Before You Say I Do

Before you say I do

Nobody wants to think about the legal aspect of marriage when there are so many exciting and romantic preparations to be made. Let’s look at the important options you have to look at before taking the plunge.

Getting engaged is such a magical time in any couple’s life. There are so many things to think about. The dress, venue, cake, and all sorts of romantic details. The last thing you want to think about is protecting yourself in case things don’t work out. But the harsh reality is that there are many reasons to make sure you are legally protected.

Marriage has far-reaching consequences in respect of the spouses and their property. Marriage creates legal rights of one spouse to the company, affection, services, and support of the other. Courts have stated that entering into a marriage is a matter of intense private significance, as parties make a promise to establish an intimate relationship for the rest of their lives. The decision to marry should not be taken lightly. Our law recognises traditional marriages, customary marriages, same sex marriages, universal partnerships, and civil unions.

There are, however, three main matrimonial property systems you should consider before tying the knot. It is important to note that all marriages will be in community of property unless a valid antenuptial contract is entered into. Where the parties opt to enter into an antenuptial contract, whatever the provisions, it must be executed before a Notary prior to the wedding and registered in terms of the Deeds Registries Act.

1. Marriage in community of property

    • When spouses marry in community of property, generally all assets of both spouses become part of the joint estate;
    • The spouses become tied co-owners in undivided half-shares of all the assets and liabilities they have at the time of the marriage, as well as during the course of the marriage.
    • Creditors of spouses who are married according to this system can look to the estates of both spouses for recovery of a debt;
    • Both spouses have equal powers regarding the disposal of the assets of the joint estate and the management of the joint estate.
    • A spouse may not, without the written consent of the other spouse, purchase or sell immovable property or register / cancel mortgage bonds over immovable properties;
    • Where a spouse wishes to institute or defend legal proceedings that do not relate to a spouse’s business, written consent of the other spouse is required.
    • If one spouse insolvent, the entire estate and the other spouse are considered insolvent too.
    • Upon the death of one of the spouses or should the parties divorce, each spouse will receive half of the marital estate, both assets and liabilities.

2. A marriage out of community of property, excluding the accrual system.

    • Each spouse retains the estate he or she had before the marriage, as well as everything he or she acquires during the marriage. There is a complete separation of property.
    • Each spouse has full capacity to act and can enter into contracts without the other’s consent or assistance. The spouses can enter into contracts with each other.
    • The spouses are not liable for each other’s debts, as each spouse binds only himself/herself.
    • Spouses have full capacity to litigate and can independently institute or defend legal proceedings.
    • Spouses are independent with regard to their estate and creditors.
    • Upon death or divorce, neither spouse will share in the other’s estate at all, unless the spouse’s Will dictates otherwise.
    • This system is sometimes recommended for older spouses who already have their own substantial estates before the marriage.

3. A marriage out of community of property with the application of the accrual system.

    • Spouses share in the growth their estates have shown, without there having been a joint estate during the marriage according to accrual.
    • The accrual system is a formula that is used to determine how much the party whose estate with a bigger accrual / growth during the marriage will have to pay the party whose estate showed a smaller accrual / growth.
    • In terms of the accrual system, both parties’ estates are independent during the subsistence of the marriage by death or divorce, they share in the accrual accumulated by each other during the marriage.
    • If the accrual system applies, then a spouse (upon dissolution of marriage) will have a claim to share in the growth of the other spouse’s estate, according to a calculated formula, without there having been a joint estate during marriage.
    • Spouses can expressly alter their particular shares of the accrual in the antenuptial contract.
    • Each spouse retains and controls his or her own estate during the subsistence of the marriage, but their capacity to alienate any of this property is limited.
    • The spouses are not liable for each other’s debts, as each spouse binds only himself/herself.
    • This system is sometimes recommended where one spouse will leave employment for a period of time in order to look after children and/or the household while the other spouse continues to work and build his/her estate.

Dad’s Rights

Do divorced and unmarried fathers have any rights?

In the past, when parents got divorced, the law would grant the mother of the child “custody” of the children and the father would have limited access rights depending on the circumstances. The mother would be entitled to make all the big decisions regarding the children, such as where they go to school or what religion they would practice, etc, to the exclusion of the unmarried or divorced father.

This, however, is no longer the case with the enactment of our Constitution and the Children’s Act, which changed the previous laws. The term “custody” has also been replaced with primary care, residence and contact.

In terms of our current law, both mother and father now have full parental responsibilities and rights, even after divorce or if they are no longer dating or cohabitating, or unmarried.

The mother of the child has full parental rights and responsibilities in respect of the child, whether she’s married or unmarried.

The father of a child now also has full parental rights and responsibilities in respect of the child if he’s married to the child’s mother, or if he was married to the child’s mother at the time of the child’s conception, birth, or any time between the child’s conception and birth.

An unmarried father automatically acquires full parental responsibilities in respect of the child if at the time of the child’s birth, he is living with the mother in a permanent life partnership, or if he, regardless of whether he has lived or is living with the mother:

  • consents to be identified as the child’s father, or successfully applies to be identified as the child’s father, or pays damages in terms of customary law;
  • contributes or has attempted in good faith to contribute to the child’s upbringing for a reasonable period; and
  • contributes or has contributed towards expenses in connection with the maintenance of the child for a reasonable period.

Simply put, when a child’s mother and father are not married, the father still automatically obtains parental rights and responsibilities if he complies with the requirements set above.

All major decisions relating to the minor child need to be taken by both parents, bearing in mind the views of the child as well. This includes the decision to travel and/or immigrate the child overseas. Both parents must consent to this, otherwise, it amounts to a criminal offense.

If the father and mother get divorced, the mother is not automatically entitled to primary care and residence of the child (formerly known as custody). The father may be awarded primary care and residence if it is in the best interest of the child. What is in the best interest of the child is of paramount importance and primary care, contact, and access rights all revolve around this law. Simply put, if the court feels that the best interest of the child is to primarily live with the father, then such an order can be made.

A common misunderstanding amongst divorced/unmarried parents who have primary care and residence of the child is that the other parent will not be allowed to see the child unless he/she pays maintenance towards the child. This view is wrong and nonpayment of maintenance does not affect the rights of the child to have access and contact with the parent with whom he/she does not live.

Another common misunderstanding is that an unmarried parent can give away or abandon his/her parental responsibility and rights in respect of the child. This perception is wrong and these rights and obligations cannot be discarded unless a formal adoption has taken place through a social worker and the courts.

If a child is born to unmarried parents, then in terms of the law, the child will take the mother’s surname and not that of the father unless the parents agree otherwise.

Furthermore, the law also applies to children in same-sex marriages as well.

In summary, an unmarried/divorced father who does not have primary care and residence of the child has been empowered and has many more rights in our current law than he did before. A father may also fight for primary care and residence of the children if it is in their best interests.

A father should therefore not feel helpless should the mother of the child attempt to deny him access and visitation to his children or threaten to take the children out of his life, as this would be unlawful and the father has the right to take this matter to the office if the family Advocate and/or the Children’s Court.

In today’s time, divorce, where children are involved, is more common, and more people are having children out of wedlock and not marrying at all.

It is therefore highly recommended that unmarried/divorced fathers set up a registered parenting plan and agreement with the mother of the child to avoid disputes regarding access and visitation. If no agreement or court order exists, then the father cannot enforce his rights given to him by our law.

Ladysmith attorney rises in the ranks at long established law firm

Ladysmith Gazette Article

Maree & Pace, Mpulo is pleased to announce that Mr Justin Herbert Pitout has recently joined the firm as head of the Civil and Criminal Litigation Department.

Justin will be appointed as a Director of the firm from April 1, 2017.

Justin is an admitted Attorney and Conveyancer of the High Court of South Africa and has practiced as such for some years now.

He is a well-known and respected legal practitioner in Ladysmith and surrounding areas.

Justin was born and raised in Ladysmith, a previous pupil at Egerton Primary School and Ladysmith High School, where he received his Senior Certificate in 2004 with distinction.

Justin furthered his tertiary education at the University of the Free State and University of KwaZulu-Natal (Howard College) respectively. In 2009, Justin was awarded his Bachelor of Laws (LLB) Degree and in 2010, the Master of Laws (LLM) Degree. While completing his studies, Justin received Golden Key Honour Society Membership for academic excellence and was placed among the top 15% of students at the university.

In 2011, Justin was appointed as a Candidate Attorney and served his two years of articles.

In March 2013, he was admitted as an Attorney of the High Court.

In May 2015, Justin wrote the conveyancing examination and was one of only four candidates in KwaZulu-Natal (out of 87) to pass the six-hour written examination, with Justin obtaining the second highest mark in the province.

Justin has also been approached by Rhodes University (Grahamstown) to be appointed as an external examiner to monitor and assess the academic quality of research papers.

Justin has dedicated the last 13 years of his life to the field of law, and is very humbled and honoured to be a part of the firm Maree & Pace, Mpulo and to be given the opportunity to fulfil the role of the late Mr Louw, who was a very reputable attorney during his tenure at the firm.

A few words by the current Directors, Danie du Preez and Gail Green:

Justin has steadily gained a reputation in Ladysmith for being passionate about the law, tenacious, hardworking and dedicated to his clients.

In the light thereof, we are extremely happy that Mr Pitout has decided to join us and add valuable skills to the firm.

Maree and Pace, Mpulo is, to our mind, a firm that evolves with the times and remains at the forefront of the practice of law.

With the appointment of Justin, it is a declaration to our clients that we care for the continuity of our firm that was established by Mr JW Maree in 1966, who was later joined by Mr Robert Pace in 1969.

Our vision is that Maree & Pace, Mpulo must not only continue to provide the current Ladysmith community with sound legal advice, but also to provide legal services to future Ladysmith generations to come in our fields of practice, namely criminal and civil litigation (divorces, maintenance, debt collection, property transfers and bond registrations as we are on the panel of the four major banks), administration of deceased estates, wills, estate planning and commercial law such as drafting of contracts and contractual disputes.

We congratulate Justin for his achievements and warmly welcome him to Maree & Pace, Mpulo.