Cohabitation and Living Together

Gone are the days of “single” or “married”. You only have to look at Facebook’s relationship declaration options to know that today’s partnerships come in all shapes and sizes. But what are the financial risks of being involved in a long-term relationship that is not formally recognized as a marriage?

Patterns of marriage, divorce and cohabiting without marriage had been changing for years. The incidences of domestic partnerships are growing throughout the world, according to the 1996 census, 1.3million people described themselves as living with a partner. When the 2001 census came around, this figure had almost doubled to nearly 2.4million. Many people believe that, if they live together for some time, the relationship will be recognized by the state, and there will be legal rights, duties and protection. But there was no such thing as common-law marriage – because the concept has been abolished worldwide. The time 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 their relationship.

Domestic partnerships were never prohibited in South African law – but neither did they enjoy any noteworthy recognition or protection. In SA, marriage laws traditionally provided parties 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, and also meant that certain benefits 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. South African courts had occasionally helped couples by deciding that an express or implied universal partnership existed, but this was usually difficult to prove. 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 also serves as an early warning of future problems.

A cohabitation agreement will determine what would happen to the 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.

However, in terms of the 2005 Children’s Act, the parents of children born out of wedlock had a duty to maintain their offspring, irrespective of the living arrangements. 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 and 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. However, problems arose if a partner tried to enforce a domestic partnership agreement if the partner being sued was married to someone else. 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.

The Domestic Partnerships Bill was still being formulated, and it wasn’t clear how it would 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. My advice would be for cohabiting couples to enter into a contract – a written partnership agreement that states exactly what will happen in the event of death or a split, protecting their rights and outlining their obligations. For example, when it comes to the ownership of property, the contract should state what happens to ownership of the property (such as one spouse buying out the other) or payments in the event of death or a split. Putting any relationship into writing is always helpful, even if it’s just adding someone on your medical aid as a dependant. “Having said that, in the event of death, having a will is always the best idea. Out of the bounds of a legally recognised marriage there is no intestate succession – meaning there is no automatic participation in the estate to make sure the other partner is looked after. Joint accounts never a good idea Money is one of the most important matters a couple needs to resolve when contemplating living together or marriage. One issue that often comes up in these kinds of discussions is whether to have a joint bank account. In many ways, this can seem like an appealing option. However, most financial experts don’t recommend having a joint account at all.

One never encourage a joint account because whether you are married or living together, you both need to grow your assets and get a good credit rating. Having a joint account invariably makes it difficult for one of the partners to do so. Besides, a joint bank account puts one partner at great risk in the event of a break-up, death or financial difficulties. There is no joint bank account with two equal account holders. A ‘joint’ account is actually an account in one person’s name, to which the other person is a signatory. This causes a number of complications for that signatory. The most important of these is that without a bank account in your name, you will have no credit record at the bank – which makes it difficult to get credit at shops, open a cellphone account or apply for a loan. In the event of a break-up, the joint account could be emptied by one partner or the person in whose name the bank account is held could remove the second signatory. If one partner dies, banks tend to freeze the account until the estate is resolved – leaving the signatory partner with no access to the funds for an extended time. One should advise couples to split responsibility for monthly expenses, or open an account for the household into which both pay a portion of their salaries for general expenses.

Who gets your pension? There are typically two types of benefits payable to “spouses”. Firstly pensions, which are payable to those who qualify as spouses – and that would depend on how each fund defines an ‘eligible spouse’: people must check the fund rules to see if their partner/spouse would qualify. Fund rules may stipulate that you must be married to the same person at date of retirement and date of death for them to qualify for a spouse’s pension. This prevents so-called ‘death-bed marriages’ where a pensioner marries someone much younger than them after they have already retired – and on their death the fund realises that there is a much younger spouse to whom they have a liability to pay a pension for many years.

The second benefit type is the typical fund benefit (fund credit or share of fund) plus an insured multiple of a salary (three times annual salary, for example). This is allocated by the trustees, to your dependants and nominees. A dependant includes a spouse; the Pension Funds Act defines a spouse as a person who is the permanent life partner or spouse or civil union partner of a member in accordance with the Marriage Act, Recognition of Customary Marriages Act, Civil Union Act or the tenets of a religion. A very wide definition. To ensure that no partner is overlooked, the pension fund member should always nominate a beneficiary in the relevant form to help the trustees – although trustees are not absolutely bound to follow that nomination. Unfortunately, when it comes to death and money such decisions by fund trustees are often contested.

Here is a very basic Cohabitation Agreement:

Cohabitation Agreement

The following form is intended for illustrative purposes only. You and your attorney can use this sample as a guide in drafting a cohabitation agreement that best protects your interests and complies with the laws in effect where you live.

Why do I need a Cohabitation Agreement?

A Cohabitation Agreement sets out the financial terms of a couple’s relationship, and provides protection for the parties upon death, or should the relationship fail. 

Who should use a Cohabitation Agreement?

Any unmarried couple in a relationship and living with each other could find this agreement useful.

Also known as:

• Conditions of Cohabitation
• Cohabitation Contract

It is advisable that you contact an attorney in regard to drafting such an agreement.

COHABITATION AGREEMENT

Between

(The 1^st Party)

and

(The 2^nd Party)

PREAMBLE

WHEREAS

1.  The parties are currently living together in a domestic partnership and intend to continue living together in this arrangement;

2.  The parties wish to define their respective proprietary rights and liabilities arising from their domestic partnership arrangement;

3.  The parties each acknowledge that they enter into this agreement voluntarily, without any duress or undue influence, and that each has had the opportunity to consult with an attorney of his/her choice;

 

 

THE PARTIES AGREE:

 

1.         Marital Status

The joint residency of the parties shall in no way render the parties married in any way, whether by operation of common law or any other law.

2.         The Agreement

2.1       This Agreement consists solely of the mutual promises contained herein and the mutual promises of each party to act as the living companion and partner to the other.

2.2       This Agreement fully contemplates and compensates any and all services provided by either party for the benefit of the other during the course of their joint residency. The furnishing of sexual services shall in no way be construed as consideration for this Agreement.

3.         Disclosure of Current Financial Status

Each party has fully and completely, to the best of his/her knowledge, disclosed to the other party his/her current financial condition including all assets and liabilities. Each party has attached a balance sheet to this agreement indicating his/her current assets and liabilities with the understanding that this balance sheet reflects his/her current financial status to the best of his/her ability.

4.         Division of Living Expenses

Necessary and jointly approved living expenses shall be divided between the parties as below:

4.1       The 1^st Party shall contribute _____________ percent ( ____%) per month;

4.2       The 2^nd Party shall contribute _____________ percent ( ____%) per month.

The parties shall contribute their monthly pro rata contributions into the joint savings/current account of the parties. Any property purchased using funds in this account shall be considered to be the joint property of the parties and owned according to the respective party’s percentage of contribution as stated above. Either party may draw upon this checking account.

5.         Separate Property

The following properties shall be kept by the parties as the separate property of the recipient and the said properties shall not be subject to division at the termination of this Agreement:

5.1       All and any property, real or personal, owned by a specific party at the date of execution of this Agreement;

5.2       Individual gifts, bequests or inheritances acquired before or after the execution of this Agreement;

5.3       Individual earnings, salary or wages acquired before or after the execution of this Agreement;

5.4       All income or proceeds derived from the aforementioned properties.

6.         Commingling of Property

All commingled property shall be presumed to be joint property of the parties unless otherwise agreed.

7.         Joint Property

All property acquired by the parties after the date of execution of this Agreement and before the termination of this Agreement and procured jointly with joint resources and funds shall be considered joint property of the parties with each party possessing his/her aforementioned percentage of ownership.

8.         Division of Property upon Termination

Upon termination of this Agreement or termination of the joint residency, all jointly owned property shall be divided among the parties according to their pro rata share listed above.  If the parties are unable to agree on the appropriate division of joint property, they may appoint an independent and mutually agreed upon Third-party to act as Appraiser.  The Appraiser shall divide the property among the parties according to his/her pro rata share.

9.         Duty of Good Faith and Confidentiality

9.1       This Agreement creates a fiduciary relationship between the parties in which each party agrees to act with the utmost of good faith and fair dealing toward the other in the management of their joint property and in all other aspects of this Agreement.

9.2       Without obtaining a parties’ written consent in advance, a party shall not directly or indirectly publish, or cause to be published, any diary, memoir, letter, story, photograph, interview, article, essay, account, or description or depiction of any kind whatsoever, whether fictionalised or not, concerning the relationship or any other aspect of a parties’ personal, business or financial affairs, or assist or provide information to others in connection with the publication or dissemination of any such material or excerpts thereof.

10.       Legal Names of Parties

Each party shall retain his/her legal name, including surname, as printed and signed in this Agreement.

 

11.       Duration of Agreement

This Agreement shall become effective at the date of execution and shall remain in effect until termination. Termination shall be effected by written notice by either party, cessation of the joint residency by either party or death of either party.  Either party may terminate this Agreement unilaterally at any time.

12.       Death of Party

Upon the death of either party, the surviving party waives all rights to support by the deceased party.

13.       Complete Agreement

It is the intent of the parties that this Agreement be the full and complete agreement between the parties regarding their joint residency.  No variation of this agreement shall be of force or effect unless reduced to writing and signed by both parties.

14.       Severability of Provisions

Should any paragraph or provision of this Agreement be held invalid, void, or otherwise unenforceable, it is the intent of the parties that the remaining portions shall nevertheless continue in full force and effect without impairment.

15.       Governing Law

This Agreement shall be governed by, interpreted and construed in accordance with the laws of the Republic of South Africa.

DATED at                                     this                  day of                                    201_

AS WITNESSES:

 

1.

 

2.

 

DATED at                                     this                  day of                                    201_

AS WITNESSES:

 

1.

 

2.

About the author:

Bertus Preller is a Divorce and Family Law Attorney in Cape Town and has more than 20 years experience in most sectors of the law and 13 years as a practicing 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 and is frequently quoted on Family Law issues in newspapers such as the Sunday Times and Business Times. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Parenting Plans, Parental Responsibilities and Rights, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters, international divorce law, digital rights, media law and criminal law.

Email: info@divorceattorney.co.za

How not to tell your spouse you want a divorce

The cruellest way you can tell your spouse you want out of the marriage is to never mention that you are unhappy and then, one day quite out of the blue say, “I’m not happy. I want a divorce.” I call this a “hit and run” way to tell your spouse you want out of the marriage and, in my professional opinion, it is the most hurtful, hateful and heinous way to exit your nuptials.

Those on the receiving end of this proclamation would surely agree with me. A hundred per cent of the people who come to see me after their spouse has dropped this two ton bomb on them have been nothing short of devastated, bleary eyed and incapacitated–often for a long time. What, when and how you tell your spouse you want a divorce will depend greatly on whether the two of you have had any previous conversations about divorce.

Couples who have been mutually unhappy or have had conversations using the “D” word will obviously be less thrown off than those who didn’t see it coming. One woman described the day she was told this way: “My biggest concern that morning as we went to work was what we would be having for dinner that night.” She had no idea that her husband was even unhappy, let alone that he was thinking of leaving. It makes me wonder why so many people take this strategy. What could they be thinking? Or not thinking? Feeling? Or not feeling? While there are always exceptions to any rule, I have seen five main reasons why “hit and runs” are so prevalent. I’ve also included rebuttals to these reasons that demonstrate how the leaver actually ends up getting the opposite result intended.

1) Fear: If I tell him I’m unhappy, he will go to pieces and I’ll feel guilty Where’s the logic here? Do you not see that if you LEAVE suddenly he will be more likely to go to pieces and you will feel more guilty?

2) Selfishness: I don’t care about her feelings. “I just want out!” Treating someone with this level of disrespect and disregard actually keeps you in longer and stronger because the person you are leaving is in shock and often can’t/won’t accept the fact that you really mean what you are saying and that you want out.

3) Impatience: I just want to get this over with! Again, the chances of exiting quickly or gracefully diminish drastically when you give your spouse no warning of your departure. Your spouse, who may be just starting the grief process, will delay the process interminably by having to have their emotions “catch up” to yours.

4) Lack of Courage: I’m a “rip the band-aid off quickly” kind of person because I can’t stand to hurt someone If this person had courage, they would have told their spouse way back when that they were not happy. They would have had the courage to do the work it takes on themselves and on the marriage; the courage to face their problems.

5) Sneakiness: Maybe I can live a double life and he’ll never find out It is often people who have been having an affair who take this tack in leaving their marriage. They have set themselves up with a new life and they are ready to move on. I’m sure there are other justifications people can come up with as to why they leave this way, but it only serves to make the process take longer, make the separation more difficult, make your spouse more emotional and perhaps even irrational and it is not the way you treat someone you exchanged vows with.

By Susan Pease Gadoua Author, Contemplating Divorce, A Step-by-Step Guide to Deciding Whether to Stay or Go Original article at: http://www.huffingtonpost.com/susan-pease-gadoua/how-not-to-tell-your-spou_b_820042.html

Compiled by Bertus Preller Divorce Attorney – Abrahams and Gross Inc. http://www.divorceattorney.co.za

Parenting after Divorce, helping your children to cope with divorce

Parenting after Divorce

Following divorce, the role of a spouse ends, yet the role of a parent continues.

The following questions may be helpful –

• How can I be involved in my child’s life?
• How do I manage parenting if my ex spouse and I can’t get along?
• How can I get along with my ex spouse well enough to parent our children together?

Co-parenting means that both parents play an active role in their children’s day-to-day lives. A vital key to successful co-parenting arrangements is how well the parents function. What works best for some divorced parents may not work well for others.

Research has shown that benefits of co-parenting include:

• Children develop stability.
• Children continue relationships with both parents.
• Children are less likely to feel torn between their parents.
• Children are less likely to feel abandoned.
• Children are less likely to feel they have to meet the social and emotional needs of their parents.

In every divorce, parents must recognize the importance of finishing what they started namely raising their children. Divorce is extremely difficult for most children. They benefit when they have relationships with both parents and they tend to adjust better to divorce when:

• Parents don’t place their children in the middle of their conflicts.
• Both parents respond to the needs of their children.
• They have a good relationship with both of their parents.
• Parents don’t argue, especially when their children are present.

Problems between parent and child may result from problems between parents

Problems may develop if parents send messages to each other through their children. Problems also arise when a parent talks negatively about the other parent. Children may feel guilty and unsure of their parents’ love when they’re caught in the middle. If a parent asks about a former spouse, children may report that things are fine, even if they’re not. Or children may say things to make one of the parents feel bad. Again, don’t use your children by putting them in the middle. If you want to know something about your ex-spouse, ask that person yourself.

Parents often disagree on how to discipline their children. When mothers and fathers have different rules, children may not respect either set of limits, or they may use the differences to gain power over parents. For example, a mother may change a curfew and the daughter may say to her father, “Mom lets me stay out until midnight.” It’s important to have clear rules and boundaries in your household. Try not to feel guilty if your rules are different than those of your ex-partner. If you are comfortable with the rules you have set, stick with them. When it seems you and your former-spouse can’t agree on certain issues, it helps to restate common goals.

Helping children adjust

Children can adjust to a variety of living patterns, including living in two homes. How well children adjust depends on whether parents can minimize their conflicts, stop arguing and focus on their children’s needs. When parents can’t agree, tell the children there will be separate rules in each home. It may be frustrating, but it’s important to remember that your children need you to be a strong, positive influence in their lives.

The following books can be recommended on the subject of parenting:

Helping your kids cope with divorce the sandcastles way.

The author will empower you to contain your children’s anxiety and feelings of insecurity and to re-establish a measure of equilibrium as effectively as possible. Using loads of case studies from her extensive files, Anne highlights the following: How, when and where to inform your children in an age-appropriate and honest way; Emotional support for you, the parent; Guidance on effective parenting skills to help your children. The how to of active listening, anger management and clear, firm and consistent boundary setting – all with practical examples.

This revised and updated second edition features ideas from the latest research, more information on long-distance parenting, dealing with the courts, and working with a difficult co-parent. “Parents argue a lot before a divorce,” says Dr. Stahl. “If they continue to argue after the divorce, their children will suffer.” Stahl knows parents are not perfect, and he uses that knowledge to show imperfect parents how to settle their differences in the best interests of the children. Often required reading in court-mandated divorce education classes.

Invaluable parenting advice on how to coparent. during and after divorce, from a sought-after expert on parenting topics. As a court-appointed child custody evaluator for 15 years, Dr. Peter Favaro is uniquely qualified to write this must-have guide for parents going through divorce. A child psychologist, he understands the effects divorce can have on families, especially when difficult exes, lawyers, visitation schedules, and other issues directly affect the child. Favaro addresses 50 essential topics in. short, easy-to-read chapters, including 100 dos and donts that will make things easier on your child–and better for your family.

Compiled by:

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.

Free Sample Cohabitation Agreement

Cohabitation  – Living  Together Agreement

The following form is intended for illustrative purposes only. You and your attorney can use this sample as a guide in drafting a cohabitation agreement that best protects your interests and complies with the laws in effect where you live.

Why do I need a Cohabitation Agreement?

A Cohabitation Agreement sets out the financial terms of a couple’s relationship, and provides protection for the parties upon death, or should the relationship fail. 

Who should use a Cohabitation Agreement?

Any unmarried couple in a relationship and living with each other could find this agreement useful.

Also known as:

• Conditions of Cohabitation
• Cohabitation Contract

It is advisable that you contact an attorney in regard to drafting such an agreement.

COHABITATION AGREEMENT

Between

(The 1^st Party)

and

(The 2^nd Party)

PREAMBLE

WHEREAS

1.  The parties are currently living together in a domestic partnership and intend to continue living together in this arrangement;

2.  The parties wish to define their respective proprietary rights and liabilities arising from their domestic partnership arrangement;

3.  The parties each acknowledge that they enter into this agreement voluntarily, without any duress or undue influence, and that each has had the opportunity to consult with an attorney of his/her choice;

THE PARTIES AGREE:

1.         Marital Status

The joint residency of the parties shall in no way render the parties married in any way, whether by operation of common law or any other law.

2.         The Agreement

2.1       This Agreement consists solely of the mutual promises contained herein and the mutual promises of each party to act as the living companion and partner to the other.

2.2       This Agreement fully contemplates and compensates any and all services provided by either party for the benefit of the other during the course of their joint residency. The furnishing of sexual services shall in no way be construed as consideration for this Agreement.

3.         Disclosure of Current Financial Status

Each party has fully and completely, to the best of his/her knowledge, disclosed to the other party his/her current financial condition including all assets and liabilities. Each party has attached a balance sheet to this agreement indicating his/her current assets and liabilities with the understanding that this balance sheet reflects his/her current financial status to the best of his/her ability.

4.         Division of Living Expenses

Necessary and jointly approved living expenses shall be divided between the parties as below:

4.1       The 1^st Party shall contribute _____________ percent ( ____%) per month;

4.2       The 2^nd Party shall contribute _____________ percent ( ____%) per month.

The parties shall contribute their monthly pro rata contributions into the joint savings/current account of the parties. Any property purchased using funds in this account shall be considered to be the joint property of the parties and owned according to the respective party’s percentage of contribution as stated above. Either party may draw upon this checking account.

5.         Separate Property

The following properties shall be kept by the parties as the separate property of the recipient and the said properties shall not be subject to division at the termination of this Agreement:

5.1       All and any property, real or personal, owned by a specific party at the date of execution of this Agreement;

5.2       Individual gifts, bequests or inheritances acquired before or after the execution of this Agreement;

5.3       Individual earnings, salary or wages acquired before or after the execution of this Agreement;

5.4       All income or proceeds derived from the aforementioned properties.

6.         Commingling of Property

All commingled property shall be presumed to be joint property of the parties unless otherwise agreed.

7.         Joint Property

All property acquired by the parties after the date of execution of this Agreement and before the termination of this Agreement and procured jointly with joint resources and funds shall be considered joint property of the parties with each party possessing his/her aforementioned percentage of ownership.

8.         Division of Property upon Termination

Upon termination of this Agreement or termination of the joint residency, all jointly owned property shall be divided among the parties according to their pro rata share listed above.  If the parties are unable to agree on the appropriate division of joint property, they may appoint an independent and mutually agreed upon Third-party to act as Appraiser.  The Appraiser shall divide the property among the parties according to his/her pro rata share.

9.         Duty of Good Faith and Confidentiality

9.1       This Agreement creates a fiduciary relationship between the parties in which each party agrees to act with the utmost of good faith and fair dealing toward the other in the management of their joint property and in all other aspects of this Agreement.

9.2       Without obtaining a parties’ written consent in advance, a party shall not directly or indirectly publish, or cause to be published, any diary, memoir, letter, story, photograph, interview, article, essay, account, or description or depiction of any kind whatsoever, whether fictionalised or not, concerning the relationship or any other aspect of a parties’ personal, business or financial affairs, or assist or provide information to others in connection with the publication or dissemination of any such material or excerpts thereof.

10.       Legal Names of Parties

Each party shall retain his/her legal name, including surname, as printed and signed in this Agreement.

11.       Duration of Agreement

This Agreement shall become effective at the date of execution and shall remain in effect until termination. Termination shall be effected by written notice by either party, cessation of the joint residency by either party or death of either party.  Either party may terminate this Agreement unilaterally at any time.

12.       Death of Party

Upon the death of either party, the surviving party waives all rights to support by the deceased party.

13.       Complete Agreement

It is the intent of the parties that this Agreement be the full and complete agreement between the parties regarding their joint residency.  No variation of this agreement shall be of force or effect unless reduced to writing and signed by both parties.

14.       Severability of Provisions

Should any paragraph or provision of this Agreement be held invalid, void, or otherwise unenforceable, it is the intent of the parties that the remaining portions shall nevertheless continue in full force and effect without impairment.

15.       Governing Law

This Agreement shall be governed by, interpreted and construed in accordance with the laws of the Republic of South Africa.

DATED at                                     this                  day of                                    201_

AS WITNESSES:

 

1.

 

2.

 

DATED at                                     this                  day of                                    201_

AS WITNESSES:

 

1.

 

2.

 

Compiled by:

Bertus Preller

Family Law Attorney

Abrahams and Gross Inc.

Parenting Plans and Divorce in South Africa

Parenting plans and the Children’s Act in South Africa

A parental responsibilities and rights agreement is a mechanism by which a person who does not have parental responsibilities and rights acquires them by agreement with the child’s mother or another person who has parental responsibilities and rights in respect of the child.

Two categories of persons can acquire parental responsibilities and rights in this way: the first, which is of particular importance in the context of the law of persons, is the biological father who does not have automatic parental responsibilities and rights in respect of his child in terms of s 21 of the Act and has not acquired parental responsibilities and rights by a court order or by marrying the child’s mother or entering into a civil union with her.

Thus, an unmarried father who does not already have parental responsibilities and rights can acquire them by means of a parental responsibilities and rights agreement. The second category is any other person who has an interest in the child’s care, well-being and development (such as a grandparent).

A parental responsibilities and rights agreement confers only those responsibilities and rights that are set out in the agreement and cannot confer more responsibilities and rights than the conferrer has. Thus, for example, a 16-year-old unmarried mother, generally, cannot in a parental responsibilities and rights agreement confer guardianship on the child’s father, as her guardian is the child’s guardian.

The parental responsibilities and rights agreement must be in the format and must contain the particulars prescribed by the regulations under the Act. The agreement is unenforceable until it is registered with a family advocate or is made an order of court on application by the parties to it.

The courts which may make the agreement an order of court are the High Court, divorce court dealing with a divorce matter, and the children’s court within whose area of jurisdiction the child is ordinarily resident. However, if the agreement relates to guardianship only the High Court may confirm it.

Before registering the agreement or making it an order of court, the family advocate or court must be satisfied that the agreement is in the best interests of the child. Once the agreement has been registered or made an order of court, it can only be terminated or amended by the family advocate or the court. If the agreement relates to guardianship, only the High Court may vary or terminate it.

Adoption is another way in which an unmarried father can acquire parental responsibilities and rights. He can adopt his child either as a single parent, or jointly with his spouse, civil union partner or permanent domestic life-partner.

Regardless of whether or not he has parental responsibilities and rights in respect of the child, the unmarried father’s consent is required if another person wants to adopt the child, unless:

(1)          He is incompetent to give consent due to mental illness.

(2)          He has abandoned the child, his whereabouts cannot be established, or his identity is unknown.

(3)          He has abused or deliberately neglected the child, or has allowed the child to be abused or deliberately neglected.

(4)          He has consistently failed to fulfil his parental responsibilities towards the child during the last 12 months.

(5)          A court has divested him of the right to consent to the child’s adoption.

(6)          He has failed to respond to a notice of the proposed adoption within 30 days of service of the notice.

(7)          He failed to acknowledge paternity in the manner prescribed by the Act.

(8)          The child was conceived as a result of incest.

(9)          Following an allegation by the child’s mother, the children’s court has found on a balance of probabilities that the child was conceived as a result of rape.

Grounds (1) to (6) above apply equally to the unmarried mother of the child. Further, if either parent unreasonably withholds consent to the child’s adoption, his or her consent can be dispensed with and the adoption order granted if the court finds that the withholding of consent is unreasonable and the adoption is in the best interests of the child.

If more than one person has parental responsibilities and rights in respect of a child, a parenting plan may be needed. A parenting plan is an agreement in which co-holders of parental responsibilities and rights make arrangements on the way in which they will exercise their respective responsibilities and rights.

If co-holders of parental responsibilities and rights experience difficulties in exercising their parental responsibilities and rights, they must try to agree on a parenting plan before seeking court intervention.

Thus, for example, if both unmarried parents have parental responsibilities and rights, they must attempt to enter into a parenting plan if they disagree on the exercise of these responsibilities and rights. In preparing their parenting plan, they must seek the assistance of a family advocate, social worker or psychologist, or mediation through a social worker or other suitably qualified person.

Co-holders of parental responsibilities and rights may enter into a parenting plan even if they do not experience difficulties in exercising their responsibilities and rights, but then they need not seek the assistance of a family advocate, social worker or psychologist, or mediation by any person. A parenting plan must be in writing, be signed by the parties and comply with the best interests of the child standard as set out in s 7 of the Act.

Bearing in mind the child’s age, maturity and stage of development, he or she must be consulted during the development of the parenting plan, and he or she must be granted an opportunity to express his or her views. Those views must be accorded due consideration.

Once a parenting plan has been agreed on, the family advocate, a social worker, social service professional, psychologist or suitably qualified person, or the child’s legal representative must inform the child of the contents of the plan, bearing in mind the child’s age, maturity and stage of development.

The plan may be registered with a family advocate or be made an order of court. A parenting plan that was registered with a family advocate may subsequently be amended or terminated by the family advocate upon application by the parties to the plan.

If the parenting plan was made an order of court, it may be amended or terminated only by another order of court. The co-holders of parental responsibilities and rights who are parties to the plan, the child (with the court’s consent), or any other person acting in the child’s interests and with the court’s consent may apply for the amendment or termination.

Finally, in respect of a minor’s capacity to act, and specifically his or her capacity to consent to medical treatment and an operation, s 129 should be noted. It provides that a child who is below the age of 12 years may not have medical treatment or an operation without his or her guardian’s consent.

Consent is also needed if the child has already turned 12 but is immature and does not have the mental capacity to understand the benefits, risks, social and other implications of the medical treatment or operation.

If the child is older than 12 and sufficiently mature and has the mental capacity to understand the benefits, risks, social and other implications of the operation, he or she still needs the assistance (but not the consent) of his or her guardian for an operation on himself or herself or his or her child.

If the guardian unreasonably withholds consent, refuses to assist the minor, is incapable of consenting or of assisting the minor, cannot readily be traced or is deceased, the Minister of Social Development may give consent.