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Simon Dippenaar
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B.Bus.Sci (UCT), LLB (UCT), PDLP (UCT)
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To accrue or not to accrue? Community of property under the accrual system

Make sure your antenuptial contract reflects your intentions

These days many couples contemplating marriage consider drawing up an antenuptial contract (ANC). Historically, most marriages were ‘in community of property’, and this regime provided a degree of protection to women, who traditionally carried out household duties while men earned the family income. In the absence of her own earnings, a woman needed the security of joint marital property, particularly if the marriage ended in divorce. An equal division of property ensured a woman who had no assets of her own was not thrust into penury by the dissolution of her marriage.

Antenuptial contract

As the median age for marriage increases (32 for women, 36 for men), it’s only natural that couples will have well-established careers and independent economic lives before tying the knot. Both parties may own property or other assets. With over 40% of marriages ending in divorce before the 10th wedding anniversary, it is not surprising that many couples choose to walk down the aisle clutching an ANC.

With or without accrual

If an ANC is in place, automatically the marriage is out of community of property. This means that all assets owned by each party before the marriage is solemnised remain the property of the individual. They do not become part of a joint marital estate. However, within this regime, there are still choices to be made. Should the marriage out of community of property be with or without accrual? There is no right or wrong answer; one is not better than the other. There are pros and cons to both and the most suitable option will depend on the couple’s priorities and preferences. Let’s explore the implications of each.

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When the inevitable happens…

What happens to the estate on the death of a spouse depends on the marital regime

No one wants to think about dying, but it happens to us all eventually. Since death is the one thing we can’t escape, it makes sense to make the necessary arrangements and then get on with living life to the full. If you are married, it’s important to understand what will happen to the marital property when you die.

You may have an antenuptial contract in place and you may have opted for a particular marital regime for a good reason – but it’s possible your reasoning didn’t extend to the end of your life. What may serve you well when you are young and economically active may not produce the best outcome for you on the death of your spouse. In this article we look at how the different marital regimes impact on the winding-up of the estate on death.

Marriage in community of property

If you and your partner married without an antenuptial contract, you are automatically married in community of property. (See What is an Antenuptial Contract? for the definition of the marital regimes.) All your assets are jointly owned, even if they belonged to you individually before the marriage. As we have explained previously, this joint ownership also extends to liabilities. The marital estate is a joint estate, owned equally by both partners.

In the context of death this means the joint estate is dissolved. After all, there can’t be a joint estate with only one owner. The joint estate must be wound up by an executor in terms of the Administration of Estates Act No 66 of 1965. The executor will pay any debts owed by the estate and collect any money owing to the estate. If there are any outstanding debts of either spouse that pre-date the marriage, these are not settled from the joint estate but from the net half of the debtor, whether they are the deceased or the surviving spouse.

When all debts have been settled, the surviving spouse is entitled to half the net balance of the estate. It’s important to note that this is not an inheritance, and no inheritance tax is payable. It belongs to the surviving spouse because of the matrimonial property system that defined the marriage, i.e. community of property. The other half of the estate goes to the deceased’s heirs.

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When it all gets too much – divorcing a narcissist

Beware of the pitfalls particular to divorce from a narcissist

In our last post we talked about the characteristics of narcissistic personality disorder (NPD) and we described some coping strategies that may help to make life with a narcissist bearable. But if it all gets too much, you may feel ending the relationship is the only way out. If you are legally married, that means divorce.

Be prepared. If life with the narcissist was hard, breaking away may be next to impossible. They will not want to let you go; after all, denigrating you bolsters their ego. More importantly, the act of being rejected by you provides the opportunity for a tremendous show of victimisation and a chance to show the world what a terrible person you are.

Some of the tactics the narcissist might employ

For the narcissist your divorce will be a game they have to win. They need to be seen as the victim, and be proven “right”. Your emotional plight is of no concern to them (remember a narcissist is incapable of empathy). It’s important to understand this context from the start so you are equipped to withstand the roller coaster ride you are about to be subjected to. Some tactics the narcissist might use include:

  • Obstructiveness – incurring lots of delays that will frustrate you and/or run up costs
  • Refusal to negotiate – another manoeuvre to prolong the process and wear you down so you capitulate
  • Vilification – be prepared to have your character assassinated
  • Refusal to close the case – even after settlement you may be dragged back into court or suffer endless emails harassing you or complaining about some aspect of your behaviour or parenting skills (we’ll cover this in co-parenting with the narcissist)

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Abusive behaviour – How to recognise abusive relationships

It’s not always easy to tell victim from abuser

Abusive behaviour – During the 16 Days of Activism for No Violence Against Women and Children, our attention turns to domestic abuse and intimate partner violence. South Africa still has a shameful track record of gender-based violence, despite years of awareness raising and activism. While not all intimate partner violence is directed at women, the vast majority involves men exerting power – either physically or emotionally – over women.

Abusive behaviour

As part of the 16 Days of Activism, this article will examine the nature and manifestations of relationship abuse, because not all abuse is obvious and not all abusers appear to be monsters. We will also explore the increasing incidence of victims who adopt abusive behaviour, and abusers who position themselves as victims. Situations of domestic abuse can be complex and it is not always easy for family and friends – or even those directly involved – to understand what is going on.

 

From victim protection to victim identity

Psychologists have identified a new phenomenon linked to our “age of entitlement”: victim identity. This is defined as a “focus on damages suffered at the hands of other people”. Abusers often describe themselves as victims and may claim that their partner’s behaviour is abusive. They have almost certainly convinced themselves of this and genuinely believe they are the victims of abuse, for example when their partner disagrees with them or doesn’t comply with their wishes. However, unlike the genuine survivors of abuse, those with a victim identity show no compassion for others and tend to be self-righteous.

 

Victim turned abuser

It sometimes happens that adult abusers were themselves abused as children. This is particularly true of sexual abuse, a fact that has come to light with recent high-profile cases. However, it is a myth that all people who were sexually abused as children go on to become abusers. According to 1in6.org, a charity set up to help men who have had unwanted or abusive sexual experiences live healthier, happier lives, most people who abuse others were abused as children, but the reverse is not true. Most people abused as children do not go on to abuse others.

However, sometimes victims develop coping strategies that can manifest as abusive behaviours. According to relationship psychotherapist Aron Strong, abusive behaviour serves three primary functions for people who have themselves been abused:

  • It enables them to take what they need or want because they don’t think it will be offered to them
  • It helps them overcome feelings of powerlessness
  • It serves to vent frustration and pain

There is no apparent gender bias in these strategies. Both men and women may become pitiless or brutal as a means of dealing with what has happened to them. Sometimes a mother’s treatment of her child may be unnecessarily harsh because she feels powerless in her adult relationship.

There are never any excuses for abusive behaviour towards another person (or other living creature). Understanding the motive behind someone’s antisocial action does not forgive it. But it will help a good therapist approach treatment appropriately. If you have a friend or family member who has become uncharacteristically abusive towards others, this might be a sign that they are experiencing abuse themselves.

 

Recognising abuse

Abuse is not always physical. There may be no external signs. Even where it is physical – i.e. sexual – it may not be apparent to an observer. As the lines between victim and abuser become blurred, we describe the different types of abuse and how to recognise signs of abuse, either in your own relationship or in those you care about.

 

Types of abuse

Womenagainstabuse.org lists six different types of abuse. They are:

1.     Physical abuse. This could take the form of:

  • Hitting, slapping, punching, kicking
  • Burning
  • Strangulation
  • Damaging personal property
  • Refusing medical care and/or controlling medication
  • Coercing partner into substance abuse
  • Use of weapons

2.     Emotional abuse, which is control of someone via:

  • Name calling, insulting speech
  • Blame casting
  • Jealous behaviour
  • Intimidation
  • Shaming, humiliating
  • Isolating the partner from family and friends
  • Controlling the partner’s movements

3.     Sexual abuse

  • Forcing the partner to have sex with other people
  • Pursuing sex when the partner is not fully conscious or is afraid to say no
  • Hurting the partner physically during sex
  • Forcing the partner to have sex without protection

4.    Technological abuse – using technology to control and stalk someone. This has gained prominence, particularly among teenagers, with the rise of social media and online “grooming”; but it can be used by people in conventional relationships too. It involves:

  • Hacking into the partner’s email and personal accounts
  • Using tracking devices via cell phone to monitor the partner’s location, phone calls and messages
  • Monitoring the partner’s social media activity
  • Demanding passwords from the partner in order to access online accounts

5.    Financial abuse. A form of emotional abuse, it is nevertheless considered separately because it is a very specific way of controlling someone and needs to be recognised as such. It can include:

  • Inflicting physical harm or injury that would prevent the person from attending work, thereby exerting power over the partner’s earning capacity
  • Harassing the partner at their workplace
  • Controlling financial assets and/or putting thepartner on an “allowance”
  • Damaging the partner’s credit score

6.    Abuse by immigration status. In a country where there are undocumented immigrants, such as South Africa, this is a very effective way of controlling someone, as the threat of being sent to a repatriation centre or deported is very frightening. Such abuse may involve:

  • Destroying immigration papersor removing the passport
  • Threatening to hurt thepartner’s family in their home country
  • Threatening to report the partner to the authorities or have them deported

 

Signs of abusive behaviour

Well-meaning outsiders often say, “I would never let myself be abused,” or, “I wouldn’t stick around if a partner treated me like that.” But domestic abuse or intimate partner violence is not something that suddenly happens one day and is readily identifiable. Rarely does someone go from being a loving partner to a tormentor in one defining action. More often it is gradual, insidious; and the nature of abuse is such that often the person being abused assumes the change in the partner’s behaviour is their own fault. Extricating oneself from the abusive situation can be very difficult, either due to a lack of financial independence or physical threats.

Women’s Aid has put together a very useful questionnaire that can help identify irregular and potentially abusive behaviour. It is designed for victims, but is equally helpful to family and friends. For “you”, simply substitute “my loved one”.

1.     Has your partner tried to keep you from seeing your friends or family?

2.     Has your partner prevented you or made it hard for you to continue or start studying, or from going to work?

3.     Does your partner constantly check up on you or follow you?

4.     Does your partner unjustly accuse you of flirting or of having affairs with others?

5.     Does your partner constantly belittle or humiliate you, or regularly criticise or insult you?

6.     Are you ever afraid of your partner?

7.     Have you ever changed your behaviour because you are afraid of what your partner might do or say to you?

8.     Has your partner ever destroyed any of your possessions deliberately?

9.     Has your partner ever hurt or threatened you or your children?

10.  Has your partner ever kept you short of money so you are unable to buy food and other necessary items for yourself and your children or made you take out loans?

11.  Has your partner ever forced you to do something that you really did not want to do?

12.  Has your partner ever tried to prevent you from taking necessary medication, or seeking medical help when you needed it?

13.  Has your partner ever tried to control you by telling you that you could be deported because of your immigration status?

14.  Has your partner ever threatened to take your children away, or said he/she would refuse to let you take them with you, or even to see them, if you left him/her?

15.  Has your partner ever forced or harassed you to have sex with him/heror with other people? Has he/she made you participate in sexual activities that you were uncomfortable with?

16.  Has your partner ever tried to prevent you from leaving the house?

17. Does your partner blame his/her use of alcohol or drugs, mental health condition or family history for his/her behaviour?

18.  Does your partner control your use of alcohol or drugs (for example, by forcing your intake or by withholding substances)?

 

We can help with abusive behaviour

SD Law & Associates are experts in family law and have dealt sensitively with many cases of domestic abuse and gender-based violence. We have good relationships with local victim support groups and can ensure the emotional welfare of survivors and children is safeguarded, while we look after the legal aspects. We know how frightening it can be to take the first step out of an abusive relationship.

Contact us on 021 439 5208 or 076 116 0623 today for a confidential discussion. Or contact us. Your enquiry will be handled with the utmost discretion.

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Narcissistic abuse – What is it and how do you handle it?

Narcissistic abuse

We’ve written a lot about narcissistic control and abusive relationships in the past (click here and here). Why do we keep revisiting this topic? Because as divorce attorneys we see a disproportionate number of narcissistic personality disorder cases. Unsurprisingly, for the partners of individuals who suffer from these conditions, life can become unbearable and the breakdown of a relationship often ensues. As family law specialists we try hard to help survivors of abusive control navigate the dissolution of the relationship and the next phase of life, which may entail a continuing relationship with the narcissist as a co-parent.

Narcissistic Abuse

What is narcissistic personality disorder?

Technically there is a difference between narcissistic personality disorder (NPD), which is considered a psychiatric disorder, and narcissism, which is a social trait, but the boundaries are often blurred and the terms used inaccurately. Someone who displays narcissistic traits may be vain and irritating, but is probably unlikely to become abusive or controlling. NPD, on the other hand, is characterised by abnormal behaviour that includes exaggerated feelings of self-importance, excessive need for admiration, and a lack of empathy for others.

The bible of the American psychiatry profession, the Diagnostic and Statistical Manual of Mental Disorders (DSM), categorises NPD as a “Cluster B” – dramatic – disorder, typified by a fixation on feelings of power and a grandiose sense of entitlement and superiority. True NPD inhibits someone from forming meaningful human relationships; but, paradoxically, they may be charming and attractive, and vulnerable people in particular may be drawn to them.

Are you experiencing narcissistic abuse?

Pathological narcissists can be controlling and self-absorbed. They are often intolerant of different views and tend to blame others, being blind to someone else’s needs and insensitive to the effect their behaviour has on others. Their self-protection strategies often include belittling and undermining others, and over time the narrative of constant criticism can turn into outright insults and humiliation. If a partner attempts to question or confront them about their behaviour, they may turn it around and make hostile accusations towards the other. If you’re not sure whether your partner exhibits symptoms of NPD, ask yourself if you have ever heard…or regularly hear…any of the following phrases:

  • “You’re jealous” (or “manipulative”, “crazy”, “insane”, etc.). We all say these things in jest occasionally, but if it is said with malice or disdain, and it makes you feel bad, it may be indicative of NPD.
  • “You’re overreacting” (or “insecure”, “oversensitive”, etc.). Chances are your reactions are perfectly legitimate, but these adjectives will sow seeds of self-doubt and help to make you vulnerable, which is just the way the narcissist wants you.
  • “You misunderstood me.” Maybe you did. From time to time we misunderstand our partners. But if you hear a barrage of “you did this, you did that” with no acknowledgement of the other’s role in the transaction, you are being manipulated into feeling guilty or flawed.
  • “You’ll never find someone like me.” This has two interpretations, both dangerous: it reflects a warped sense of worth, indicating feelings of superiority; and it implies that you are lucky to have them and aren’t likely to be successful in finding anyone else stupid enough to love you (an undermining tactic). Run away. With luck, you won’t find someone like them again!

How do you deal with a narcissist?

It’s tempting to say, “don’t deal with them”. Move on. But the reality is…you may have to deal with them. Or you may want to. The narcissist may be a family member or a work colleague whom you can’t escape. Or they may be your partner, and whatever their faults, you do love them. It’s important to remember that a disorder is just that. It is not deliberate behaviour and usually not personal – even though it feels excruciatingly so. The narcissist is too absorbed in their own thoughts to intentionally try to hurt you; the pain you feel is collateral damage. And there are ways to mitigate that.

  • Refuse to play their mind games. This is easier said than done, because it is easy to get “sucked in” and not recognise the games for what they are. Don’t be defensive when being blamed for something; simply present the evidence to the contrary. Don’t respond to digs, and don’t doubt yourself if you remember a situation differently from how the narcissist describes it. Your memory is probably just fine but narcissists are very good at manipulating you. Don’t fall for it.
  • Be a patient listener. Narcissists crave attention and want to be listened to. If you are able to smile and nod (a lot!), you will give them the positive affirmation they seek and at the same time avoid engaging in potentially confrontational situations. (This may work better with friends or colleagues than an intimate partner; you can’t avoid all emotional engagement with the latter.)
  • Don’t expect to be listened to. As much as you should be able to offload on someone close to you, a narcissist just isn’t capable of empathy. They will not be able to give you the support you need; you’ll have to look for it elsewhere.
  • Find ways to bolster your own self-worth. It will be constantly undermined by the narcissist, and it’s important not to start to believe their version of you. If you have intrinsic faith in yourself, you will be more able to withstand the fault-finding you may endure.
  • Set boundaries. A narcissist may find it difficult to see things from your point of view, but they will understand boundaries if you consistently and calmly communicate them. Know what you can and cannot tolerate and stand your ground. Eventually the other person will learn to respect your boundaries.
  • Finally, try to understand them. It’s not easy, but if you can remind yourself that the charges they lay at your feet are really aimed at themselves, and that they do genuinely have a disorder, you will be more able to respond with compassion rather than anger. If things get too bad, it is possible to stage an intervention, but this must be carefully planned and involve the support of a trained professional.

When all else fails

If life with a narcissist spouse becomes unbearable, you may decide to consider divorce. Divorce isn’t easy, whatever the circumstances, but an “amicable divorce” is almost impossible with a narcissist. There are particular pitfalls to avoid if you want to emerge from the process as unscathed as possible. This will be the subject of our next blog post.

Contact a lawyer

SD Law & Associates are experts in divorce and family law and have dealt with many cases of narcissistic control in intimate relationships. If you are married to someone with NPD and considering divorce, or just want to discuss your options, we can guide you through the process with compassion and dignity. Contact us on 087 550 2740 or 076 116 0623. Or contact us.

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Parenting Coordination – When parents can’t agree, on anything

Parenting Coordination – In a high-conflict divorce, children are the unintended victims. However much the divorcing couple may claim to put the interests of their offspring first, very often children as used as pawns or bargaining tools between warring parents. Depending on the age and mental constitution of the children…and the severity of the conflict, this can have lasting psychological consequences for the young people involved.

Parenting coordination - Facilitation

How parenting coordination (facilitation) can help children in an acrimonious divorce

Parenting coordination

One solution is facilitation (as it is known in the Western Cape, and called “case management” in Gauteng and “parenting coordination” internationally). Facilitation is a narrow term that only captures a portion of what a parenting coordinator does, hence the legal profession is moving towards adoption of “parenting coordination”, which, according to legal expert Madeleine de Jong, is “a child-focused alternative dispute resolution process in which a mental health or legal professional with mediation training and experience assists high-conflict parties in implementing parenting plans and resolving pre- and post-divorce parenting disputes in an immediate, non-adversarial, court-sanctioned, private forum.”[1] – link

Parenting coordination aims to remove the children from the divorce equation and ensure their welfare is prioritised, regardless of the financial and emotional chaos that may surround the divorce proceedings of their parents.

When is parenting coordination used?

Although there are exceptions, generally a parenting coordinator is appointed by the court in situations where divorcing parents are highly litigious and where it appears that the process is going to be lengthy. While most people want to get the divorce behind them as quickly as possible, some high-conflict couples find compromise difficult and, either unwittingly or intentionally, seek to prolong the process. Some individuals are addicted to emotional upheaval and unconsciously thrive on the discord. Children of these parents need the protection of the courts.

A coordinator is appointed where there is clear evidence of an inability or unwillingness on the part of the parents to make healthy parenting decisions, to comply with official parenting agreements, to reduce their child-related enmity, and to protect their children from the fall-out of their disagreements.

What is the process?

A parenting coordinator is either appointed by court order (this can be with or without the consent of the parents), or is part of a parenting plan agreed between divorcing parents that has been made an order of the court. The court order or parenting plan should spell out the extent of the parenting coordinator’s authority. In some cases, the coordinator is granted decision-making powers. Where that is the case, the nature of the decisions the coordinator is empowered to make must be clearly articulated, i.e., are they minor issues such as timetabling or major issues such as relocation? In other cases the role of the coordinator is simply to assist with the implementation and monitoring of the parenting plan between the parties.

Can either party refuse parenting coordination?

Because a parenting coordinator is only appointed when all attempts at reasonable dialogue between the parents have failed, and the parenting coordination is part of a court-imposed arrangement, parents cannot refuse the involvement of a parenting coordinator. The court has the power to appoint a parenting coordinator without the consent of the parents, if the welfare of the child or children is a matter for concern.

When it comes to the choice of professional, the parents may have the option of appointing a coordinator by agreement, but if they can’t agree on the individual, the court may step in and select a coordinator on their behalf. Alternatively, a local mediation organisation might be authorised to choose one. Even where the parenting coordinator is “imposed” on a couple, it is very important that the selection be made with sensitivity for all the personalities involved.

Who can be a parenting coordinator?

A parenting coordinator should be suitably qualified in terms of training, experience and education. A coordinator should have completed a basic 40-hour mediation training programme and be accredited by the National Accreditation Board for Family Mediators (NABFAM) through a local mediation organisation such as FAMAC, the South African Association of Mediators (SAAM) or the KwaZulu-Natal Association of Family Mediators (KAFAM). In addition, a coordinator needs to have worked extensively with high-conflict families. Most coordinators are psychologists, social workers, mediators, family law attorneys or retired judges.

We can help

SD Law & Associates are experts in divorce and family law and have dealt with many high-conflict divorce cases. We have experience in working with parenting coordinators and ensuring the interests of children are protected. In many cases, we can help you resolve your conflict without resorting to parenting coordination. Where a parenting agreement and the appointment of a parenting coordinator are necessary, we can guide you through the process. If you are considering divorce and are worried that your partner may be obstructive, or just want to discuss your options, contact us on 087 550 2740 or 076 116 0623 or contact us. Your enquiry will be dealt with in the utmost confidence.

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Married abroad? Make sure your marriage is legal in South Africa.

Married abroad? South Africa is a popular wedding destination, and it’s not hard to see why. Many of our beautiful wine estates offer wedding packages and our climate means that northern hemisphere couples have a much bigger “window” for a summer ceremony.

Our foreign newlyweds will immediately be supplied with an Abridged Marriage Certificate, to be followed by an Unabridged Marriage Certificate when the marriage is registered with Home Affairs. The Unabridged Marriage Certificate is used to register the marriage back home.

Married Abroad South Africa

Be sure your marriage is legal back home

South African, married abroad

If you’re reading this you are probably residing in South Africa. You may or may not be a South African citizen, and/or you and your spouse were married abroad. How do you know if your marriage is recognised here in South Africa? What happens if things don’t work out?

Apostille

You may have heard this term and wondered what it means. Take the case of our visiting bride and groom above. Their Unabridged Marriage Certificate will be “apostilled” by Pretoria before being sent to them. This makes it legal in their home country and anywhere else in the world (almost).

The principle of apostille is a pillar of the Hague Conference on International Private Law (HCCH). The HCCH has 83 member states (of which South Africa is one) – 82 countries plus the whole of the European Union, which is classified as one member state.

The Apostille Convention (or Treaty), part of the HCCH, allows a document issued in one of the signatory countries to be certified for legal purposes in all the other signatory states. It is like notarisation here in South Africa, and is often applied to a document that has been notarised locally. As long as both countries involved are member states, there is no need for “legalisation”, which involves dual certification – by the originating country and the receiving country.

What this means for your marriage certificate

If you get married abroad, you will need to show certain documents to the local authorities, usually your full birth certificate; valid 10-year passport with at least six months’ validity remaining; proof of any name changes (other than through marriage); and proof that any previous marriages are no longer valid – either the decree absolute in the case of divorce or the marriage and death certificates of the deceased spouse if one of you is widowed.

When you get married you will be issued with a marriage certificate. Be sure to have it apostilled (this is likely to be done automatically for you as foreigners but play safe – double check). Then when you return home you simply register the marriage at Home Affairs using your apostilled marriage certificate and you will be issued with a South African marriage certificate.

Although many popular wedding destinations are part of the HCCH, it’s worth noting that on the African continent only South Africa, Zambia, Burkina Faso, Morocco, Egypt and Mauritius are members. So if you are planning to get married in Zanzibar, for instance, you will need to have your marriage certificate legalised in both Tanzania and South Africa. You can find the full list of member states here.

When will it matter?

Happily married couples rarely have cause to dig out their marriage certificate. There is no legal requirement to be married to take out a bond on a house together, for example. You do need to show your marriage certificate when registering the birth of a baby, but generally the validity of a marriage is only put to the test when there is a legal claim. This might be:

  • Divorce
  • A claim against an antenuptial contract
  • A claim for inheritance in the event of intestacy
  • A custody claim for children of the marriage
  • A charge of bigamy (if the foreign marriage was not disclosed at the time of a domestic marriage)

So whether you are a South African couple planning the wedding of your dreams abroad, or you met and married your spouse overseas and returned here, it’s a good idea to check the status of the country of marriage and make sure your documents are in order. You may save yourself a lot of heartache later.

We can help

If you are not sure whether your foreign marriage certificate is legal in South Africa, contact us on 087 550 2740 or 076 116 0623. Or contact us. We’ll investigate and help you put things right if there are any irregularities. Learn more about SD Law.

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Muslim Marriages – Judgement a victory for women married under Sharia law

Muslim marriages – In 2005, when the Constitutional Court ruled that same-sex marriages should have the same rights, responsibilities and legal consequences as any other civil marriage or union, customary marriages also gained full recognition. Muslim and Hindu marriages, unfortunately, did not as they are not governed by civil law.

Muslim marriages in South Africa

Muslim marriages

This situation is set to change following a judgement by the Western Cape High Court in the Women’s Legal Centre Trust v President of the Republic of South Africa & Others. The State was found to have failed its constitutional duties to recognise, respect and protect the rights of women in Muslim marriages, and the Court ruled that legislation recognising Muslim marriages and providing Muslim women and their children with legal protection in the event of a divorce must be introduced within 24 months. If this deadline is not met, these marriages could ‘be dissolved in accordance with the Divorce Act 70 of 1979’.

The current state of affairs

The contentious Muslim Marriages Bill, published in 2000, has not yet been passed and there is much dispute about removing provisions such as the need for theologically trained judges or Muslim assessors. The legislation could also be deemed optional and this will, no doubt, raise a multitude of problems. In the meantime, couples who marry under Islamic law will only be protected under South African law if they also register a civil marriage.

Greater protection, recognition and rights in Muslim marriages

Several cases over the last few years have, however, greatly advanced the protection, recognition and rights of Muslim marriages. We highlight just a few below.

Interestingly, most cases of this nature have been brought by Muslim women, although the judgements extend to Hindu marriages as well.

Rights of a spouse to succession

A spouse in either a monogamous or polygamous Muslim religious marriage is now also able to inherit from the intestate estate of a deceased spouse and claim maintenance from the estate (Hassam v Jacobs NO and Others 2009). Prior to this, legislation only granted rights to spouses in monogamous marriages. This was found to be inconsistent with the spirit of the Wills Act and deemed invalid.

In the case of Khan v Kahn 2005 , the Court  ruled that a couple married under Sharia law have a duty of support towards each other and are entitled to claim maintenance under the Maintenance Act 99 of 1998.

The rights of children

Although Muslim and Hindu marriages are not legally recognised, children born of a Muslim or Hindu marriage are not considered illegitimate, and the father automatically acquires parental rights and responsibilities. Despite this, children born to Muslim marriages currently do not have the same protection as those born in civil or customary marriages, particularly in the event of divorce.

A share in property

Muslim marriages are regarded as being out of community of property, excluding the accrual system. This contrasts with civil unions where community of property is the default marital regime. Where both parties have contributed assets to the marriage, ownership lies in the hands of the individual and do not form part of a single estate.

As far as immovable property is concerned, if a couple get divorced, the wife is not automatically entitled to claim a share of property registered in her husband’s name. It is therefore prudent to register property 50-50 in the names of both spouses.

Women remain vulnerable

The Women’s Legal Centre Trust judgement is a significant win for women, who are still among the most vulnerable in society. The underlying message of the judgement is evident: we need clear and comprehensive legislation that protects and upholds the rights of women in Muslim marriages.

Equality is not only a fundamental right, it is a central part of our Constitution. We look forward to the new legislation.

We can help

SD Law & Associates are experts in divorce and family law. If you need advice about legislation on Muslim or Hindu religious marriages or divorce, we can help. Contact us or call 087 550 2740 or email sdippenaar@sdlaw.co.za

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