Not married but together for 30 years. What are my rights?

Good morning 

I really need your advice. I have been living with a man for 30 years. We are not married but I found out that he has been having an affair for 3 years. I am going to leave him but please will you tell me what my rights are. 

When we met in I had a house and a car. I did not use my Volkswagen so he used it. He used my car and a year later we sold it and bought him a new car. We also sold my house a few years later and used that to buy a bigger house. This was about twenty years ago. The new house and cars that followed after that are all in his name. I left my job many years ago to take care of my children and he supported us. My two daughters are not his. 

I do all the homework myself, cooking, cleaning, also do the garden, massage his shoulders every night, wash cars, varnishing of the house. My children have left the house but I don’t know what my next step should be. This is not easy. 

Dear Women’s Month Reader 

We are terribly sorry to learn of your predicament. This is a very tricky situation seeing that there is a big gap in South African law when it comes to long term relationships – where both parties contributed to the common household, but on paper only one party holds all the funds. 

Without a valid Marriage, Civil Union (similar to a Marriage) or Universal Agreement, your cohabitation with this man is not expressly recognised in law/ legislation. 

Your options here include: 

a) Prove an implied Universal/ Partnership Agreement in Court: 

- There is a Domestic Partnership Bill (this law has not been enacted/ become operational as yet) which may offer future protection to persons in a similar situation. So, the good news is that the legislators have realised that there is in fact a big shortcoming regarding long term cohabitants. Unfortunately, this new law is dragging its feet and implementation is unfortunately not around the corner.

- HOWEVER, there has been a handful of court cases where one of the cohabitants were able to prove an implied Universal Partnership. This is extremely difficult to prove, and most unfortunately fail. 

- To prove an implied Partnership Agreement, you need to prove that you both contributed to the household/ domestic partnership enterprise and that both parties aimed to make a profit and enjoy the benefits of a growing domestic partnership enterprise. Your lengthy time together will also play a role. Cooking, cleaning, massaging, etc. also count as household contributions.

- Just to highlight a specific case in terms of which the woman was successful in proving an implied Domestic Partnership (and in her case they were together for ten years less than you and your partner, i.e. 20 years): although both contributed to the same extent, as it was claimed, the woman walked away with only 30% of the partnership enterprise’s value.

- This could be a lengthy and tiresome court experience. We note that you are not a Legal Hero policyholder, but we might be able to recommend an excellent attorney in your area. 

b) Better yet, try to mediate the matter: 

- It could be that your partner is willing to settle out of court and award you a fair percentage of the common household considering all your contributions. This would spare you the expense of going to court and one could split the household depending on what is fair to both parties. An agreement could be drawn up for both of you to sign and abide by.

c) Claim monies of the past three years: 

- A Civil claim (your partner owing you money) prescribes in three years’ time. In other words, if you loaned your partner money/ assets/ etc., he would be able to raise the special defense of prescription in court regarding debts older than three years. At this point in time, you would only be able to claim back from your partner any and all expenses (that you are able to prove in writing) over the past three years.

- An acknowledgment and/ or an agreement to start paying the debts off (even if it’s only a small payment every month) will revive the debt!

- Just bear in mind that he who alleges, bears the burden of proof. You would also for example have to give an explanation as to why everything was registered in his name. 

What is a Domestic Partnership Agreement? It is a contract that sets out the legal implications of a committed and long term heterosexual or same sex couple who decide not to marry but wish to protect themselves against an unfortunate separation. More specifically, it sets out the assets and properties of each of the parties and what were to happen should the relationship turn sour. 

Should you and your partner decide to get back together, or you wish to cohabit with another person, please consider entering into a Domestic Partnership Agreement. It has your best legal interests at heart and can save you from all the admin and legal uncertainties you are currently facing. 

This is a lot to take in. Please consider your options carefully and do not hesitate to ask follow-up questions. 

Kind regards, 

Legal Hero

www.legalhero.co.za 

Child Maintenance - Seven Basic Points to Remember

Our social@legalhero.co.za mailbox has been flooded with child maintenance questions. We have compiled a short information piece to shed light on the many uncertainties surrounding this topic.

Please note that this piece is compiled from the viewpoint of our many female Women’s Month readers. It is, however, not uncommon for fathers to be the principal caretaker of the child/ children these days and to apply for child maintenance against the mother.

1. Both parents need to contribute financially based on what each parent earns and can afford. If the father earns more and has more resources available to him, he may be ordered to pay more than the mother. Even where the mother is in a good financial position and able to take care of the child on her own, this does not exempt the father. The court can order him to pay something based on what he can afford;

2. The court will consider the following before making an order: the best interests of the child is always paramount. They will also consider circumstances, the reasons provided by both parents during the maintenance hearing, both parents’ salary slips, last three months’ bank statements, slips proving previous contribution towards the child’s expenses, the needs of the child, if the child has become accustomed to a certain living standard before the parents’ split or not and furthermore ask each parent to complete an income and expenditure list;

3. Sometimes the father will dispute paternity and this will delay proceedings. The court or the father may send a referring letter requesting a paternity test. A DNA test costs in the region of R2 000 and it is usually the man (he who denies paternity) who pays. If the man refuses to undergo a paternity test (one does have the constitutional right to bodily integrity), the court must warn him of the impact his refusal might have on the court’s decision. There is a presumption in our law that he who had intercourse with the mother at a time at which the child could have been conceived, is considered to be the father of the child unless there is evidence proving otherwise;

4. If the father is unable to support his children, the mother can institute maintenance proceedings against his parents (the grandparents). The following must be shown in order to succeed: a) the grandparents are in a position to support the child and b) the child’s maintenance requirement;

5. In some instances, parents need to contribute financially even after the child turns 18. This is where the child remains dependent (full time student or unemployed). The maintenance application must be brought in the adult child’s personal capacity. In other words, it is he/ she who needs to complete the maintenance application forms – no longer the mother or father claiming maintenance from the other parent;

6. The father cannot discontinue maintenance payments due to the mother denying him visitation rights. Visitation (contact) and maintenance are two separate parental responsibilities and rights and the one does not necessarily influence the other;

7. How to apply…

a)      For a Maintenance Order where there is no court order in place: collect as much information as possible as referred to in point 2 above. Visit the Maintenance Division of the Magistrate’s Court and complete Form A [J101] - Application for Maintenance Order. You may ask the Clerk of the Court for assistance. Claiming maintenance is free and no legal representation is necessary. If you are a Legal Hero Policyholder, you may contact your hero for assistance with the application. Note that legal representation may be arranged in the instance where the other party is represented.

b)      When you want to change the current Maintenance Order you need to complete a Form I [J256] - Application for Variation/Setting Aside of an Order. Circumstances change. An example is when the child suddenly falls ill and it leads to greater expenses. In such an instance, the mother can apply for an increase in the maintenance amount paid by the father. Remember copies of doctors’ bills, etc. as proof.

c)       For the enforcement of an existing Maintenance Order you need to go back to the Maintenance Division together with the existing Maintenance Order and proof of non- payment. Complete Form K [J306] - Application for Enforcement of Maintenance or other Order. The court may then order a garnishee against the father’s salary or the execution (selling) of his assets.

Have a blessed weekend, 

Legal Hero 

www.legalhero.co.za 

Here's to strong women

“You strike a woman, you strike a rock!” 

– Women’s March (9 August 1956) resistance song. The march was in protest of the pass laws restricting black men from entering the cities. Women from all races joined forces and marched to the Pretoria Union Building to hand over a petition. 

Fifty nine years later there remains an uncomfortable amount of reasons for South African women to join forces and march once more. 

Every six hours a woman gets killed by her intimate partner. Women are raped, abused and humiliated on a daily basis. Many households are headed by women - women who continue to earn significantly less than their male counterparts. So yes, the struggle to emancipate women is real and far from over.

It is true that we have come a long way. In ancient times a woman was regarded as the property of her father or husband and was unable to enter into a contract without a man’s consent. Isn’t it heartbreaking to note that in some households, not much has changed? More than 50% of women surveyed by the World Health Organization in 2013 have been abused verbally or emotionally. Most women unfortunately suffer in silence, fearing retaliation or self-blame. 

If you or someone you know is a victim of stalking, physical, economical, verbal and/ or emotional abuse, we urge you to please follow or pass on these simple steps to obtain a protection order: click here. 

The government is trying to relieve woman and child abuse by implementing Family Violence, Child Protection and Sexual Offenses units countrywide. On the 22nd of July 2015 the Minister of Justice and Correctional Services also officially opened the Schweizer Reneke Sexual Offences Court in the North West Province– a court with specially trained officials and equipment that will assist to reduce any chance of secondary trauma for victims of sexual violence. These are all strides in the right direction, however, there is a potential force much stronger than Parliament: all women joining forces. 

It is easy to sit back and blame decades of gender discrimination, especially as the damage caused is unacceptable and has bred mindsets that are not compatible with equal opportunities and respect. As a woman I believe it is time for us all to take a hard look in the mirror. Are you living a fulfilled life? Is this who you dreamed of becoming as a little girl? Are you spending more time belittling women than actively building each other up? Is that petty fight with that other struggling woman really worth it? 

Women form more than half of this beautiful country’s population. Imagine what we can accomplish together.

In celebration of Women’s Month, Legal Hero will upload a few Woman Law 101 notes to try ensure that no legal obstacle is stopping you from reaching your full potential. Please mail social@legalhero.co.za should you have any specific topics or questions you would like one of our legal wonder women to address.

“Here's to strong women. May we know them, may we be them, may we raise them.” - Unknown.