Five ways to show off your #smartheart

"Love is composed of a single soul inhabiting two bodies." Aristotle 

This may be an extremely unromantic thought, but what if things do not work out and the two bodies decide to go their separate ways? 

Without going into too much detail and adding that some loves are wonderful, definitely add to who you are as a person, teach you many lessons, but are not meant to last forever… let’s rather stick to what we know: the law and how to protect your best interests. 

1. If marriage is not your thing: 

Some people call marriage old fashioned. The best advice in this case is to draw up a Domestic Partnership Agreement. This is a contract used by heterosexual as well as same sex couples in an attempt to set out the material rights and obligations of their long term relationship. 

This contract furthermore recognizes that both parties contributed to the household in some or other way and should not walk away empty handed, regardless of the fact that everything might be in one partner’s name. This includes, but is not limited to, arrangements concerning the property, pets, furniture items purchased together, etc. 

Remember that your cohabitation is not expressly legally recognized without a Domestic Partnership Agreement/ valid Marriage (heterosexual couples)/ Civil Union (heterosexual or same sex couples). Depending on the amount of years spent together, amongst others, you could try argue the existence of an implied Partnership in Court, but this is very difficult to prove. 

Our legislators are in the process of addressing the abovementioned inequalities (unfortunately statistics show that usually women with children are left out in the cold). However, the Domestic Partnership Bill (draft law) is dragging its feet. 

2. If you are planning to get married: 

First things first, consider drawing up an Ante-Nuptial Agreement as soon as possible. This is a contract that sets out your marriage’s matrimonial property regime/ financial arrangement. 

Without it you are married IN community of property by default. With it you may be married OUT of community of property with the accrual system or OUT of community of property WITHOUT the accrual system. 

In community of property means that everything your spouse owes and owns also belong to you (and vice versa). Even that property you bought before you got married. Even the debt you collected before or after your marriage. Out of community of property with the accrual means that you may share everything you gained after your marriage. Out of community of property without the accrual means that you do not share a joint/shared/ common estate. 

3. If you are already married and considering a divorce: 

When it comes to divorce, the less traumatic and a beneficial solution to all parties by far is an Unopposed Divorce. Especially if there are children involved.

An Unopposed Divorce means that both parties agree on what is to happen with the house, the bond and the children’s visitation rights (every second weekend/ second birthday/ holidays), etc. Arrangements are then mutually decided upon and put together in a Settlement Agreement before a legal professional applies to Court to confirm the divorce. 

An Opposed Divorce means that the parties do not agree and need to battle it out in a lengthy Court case subject to heavy delays. 

4. Regardless of the surrounding circumstances, draw up a valid Will. 

Are your affairs in order? What happens in the most unfortunate event that you pass on tomorrow? 

DIY Wills are dangerous as they could be declared invalid. If you have no other option, please try to avoid the mistake of having a beneficiary also witness your Will. Your beneficiary could be disqualified from inheriting in terms of your Will if you have also asked them to witness your Will. You will need to find two other competent witnesses above the age of 14 years. 

A Will without a date is not necessarily invalid, but a date makes it easier to interpret your wishes if you have more than one Will. Remember that a new Will does not necessarily revoke previous Will/s. Wills are read in conjunction with one another as far as possible, unless you explicitly state ‘this Will revokes all previous Wills …” 

5. Save money by choosing Legal Hero for Ante-Nuptial Agreements, Child Maintenance Applications, Opposed and Unopposed Divorce, drawing up of a valid Will and many more. 

We cannot protect you from heartbreak, but we can help ensure that your legal transition from partnered to single is as smooth as possible. 

By choosing Legal Hero you will pay a fixed and affordable monthly premium that offers cover against future legal heartaches of up to R200 000 per annum. Legal advice, out of Court settlement and our contract benefit services are handled in-house whilst litigation matters are referred to our national panel of trusted attorneys. 

Legal Hero is an authorized financial services provider as underwritten by Guardrisk Insurance Company Limited. Terms and conditions apply. Mail join@legalhero.co.za or call us on 0861 22 99 22 (select option 1). 

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 

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