What's in a surname?

 

Change of surname on marriage 

A usual consequence of marriage is that the wife adopts the husband's surname, together with the designation "Mrs". She could also change her surname to a double-barrel surname. 

Legally, however, she is not obliged to use her husband's surname and may use either her maiden name or any other surname she bore before her marriage. Professional women often keep their maiden names. 

Change of man's surname 

On good cause shown, Home Affairs may authorise a man to change his surname. He must apply on the prescribed form, and the name change is placed in the gazette if approved. 

The husband is not permitted to take his wife's name except after application to the Director-General.

Change of surname on divorce or death 

On divorce or becoming a widow, a woman may revert to her maiden surname, retain her married name or revert to any name she bore at any prior time. 

The law affecting surnames 

The Births and Deaths Registration Act 51 of 1992 and The Children's Act 38 of 2005 govern the surname a child assumes at birth and when a woman or man may change his or her surname.

Section 13(3) of the Civil Union Act, 17 of 2006, stipulates that references to a 'husband, wife or spouse' must also apply to same-sex civil union partners.

The surname of a child at birth 

A legitimate child  

They take the surname of the father. 

A child born out of wedlock

 

• The child takes the surname of the mother. However, the child can assume the natural father's surname if both parents apply jointly to enter the father's surname in the birth register and the father acknowledges his paternity in writing.

 

• If parents marry any time after the child's birth, the law considers the child born of parents married at the time of their birth.

 A child born of voidable marriage

 

• The rights of a child born of a voidable marriage shall not be affected by the annulment of that marriage. A court cannot annul a voidable marriage until it has inquired into and considered safeguarding the rights and interests of a child of that marriage.

 

• If a court annuls a marriage involving a child, the law puts the father in the same position as the father of a child who divorced that child's mother.

Conflict between an ANC and contract providing for lifelong maintenance

 

In a recent Supreme Court of Appeal (SCA) case, the court had to decide if an agreement concluded between the parties conflicted with their antenuptial contract (ANC). 

The ANC declared their marriage to be out of community of property with the exclusion of the accrual system. After the registration of the ANC and before the solemnization of their marriage, the parties concluded a written agreement. It provided that on the dissolution of the marriage by the death of the husband, or their divorce, the husband undertook to donate to the wife an immovable property and a car and to pay her medical aid premiums and lifelong maintenance. 

The marriage soured and the wife sued for divorce. The husband argued that the agreement was unenforceable as it contradicted the ANC. 

On appeal, the SCA agreed with the wife’s contention that “there is no conflict between the terms of the ANC and the agreement; they co-exist and remain valid and enforceable as two distinct and separate legal instruments, each serving a different purpose which do not impinge upon each other”. 

The court stated that “The primary objective of the ANC is not to create obligations, but to determine the matrimonial property system between spouses by excluding or varying the normal patrimonial consequences of marriage”. On that basis, it upheld the wife’s claim stating that the agreement did not purport to vary the ANC both could co-exist “because an ANC regulates the matrimonial regime of the parties stante matrimonio only, whereas the agreement has no bearing at all on the nature of their matrimonial regime and the respective estates of the parties. Their estates remain separate. Thus, the provisions of the ANC will remain intact and will be applicable upon their divorce despite the appellant’s entitlement to enforce the terms of the agreement”.

Actio Communi Dividundo and the “Clean Break” Principle

 

Written by Sasha Kadish

A client and his girlfriend bought a house together. Their relationship soured, and they reached an impasse. Each wanted to stay in the place, and neither would compromise. What must the client do as he is not obliged to remain a co-owner against his will?

If he and his girlfriend can’t agree, he may demand the division of the jointly owned property at any time and terminate the joint ownership. As a last resort, he may apply to the Court in terms of the actio communi dividundo. He must prove that:

(a) they are a co-owner of a property;

(b) they wish to terminate the co-ownership; and

(c) the parties cannot agree on the method of division of the property.

In a recent case, an unmarried couple who were involved romantically purchased a house together and co-signed on a bond.

The relationship between the parties ended. The Applicant moved out of the jointly owned property and rented a place of his own. The respondent continued to live in the jointly owned house and conduct her business, a nursery school, within the grounds of the property.

The Court has broad discretion to effect an equitable division of jointly owned property. Where a division is not practical, the Court can award the property to one joint owner because they must compensate the other joint owner for their share in the property. Where division methods seem impractical, the Court may order the property to be sold by public auction and share the proceeds among the joint owners. The Court can also appoint a receiver and liquidator to attend to the liquidation and distribution of the property.

In the abovementioned case, the respondent claimed that she would suffer significant economic and financial prejudice should she be forced to dispose of her half share in the property on which she ran her business. She stated such prejudicial circumstances as relocation costs of her business, possible rental increases, and the possibility of closing the business should she be unable to find suitable alternative accommodation. However, the Court held that this was not a defence to a claim for the termination of joint ownership. If anything, they would be circumstances for the Court to consider when determining the mode of division of the common property.

Importantly, it was held, in circumstances where the respondent cannot afford to take over the ownership of the property in its entirety, in other words, buy out the Applicant’s half share in the property, such circumstances cannot be considered relevant.

The judge held the following:

“The Respondent’s circumstances cannot serve as a tool to shackle the Applicant to the joint property in perpetuity. The romantic relationship was the glue that held the parties together. With its end, the parties ceased living together. It is that the parties ought to make a clean break with their past”.

Thus, no one can be forced to perpetually co-own a property that they wish to no longer co-own. In such circumstances, a co-owner of a property has every right to bring an application for an actio communi dividundo, where co-owners cannot settle.

 

When can an employer dismiss an employee on the grounds of age?

 

 

Dismissal on the grounds of age is automatically unfair unless the employee “has reached the normal or agreed retirement age for persons employed in that capacity” (section 187(2)(b) of the Labour Relations Act, 1995). 

If the parties agree upon the retirement age in the employment contract, the employer may require the employee to retire when they reach that age. Of course, the employer may decide to extend the duration of employment. 

If an employee reaches retirement age but continues to work beyond that age, there is no legal certainty regarding the rights of an employee who works beyond that age. It is thus advisable for the employer and employee to clearly define the terms of employment after the retirement age, for example, how long the employee will continue to work and what notice is required to terminate the employment. Employers should be careful to amend the employment contract to stipulate the extended retirement date. Ideally, the employee should agree to the variation in writing. 

If the employment contract does not stipulate a retirement age, then the employer cannot simply fix the age for retirement for existing employees. Trying to do so would be a unilateral change to terms and conditions of employment, which would have no legal effect. 

If there is no mention of retirement age in the contract and there is no organisational norm, employees can continue to work until they cannot perform their normal duties. The employer can only terminate employment following labour legislation (that is, for misconduct, operational requirements or incompetence) and must follow the procedures set out in the contract and labour law. The courts have found that it is unfair for an employer to terminate employment just because of age. 

To avoid any uncertainty, it is vital that the employment contract specifies a retirement age or that the agreement refers to a policy or retirement fund rules that clearly state the normal retirement age.

 

 

 

What are the inheritance rights of a child, conceived after the death of a father, from frozen gametes?

 

The nasciturus fiction is the principle where our common law considers a child born alive and conceived before a testator's death to have obtained rights to inherit, from conception.

What rights does a child enjoy if conceived after a testator's death? Such a child is described as a "posthumously procreated child".

Our law is presently unclear about whether a child born of a gamete (sperm in this case), left behind and frozen by a previously deceased father, could inherit. The common law and cases have never had to consider the situation of a child born to a parent that died before conception.

 

The law does provide for a child born after a testator's death after natural conception. The wills Act provides:

 

In the interpretation of a will, unless the context otherwise indicates any benefit allocated to the children of a person, or to the members of a class of persons, mentioned in the will shall vest in the children of that person or those members of the class of persons who are alive at the time of the devolution of the benefit, or who have already been conceived at that time and who are later born alive.

 

The Intestate Succession Act does not deal with inheritance claims by posthumously procreated child beneficiaries.

 

See this interesting article on the topic: http://www.saflii.org/za/journals/PER/2018/11.html