others. In that matter the Constitutional Court was concerned with the interpretation and constitutionality of s 2(1), read with s 1, of the Maintenance of Surviving Spouses Act 27 of 1990, which confers on surviving spouses the right to claim maintenance from the estates of their deceased spouses if they are not able to support themselves. The court had to determine whether the exclusion of survivors of permanent life partnerships from the protection of the Act constituted unfair discrimination. Skweyiya J, writing for the majority, referred with approval to the comments made by O’Regan J in Dawood & another v Minister of Home Affairs & others; Shalabi & another v Minister of Home Affairs & others; Thomas & another v Minister of Home Affairs & others that:

‘Marriage and the family are social institutions of vital importance. Entering into and sustaining a marriage is a matter of intense private significance to the parties to that marriage for they make a promise to one another to establish and maintain an intimate relationship for the rest of their lives which they acknowledge obliges them to support one another, to live together and to be faithful to one another.

The institutions of marriage and the family are important social institutions that provide for the security, support and companionship of members of our society and bear an important role in the rearing of children. The celebration of a marriage gives rise to moral and legal obligations, particularly the reciprocal duty of support placed upon spouses and their joint responsibility for supporting and raising children born of the marriage. These legal obligations perform an important social function.’

The Constitutional Court was of the view that the law may distinguish between married people and unmarried people and may, in appropriate circumstances, accord benefits to married people which it does not accord to unmarried people. The learned justice reasoned as follows in para 55:

‘There are a wide range of legal privileges and obligations that are triggered by the contract of marriage. In a marriage the spouses’ rights are largely fixed by law and not by agreement, unlike in the case of parties who cohabit without being married.’

The court found that whilst there was a reciprocal duty of support between married persons, ‘no duty of support arises by operation of law in the case of unmarried cohabitants’. This was an unequivocal statement of the law by the Constitutional Court. Skweyiya J went on to state that to the extent that any obligations arise between cohabitants during the subsistence of their relationship, these arise by agreement and only to the extent of that agreement.

The court also considered whether a contractual duty of support towards the appellant existed. The argument, presented as a second alternative to the claim based on a joint venture, was that the court should find that the parties had entered into a tacit agreement in terms of which the respondent had agreed to support the appellant even after the end of their relationship.

The facts upon which the appellant relies in support of his claim that the respondent had assumed a duty of support towards him are the following:

(i) He and the respondent had lived together as if they were legally married in a stable and permanent relationship;

(ii) The respondent had supported him during the seven-year period that they had resided together and the appellant had been dependent on such support. She had given him an allowance, provided transport for him and paid for entertainment and overseas holidays;

(iii) The respondent had, in a series of wills, made extensive provision for financial support of the appellant in the event of her death;

(iv) The respondent was a wealthy woman while he had no assets and very limited income;

(v) He had contributed to the maintenance of and increase in value of the respondent’s estate, often at the expense of his own business interests; (vi) The appellant was reliant on an income from employment and could not, due to his advanced age, guarantee for how much longer he would be able to earn a living; and

(vii) The respondent had advised the appellant that she had sufficient funds to support both of them.

The argument that the parties had entered into a tacit agreement regarding maintenance cannot be sustained for a number of reasons. First, the reliance on a tacit contract is inconsistent with the appellant’s evidence. The appellant believed and gave evidence to the effect that he and the respondent had concluded an express agreement in respect of the property, the aim of which was to ensure that he was financially independent. Implicit in this is the intention that he would not have to rely on the respondent, or any other person, for financial support. In the circumstances, the appellant could not have formed the intention to contract tacitly with the respondent. Having regard to his evidence that the purpose of the joint venture agreement was to render him financially independent, the appellant could not at the same time have contemplated, that the respondent would continue to support him for the rest of his life. A tacit contract must not extend to more than the parties contemplated. In Rand Trading Co Ltd v Lewkewitsch the parties had erroneously assumed that there was a contract in existence between them. The court did not accept the argument that the company’s conduct in recognising the existence of the lease, paying the rent and otherwise performing in terms of the contract had created a binding contract. Solomon J said:

‘But I think the answer to that argument is a very clear one, and it is this ─ that all these facts are explained on the simple ground that both parties erroneously assumed that there was a contract in existence between them . . . And the mere fact . . . that both parties erroneously assumed that there was a contract in existence at that date altogether precludes us from now inferring a new contract.’

The appellant’s stated belief, that there was an express contract between him and the respondent in respect of the property, precludes this court from drawing an inference to the effect that the parties had entered into a tacit agreement the terms of which were inconsistent with the express agreement to which he testified. It was not open for the appellant to contend that if the court disbelieved his evidence that a joint venture agreement had been concluded, the court should infer from the proved facts that a tacit contract had come into existence, because such an inference cannot be drawn where it would conflict with what he said was the actual position. A litigant can plead, but not testify, in the alternative.

Secondly, the appellant’s evidence was that the respondent’s attitude had always been that in the event that their relationship ended, he would receive no financial benefit from her. This conduct, on the part of the respondent, is inconsistent with a tacit agreement to support the appellant. The appellant’s explanation for drafting the various proposals regarding the financial relationship between him and the respondent was as follows:

‘Well, the motivation behind it at that particular time, we were going through quite a patchy period; we were arguing and not agreeing on a lot of things. And it appeared to me that all of a sudden my situation could alter and I’d be left standing high and dry. And I discussed it with Lesley [the respondent] and I felt that if we had something in writing, and if that did occur at least I had something to fall back on . . . ’. (Emphasis added.)

It is trite that a tacit contract is established by conduct. In order to establish a tacit contract, the conduct of the parties must be such that it justifies an inference that there was consensus between them. There must be evidence of conduct which justifies an inference that the parties intended to, and did, contract on the terms alleged. It is clear from the appellant’s evidence that there was no consensus between the parties. The appellant, on his own testimony, was uncertain about his financial future. He realised that he would only be entitled to what had been agreed between the parties, hence his desire to have a written contract ‘to fall back on’. The respondent’s attitude, as testified to by the appellant, that he would leave the relationship without any financial benefit, is an indicator that she had not, tacitly or otherwise, agreed to support the appellant. I am not satisfied that this court can conclude, from all the relevant proven facts and circumstances, that a tacit contract, in terms of which the respondent undertook to financially maintain the appellant, for as long as he needed such maintenance, came into existence.

For those reasons, the appellant’s maintenance claim which is premised on a legal, alternatively, a contractual duty, failed.

Bertus Preller is a Divorce and Family Law Attorney in Cape Town and has more than 20 years experience in law and 13 years as a practising attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. in Cape Town. Bertus is also the Family Law expert on Health24.com and on the expert panel of Law24.com. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters and international divorce law.

Cohabitation Law in South Africa – if you don’t have an agreement you may leave with nothing

Cohabitation Trends

Patterns of marriage, divorce, and cohabitating without marriage have been changing. The incidences of domestic partnerships are growing throughout the world. In America 45% of all couples living together are unmarried.

In Sweden, 9/10 couples marrying for the first time already live together, while in Denmark, more than 1/3 of women in their early 20’s are living with a partner without the ties of marriage. As a rough estimate, around one million heterosexual couples are living together without being married in Britain, while in France the number has reached 2.5 million.

South Africa

South African statistics demonstrate a rising trend in cohabitation. Somewhat conservative statistics indicate that a very large number of people live in domestic partnerships in South Africa. The census of 1996 found that 1, 268,964 people described themselves as living together with a partner while the 2001 Census estimated that nearly 2.4 million individuals were living in domestic partnerships, almost doubling the figures of 1996.

In South African law, there is no such thing as a Common Law Marriage. There is no common law marriage in South African law and therefore the duration that a couple spend living together does not translate into a default marriage. The consequence is that at the dissolution of the relationship the assets or any obligations are determined or distributed on a basis of the arrangement that parties used during the subsistence of their relationship.  Many people believe that simply living together with another person for a continuous period of time establishes legal rights and duties between them. Some people believe that the duration of the relationship creates legal protection while others think that having children together entitles the cohabitation relationship to legal protection. Many people do not know that there is actually no legal recognition of domestic partnerships.

The lack of awareness of legal rights may be as a result of the still prevalent belief in the existence of common-law marriage, despite the fact that this concept has been abolished worldwide.

In South Africa marriage laws have traditionally provided parties to a marriage with a variety of legal protections. These laws governed what happened to the property of the parties during the marriage and on dissolution, either by divorce or death it also means that many State were automatically acquired, such as membership of medical aid funds, pension funds etc. Married spouses also had a reciprocal duty of support under the common law.

Domestic partnerships have never been prohibited by South African law, but nor have they enjoyed any noteworthy recognition or protection by the law.

The South African Courts have on occasion come to the assistance of formerly married couples and couples in domestic partnerships by deciding that an express or implied universal partnership exists between the couple. The problem is that it is extremely difficult to prove such a partnership in South African Law.

The only way to be protected in our law is to enter into a cohabitation agreement. Such an agreement clarifies the expectations of the partners and it also serve as an early warning of future problems. A cohabitation agreement will determine what would happen to property and assets of the couple if they should decide to separate. The agreement is, however, not enforceable in so far as third parties are concerned.

With regard to children, the Children’s Act 38 of 2005 provides that the father of a child who is not married to the child’s mother acquires responsibilities and rights. These responsibilities and rights include caring for the child, maintaining contact with the child, acting as a guardian of the child, and contributing to the maintenance of the child. Notably, a parent to a child born out of wedlock, regardless of whether he or she lives with that child at the birth of the child, has a duty to maintain that child. Thus there is an absolute legal duty to maintain a child irrespective of their living arrangements.

Cohabitation Agreements

Basically a cohabitation agreement regulates rights and duties between the partners. It could almost be compared to an antenuptial contract entered into prior to the conclusion of a civil marriage. The agreement can provide for the division and distribution of assets upon dissolution, for instance the formal agreement may set out:

• The rights and obligations towards each other;

• The respective financial contributions to the joint home;

• Clarify arrangements regarding ownership of property that they may purchase jointly;

• The division of their jointly-owned assets should they separate.

An agreement such as this will be legally binding as long as it contains no provisions that are immoral or illegal. If there is no agreement on the dissolution of a domestic partnership agreement, a party would only be entitled to retain those assets which he or she has purchased and owns and further would be entitled to share in the assets proportionately in terms of the contribution which they have made to the partnership.

Problems arise with the enforcement of a domestic partnership agreement – express or implied – where the partner being sued is still legally married to a third party. It has been argued that in such cases domestic partnership agreements violate public policy to the extent that they impair the community of property rights (where applicable) of the lawful married spouse.

Domestic Partnerships Bill of 2008

The Bill is still at its formulation stages and it remains to be seen how it is to be implemented. In the current constitutional dispensation it is unlikely that a partner will be left in despair taking into account the Domestic Partnerships Bill.

Bertus Preller is a Divorce and Family Law Attorney who acts in Divorce matters in Cape Town, Johannesburg, Durban and Pretoria and has more than 20 years experience in law and 13 years as a practising attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. in Cape Town. Bertus is also the Family Law expert on Health24.com and on the expert panel of Law24.com. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters and international divorce law.

DIVORCE AND FAMILY LAW ATTORNEY CONSULTS IN CAPE TOWN, JOHANNESBURG, PRETORIA AND DURBAN

DIVORCE AND FAMILY LAW ATTORNEY CONSULTS IN CAPE TOWN, JOHANNESBURG, PRETORIA AND DURBAN

Bertus Preller is a Family and Divorce Law Attorney at Abrahams and Gross Inc. and offers expert advice and assistance in all aspects of divorce, separation and family matters. Due to demand he is also now offering weekly consultations in Johannesburg, Durban and Pretoria on all family law related matters. He offers a broad knowledge and years of experience of the whole range of family law issues and consider with you how best to resolve and help you to achieve your aims.

When considering children matters, he aims to assist you in resolving matters in a way that reflects the best interests of the children. His team can help you in preparing agreements to reflect what you would wish to happen should your relationship break down and can help you deal with any litigation arising either from divorce or break down of a relationship.

Whether advising in the context of divorce or separation his team recognise and understands the level of stress and emotional trauma that accompanies the breakdown of a marriage. There approach is to advise and assist in a sympathetic but objective manner. The team are sensitive to the very personal issues involved and are able to recommend suitably qualified professional counsellors/mediators, where appropriate.

DIVORCE

Married couples can dissolve their marriage through divorce. This ends the marriage and the divorced parties can then legally marry again. The divorce process will depend on whether the marriage is a civil marriage or a customary marriage. Civil marriages gets dissolved according to the rules and procedures set out in the South African Divorce Act. Marriages in terms of African Customary Law are dissolved according to the civil law but some of the consequences are determined by custom and tradition. Muslim and Hindi marriages are dissolved in terms of the rites and rituals of the religion.

There are a number of issues that need to be addressed in a divorce, including:

• custody of the children
• access to the children
• maintenance
• dividing up property
• Contested Divorces

Contested Divorces are when the Parties involved cannot reach an agreement. A contested divorce can last anything between 3 months to 3 years and can be extremely expensive financially and emotionally draining.
Many Contested Divorce cases still do not go on Trial and are settled long before they end up in Court. It is extremely difficult to assess the costs of a Contested Divorce, for these matters his team would bill at an affordable hourly rate – as do the other Professional Practitioners who will become involved in this matter – for example Advocates, Psychologists, Private Investigators and the like.

The team is extremely flexible on fees when they act  in a Contested Divorce and negotiate our fees with due cognisance of the client’s income and what the client can afford. Client’s also know exactly what they are in for to enable right from the start.

Uncontested Divorces

This is by far the least expensive process to get divorced and recommended if you have been married for a short time, you don’t have children, you don’t have many assets, and you can talk to each other and reach agreement on the settlement. eDivorce is a DIY divorce servive founded by Bertus Preller. The eDivorce process has two Divorce Plans from which you can choose:

The Silver Plan – R 950 + Sheriff fee of between R 100 – R 150

• All your divorce forms – completed for you by the eDivorce platform and checked by divorce experts

• Step-by-Step Guide -W ritten in plain English and easy to follow

• Fast Service – Documents delivered within 24 hours guaranteed

The Gold Plan – Managed Divorce Service – R 6 000 all inclusive

• The price you pay is fixed from the start of your case and includes everything you will need.
• Why choose our Gold Plan Managed Divorce Service?
• No complicated form filling – We will do that for you.
• All your required divorce documents-Prepared and completed by divorce specialists
• 7 day a week service- We are open when it is convenient for you.
• All documents filed at court for you – We deal with all the filing and admin.
• Settlement Agreements are catered for- We can help you, with or without children
• Get a Free Will – For both Husband and Wife if you need one.
• Divorce in 4 to 6 weeks -Fast service guaranteed.
• Attorney supervised – All services supervised by an Attorney
• Appearance at Court – We appoint an Attorney or Advocate to appear on your behalf at Court.
• Professional and Trustworthy
• Save over R 2000 – Fixed fee for all the work

DIVORCE MEDIATION

The court system is the way disputes are decided, but there are now more effective and very different ways of resolving conflict than just going through our courts. Mediation is a voluntary and confidential process in which a mediator facilitates communication between the parties, assists them in identifying the issues to be settled and helping them reach a mutually agreeable resolution for their dispute. We specialize in mediating divorce and family issues.

Mediation can guide a couple through the many complex processes of divorce and can help them to make decisions regarding the division of their assets, custody, visitation rights and child support. We can also mediate and draft a Parenting Plan, offering a framework for divorced parents to help them to stay close to their children after the inevitable separation.

MAINTENANCE

We assist clients in both maintenance claims in regard to a spouse as well as the children. When a couple get divorced, one party is often in a much better financial position than the other. In order for a court to award maintenance to a spouse there must be a need for such maintenance and an ability to pay. In case of maintenance of children both parents have a duty to support their children having due regard to their financial positions.

RULE 43 APPLICATIONS

We assist clients in obtaining maintenance pending the finalisation of the divorce proceedings. A Rule 43 Application is an interim application which is brought mainly in cases of contested divorces in order to obtain interim relief pending finalisation of the divorce. The relief which can be requested include maintenance for the wife, maintenance for the children, interim custody and control or access to the children and interim contributions towards legal costs.

MATRIMONIAL PROPERTY & PROPRIETARY CLAIMS

We assist clients with advice regarding the proprietary claims in their marriage. In a marriage in community of property, division of the joint estate is a natural consequence of a divorce. Forfeiture of benefits of the marriage in community of property can however be claimed by a party. The court would have regard to various factors i.e. the duration of the marriage, circumstances leading to the breakdown, misconduct of one of the parties etc.
Where the marriage is out of community of property specifically excluding the cruel system and entered into after 1 November 1994, on dissolution of the marriage in essence each spouse retains his or her own separate assets. There are, however various other potential claims which may be instituted based on moneys loaned and advanced, universal partnerships etc. Where a marriage is out of community of property without the accrual and entered before 1 November 1984 a redistribution order in terms of section 7 (3) of the divorce Act can potentially be claimed by a successful party. In order to be successful, a party must satisfy the court that he or she contributed directly or indirectly to the increase of the estate of the other.

Where the marriage is out of community of property subject to the accrual system the net assets of each spouse is determined. Any assets specifically excluded from the operation of the accrual in the Antenuptial Contract are excluded from the calculation.

Any commencement value, increase in accordance with the rise in the Consumer Price Index (CPI) from date of marriage to date of divorce, is deducted from the accrual to each party’s estate. The net results (estates) of each party are considered and the lesser net accrual deducted from the greater.

The net difference between the parties is then divided in two or in such other ratio as the parties may have agreed in their Antenuptial Contract and the party showing the greater accrual shall pay the other such amount in settlement of the patrimonial consequences of the marriage.

FAMILY – DOMESTIC VIOLENCE AND ABUSE INTERDICTS

We assist clients in obtaining protection orders under the domestic violence act in cases where domestic violence has been committed. Domestic violence includes physical abuse, sexual abuse, and emotional, verbal and psychological abuse.

It further includes intimidation, harassment, stalking, and damage to property, entry into someone’s residence without consent where the parties do not share the same residence or any other controlling or abusive behaviour towards the complainant.

VISITATION – CUSTODY AND ACCESS

We assist clients in every aspect of obtaining custody, access and/or visitation rights as well as drafting proper parenting plans in terms of the new Children’s Act. We also assist clients to obtain endorsement of Settlement Agreements at the family advocate where children’s rights are at stake.

ADOPTION

Adopting a child in South Africa is a complex matter. We work in conjunction with social workers in private practice who offers personalised and professional services four South African and International adoptions.

COHABITATION AGREEMENTS

In an age when one out of every three marriages fails, parties with a trail of prior relationships and marriages behind them may prefer to live together, rather than get married to each other. These couples and same-sex or heterosexual partners who choose not to get married should sign a domestic partnership ( life partnership or cohabitation) agreement to protect themselves should their relationship come to an end.

PARENTING PLANS

We assist both divorced couples and unmarried couples with formulating parenting plans that is in the best interest of their minor children.

PRIVATE INVESTIGATIONS

We assist clients in investigations regarding matrimonial services such as a cheating spouse. We formed an alliance with a reputable private investigation organisation which is based nationally who can investigate any matter notwithstanding whether it is of a matrimonial or financial nature.

Bertus Preller is a Divorce and Family Law Attorney in Cape Town and has more than 20 years experience in law and 13 years as a practising attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. in Cape Town. Bertus is also the Family Law expert on Health24.com and on the expert panel of Law24.com. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters and international divorce law.

Divorce and Finances some Tips by Divorce Attorney Bertus Preller

You wouldn’t think that a divorce attorney would be the first person to give advice on how best to prevent a divorce, but then, Bertus Preller, Family and Divorce Law Attorney at Abrahams and Gross Inc. in Cape Town isn’t your average divorce attorney. He is one of the most prominent divorce attorneys based in South Africa, having handled many high-profile divorces of television personalities, artists and sportsmen and being the founder of SA’s largest online divorce platform eDivorce, he is certainly in the mix of everything when it comes to Divorce and Family Law in South Africa.

Preller shared some advice when interviewed by newsbreak.

The success or failure of your marriage relationship may hinge on how well you deal with issues such as finances, sexuality, communication, conflict, parenting, in-laws, leisure time, family of origin, spirituality, expectations, and chores.

When exactly is the best time to begin talking seriously about finances with your partner?

To me, the finance talk is a pretty comprehensive discussion about how you and your partner will handle the money that comes in and goes out of your life. If you come from two different “schools” on this topic, it can be a difficult discussion to have. For someone that’s more of a “spender” they may try to deflect having the conversation at all.  You have to talk about finances at two points in the relationship. The first is when you decide to move in together and blend households, and the second is if and when you merge finances. One should never wait when things are starting to get crappy and you’re already bickering about money. When things are harmonious, you sit down and talk about these things; it will engender feelings of love and trust. You just don’t do it when things are in turmoil.

What specifically should be discussed?

If you have credit card debt, what are your thoughts on it?  Is it something you view as a part of life, or is it somewhere in the future to get it paid off? If one has it and one doesn’t, will it be paid off jointly?

How do you feel about purchases that you can’t afford? Do you go into debt to get them or do you wait until you can pay for them?

How will your finances be set up? Will everything become joint, or remain separate?

How does each spouses’ salary come into play? If one makes more than the other, does that change the makeup of the financial relationship? Meaning, will that person have more say in financial decisions, or not?

I recently read an interview with Laura Wasser a prominent Divorce Lawyer in the United States who highlighted a couple of good pointers.

“Family. How much time and money are you going to want to spend on existing family? Do we want to start our own?

Hobbies. What about if he is a golfer and he goes on these extremely expensive golf trips and her hobby is painting and she buys a few oil paints every 3 years. I mean, those are the kind of things that need to be discussed.

Travel. I mean, obviously if you guys have been dating for a while, you’re going to know what each of you likes–is he a backpacker? Are you a spa girl? But at the same time, there are plenty of people who say, ‘look, I’m 40 years old, I don’t ever want to fly anything but business class again.’ That should be discussed.

Shopping. I still know women who have been married for years, but when they come home from a shopping trip they hide their bags in the car until their husband has gone out, and then they kind of bring them in piecemeal, and unwrap them and take tags off because they don’t want their husbands to know what they’ve been purchasing. So shopping–what’s the expectation?

Entertaining and Entertainment. If you’re going to have his work people over, your work people over, are you going to cater? Cook? If you have children, what are their birthday parties going to be like? Is he going to be offended if you want to have the birthday party catered or valet parking? And what are the expectations for spending on entertainment outside the home–concerts, movies, theatre, that sort of thing?

Charitable contributions. This is a big one. People like to be able to do what they want to do with their money. Many people have very strong feelings about what kind of charitable contributions they make. It’s important to have a conversation about how much of your income is going be put in there.

Meals. Are you going to cook at home or eat out most nights? If you’re going out, which caliber (and price range) of restaurant? Are you taking packed lunches to work versus doing expensive work lunches or lunches with the girls?

Savings and investments. How much of your income do you want to put away each year? If one person is spending all of their income on clothes, travel, hobbies, and entertaining, and one person is saving it, that may not be quite fair if and when you guys split up, depending on what the law is and what you decided to do.

Estate planning issues. Wills, life insurance policies. This is definitely more a marriage one–something to talk about a little further down the line. Maybe earlier on, you may want to deal with insurance, like auto and health. You don’t want to move in with someone and find out that they don’t have auto or health insurance. That’s a rude awakening.

Gifts. How much are you spending on gifts?

Home décor and home remodelling. Again, what’s the expectation?”

So your advice is taking this list and going through it, just as you would do with a financial planner?

Almost in the same way. Why wouldn’t you have such a conversation with someone you’re sharing your life with instead of with the person who is just getting paid to take care of you?

Why is it so important to have these conversations at the start of a relationship?

You will be amazed sitting from where I sit at the things I hear from people regarding the arguments that they’ve gotten into about finances. Bottom line, these are things that you don’t want to have resentment about later because they haven’t been discussed.

What if the financial circumstances change during the course of the relationship?

You have to constantly re-evaluate your circumstances. Check in either on an annual basis. It’s very interesting to see couples who have been married for a very long time and when and if they split up, one of them would say ‘I just had no idea that the situation was so dire!’ Whether things go up in terms of household economy or down, if you’re in it for the long haul, then you would tighten your belts together, and if things are good, you splurge together. Usually you here the women saying, ‘I’m so embarrassed but you’d have no idea what we spend, I have no idea what my husband makes. I just don’t know. I never worried about it.’ I think if you are going to be in a relationship with someone, you need to be able to share the responsibilities, the knowledge, and the worry. It’s not like it was when our parents or their parents were having lives where the mom worked in the kitchen and the husband worried about it and the wife didn’t know there was any problem. I mean, you should both be aware of what’s going on.

You need to continue to communicate and work together, always remembering you are working towards the same goal. You can do this by:

• Communicating. As soon as you start avoiding talking about money with your spouse, or hiding new purchases then you are going to deviate from the plan, and it will be hard to get back on track.
• Having money discussions. Instead, of ignoring issues with your finances, talk about it with your partner and if something isn’t working, work out why. You’ll then be able to find a solution together, and that is what marriage is all about.
• Monitoring net worth. Your net worth is a good indicator of how well you are sticking to your budgets and financial plans, and as a couple you should revisit your net worth each month to make sure it is going up and not down.
• Revisiting your goals and plans. It is all very well to make plans for the future, but we all know that unexpected events can pop up and change these plans. Therefore, make sure you continue to track your progress towards your goals, and readjust your ideas for the future if necessary.

About Bertus Preller

Bertus Preller is a Divorce and Family Law Attorney in Cape Town and has more than 20 years experience in law and 13 years as a practising attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. in Cape Town. Bertus is also the Family Law expert on Health24.com and on the expert panel of Law24.com. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters and international divorce law.

http://www.divorceattorney.co.za

Cohabitation Agreements in South Africa

Cohabitation Agreements

None of the consequences of a marriage automatically ensue if partners simply live together. Thus life partners do not automatically have the right to share in the other’s property during or after the relationship. Life partners are able to use contracts to achieve a measure of protection as against each other as well as against third parties. They may for example purchase assets jointly, or jointly enter into lease agreements, credit agreements etc. in such cases the terms of each contract will determine the rights, duties and obligations of each of the life partners. Usually the life partners are the joint owners of the assets acquired and joint debtors in respect of the obligations incurred.

Where the life partners are the joint owners neither of them can exclude the other from using or controlling such assets. Unless they have entered into a partnership agreement either of them may alienate his/her own share of the jointly owned assets without the other’s consent. If the life partnership breaks down and the life partners can’t agree how to divide the assets either of them may institute the action communi dividundo in which event the court will then appoint a receiver or liquidator to divide the assets.

It is best that life partners regulate their rights in terms of a cohabitation agreement. In this agreement they may for example undertake that they will maintain each other while the relationship lasts, agree to posy separation maintenance, regulate ownership of the property each of them owned before the start of the relationship, agree on property acquired after the relationship started, agree on occupation of the common home during the relationship and after termination and so forth.

Partners living together should enter into a cohabitation agreement. I have dealt with numerous disputes over the years where partners terminated a relationship with or without an agreement in place and it is usually where there is no agreement in place that the turmoil starts.

Bertus Preller

Family and Divorce Law Attorney

Abrahams and Gross Inc.

 

Troubreuk – die Sunette Bridges saak

VAN JAARSVELD v BRIDGES 2010 (4) SA 558 (SCA)

Hierdie saak het gegaan oor ‘n eis vir skadevergoeding ingestel word deur sangeres Sunette Bridges (Respondent), teen Mnr Deon Van Jaarsveld (Applikant), op grond van ‘n verbreking van ‘n belofte om met haar te trou.

Die partye het op 29 Julie 2005 verloof geraak. Die huwelik was vir 14 Januarie 2006 bestem. Van Jaarsveld het die verlowing verbreek in ‘n sms aan Bridges op 4 Desember 2005 en meegedeel dat hy nie meer bereid is om voort te gaan met die troue nie. (Alhoewel die partye het telefoniese kontak gehad het, was hulle gewone modus van kommunikasie per sms.) Hy het geskryf dat: hy jammer is oor sy besluit, maar kon nie lieg nie en dat hy nie dieselfde oor haar gevoel het as in die verlede nie. Hy kon nie met haar trou in lig van sy huidige gevoelens nie en hy kon homself nie bluf nie. Hy het bygevoeg dat hy geweet het dat haar ma die sms sou lees en hy het ook om verskoning gevra teenoor haar. Hy het afgesluit deur te sê dat Bridges is ‘n pragtige mens. Hierdie sms is voorafgegaan deur ‘n e-pos gestuur aan Bridges vroeër die dag waarop hy uiting gee aan sy bedenkinge oor die troue. Sy het gereageer deur ‘n e-pos om sy besluit te heroorweeg. Hy het gereageer deur die stuur van die voornoemde sms. Die volgende dag het hy haar gehelp met die uitstuur van die uitnodiginge maar op 6 Desember, het hy haar ingelig:

“Ek is so jammer dat alles so ver laat gaan het, ek is jammer as ek jou siener maak, maar ek is nie opgewonde nie en dit is nie reg nie. Ek kan nie met jou trou nie”.

Bridges het die verwerping aanvaar en op 9 Desember haar prokureurs opdrag gegee om ‘n aanmaning vir ‘n eis om skadevergoeding van meer as R1 miljoen. Dagvaarding is gedurende Februarie 2006, uitgereik vir R678 203,08. Sy het ook dagvaarding uitgereik teen sy moeder, maar die saak het nie voort te gaan nie.

Agtergrond Feite

In haar dagvaarding het Bridges aangedui dat sy ‘n sanger ‘n liriekeskryfster en promotor, en het sy haarself gesien as ‘n potensiële radio en televisie persoonlikheid. Sy het ‘n relatief suksesvolle loopbaan gehad, maar haar sukses aldus die hof was deels te wyte aan die feit dat sy die dogter is van Bles Bridges,’ n bekende romantiese sanger wat ‘n paar jaar gelede gesterf het.

Sy het ook ‘n aantal huwelike agter haar rug gehad. Terwyl getroud was  met haar vierde man het haar “betrokkenheid” met Van Jaarsveld begin. Sy het ook twee kinders. Die hof het opgemerk sonder enige relevansie dat binne minder as ‘n maand en voor die dagvaarding uitgereik was, sy reeds ‘n nuwe minnaar gehad het.

Van Jaarsveld was jonger en nooit getrouf nie. Hy het geboer op ‘n familie plaas. Hy het geen aanspraak op die plaas gehad nie, maar slegs die verwagting van ‘n erfenis van die plaas of deel daarvan. Sy familie, veral sy moeder, was nie opgewonde oor die verhouding nie, veral oor Bridges se “track record” met mans aldus die hof oorkonde. Sy het nie gehou van Bridges se waardes nie en het haar kleredrag as onwelvoeglik beskou. Daar was ‘n diep botsing van beginsels. Sy het ook gedink dat Bridges wou net met haar seun trou vir geld, wat blykbaar in ieder geval behoort het aan die familie.

Deur die aard van haar loopbaan en die baie mans, het Bridges se betrokkenheid by Van Jaarsveld baie media-aandag gelok en sy was gewillig om ‘n aantal onderhoude toe te staan, selfs voor hul verlowing en meegedeel dat dinge anders sou wees hierdie keer. Sy het ook aangedui sy gaan nie nog ‘n Elizabeth Taylor  wees nie. Sy was oppad na haar vyfde huwelik en die koerante het bespiegel of die ene sou werk.

Bridges was bewus van die feit dat sy was nie aanvaarbaarwas vir sy familie nie en sy het hom voor ‘n keuse gestel om te kies of sy moeder of sy. Sy ma weer op haar beurt het Van Jaarsveld voor ‘n keuse gestel.

Die hooggeregshof het skadevergoeding van meer as R282 000 aan Bridges toegeken, maar Van Jaarsveld is appèlhof toe, waar vyf regters in ’n rigtinggewende uitspraak ten opsigte van troubreuk-eise beslis het Van Jaarsveld hoef Bridges nie ’n sent te betaal nie.

Die beslissing deur Hof

Die Hof was van mening dat die historiese benadering tot ‘n verlowing verouderd was en dat dit nie meer inpas met die mores van ons tyd nie en dat die openbare beleid vereis het dat ons howe die reg ten opsigte hiervan moes hersien, veral waar ‘n belofte om te trou verbreek word.

Die appèlregters het onder meer verwys na “me. Bridges se geskiedenis, haar vinnige herstel in die arms van ’n ander man, haar ywerigheid om skadevergoeding te eis en die gebrek aan die vooruitsig op ’n gelukkige huwelik”.

Met dié bevinding het die appèlregters die geykte reg in verband met troubreuk-eise aansienlik gewysig sodat sulke eise voortaan nie baie maklik toegestaan sal word nie.

‘n Verbreking van ‘n verlowing kan aanleiding gee tot twee verskillende eis oorsake. Die een is die actio iniuriarum. Die tweede eis is op grond van kontrakbreuk. Die eerste aspek wat die hof ontleed het was dat ‘n velowing verbreek kon word sonder finansiële gevolge indien daar is ‘n regverdige rede was vir die verbreking.

Die hof was van mening dat: “Just cause is usually defined as any event or condition or actions of the other party which would jeopardise a long and happy marriage and which could induce any right-minded member of society to rescind the engagement. The origin of this restricted meaning is to be found in Canon Law and Germanic Law influences at a time when churches controlled the lives of people, when a woman was deemed to be of a lower status than a man, and when a party to a promise to marry could be obliged to marry by an action for specific performance. The world has moved on and morals have changed. Divorce, which in earlier days was available in the event of adultery or desertion only, is now available in the event of an irretrievable breakdown of the marriage. Guilt is no longer an issue. There is no reason why a just cause for ending an engagement should not likewise include the lack of desire to marry the particular person,  irrespective of the ‘guilt’ of the latter. Unwillingness to marry is clear evidence of the irretrievable breakdown of the engagement. It appears illogical to attach more serious consequences to an engagement than to a marriage. The second aspect that has to be considered in the context of contractual damages is the justification for placing an engagement on a ‘rigid contractual footing’. It is difficult to justify the commercialisation of an engagement in view of the fact that a marriage does not give rise to a commercial or rigidly contractual relationship. It cannot be accepted that parties, when promising to marry each other, contemplate that a breach of their engagement would have financial consequences, as if they had in fact married. They assume that their marital regime will be determined by their wedding. An engagement is more of an unenforceable pactum de contrahendo providing a spatium deliberandi – a time to get to know each other better and to decide whether or not to marry finally”.

Aldus die hof moes daar onderskei word tussen eise vir toekomstige skade en die vir werklike skade. Dit is nie maklik om eise vir toekomstige skade te regverdig nie en howe kan derhalwe nie daaroor spekuleer nie. Eise vir die werklike skade is makliker om te regverdig maar moeilik om te rasionaliseer in terme van gewone beginsels met betrekking tot die berekening van skadevergoeding in die geval van kontrakbreuk.

Bridges het hierna ’n aansoek om appèl in die konstitusionele hof gevra dat die appèlregters se uitspraak hersien en tersyde gestel word.

Tien regters van die konstitu­sionele hof het Bridges se aansoek oorweeg en kort en kragtig korte mette daarvan gemaak.

“Ons het die aansoek oorweeg en tot die gevolgtrekking gekom dat dit verwerp moet word omdat daar geen vooruitsig op sukses is nie.”

Bridges se eis is toe afgewys met koste.

Saamgestel deur:

Bertus Preller

Family Law Prokureur

Abrahams en Gross Inc

http://www.divorceattorney.co.za

bertus@divorceattorney.co.za