Section 29(2) of our Marriage Act

Legally speaking, can I get married in a garden or on the beach?  

Unfortunately some uncertainty is caused by our Marriage Act vs a court ruling. The Marriage Act 25 of 1961 lists the requirements for a valid marriage. 

According to section 29(2) of the Marriage Act, a marriage officer should solemnize a marriage IN a

i.                   Church;

ii.                  Building used for religious service;

iii.                 Public office; or

iv.                 Private dwelling house with open doors.

In the case of Ex Parte Dow the couple married in a garden. The husband applied to court for an order to declare the marriage null and void. The court, however, dismissed this application and ordered that section 29(2) was to avoid couples getting married in secret.

Please note that Ex Parte Dow was decided in the Durban and Coastal Division of the High Court. Remember that the High Court in Cape Town is not bound by the ruling of the High Court in Durban or elsewhere. 

Just to be on the safe side:

-          Unless you are getting married in Durban, please also follow up your outdoor ceremony ‘legally’ by signing the relevant documents in one of the buildings mentioned above.The parties to a wedding and two competent witnesses must sign the marriage register.

Legal Hero 

www.legalhero.co.za  

Seven Interesting Facts about Surrogacy

1.       Not for convenience

The artificial insemination of a surrogate mother is only lawful if the commissioning parent/ parents have a permanent and irreversible condition and are therefore unable to give birth to a child.

2.       The surrogate mother may not receive any form of payment

The surrogate mother may not receive any form of payment or reward apart from reasonable hospital/ medical expenses.

3.       The child and the commissioning parents must share genes

For a surrogate motherhood agreement to be valid, the genetic material of both commissioning parents, and if this is not possible, at least one of the commissioning parents MUST be used.

4.       The surrogate mother may, in some instances, change her mind within 60 days after the child’s birth.

If the surrogate mother shares genetic material with the child (in the instance where only one of the commissioning parents’ genes were used), the surrogate mother may change her mind without incurring any liability.

5.       A surrogate mother may get an abortion

The commissioning parents only receive full parental rights and responsibilities the moment the child is born. The surrogate mother must hand over the baby to the commissioning parents as soon as possible.

6.       The child may not claim maintenance from the surrogate mother

The surrogate mother has no parental rights or responsibilities in terms of the surrogate child. The child may also not claim maintenance from the surrogate mother’s husband or partner.

7.       Prior to 1 April 2010 there was no law regulating or prohibiting surrogacy

‘Mater semper certa est’ = Common Law rule stating that the mother who gives birth to the child is always the parent. This meant that the surrogate mother had to put the child up for adoption and the commissioning parents had to apply in order to adopt the child.  

Today chapter 19 of the Children’s Act regulates surrogacy and explicitly states that no potential surrogate mother may be artificially inseminated without a High Court confirming the written surrogate motherhood agreement between the parties.  

Who gets to keep the ring?

TIP

The same applies to marriage and divorce. 

In your ante-nuptial agreement you may arrange to keep your engagement ring should you divorce (regardless of fault/ blame). As a policyholder of the Legal Hero product, you are covered for an ante-nuptial agreement.

Wishing you a great day, 

Legal Hero

www.legalhero.co.za 

Choosing a Matrimonial Property Regime

Love is wonderful but every so often it can seduce us into acting hastily and making bad life decisions. One such a decision is choosing the wrong matrimonial property regime.

What is a matrimonial property regime?
A matrimonial property regime is a big word for the financial arrangement between you and your spouse. You could either be married:
· IN community of property
· OUT of community of property; or
· OUT of community of property WITH the accrual system.

Very important:
If you are fail to register an ante-nuptial agreement BEFORE you tie the knot, you are automatically married in community of property. This means that everything your spouse OWES and OWNS also belong to you (and vice versa).

Consequences of being married in community of property:

1. This regime means that you and your spouse share everything, including that car YOU bought before you two got married;

2. There is a common estate, therefore debt incurred by your husband or wife will also become your debt;

3. If your husband or wife is then unable to pay the debt, YOUR name will ALSO be listed on ITC (in other words, you will be blacklisted);

4. If the creditors then take judgment and ask for an attachment of property order, that car you bought before you got married can be confiscated to cover your spouse’s debt!;

5. If your spouse’s spending habits lead to sequestration or debt review, you will also form part of the sequestration or debt review.


Many couples, however, prefer South Africa’s default matrimonial property regime. It may work well for women or men who choose to stay at home and raise the kids. Your spouse’s salary is then also your salary and should you decide to go your separate ways and divorce, you will receive half of everything.

How to Apply for a Protection Order

1. Go to the Magistrate’s Court and complete a Protection Order Application form.
- You may ask the Clerk of the Court for assistance;
- Take with you all supporting documents (including Affidavits of others, photos, text messages, etc.);

2. The Presiding Officer will consider your application as soon as reasonably possible.

3. If the Presiding Officer agrees that you are in danger of further harm, the Presiding Officer will issue you with an interim Protection Order.
- The Presiding Officer can issue an interim Protection Order without listening to the harasser’s side of the story;
- An Interim Protection Order is a temporary court order;
- This temporary court order will specify a future date – the return date – upon which both parties (victim and harasser) are to appear in court to each present their case.

4. A member of the SAPS or the Sheriff of the Court will serve the interim order on the harasser.

5. On the return date: the Presiding Officer will listen to both sides of the story.
- If found on a balance of probabilities that the harasser did indeed commit an act of harassment and that harm will be suffered if a final Protection Order is denied, a final Protection Order will be issued;
- If not, the interim Protection Order will fall away/ become invalid;
- The Presiding Officer may even issue a final Protection Order in the harasser’s absence should the harasser be a no-show.

WHAT IS THE POINT OF AN INTERIM AND FINAL PROTECTION ORDER? 
- An interim and final Protection Order both come with a suspended warrant of arrest;
- An interim and final protection order both specify certain rules for the harasser to follow (do not make contact/ do not come within a certain distance of the victim/ etc.);
- Should the harasser overstep any of the rules stipulated in the interim or final order, the victim can go to the Police Station and ask for the harasser’s arrest!

Who can approach the Court for a Protection Order?

Before the Protection from Harassment Act:

· Only victims involved in a domestic relationship (such as spouses in a marriage, engaged couples or parties in a romantic-, intimate- or sexual relationship) could seek recourse.

After the Protection from Harassment Act (April 2013):



· Any victim of harassment causing mental, psychological, physical or economic harm;

· Also victims that were previously left unprotected, such as children and receivers of harassment committed by way of electronic communications (SMSes) or electronic mail (emails);

· A child or a person on behalf of the child such as a friend, relative or teacher may apply for a Protection Order without the assistance of the child’s parents or guardian.

Good to know: 

· If you do not have a lawyer, visit the Magistrate’s Court and ask the Clerk of the Court to assist you with the application procedure;

· Applications may be brought outside the ordinary Court hours or on a date which is not an ordinary Court date, if the Court has reason to believe that the victim is suffering or may suffer harm if the application is not dealt with immediately;

· You also have the right to lodge a criminal case against the harasser / Respondent (crimen injuria, assault, trespassing, extortion or any other criminal charge that has bearing on a persona or property).

www.legalhero.co.za 

The Protection from Harassment Act - Introduction

Roses are red, violets are blue, do you know that I've been stalking you?

Say NO to harm (mental, psychological, physical or economic) caused by harassment.

Question 1: Please define harassment? Harassment = unwelcome...

Harassment includes:

the direct and / or indirect act that either causes mental, psychological, physical or economic harm or inspires the victim to reasonably believe that harm may be caused to him / her by unreasonably following, watching, pursuing or accosting of the victim, loitering outside of or near the building or place where the victim or a related person resides, works, carries on business, studies or happens to be;

The verbal, electronic or any other communication directed at the victim by sending or delivering letters, faxes, packages, electronic mail or other objects to the victim or leaving them where they will be found

Unwelcome explicit or implicit behavior, suggestions, messages or remarks of a sexual nature that have the effect of offending, intimidating or humiliating the victim. The aforesaid actions would further make any reasonable person anticipate that the victim would find it offensive, humiliating or intimidating;

The implied or expressed promise of reward for taking part in a sexually oriented request;

The implied or expressed threat of punishment or actual punishment for the victim’s refusal to comply with a sexually oriented request.

Stay tuned as we will be discussing further aspects of the Protection from Harassment Act, all to follow in the course of this week.


Wishing you a fantastic day,

Legal Hero.

www.legalhero.co.za

Same Sex Marriages Introduction

Did you know? South Africa was the first country to proclaim:

a)      Sexual orientation as a human right in both its Interim (1993) and Final Constitution (1996);

b)      that discrimination based on sex, gender or sexual orientation was forbidden.

In spite of the above, the recognition of same-sex marriages only came much later as the South African Common Law (mixture of Roman Dutch and English Law) merely defined a marriage as "a union of one man with one woman, to the exclusion, while it lasts, of all others,” resulting in conflict and a direct contravention of Section 9 (the equality clause) of our Constitution.

It was not up until the lengthy and well renowned battle in Minister of Home Affairs and Another v Fourie and Another 2005, that the Common Law definition of marriage (and the marriage formula in the Marriage Act, to the extent that they excluded same-sex partners from marriage), was declared unfairly discriminatory and unjustifiable by the Constitutional Court. This judgment was handed down by nine justices, agreeing unanimously that the Common Law definition of marriage was unconstitutional and invalid. 

Wishing you a fantastic Friday and weekend ahead, 

Legal Hero. 

www.legalhero.co.za. 

Can I claim money from my fiance if he decides to break our engagement?

“I do believe that the time has arrived to recognise that engagements are outdated and do not recognise the mores of our time” (Van Jaarsveld v Bridges (344/09) [2010] ZASCA 76 para 3).

Breach of promise (to marry) could lead to two claims, depending on the circumstances:

a)      Contractual damages (wedding preparations, costs to move to a different town, renovations to the new home, etc.);

b)      Delictual damages (sentimental damages if he broke the engagement scornfully and in an insulting manner. It is not enough to feel hurt or abandoned, the test is objective).

When calculating contractual damages, the point is to place you as the ‘innocent’ party in the position you would’ve been in had you and your fiancé not agree to get married. Remember to minus payments already contributed by him (towards the wedding preparations for example).

When calculating delictual damages, it is important to note that ‘the world has moved on and morals have changed’ (Van Jaarsveld v Bridges cited above para 6). In the Van Jaarsveld case the High Court awarded Bridges R110 000-00 as delictual damages due to the manner and circumstance in which he ended the engagement (via SMS). However, on appeal, the Supreme Court found that an SMS is a perfectly acceptable way in our modern society and that Van Jaarsveld was very apologetic and compassionate by also apologizing to her mother and saying he still views her as a ‘pragtige mens’ (lovely person). 

Wishing you a lovely day, 

Legal Hero. 

www.legalhero.co.za