Keyes Attorneys

02/10/2024

CAN A MAN CHANGE HIS SURNAME TO HIS WIFE'S SURNAME?

Section 26(1)(a)-(c) of the Births and Deaths Registration Act read with it’s regulation 18(2)(a) deals with the assumption of “another surname". The section provides that a surname can only be changed if the Director-General has authorised the change.

The section permits, inter alia, that a woman after her marriage, can assume the surname of her husband or after having assumed his surname, resumes a surname which she bore at any time prior to the marriage. A husband cannot assume his wife’s surname in the same instance nor can a husband adopt a hyphenated surname combining both his and his wife’s surname without the Director-General's consent.

On the 12th September 2024 the Free State High Court held that Section 26(1)(a)-(c) of the Births and Deaths Registration Act and regulation 18(2)(a) of the related regulations are unconstitutional due to gender-based discrimination. The court granted President and Cabinet, together with Parliament, 24 months, to remedy the foregoing defects by either amending existing legislation, or passing new legislation within 24 months, in order to ensure that male persons are afforded the right of assumption of
another surname.

eng@2024-09-12" rel="ugc" target="_blank">https://lawlibrary.org.za/akn/za-fs/judgment/zafshc/2024/140/eng@2024-09-12

02/10/2024

Ownership of Burial Sites

On 10 September 2024, The South Gauteng High Court handed down an interesting judgement regarding ownership of burial sites (Johannesburg City Parks and Zoo and Another v G.Z (A2023/027196) [2024] ZAGPJHC 863).

Facts: The respondent, GMZ and her late husband SMZ, were married in community of property in 1993. They separated in 2011, and SMZ obtained a divorce decree by default in 2013, which was later set aside in 2014. SMZ took no further steps to pursue the divorce and was killed in 2019 while still legally married to GMZ. Despite opposition from SMZ's family, GMZ paid for his burial at Westpark Cemetery. However, due to family arrangements, the grave site was registered under SMZ's sister's name, TJM. When GMZ later attempted to erect a tombstone, cemetery officials denied her permission, stating that only TJM had the right to do so. GMZ launched an urgent application seeking permission to erect the tombstone and to be registered as having rights to the grave. TJM did not oppose this application but the City of Johannesburg opposed this application, arguing that GMZ was not the registered owner of the grave rights and should seek permission from TJM. The court of first instance ruled in GMZ's favour, leading to this appeal by the city.

Ownership of grave rights: according to the by-laws, the person who pays the burial fees acquires private rights over the grave. As GMZ had paid these fees, she had a valid claim to these rights. Furthermore, her marriage in community of property gave her ownership rights over the contents of the grave. The court also noted the rigidity of the city's approach and questioned the necessity of the appeal, given that GMZ had only sought to be recognised as co-owner of the grave rights, not to exclude TJM, who, in any case, did not oppose the application.

Judgement: The court dismissed the appeal, affirming GMZ's right to erect a tombstone and be recognised as having rights to her late husband's grave. The judges criticised the city's inflexible interpretation of its by-laws and unnecessary pursuit of the appeal. They ordered that the appeal be dismissed.

https://www.saflii.org/za/cases/ZAGPJHC/2024/863.html

09/02/2024

FORFEITURE OF BENEFITS OF MARRIAGE ON DIVORCE

S 9(1) of the Divorce Act empowers the court to make an order that “the patrimonial benefits of the marriage be forfeited by one party in favour of the other, either wholly or in part, if the court, having regard to the duration of the marriage, the circumstances which gave rise to the break-down thereof and any substantial misconduct on the part of either of the parties, is satisfied that, if the order for forfeiture is not made, the one party will in relation to the other be unduly benefited.”

The general rule is that a person, due to his/her substantial misconduct, within the marriage, cannot benefit, on divorce, from their own misconduct. Examples of such conduct has been assault, adultery, financial misconduct and physical or emotional abuse.
Forfeiture of benefits may be to an equal division of a joint estate when married in community of property, forfeit an accrual claim, a benefit provided for in the antenuptial contract - including uncompleted antenuptial gifts.

The list of when a claim of forfeiture may be applied for is not closed. Each case is judged on its own merits. An interesting case is a recent High Court matter, in the Limpopo Division, where the court dismissed a claim for forfeiture of benefits arising from the marriage in community of property in respect of the plaintiff's pension benefits and in respect of the parties' immovable properties. The wife claimed forfeiture of the benefits due, among other things, to the husband's lack of ambition.

The basic facts of the case can be read at:
https://thestar.pressreader.com/article/281973202551152

21/09/2023

‘In 2020, President Cyril Ramaphosa declared [gender-based violence (GBV)] South Africa’s second pandemic and noted that it needed to be taken as seriously as the coronavirus.

There is a new law that is coming in soon that will hopefully help protect persons in a volatile relationship.

De Rebus, a magazine for Attorneys, has an interest article, written by Mohammed Moola, about the changes to come. https://www.derebus.org.za/enhancing-effectiveness-strengthening-protection-for-domestic-violence-victims-through-the-amendment-act/

10/07/2023

ACT DISCRIMINATES AGAINST U***D PARENTS – CONCOURT

The Mediation of Certain Divorces Matters Act – which does not give unmarried parents the same access to the Family Advocate as married ones – has been declared unconstitutional by the Constitutional Court. A Business Day report says while married parents are able to access the services of the Family Advocate easily, unmarried ones cannot. The Centre for Child Law (CCL) brought an application to have the law overturned. The Constitutional Court ruled that the Act differentiates between married and unmarried parents and is therefore unconstitutional. The case arose from a 2020 dispute between a French-based rugby player and his former partner. After the couple separated the mother wanted to take their two children to Australia when she decided to emigrate there with her new husband. The father opposed the move, prompting the mother to approach the Gauteng High Court (Johannesburg), asking it to order the Family Advocate to investigate the best interests of the children regarding the relocation. In 2022, Acting Judge Franciska Bezuidenhout found the Act differentiates between parents based on marital status. Unmarried parents, she said, ‘have a different path to follow entirely’ from married ones, requiring a court order before the Family Advocate will be involved. Bezuidenhout declared the Act unconstitutional. The Constitutional court upheld the Gauteng High Court judgement and gave parliament a period of 24 months to cure the defect.

A more in-depth article can be found at https://bd.pressreader.com/article/281590950011366

04/06/2022

ANOTHER POSSIBLE CHANGE IN SOUTH AFRICAN DIVORCE LAW

There are various changes, and possible changes, to our family and matrimonial laws in recent times.

One such possible change is the recent judgment by Van der Schyff J in the Pretoria High Court. The court held that “Section 7(3)(a) of the Divorce Act, 70 of 1979, is declared inconsistent with the Constitution and invalid to the extent that the provision limits the operation of section 7(3) of the Divorce Act to marriages out of community of property entered into before the commencement of the Matrimonial Property Act, 88 of 1984”

A simple explanation: If a couple enters into an Ante-nuptial agreement, which provides for their marriage to be out of community of contract, with the exclusion of the accrual regime, then the assets and liabilities, that they each bring into the marriage, and what they acquire during the marriage, remain exclusively theirs during, and for this particular case on conclusion of the marriage ie death or divorce. The net effect is that there is that a spouse has no claim against the other spouse even if that spouse contributes, directly or indirectly, to the other spouse’s maintenance or increase in their estate.

The court found this to be inconsistent with the Constitution. It held “In ideal circumstances where parties commit 'for better and worse, until death do us part' the economic inequality that follows when one spouse contributes to the other's maintenance or estate growth while its own estate decreases or remains stagnant, may not even be noticed. The unity of marriage conceals economic disparity because it is, for the most part, during the subsistence of the marriage of no consequence. However, where it becomes apparent on divorce that one spouse's estate increased because of the other spouse's contribution while the latter spouse's estate decreased, the party who received maintenance from the other or whose estate increased because of a direct or indirect contribution by the other, have received what can be described as an unfair economic advantage on the basis of the marriage.”

This provision in the Divorce Act has been referred to the Constitutional court for its confirmation. We have thus have to wait to see if the Constitutional court will confirm or dismiss the judgment.

The judgment can be found at https://lawlibrary.org.za/za/judgment/high-court-south-africa-north-gauteng-pretoria/2022/3

10/05/2022

LEGACY LETTER

When drafting a Last Will and Testament, people generally consider what wealth they can give to their family when they pass on. They consider their wealth to be their financial assets, cash, investments, etc. They contemplate to whom they should give “their” wealth.

Often, however, they forget that their greatest assets are their life story and lessons, values, cherished memories, hopes for their family’s future, and other things which may be important to them.

To teach family members what they have learned often will stay with that family member for eternity whereas the financial wealth received as a bequest, though important, is temporal. A person’s life stories of their struggles and values could help their children build their own financial wealth and to become self-reliant better than financial assets could.

You can leave a lasting legacy by leaving your life stories and hopes for your family etc, in a Legacy Letter, a scrapbook or even a video. A legacy is a lasting impact on the world. It's a gift that is passed down through generations.

We, at Keyes Attorneys, can help you create a marriage contract, help you with your estate planning or to draft and execute your Last Will and Testament, and even administer your estate after you pass on. We can’t, however, create the legacy that you wish to leave behind. That you need to do. yourself.

How can we help you? https://keyesattorneys.co.za/

18/04/2022

CONSUMER PROTECTION ACT 68 OF 2008

Do you know your rights as a consumer or responsibilities if you own a business? Many don’t.

The Consumer Protection Act (CPA as generally known) provides for these responsibilities and rights. The Act protects all individual persons and small businesses with assets and turnover of less than R2 million.

A good summary of the Act can be found athttps://www.lssa.org.za/wp-content/uploads/2019/12/LSSA-CONSUMER-PROTECTION-ACT-BROCHURE-20121.pdf

21/03/2022

CHANGES IN MARRIGE LAWS

Recently there have and are many attempts to change the traditional laws that relate to marriages in South Africa.

The law at present provides that a couple married out of community of property, after 1st November 1988, have no claim against each other for a share of their spouse’s estate. The principle is that the couple had the option to choose the Accrual Regime, where they could share the value of their estates (simplistically stated), but they elected not to as they chose to specifically exclude the accrual.

An example of possible changes is that presently the Gauteng High Court has reserved judgement in an application where couples who are getting divorced and who are married out of community of property and who excluded the accrual regime can be compensated for their financial contribution to the marriage. This in fact is the situation for those couples who were married before 1st November 1988 out of community of property. We will wait and see the outcome of this application.

The government a while ago published a Green Paper on marriages. A green paper is a document setting out various issues and suggested resolutions on the subject and then asks the public for comment. The outcome of this green paper could bring massive changes to our law.

A reasonable break down of the content of the Green Paper on marriages is found at http://www.dha.gov.za/index.php/notices/1449-know-your-green-paper-on-marriages-in-south-africa.

12/02/2022

COMMON LAW MARRIAGE

We do not have the concept of “common law marriages” in South Africa. There is a widespread false belief that when two people, who have been living together for a period of time, have what is called “a common law marriage”, which means that their relationship has the status of a legal marriage.

Many people believe that when they cohabitate they are in a common law marriage and that they, on their partners death, have rights to inherit from their partner’s estate, if there is no will, or to claim maintenance from their partners estate. When the relationship terminates by death the surviving partner is shocked and dismayed to find that they do not have any legal rights whatsoever against their partner or his/her deceased estate.

This appears to be changing. The concept of “common law spouse may well be on its way into South African law.

In September 2020 the High Court of South Africa, Western Cape Division, found that the above was unconstitutional. The court found that the facts in this case were that “the Applicant and the deceased were, at the time of the deceased's death, partners in a permanent opposite-sex life partnership, with the same or similar characteristics as a marriage, in which they had undertaken reciprocal duties of support”.

The court held that various sections of the Intestate Succession Act 81 of 1987, that prohibited a partner in a “permanent opposite-sex life partnership’” from inheriting from the deceased partners estate (where the partner did not leave a will) was unconstitutional.

The Constitutional Court on the 31st December 2021 upheld the Western Cape Division judgment and gave Parliament “18 months from the date of this order to enable Parliament to take steps to cure the constitutional defects:.

Who knows what the actual outcome will be and how far reaching it will be. Other responsibilities and rights still need to be dealt with however it does appear that the concept of “Common Law Marriages” is making it's way into our law. Parliament will no doubt place some conditions on the concept and give it a name.

The best way to protect yourself is by getting married with an antenuptial agreement alternatively a cohabitation agreement if you plan on living together. What ever it is imperative to have a last will and testament.

Jane Bwanya and Master of the High Court, Cape Town and others CCT 241/20 https://collections.concourt.org.za/bitstream/handle/20.500.12144/36725/%5BJudgment%5D%20CCT%20241-20%20Bwanya%20v%20Master%20of%20the%20High%20Court%20Cape%20Town%20and%20Others.pdf?sequence=24&isAllowed=y

29/06/2021

Mediation is a structured, interactive, cost and time effective process to help you resolve disputes such as divorce, maintenance, employment, landlord and tenant, Builders, contractors, contacts and many other disputes.

We can help.

Attorneys & Notaries

28/06/2021

New COVID-19 adjusted level 4 regulations.

http://www.gpwonline.co.za/Gazettes/Pages/Published-Separate-Gazettes.aspx

The regulations is the one entilted
44772 27-06 CoOperativeGovernance 27/06/2021

Government Printing Works