Divorce Attorney Cape Town

Cohabitation: Can pension benefits be shared?


Partners that live together in relationships outside the current legislative framework (Cohabitees) relating to marriage or civil unions are presently afforded minimal legal protection. Cohabitees are advised to draft a cohabitation agreement to regulate the terms of their cohabitation. Such and agreement will determine the division of their property on termination of the relationship, as well as the division of the assets jointly acquired by the parties during the cohabitation.

If a relationship between partners in a cohabitation agreement terminates, and in the absence of agreement between the parties as to the financial and proprietary consequences, each party would walk away with the assets he/she brought into the relationship and with what he/she acquired in his own name, regardless of whether or not the assistance of the other party enabled him to acquire an asset or increase the value of it. The courts have often come to the aid of a disgruntled partner who was left with nothing and in some instances recognised that a universal partnership can come into being between cohabitees. This provides a mechanism whereby assets can be shared. But it is extremely difficult to prove.

A universal partnership will exist if the following essentials are present:

  • Each of the partners brings something into the partnership.
  • The business is carried on for the joint benefit of the parties.
  • The object of the partnership should be to make a profit.
  • The contract should be a legitimate one.

It is a question of fact whether a universal partnership can be said to exist in a given set of circumstances. In a recent judgment the Supreme Court of Appeal confirmed the principles relating to universal partnerships in the context of two people cohabiting. In that case the cohabitees lived together for years. The court held that a universal partnership did exist between them as each party brought something into the partnership, the partnership was carried on for their joint benefit and the object was to make a profit. The activities engaged in by the parties were for their joint benefit and they increased their assets thereby.

Other cases held that the evidence did not support the existence of a joint venture formed in the context of a cohabitation relationship.

The contrast between these cases illustrates the importance of the factual matrix in proving the existence of a universal partnership.

The formation of a universal partnership creates a community of property and profit and loss in respect of partnership. On dissolution of this partnership, the partners can share in the partnership assets that are jointly owned, but not necessarily in equal shares. Partnership assets are those assets that were brought into the partnership at inception and also those that were acquired during the existence of the partnership. In the absence of a partnership agreement, evidence must be led as to what the parties’ intention was regarding the assets each was contributing to the partnership.

Should no agreement be reached between the parties on termination of their partnership as to the division of assets of the partnership, a liquidator must be appointed to liquidate the partnership assets.

A cohabitee’s membership of a retirement fund creates unique difficulties within the framework of the dissolution of universal partnerships. Can this fund become a partnership asset available for division on dissolution of the universal partnership, as it does on the dissolution of a marriage?

A universal partnership is not a marriage and accordingly cannot be dissolved by divorce. Therefore the Divorce Act does not apply to its dissolution.

There is no law that deems a member’s pension assets to be transferred into a partnership and be available as a partnership asset to be divided on the dissolution of a universal partnership. A cohabitation agreement would be of no force and affect either as it would not be enforceable against the pension fund.

Cohabitees, even those who are able to prove the existence of a universal partnership and a joint estate between them, cannot share in the pension assets of their partners on termination of the relationship as is the case with people who have registered their unions in terms of the Marriage Act or the Civil Union Act. It still needs to be decided by our courts whether or not this amounts to discrimination on the basis of marital status, it is submitted that it does, especially as cohabitees are able to be awarded these assets on the death of their partners.

 

Can a wife claim maintenance from her husband when she lives with another man?


The Supreme court of appeal recently gave an interesting judgement in the matter of Harlech-Jones v Harlech-Jones [2012] ZASCA 19. The question raised in this matter was inter alia whether it would be against public policy for a man to pay maintenance to his wife while she is living with another man.

The appellant appealed against an order obliging him to pay R2 000 per month to his wife of almost 29 years, upon dissolution of their marriage. His principal objection against the order lied in the fact that for some eight years prior to the divorce his wife had been cohabiting with another man. This, the husband contended, disentitled her from receiving maintenance from him.

The parties were married out of community of property in December 1972. Two sons, both majors and self-supporting, were born from their marriage. After 28 years of marriage, the husband left the matrimonial home in Port Elizabeth as he had formed a relationship with another woman and had decided on a new life. He purchased another residence in the city, but his new relationship also failed and within six months he had formed an intimate relationship with another man with whom he had cohabitated.

The wife was friendly with a married couple, whom she had come to know some years previously when their sons attended the same school. Shortly after the husband had moved out of the common home, the friend’s wife passed away. When her husband was already cohabiting with his male partner a relationship began to blossom between the wife and her new partner. With the passage of time the relationship became more intimate and the wife moved into the home and bedroom of her new partner, and they thereafter cohabited as man and wife. During the first two years that they had lived together the wife’s youngest son, lived with them as well.

Although the evidence established that when the wife initially moved in with her partner it was regarded as a temporary arrangement, the relationship between them matured over the almost eight years that they had lived together before the trial. By then they both regarded their relationship as permanent and neither had any intention of terminating it. The wife’s partner supported her unconditionally and was prepared to continue to do so indefinitely. By the same token, not only was the wife being maintained by him but she, reciprocally, assisted him in his business, for which he paid her a small gratuity.

Relying upon judgments such as Dodo v Dodo 1990 (2) SA 77 (W) at 89G; Carstens v Carstens 1985 (2) SA 351 (SE) at 353F; SP v HP 2009 (5) SA 223 (O) para10 it was argued, both in the high court and in the appellant’s heads of argument, that it would be against public policy for a woman to be supported by two men at the same time. The court was of the opinion that while there are no doubt members of society who would endorse that view, it rather speaks of values from times past and the court was of the opinion that  in the modern, more liberal (‘enlightened’) age in which we live, public policy demands that a person who cohabits with another should for that reason alone be barred from claiming maintenance from his or her spouse. Each case must be determined by its own facts,and counsel for the husband did not persuade the court to accept that the mere fact that the wife was living with her new partner operated as an automatic bar to her recovering maintenance from the husband.

Under the common law, the reciprocal duty of support existing between spouses, of which the provision of maintenance is an integral part, terminates upon divorce. This might well cause great hardship and inequity particularly where one spouse, during the subsistence of the marriage, has been unable to build up an estate and has reached an age where he or she is unable to realistically earn an adequate income ─ the classical case being that of a woman who has spent what would otherwise have been her active economic years caring for children and running the joint household. This potentially iniquitous situation is alleviated by s 7 of the Divorce Act 70 of 1979. Section 7(1) which provides for a court on granting a decree of divorce to make a written agreement between the parties in regard to the payment of maintenance by one party to another an order of court ─ while in other cases s 7(2) provides:

‘In the absence of an order made in terms of subsection (1) with regard to the payment of maintenance by the one party to the other, the court may, having regard to the existing or prospective means of each of the parties, their respective earning capacities, financial needs and obligations, the age of each of the parties, the duration of the marriage, the standard of living of the parties prior to the divorce, their conduct in so far as it may be relevant to the break-down of the marriage, an order in terms of subsection (3) and any other factor which in the opinion of the court should be taken into account, make an order which the court finds just in respect of the payment of maintenance by the one party to the other for any period until the death or remarriage of the party in whose favour the order is given, whichever event may first occur.’

It is trite that the person claiming maintenance must establish a need to be supported. If no such need is established, it would not be ‘just’ as required by this section for a maintenance order to be issued. It is on this issue that the wife’s claim failed. Both she and the husband had moved on with their respective lives and had formed intimate and lasting relationships with others.

The wife was therefore being fully maintained by her new partner in life, and had no need for that maintenance to be supplemented in any way. Accordingly, the respondent’s claimed failed at the first hurdle as she failed to show that she actually required maintenance from the husband.

Online Divorce


No one would deny that the world has changed immensely in the past ten years. Today we are doing almost everything online. We shop online, listen to music online, research online, book flights and accommodation online.  The internet is growing at a phenomenal rate, especially the sector of online e-commerce. New generations are considering it as the conventional method of purchasing goods and services. Businesses which fail to embrace this large catchment of clients and customers will perish. The legal services profession is one that has already fallen way behind the rest of the business fraternity.

It is a fact that clients and customers can purchase legal document services and templates at certain stationary shops. Contemporary legal customers have an expectation of wanting everything for the cheapest possible price and in the quickest possible time. Online legal services provide instant virtual access to legal support services.

That is exactly what more and more South Africans have been doing since the first online DIY Divorce website eDivorce launched. And it costs only about R950, a fraction of what one usually pays for an uncontested divorce. The service makes South Africa’s divorce system more accessible and affordable to the general public. With people struggling to make ends meet in a volatile economic climate an online Divorce website is a definite alternative for spouses seeking an uncontested divorce.

There is a clearly an increase in Europe and the US in the number of online legal services and in the UK alone online Divorces have increased by over 50% over the past few year. Online divorce has been available in the UK since the late ’90s and it’s a growing trend in South Africa too. But this doesn’t mean you can get divorced with just a click of the mouse. Websites for online divorces handle uncontested cases only and generate the forms needed to conclude the divorce. It is therefore up to the spouses to conclude their own divorce.

Where a divorce is contested, for example where the spouses are not able to agree on how to divide their assets, it will be in their interest to rather consult an attorney who specialises in Family Law and Divorce Law.

Where the divorce is less complicated and the spouses agree on the division of their assets then using an online divorce website makes more sense.

Father, please give me my daily bread – child maintenance


According to the Institute of Race Relations 9 million children in South Africa grow up with absent fathers. One may assume that the majority of these fathers don’t pay any child maintenance and then an alarming number of fathers in South Africa default on their child maintenance payments. It is a novel idea when people and celebrities alike engage in projects such as “Save the Rhino” but don’t we miss the point? Has the time not come to throw our weight behind projects to save the many thousands of children in South Africa who must suffer the consequences of an absent father who don’t pay child maintenance?  With the increase in divorce and the number of children born outside marriage, more and more women find themselves bearing the sole responsibility of caring for their children.

It is generally accepted that children with fathers who default on their maintenance payments grow up with a strong sense of resentment and rejection. When a parent fails to pay maintenance for their child, the child ends up feeling depressed, disadvantaged and unloved. The non-payment of maintenance, results in degeneration of the family unit and the children are sometimes driven to a life of crime.

In 2005 the government launched Operation Isondlo a maintenance defaulter programme with its aims to decrease the backlog of maintenance cases. This was indeed a noble initiative for which government must be applauded but in reality the effectiveness of the programme is doubtful having regard to the many women complaining about the ineffectiveness and inability to bring defaulters to book.

In 2011 the Western Cape Department of Justice and Constitutional Development released a list of 7 084 fathers across the Western Cape who were in arrears with their maintenance payments. The fathers collectively owed close to R16 million to their children in maintenance, with one father owing more than R200 000. Some women don’t even bother to approach the maintenance court because they feel that it is a pointless exercise. But the reality is that it is not only fathers who default in paying their child maintenance and the second biggest maintenance defaulter captured last year in Cape Town was a woman who owed her child R112 000. It was also found that there are mothers who did not collect their child maintenance and in 2011 about R 1 million in maintenance had been allocated for mothers who simply failed to collect it.

Much sterner measures need to be put into place to compel fathers to pay maintenance. In reality many of these father’s also shift the responsibility to the mother’s new husband or partner which is an extra burden in the harsh economic climate that we live in.

Some of the problems in our maintenance system include inadequately trained court staff and insufficient facilities and resources. The problems in our maintenance system cannot be resolved through the process of legislation alone, but by also creating a culture of maintenance payment amongst all those that are legally liable to maintain those in need of maintenance. If there is no respect for the law, the maintenance system will fail. A well functioning and effective maintenance system is critical not only for the children in South Africa.

We need to find measures to expedite maintenance application procedures, application processing, payments and punitive measures for defaulting parents. The possibility of Saturday courts for maintenance and other matters related to family law need to be investigated and the possibility to introducing mediation services in maintenance matters. In order to address the problem the media need to be engaged in creating awareness of the growing problems regarding child maintenance.

Legally, a duty of support exists between people who have a familial bond. A person who owes another person a duty of support may have to pay maintenance for that person, if the person has the means to provide maintenance and if the receiving person is in need of maintenance. The law requires a child to be supported or maintained by both his/her parents, whether married, living together, separated or divorced or by both his/her grandparents, in certain cases. South African law imposes a duty on both maternal and paternal grandparents to contribute towards maintenance if the child’s parents are unable to do so in part or in full. There is a duty of support between siblings, both full and half brothers and sisters where the parents and grandparents are unable to provide support, but the support does not extend to include tertiary education of a major sibling. Effectively this means that a mother in need of maintenance of her child may summons the paternal grandparents to the maintenance court if the father is unable to pay.

Source: http://voices.news24.com/bertus-preller/2012/05/child-maintenance/

Contact details

bertus@divorceattorney.co.za

O: 021 422 1323

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