Most solutions and “life-hacks” are now available to us at the speed of your own typing ability. Ask a question, your android / tablet / pc search bar will reveal the answers.
But this isn’t necessarily applicable in all sectors. The legal field is one in which you definitely should not be trying to get your answers from social media, television or online searches! And this isn’t because lawyers are hoarding information, very much the opposite. There is a lot of content available, however it is usually generalised and may not necessarily apply to your personal predicament, or the searches reveal information from other countries – the legal principles of which aren’t even applicable in South Africa.
I recently read an article by an established South African law firm that doesn’t necessarily deal with Family Law matters and, while the bulk of the article was general information, a lot of the content created serious misconceptions. The article alluded to concepts like “custody”, which is not actually an applicable legal term in South Africa. Rather, “custody” is a word loosely and informally used because of its common usage in media emanating from other countries.
A lot of clients and, yes, even legal practitioners not necessarily specialising in Family Law, don’t know that terms like “custody” and “alimony” have no place in our law. But do similar concepts exist? Yes. Are they applied in the same way as it is abroad or on TV shows? No.
Let me clarify by listing briefly the most common misconceptions that are queried with me about Family Law:-
- Custody – “How do I get sole custody of my children?”
This is a very common question and is likely borne from the legal concepts held in the USA and the US media widely distributed and accessible to our population. Quite simply, the equivalent to this notion of “custody” in South African law is dealt with in the Children’s Act 38 of 2005 which sets out framework for primary residence, care and contact of minor children.
In summary, primary residence designates the main home and party with which the children will live on a daily basis. Care is usually a concept denoted to both parents who, in most circumstances (unless there are allegations which could endanger the children’s wellbeing, such as abuse, physical threat or substance abuse) would record that they would each remain co-holders of parental responsibilities and rights in respect of the children. Contact relates to the regular contact with the children afforded to the parent with whom the children are not primarily resident.
If you’d like to read more about these concepts and the detail involved in the process, read my article: The Children’s Act 38 of 2005 & the Office of the Family Advocate – Primary residence, care and contact of children in divorce / separation.
- Alimony / Maintenance
The idea of alimony, as used in many American sitcoms and movies, certainly strikes fear into the hearts (wallets?) of some parties contemplating divorce, and inspires some others with mental images of moneybags. In South Africa, we speak of maintenance payable.
While maintenance is an intricate and highly personalised issue that should be discussed with your legal practitioner, as a quick and very simplified overview, these are the types of maintenance that can be awarded:-
- Interim maintenance while divorce proceedings are in progress;
- Spousal maintenance
This can be further subdivided as follows:-
- “rehabilitative maintenance”, which is maintenance for a specified term to allow a party to get onto their feet following a divorce or separation; and
- “lifelong maintenance”, which is maintenance on a monthly basis until death or remarriage of the beneficiary spouse.
- Child maintenance.
It is highly necessary to ensure that the terms of maintenance are clearly defined and worded accurately. This can help to avoid future disasters and possible expensive legal proceedings brought to rectify issues caused by vaguely worded Orders.
- Unregistered marriages and “live-in” spouses with or without ante-nuptial contracts
Aside from the emotional upheaval involved in a break-up, the fact is that there are usually proprietary issues which arise from the two parties going their separate ways. During the relationship, things are accumulated – furniture, property, vehicles, policies, etcetera. Even if parties were married by way of ante-nuptial contract, it is rare that there are clearly defined lines on who may keep what at the point of dissolution of the relationship.
This becomes even more complex when parties are unregistered. Recently I’ve had a spate of queries relating to parties who were living together in unregistered partnerships, but with ante-nuptial contracts.
It is important to note that an “ante-nuptial contract” is a contract between parties setting out the terms of how they will deal with their property during their marriage and at its dissolution. It is not, in itself, a formal registration of the marriage. The term “ante-nuptial contract” in fact means an agreement concluded prior to marriage. If the parties however do not then conclude a marriage, the contract does not relate to anything, because no marriage was subsequently entered into as envisaged by the contract. So while you may have very validly concluded an ante-nuptial contract, failing to register a marriage thereafter creates its own unique set of complex issues.
As can be seen from the brief explanation of concepts above, it is important to make sure to take proper legal advice from a practising specialist. In this way you can ensure to not have larger issues to deal with at a later stage, when you may be disappointed as a result of misunderstanding requirements of the law.
When you are involved in divorce or separation proceedings, it is an emotional and tumultuous time and it can seem overwhelming. The benefit of enlisting the assistance of a Family Law Specialist is an assurance that you are not making potentially irrational, emotionally-driven decisions which you may later regret. In addition you then know that you have recruited an objective third party who, while fighting on your behalf to ensure your rights are protected, is capable of giving you third-party advice and feedback which is so desperately needed to navigate you safely through this difficult (but temporary) period in your life.
