Divorce Attorney Cape Town

The Marriage Rate Continues to Decline.


Living-Together

Will Valentine’s Day, always a popular moment for popping the question, see less marriage proposals this year than in past?

Information provided by Statistics South Africa in 2014 shows that the highest number of marriages was recorded in 2008 and the lowest number in 2012 which represents a decrease of more than 10% from those marriages recorded in 2008.

The age-old message about marriage that has been communicated by parents that “two are stronger than one” is now brushing up against a 21st-century reality: The number of married households in most countries including South Africa has fallen. Some researchers calls it “The Marriage Crisis”.  Today’s young adults in the US are on track to have the lowest rates of marriage by age 40 compared to any previous generation. If the current pace continues, more than 30% of millennial women will remain unmarried by age 40.

There are several reasons behind the declining marriage rate. The importance of marriage has been fading for years. More couples are living together without getting married, and some are raising families.

Also, marriage used to be the starting point for young adults. They got hitched early and built a life together. Now, many people feel they have to be more established, especially financially, before they walk down the aisle.

In 2013, the economist David H Author found that, “Sharp declines in the earning power of non-college males combined with the economic self-sufficiency of women rising educational attainment, falling gender gap and greater female control over fertility choices have reduced the economic value of marriage for women.”

Sweden has one of the lowest rates of marriage in the world and only 20% of the population bother to marry. In France and Britain it’s about a third. While marriage is in decline, unmarried cohabitation is on the rise.

U.Va. psychology professor Robert Emery says that, in the past, people thought of marriage as “more of a business-like relationship.” Women often received financial support from their husbands and women often provided household and child-rearing labour. Marriage rates fell and divorce rates rose when people started thinking less with their wallets and more with their hearts.

In the US the number of married households fell to 50.5% in 2012 from a high of about 72% in 1960. Among the less well educated, the number of married households has fallen even more. Research indicates that those who find themselves already lower on the socioeconomic ladder may be less likely to ever marry.

The United States has spent approximately one billion dollars since 2006 trying to educate low income Americans of the value of marriage with the goal of minimising divorce and single parent families. President Obama wrote in “The Audacity of Hope” that expanding such marriage education services to low income couples “should be something everybody can agree on.”

Researchers at UCLA however found that the poor not only value marriage just as much as those with more income, they actually have a better grip of the values needed to make a marriage work than wealthier people. Compared to the affluent, poor people “were more focused on the role of a good job, and an adequate income, and having some savings as the important factors in having a successful marriage,” the study’s lead author, social psychologist Benjamin Karney said.

Feminists have claimed that they, have the answer to Freud’s question about “What do women really want?” According to them, women’s utmost desire is to be equal to men and independent of them. Feminists created the myth that men and women are interchangeable and, except for donating sperm, women can be totally independent of men. However data in the US shows that by the time women reach their 30’s, about 70%of them are married and in marriage data we can certainly see the pull between a particular powerful set of values contesting with strong biological needs and the desire for equality struggle with the need for connection and relationship.

One should never underestimate marriage’s economic benefits. In a recent study in the US it was found that children being raised by married parents is generally connected to better economic wellbeing for young adults. So is being married as an adult and that growing up with both parents’ increases your odds of becoming highly educated, which in turn leads to higher odds of being married as an adult.

“Divorce causes a decrease in wealth that is larger than just splitting a couple’s assets in half,” said Jay Zagorsky, an Ohio State University economist. “If you really want to increase your wealth, get married and stay married.” “Marriage carries a sense of meaning, purpose, direction and stability that tends to benefit adults and particularly children. People who get married have an hope of sexual fidelity, and that fidelity tends to engender a sense of trust and security.

Latest marriage statistics in South Africa

Generally, the warmer months (beginning from September and peaking in December) are the most popular months for marriages. The results also show that marriages tends to peak in either March or April depending on the month of Easter holidays for that particular year. In 2012, the highest number of marriages took place in December. July recorded the lowest number of marriages. The results further indicate that, in 2012, the highest number of all marriages was registered in Gauteng (25,0%) and the lowest in Northern Cape (3,1%).

North West (76,1%) had the highest proportion of its marriages conducted by civil marriage officers whereas Western Cape recorded the highest proportion (44,2%) of marriages conducted by religious marriage officers.

A majority of the marriages in 2012 for both bridegrooms and brides were first-time marriages. For bridegrooms, there were (82,9%) bachelors, (3,3%) divorcees and (1,3%) widowers. For the brides, (87,4%) were spinsters whilst (2,2%) were divorcees and (1,0%) were widows. Provincial distribution shows that all provinces had the highest proportion of both bridegrooms and brides marrying for the first time, particularly brides in KwaZulu-Natal and Limpopo where 90,2% and 90,8% respectively were spinsters at the time of marriage

Irrespective of their marital status, men generally married women who had never been married (spinsters). Thus, (94,2%) spinsters, (1,0%) divorcees and (0,9%) widows were married by bachelors. In addition, irrespective of the fact that more divorcees and widowers married spinsters, the proportion of male divorcees who married female divorcees (16,2%) was higher than the proportion that married widows (1,2%). Similarly, the proportion of widowers who married widows (15,0%) was higher than the proportion that married female divorcees (1,5%).

The average ages of first-time brides remained at 29 years, while for bridegrooms the average age was 33 years. The average ages for divorcees for male were generally at 52 years. In comparison, the average age of female divorcees increased to 47 years. Despite the fact that men generally marry younger women, data in indicate that (14,8%) bridegrooms were younger than their brides whilst  (7,6%) were of the same age as their brides.

Source: http://voices.news24.com/bertus-preller/2015/02/marriage-rate-decline/

Bertus Preller

Divorce and Family Law Lawyer

Bertus Preller & Associates Inc., Cape Town

Website: http://www.divorcelaws.co.za and http://www.divorceattorney.co.za

Twitter: @bertuspreller

Facebook: http://www.facebook.com/divorceattorneys

Tel: 021 422 2461

Be careful, living together may cost you half of your assets when you breakup.


Recent case law in South Africa has far reaching consequences for unmarried couples who live together. In one case the court concluded that an unmarried woman who devoted all her time, effort and energy in promoting the interests of both parties by maintaining their common home in raising their children was entitled to 30 % of her partner’s net asset value at the date their relationship ended. In another case an award of more than R 6 million was granted to an unmarried woman who actively helped her partner in building his estate.

In the recent case of Cloete versus Maritz case number 6222/2010 and 16433/2012, in the Western Cape High court a judge has made a farmer (Mr Maritz) pay more than R 6 million for leaving his fiancée (Miss Cloete) of 10 years after he downplayed the role she played in building up his businesses and suggested she had illegally occupied his house in Cape Town.

After 10 years together, the court heard, how the man deserted his fiancée in March 2009, and by December that same year he married somebody else. Judge Robert Henney of the Cape Town High Court ordered the man to compensate his fiancée just over R6 million within 30 days, failing which his house could be attached.

The facts of the case were briefly as follows:

Having been in a relationship with each other, the parties on or about 10 March 1998 agreed to marry each other within a reasonable time after such date. As a result of this, the parties became engaged to one another during February 1999. Cloete alleged that on 24 April and 7 May 2009 Maritz repudiated the agreement by refusing to marry her. It was alleged that he did so by informing her that he did not want to see her again and that he had somebody new in his life. She alleged that the rejection was wrongful an unlawful and she issued summons against him whereby she claimed a 50% share of the value of the assets of Maritz based on a universal partnership, repayment of the sum of R 26,000 which was donated by her to Maritz and R 25,000 for damages for breach of promise to marry her. Throughout their relationship, Maritz and Cloete started various business ventures, both in South Africa and also in Namibia. According to Cloete, she invested considerable time in the businesses, including a farm in Namibia, since Maritz had a permanent job.

In 2001, they also bought a house in Cape Town as an investment, and they discussed changing it into a guest-house with the goal of ultimately retiring there. The house was registered in Maritz’s name. In March 2009 Maritz broke the news that he had someone new in his life, Cloete then moved into the house in Cape Town since according to her, she had nowhere else to go. Cloete testified that she later wrote a letter in which she told Maritz she had nothing to her name, even though she had worked hard to build up their businesses. Maritz filed a counter-claim that Cloete was unlawfully occupying the property and requested the court to evict her and also that she be ordered to pay damages to him equal to reasonable market related monthly rental of R 20,000 for 21 months unlawful occupation. Maritz disputed that there was a legally enforceable engagement, or that a universal partnership existed. He maintained that the decision to end the relationship was mutual. He also argued that he and Cloete signed an antenuptial contract prior to their intended marriage, and said this was an indication that they never intended to form a universal partnership.

The court’s finding

Judge Henney said in his judgement that Cloete came across as an honest and genuine person, who did not contribute to and assist Maritz purely to gain financially, but because of her deep love, affection, admiration and loyalty she had for him. It was clear it was never her intention, when she entered into the relationship with Maritz, to gain financially from it. The impression created was that she was the submissive and the caring partner who at all times acted in (his) best interests,” the judge said. Maritz, on the other hand, tried to downplay Cloete’s involvement, and diminish her contribution to that of an ordinary worker.

The Judge felt that Cloete’s role in the partnership was not limited to that of a housewife who tended to the maintenance of the home. He found that Cloete assisted Maritz in executing the commercial undertaking of the partnership. This contribution she made was in addition to the indispensable contribution she made to the businesses where she contributed her skills, energy, time, capital and income to promote the interests of the universal partnership. The judge found further that she contributed her admin skills and know-how for the promotion of the businesses she further contributed to the financial growth of the businesses and as a result of this, they acquired a number of assets during the relationship. Given the relationship they were involved in and businesses, the only conclusion that the court could come to was that a universal partnership came into existence.

Judge Henney said in light of the relationship and Cloete’s “inextricable” involvement in the businesses, the only conclusion was that a universal partnership had existed. He ordered Maritz to pay Cloete R 6.166 million, which constitutes a 50 % share in the universal partnership, as well as R 25 000 for breach of promise. Maritz was also ordered to pay costs.

Judge Henney mainly relied on the case of Butters v Mncora (181/11) [2012] ZASCA 29, discussed below.

The Law

A question that needs to be considered is whether there was a universal partnership that existed between the parties. The legal principles applicable to a universal partnership was summarised by the Supreme Court of Appeal in Butters v Mncora (181/11) [2012] ZASCA 29. The Appellate Division held that while cohabitation does not give rise to special legal consequences, a cohabitee can invoke remedies in private law which in this case was based on the law of partnership.

In this case, the parties were involved in a 19 year relationship, most, but not all, of which was spent living together. They had been engaged for nearly 10 years, but never married. During the course of the relationship, Butters had accumulated a sizeable estate from his business interests, which included a security company. Mncora had initially worked briefly as a secretary but, at the persistence of Butters, had stopped working to stay at home and care for the couple’s children and Butters’ child from another relationship. Butters had provided for all the financial needs of the family. The relationship terminated abruptly and a dispute soon ensued as to whether Mncora was entitled to any of Butters’ assets, even though she had never been married to Butters.

In the trial court, the plaintiff accepted that she had had virtually nothing to do with the defendant’s business and, in fact, had never entered the business premises. She conceded that her contribution to the partnership was limited to caring for the family and running the family home. The legal premise for the majority’s judgement started by recording that “the general rule of our law is that cohabitation does not give rise to special legal consequences”. However, the cohabitee has a remedy derived from the law of partnership and has the onus of establishing the partnership essentials. The path breaking aspect of the judgement is the finding that the partnership enterprise need not be confined to a commercial undertaking and that therefore “once it is accepted that the partnership enterprise may extend beyond commercial undertakings, logic dictates, in my view that the contribution of both parties need not be confined to a profit-making entity… It can be accepted that the plaintiff’s contribution to the commercial undertaking contacted by the defendant was insignificant. Yet, she spent all her time, effort and energy in promoting the interests of both parties in the communal enterprise by maintaining their common home in raising their children. On the premise that the partnership enterprise between them could notionally include both the commercial undertaking and the non-profit making part of their family life, for which the plaintiff took responsibility, her contribution to that notional partnership enterprise can hardly be denied”.

In light of the Butters case it appears that if a cohabitees evidence is accepted that “everything was for both of us… we were sharing everything”, this may well be sufficient to prove a universal partnership, even in circumstances where the plaintiff’s contribution were limited to running the joint household and raising the children.

The appeal court considered the essential elements of partnerships. Firstly, each of the parties must contribute something into the partnership or bind themselves to bring something into the partnership, whether it be money or labour or skill. The second element is that the partnership business should be carried on for the joint benefit of both parties. The third is that the object should be to make a profit.

There are two kinds of universal partnerships; firstly, ones where the parties agreed to put in common all their property present and future; and secondly, those where parties agreed that all they may acquire during the existence of the partnership from every kind of commercial undertaking, will be partnership property. A universal partnership does not require an express agreement. Like any other contract it can come into existence by tacit (unspoken) agreement, that is by an agreement derived from the conduct of the parties. Where the conduct of the parties is capable of more than one interpretation, the test for when a tacit universal partnership can be held to exist is whether it is more probable than not that a tacit agreement had been reached.

The Trends

It is clear that the Butters case broadened the application of a universal partnership, certainly in the case of cohabitees. This has very important practical consequences given the rising trend of people living in domestic partnerships in South Africa. In America for example, 40% of all couples living together are unmarried. In Sweden, 9/10 couples marrying for the first time already lived together and in Denmark, more than one third of women in the early 20’s are living in extra marital intimate relationships. A report recently published in the UK using the latest data from the Office for National Statistics revealed a generational shift away from the institution of marriage, with youths far less likely ever to wed than their parents and grandparents. The research by the Marriage Foundation showed that, for a variety of reasons, 47% of women and 48% of men aged 20 will never marry. In South Africa an increasing number of couples are cohabiting and delaying their walk down the aisle.

 

Given the latest developments in the law of universal partnerships, couples who do not wish to be married would be well advised to consider entering into a written cohabitation agreement to regulate their cohabitation relationship, otherwise separation may just have devastating consequences.

Compiled by Bertus Preller

Family Law and Divorce Attorney and author of Everyone’s Guide to Divorce and Separation – Random House.

Twitter: bertuspreller

Websites: http://www.divorcelaws.co.za

Facebook: http://www.facebook.com/divorceattorneys

Source:http://voices.news24.com/bertus-preller/2014/07/careful-cohabitation-may-cost-half-assets-breakup/ 

 

Ingredients for a successful marriage – a Divorce Attorney’s perspective


Successful Relationships

There is a saying that a relationship is not a place where you go to take, it is a place where you go to give. You need to look at your partner and realize that you are not going to change him or her. Ask yourself this: “Does my partner have the basic qualities that matter to me, characteristics that are not going to change over time?” Remember that it is not all about the wedding cake, the wedding ceremony, the wedding gifts or the wedding dress.

It takes a lot of work and effort to make it work. Lack of communication tops the list of the reasons for divorce. There is the cliché that women want men to know what they want and what they are thinking without ever having to tell them, but the reality is that couples need to talk and express their feelings and fears to their spouse. It is when spouses only start thinking about their own wants and needs and no longer function as a “team”, that things start to fall apart. Unfortunately in many instances our ability to learn about relationships shuts down at the point when the marriage begins to get tough and just because couples develop disagreements, I am sure that many marriages could have been saved if the couples persevered just a little more. Conflict should be seen as an inevitable part of relationships. One of the secrets to a good marriage is to find your equal partner, not a partner who is going to dominate or control you or who you can dominate or control. Any relationship for it to work must be based on mutual respect, common purpose and of course trust. When a couple start to lose one of those ingredients, the wheels come off. Many people get married and expect to live a fairy-tale but that is surely not the reality. Couples fight about trivial things, disagree on many issues such as the finances and children. Many people refuse to grow and blame their partners for all of the problems in the marriage instead of taking responsibility for their actions. Having said this, both parties must be willing to change for the better and if one refuses to do so, the relationship will be in trouble.

Keys to a happy relationship

The key to any happy and healthy marriage really is communication. Many of my divorce clients, when asked for the reason for the breakdown of their relationship, respond with the words “We grew apart” or “We have nothing in common any longer”. It is so important to be an active contestant in your own marriage instead of a passive spouse. In happy marriages there are no secret vendettas or agendas. Lack of trust is an clear killer, and harbouring bitterness and carrying grudges does not make for contentment. It all comes back to commitment and that, in tough times, you don’t even allow yourself to think of getting out. Couples must understand that not every disagreement has to end up as a full blown argument and it is not necessary to win each and every argument or to be always right. Sometimes rather let it be. It is also true that no marriage can survive without some sort of conflict, whether major or minor but the key is to make sure that the issues are addressed in a controlled and dignified manner, without personal mud-slinging or insults.

How to deal with in-laws?

I do not believe in divided loyalties at all. Once you marry someone, your loyalty and devotion first is to your partner and the family that you two create together. I am not saying that you should not be close to your extended family but if your mother-in-law for example is continually butting into your life and your relationship and offering opinions and solutions and you feel as if your husband is always taking her side rather than yours, then, it becomes your husband’s problem and not yours. Each person should take care of his/her own family tree, since you have the most history with your mother, and your husband the most with his parents. So, if you have a mother who is constantly on your husband’s case about how you should to be raising your children, stand up and say something to her. Never make it your husband’s fight. And, if your mother-in-law is drives you up the wall, tell your husband to deal with her. I have seen many cases where the in-laws became one of the reasons for divorce.

Main reasons for divorce?

Reasons cited by both men and women as the most common causes of divorce include loss of love and incompatibility, poor communication, addiction, basic unhappiness, infidelity, emotional problems, conflict over roles, and spouses’ personality traits. All studies on the prevention of relationship breakdown and the causes of divorce reach the common conclusion that a constellation of factors, not just one, is normally responsible. The following are the ten most commonly cited reasons, drawn from various records, and in no particular order.

Differences in priorities
A difference in priorities, which a lot of men and women discuss and anticipate prior to their marriage, can become major issues at a later stage. If one spouse wants to start a family and the other does not, it may create immense conflict.

Religious, cultural or ethnic differences
Couples of different religious, cultural or ethnic background may sometimes disregard the expectations of each other’s religion/culture/ethnicity, causing resentment. Conflict can also arise when children are involved, as most parents prefer their children to take on their own traditions.

Parental responsibilities
It often happens that spouses aren’t able to constructively co-parent their children. Differing ideas on how to raise children commonly cause rifts in a marriage.

Finances
When times are tough, marriages take strain. Married couples, whether happy or not, may disagree about certain financial issues, which if not resolved can put undue stress on their relationship.

Sexual incompatibility
Men and women differ emotionally, mentally and sexually. Things change as the marriage progresses, i.e. children are born, health challenges arise and careers change. All these things can impact a couple’s sexual relationship. If a spouse is not being physically fulfilled, he/she will look elsewhere. In most cases, sexual dissatisfaction will result in divorce.

Addiction
Addiction of any kind is like a black hole, sucking in everything in its path of destruction, throwing family life off balance the stronger it gets, putting undue strain on relationships. Whether the addiction is to alcohol, drugs or, increasingly, pornography or social networking, the effect is the same. Before the internet, strip clubs, videos and DVDs fed pornographic addiction. These days, more and more people spend countless hours viewing pornography online, buying into the fantasy. Addiction of this nature not only has a degrading effect on the individuals in the relationship, but also leaves disastrous emotional scars on children, close relatives and friends.

Social networking
Social media like Facebook, Twitter and BBM/WHATSAPP is affecting privacy and family interaction more and more, as it blurs the lines between public and private domains. The nature of these media outlets encourages free-spirited posting, commenting and sharing of information, often thoughtlessly. Spouses who spend countless hours on social networks to the exclusion of valuable family interaction, create a disconnect that often cannot be repaired, and divorce follows. What is posted on social networking sites is not as private as many think, and Facebook flirting is cited as the cause of an increasing number of divorces. With a multitude of profiles just a click away, it has made it really easy for people to see if the grass is greener on the other side.

Infidelity
Infidelity/adultery, more commonly known as ‘cheating’, is near the top of the list of reasons for divorcing in South Africa. Adultery is defined as extramarital sex that wilfully and maliciously interferes with marriage relations, leading to the irretrievable breakdown of the marriage relationship. Infidelity undermines the root of the relationship, namely trust, and is a violation of the mutually agreed rules or boundaries that a couple assumes when they start their relationship.

Abuse
Abuse is one of the top reasons for divorce. Abuse occurs in all age groups, ethnic groups and class groups, and comes in a variety of forms, from physical abuse (domestic violence) to verbal, emotional, psychological and even financial abuse. It can include things like telling a child they are unwanted, name calling, ignoring, restricting a person to a room, monitoring phone calls, forcing a spouse into doing something that he/she is uncomfortable with and withholding finances. Abusers can be male or female and abuse can occur in heterosexual relationships, same-sex relationships and parent-child relationships. While women and children are the most victimised, men are also abused, especially verbally and emotionally, although sometimes physically too.

Lack of communication
The writer Josh Billings once said that ‘Silence is one of the hardest arguments to refute’. Lack of communication is the single biggest cause for divorce and accounts for almost 70 per cent of all marital breakdowns. Without proper communication, no relationship can survive. Good communication does not mean always agreeing with each other. Couples with communication problems that usually lead to divorce are often unable to find a middle ground and are unwilling to compromise. A lack of communication in any area of a marriage can cause major damage to the relationship. Many couples lack communication when it comes to making decisions about finances, leading to financial problems and endless arguments. Many also fall down when they have to make decisions about their children.

What mistakes do couples make when they divorce?

Divorce need not be bitter or erupt into a war. Unfortunately, though, in many divorces, spouses turn what could be an amicable end to their marriage into an emotionally difficult and expensive legal battle by allowing their anger, hurt and fear to take over their rational thinking. Getting divorced is never easy, but when people realise that it is not about winners and losers and massive legal bills, but about making a clean break and working out the terms of the divorce together or with the intervention of legal representatives, then the process can be relatively easy. If you can, try your level best to conclude your divorce in an uncontested manner, without having to go to trial. Do everything you can to make the divorce as non-acrimonious as possible. Although your role as a spouse ends, if you have children, your role as a parent continues. A contested divorce means long unnecessary delays, huge legal bills and unpredictable emotions.

Very often spouses make the error of wanting a divorce for useless reasons. This comes from being wrapped up with the idea of being hurt and concentrating on one’s self rather than separating the actual events from the end results. It is very tough to lift your thinking and be ostensibly autonomous to your own situation, sometimes this is often impossible to do. But, when you can look at your situation objectively, and then go through your divorce decision making process, you may be closer to the real answers that you search for.

It is my view that the reason for many problems that we experience in relationships stems from the fact that people are fickle and that our circumstances and life experiences change and shape us every day. A healthy relationship is an evolving relationship and each partner should learn and grow through the relationship, and often through the conflicts.

By Bertus Preller

Family Law Attorney

Bertus Preller & Associates Inc. Cape Town

Twitter: @bertuspreller

Websites: http://www.divorceattorney.co.za and http://www.divorcelaws.co.za

Book review on Everyone’s Guide to Divorce and Separation


Deur Jaco Barnard-Naudé is professor in regsfilosofie aan die Universiteit van Kaapstad.

Book

Ons leef vandag in ‘n wêreld van toenemende vloeibaarheid en pluraliteit op die vlak van persoonlike verhoudings. Die een dag besluit jy en jou beste vriend nog om lewenskoste te beperk deur ‘n woonstel te deel en die volgende dag word die platoniese vriendskap iets meer en julle woon voortaan saam as man en vrou. Of man en man. ‘n Paar jaar later besluit julle om te trou. As julle ‘n eendersgeslagtelike verhouding bedryf, moet julle deur die hekke van die Wet op Burgerlike Verbintenisse, 2006, toegang verkry tot die twyfelagtige groener gras van die huwelik. Heteroseksuele saamwoners het ‘n addisionele (en meer konvensionele) wet beskikbaar waarvolgens hulle in die huwelik kan tree – die Huwelikswet van die Jaar van Onse Heer 1961. As julle byvoorbeeld in Tamboerskloof saamwoon en besluit die huwelik is nie wat julle en ander eende van julle dam wil hê nie, hoef julle nie te trou om die verbintenis regtens erken te kry nie: die 2006-Wet maak voorsiening vir ‘n burgerlike vennootskap wat presies dieselfde gevolge as ‘n huwelik het.

Ek het al hierdie dinge geweet voordat ek hierdie uiters leesbare en akkurate boek onder die oë gehad het, omdat ek vir ‘n regsfakulteit werk en self betrokke was by die totstandkoming van die 2006-Wet. Vir diegene wat tans in ‘n saamwonery van een of ander aard verkeer, dit oorweeg om een of ander Groot Stap (insluitend skeiding van tafel en bed) te doen en nié in die regsberoep werk of betroubare vriende daarin (skaars spesie) het nie, kan ekEveryone’s Guide to Divorce and Separation aanbeveel.

Die titel is ondeurdag. Hoewel die regstema van geregtelike skeiding prominent daarin bespreek word, soos die titel aandui, handel groot gedeeltes daarvan oor die regsgevolge van die totstandkoming van ‘n huwelik of ander permanente saamwoonverhouding. Selfs die gevolge van die totstandkoming van die ouwêreldse “verlowing” (en wat die lô sê oor die verloofring wanneer jy dit in sy gesig terugsmyt) word met erns bespreek. En as lobola deel was van jou huweliksonderhandelinge en jy is getroud ingevolge die Wet op Erkenning van Gewoonteregtelike Huwelike, sal jy interessante dinge lees oor hoe om te verhoed dat jou man se aanhoudende trouery jou nie finansieel benadeel nie.

‘n Groot gedeelte van die boek handel oor die onwillekeurige partye tot ‘n saamwoonverhouding: die kinders. Daar is ‘n omvattende bespreking van wat die verantwoordelikhede teenoor kinders in ‘n gesin is – veral wanneer die ouers se saamwoonverhouding tot ‘n einde kom en ook in gevalle waar Ma en Pa eens saamgewoon, of ten minste saam verkeer, het, maar by geboorte van die kind reeds aanbeweeg het. Die boek stel dit in hierdie konteks direk en duidelik: die kind(ers) sit met die gebakte pere van julle mislukte verhouding sonder dat hulle daarvoor gevra het. Die allerminste wat julle kan doen, is alles in julle vermoë ten einde te verseker dat hulle so onbeskadig as moontlik uit die puin van julle verhouding tree.

Bostaande is maar een rede waarom die skrywer (‘n prokureur) daarvoor pleit dat egskeidings nie in litigasie behoort te eindig nie. Daar is merendeels slegs verloorders in ‘n bestrede egskeiding, en té dikwels, waar kinders betrokke is, is dit húlle wat as pionne in die vuilspel gebruik word en die meeste verloor.

Benewens ‘n omvattende verduideliking van die egskeidingsproses bevat die boek ook heelwat praktiese wenke vir mense wat deur so ‘n proses moet gaan (waartydens gesinsgeweld nie uitgesluit word nie, daarom die hoofstuk oor laasgenoemde). Dit het my lank geneem om die bul by die horings te pak en hierdie boek te lees, want egskeiding is nooit ‘n aangename onderwerp om oor te dink of te lees nie – ons dink veel eerder aan die feeste van die huweliksdag. Maar as jy jou in ‘n skeidingsituasie bevind (en nie in die regsberoep werk of daarin bevriend is nie), moet jy jou, soos vir enige stryd, hoe gemoedelik ook al, bewapen. En Preller se boek is ‘n sterk wapen. Kry dit.

divorce and separation

 

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Original article at: http://www.litnet.co.za/Article/2013-everyones-guide-to-divorce-and-separation-bertus-preller

Divorce Attorney Bertus Preller Consults in Johannesburg


Family Law and Divorce Law Attorney Bertus Preller
Family Law and Divorce Law Attorney Bertus Preller

Bertus Preller  a Family, Divorce Law Attorney, Mediator at Abrahams and Gross in Cape Town, is now consulting on a weekly basis in Sandton Johannesburg. He has nearly 25 years of experience as an attorney and specializes in Family Law and Divorce Law cases across South Africa. Bertus is the author of Everyone’s Guide to Divorce and Separation, published by Random House. He has also been quoted on Family Law issues in various newspapers such as the Sunday Times and Business Times and magazines such as Noseweek, Keur, Living and Loving, Longevity, Woman and Home, Women’s Health, You, Huisgenoot and Fairlady and also appeared on the SABC television show, 3 Talk, Morning Live and on the 5FM Breakfast show with Gareth Cliff. His clients include artists, celebrities, sports people and high net worth individuals.

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, child abduction and Hague Convention cases and domestic violence matters and international divorce law. He will consult in Sandton every Wednesday.

 

To contact Bertus for an appointment:

+27 21 422 1323
+27 83 443 9838

Abrahams and Gross Inc.
1st Floor, 56 Shortmarket Street
Cape Town, 8000

info@divorceattorney.co.za

Web: http://www.divorceattorney.co.za

Twitter: @bertuspreller

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 – 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.

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