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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

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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.

 

More children are being raised by single parents than married parents


Many of South African children are growing up in dysfunctional families. Millions of children grow up living without one of their parents. The consequences for young people our country’s future entrepreneurs, workers and leaders may be dire.

More than 20 000 children are affected by divorce each year in South Africa. According to Stats SA, the distribution of the number of children affected by divorce in 2010 shows that 37,9% (7 719) were from the black African population group; 27,6% (5 633) from the white population group, 17,3% (3 529) from the coloured population group and 5,5% (1 113) from the Indian/Asian population group.

According to a 2011 study by the South African Institute of Race Relations only a third of children in South Africa are growing up living with two of their parents, 98 000 children live in child-headed households, 81 percent of whom have a living mother and 9 million children are growing up with absent but living fathers. As in any country, single parenthood arises because of divorce, death or estrangement of a spouse and teenage pregnancy.

According to the study, increasing numbers of fathers are absent, and a ‘crisis of men’ in South Africa seems to be perpetuating patterns of abuse and desertion that will most likely continue with future generations. A racial dimension is also evident in many of the trends associated with family life. African families are more likely to have single parents and absent fathers than other race groups, particularly Indian families.

In South Africa, questions need to be asked about why these trends increase. Issues such as attitudes to parental responsibility and attitudes to monogamy and commitment to relationships need to be publicly discussed, and addressed by broader society. Why do parents, particularly fathers, fail to acknowledge their parental responsibilities? If this is seemingly acceptable to broader society, why is this so? What values are being passed on to our children?

It is not only in South Africa that there seems to be an increase in single-parent families. Also in the UK more couples shun weddings and children are increasingly likely to live with unmarried parents as married ones. In the UK some 8,000 same-sex couples now have children according to the Office for National Statistics, while almost 8million people are living alone.

There is a continuing decline in the popularity of marriage as more relationships break down and fewer couples choose to wed. In the UK over the past decade the number of married couples fell by 262,000 to 12 million, while the number of cohabiting couples rose from 2.1million to 2.9million and there are 1.8 million children living with unmarried partners.

Only 35% of children in South Africa grow up living with both their biological parents. Dysfunctional families are damaging the prospects of younger generations and there is evidence that children from broken families are more likely to have relationship problems and create fractured families themselves in future.

From a marriage point of view people have to rid themselves of the dream that they are going to find a spouse one day who is perfect in every way – physically, emotionally and intellectually, it is simply impossible.

In today’s digital age we live by “remote control”, if we don’t like the channel that we are watching we simply switch channels and watch something more entertaining. Only to find that the new partner is as flawed as the last. Almost like a hydra, cut off one head and get rid of a boring partner but inherit 20 new problems, your new partner’s children, insecurities, family and so on. It may be so that not all second marriages are doomed but the statistics colour a different picture. Family breakdown affects everyone and a break-up shocks the whole foundation of the family and mostly it never recovers.

Source: http://voices.news24.com/bertus-preller/2012/03/single-parent-families-on-the-rise-in-south-africa/

Bertus Preller

Family Law Attorney

Abrahams and Gross Inc.

Tel: 021 422 1323

Email: info(@)divorceattorney.co.za

Follow on Twitter: @bertuspreller

Blog:  http://www.divorceattorneys.wordpress.com

Living together, make sure you have a cohabitation agreement, otherwise you leave with nothing!


Personal finance: If you don’t say ‘I do”, get it in writing – Interview with Bertus Preller – Family Law Attorney

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 recognised as a marriage?

We quizzed some experts to find out the best ways to protect yourself if you don’t fancy walking down the aisle with your life partner.

Family law attorney Bertus Preller said patterns of marriage, divorce and cohabiting without marriage had been changing for years.

“The incidences of domestic partnerships are growing throughout the world.”

Preller said that, 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 recognised by the state, and there will be legal rights, duties and protection.

But Preller said 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,” he said.

Domestic partnerships were never prohibited in South African law – but neither did they enjoy any noteworthy recognition or protection, Preller said.

“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.”

Preller said 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”, Preller said.

“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,” said Preller.

“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.”

Preller said, however, that 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.”

He said 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,” Preller said.

Fiona Renton, head of the legal services department at financial and risk services provider Alexander Forbes, said: “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, according to Sugendhree Reddy, director of banking products at Standard Bank.

“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. We 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.”

Reddy said there was 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, Reddy said, 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”, said Reddy.

Reddy advises 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”, says Fiona Renton, head of legal services at Alexander Forbes.

“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, said Renton.

“Unfortunately, when it comes to death and money such decisions by fund trustees are often contested.”

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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