Legal right to financial support after the end of a long-term romantic relationship

Introduction

In an unreported judgment, the Western Cape High Court had to decide if a woman in a permanent romantic relationship was entitled to maintenance when the relationship ended.

The applicant and the respondent were involved in a serious romantic relationship for over nine (9) years. Three (3) minor children were born in this relationship. The applicant contended that the respondent took care of all her and the minor children’s maintenance needs and that they were entirely financially dependent on the respondent.

The applicant submitted that parties in life partnerships are “left out in the cold” when it comes to maintenance following the breakdown and consequent termination of their relationships.

The court found that it was not valid to distinguish between maintenance emanating from a permanent life partnership and that arising from a marriage.

Summary of the Law and Court's Conclusion

The court discussed the duty of support:

·         a spouse has been afforded legislative relief by s 7 of the Divorce Act which applies to all civil marriages, civil unions (i.e., same-sex marriages) concluded in terms of the Civil Union Act and recognised customary marriages in terms of the Recognition of Customary Marriages Act. 

·         In addition, where a marriage is terminated by the death of a spouse the other is given similar legislative relief in terms of the Maintenance of Surviving Spouses Act. 

·         Spouses in certain customary marriages are included in the definition of “survivor”. In Daniels v Campbell the Constitutional Court confirmed that the word “spouse” in that Act includes widows from monogamous Muslim marriages. 

·         In Bwanya v The Master of the High Court and Others, the same court held that the exclusion of life partners from the operation of that Act was unconstitutional and invalid. It accordingly ordered that the definition of “survivor” be read to include ‘…the surviving partner of a permanent life partnership terminated by the death of one partner in which the partners undertook reciprocal duties of support and in circumstances where the surviving partner has not received an equitable share in the deceased partner’s estate’. 

·         Bwanya thus concluded that it was no longer correct in law to draw a distinction between reciprocal support duties that arose by automatic operation of law as an invariable consequence of marriage and support duties that arose by agreement in the context of permanent life partners.

The court stated:

·         Is there a legally enforceable duty of support arising out of a relationship akin to marriage? 

·         A ‘permanent romantic relationship’ is not synonymous with a permanent life partnership wherein the parties undertook reciprocal duties of support to one another within the context of a familial setting. It found that a ‘permanent romantic relationship’ does not per se equate to proof of the assumption of a reciprocal duty of support in a familial setting. 

·         The applicant must first prove facts establishing that the duty of support existed and that it existed in a familial setting. If proven, her right to legal protection will be established. 

·         The applicant has a common law remedy and her entitlement or otherwise to maintenance rests squarely on that remedy. She must first prove facts establishing that the duty of support existed, and that it existed in a familial setting. If proven, her right to legal protection will be established. 

Conclusion 

The court concluded that the law should handle financial support similarly for both married couples and those in long-term relationships. It's crucial to demonstrate a family-oriented responsibility for support to ensure legal protection. This ruling mirrors evolving laws that acknowledge the rights of people in non-marital relationships, guaranteeing their eligibility for financial assistance.

Consequences of Withholding Knowledge of Property Defects: A Cautionary Tale for Sellers

 

Introduction:

The Property Practitioners Act 22 of 2019 (the Act) mandates sellers to disclose defects in a property to potential buyers. Failure to disclose known defects, especially latent defects, could lead to significant financial and legal repercussions for the seller. A recent case, Le Roux v Zietsman and Another highlights the consequences of fraudulent non-disclosure and misrepresentation of property defects, emphasizing the importance of honesty and transparency in property transactions.

Summary of the Property Practitioners Act:

The Act requires sellers to disclose all known defects in the property they are selling. This includes latent defects, which are flaws not easily identifiable through a reasonable inspection. Non-disclosure of defects known to the seller can expose the seller to potential penalties and liabilities.

Analysis of the Zietsman Judgment:

The Zietsman case revolves around the purchase of a property by the respondents from the appellant. Before the sale, the respondents noticed signs of roof leaks and questioned the seller about it. The seller assured them that the roof had been repaired and no longer leaked. However, after the sale, severe roof leaks persisted, causing extensive damage. The respondents initiated legal action, claiming damages and loss of income.

During the trial, a civil engineer's investigation revealed that the roof had likely been leaking since the property's construction. The court found that the seller was aware of the latent defect (roof leak) and fraudulently failed to disclose it to the buyers to induce the sale. The Supreme Court of Appeal upheld the lower courts' decisions, ruling in favour of the buyers, and held the seller liable for fraudulent non-disclosure and misrepresentation.

Conclusion:

The Zietsman case serves as a cautionary tale for sellers, highlighting the consequences of withholding knowledge of property defects. Sellers must be honest and transparent in their disclosures to avoid unnecessary legal disputes and financial penalties. The Property Practitioners Act reinforces the obligation of sellers to disclose defects to potential buyers, ensuring fair and informed property transactions.

 

 

Wills Act and Divorce: Bequest Revocation Explained

Introduction:

A Last Will allows an individual to dictate how their estate should be distributed upon their passing. In South Africa, the Wills Act No. 7 of 1953 (the Act) governs the formalities and administration of wills. While this Act does not address the impact of marriage on a will, it does have provisions concerning the effect of divorce on a testator's will. One critical aspect is the revocation of bequests to a divorced spouse under specific circumstances. This article explores the implications of the Wills Act's revocation rule, the constitutional challenges it has faced, and the importance of updating one's will after a divorce to prevent unintended beneficiaries from inheriting.

Analysis:

The effect of a will on death after divorce

Section 2B of the Act states that if a testator dies within three months of becoming divorced and had previously executed a will that included the ex-spouse as a beneficiary, the will is implemented as if the ex-spouse had died before the divorce. This implies that the ex-spouse would not inherit anything as indicated in the original will. However, if the will shows that the testator intended to benefit the ex-spouse despite the divorce, the revocation rule would not apply.

The effect of a spouse surviving after divorce

The provision allows the testator a three-month "window period" after the divorce to revoke or amend the will, excluding the ex-spouse as a beneficiary. This period recognizes that individuals may be emotionally vulnerable after a divorce and may need time to reassess their testamentary intentions. If the testator fails to alter the will within this timeframe, the ex-spouse will inherit as specified in the will.

In the case of J W v Williams-Ashman NO and Others 2020 (4) SA 567 (WCC), the constitutionality of Section 2B was challenged. The argument was based on the contention that the provision conflicted with certain constitutional rights. However, the court upheld the validity of the rule, reasoning that it serves to protect emotionally vulnerable individuals who may not be in the right state of mind to amend their wills immediately after a divorce. The court emphasized that freedom of testation is a vital principle in law, and a testator's wishes should generally be respected unless they violate constitutional provisions or public policy.

Conclusion:

The Wills Act's revocation rule in cases of divorce highlights the importance of reviewing and updating one's will after a significant life event like a divorce. The three-month "window period" provides the testator with an opportunity to adjust the will to reflect their new intentions and prevent the ex-spouse from benefiting unintentionally. This rule strikes a balance between protecting individuals during a vulnerable period and upholding the freedom of testation. It is crucial for anyone experiencing a divorce to seek legal advice and promptly revise their will to ensure their estate is distributed according to their current wishes. Failure to do so may result in unintended beneficiaries inheriting from the estate, contrary to the testator's actual desires.

 

 

Conflicting Wills in South Africa: Legal Consequences and Precautions

A client asked: What happens if I don't revoke my first South African will where I leave everything to one person and then make a second will years later, leaving everything to a second person? What are the legal consequences?

Introduction

If you have a will and want to make a new one because of changed circumstances (for example you have since gotten married and have children) it is essential that your new will revokes the earlier will or wills.  The revocation clause would typically read: I revoke all previous wills made by me.

When a person fails to revoke their first will while making a second will that contradicts the first, it can cause significant issues during the winding-up process and distribution of assets.

Legal Consequences of Conflicting Wills

The legal consequences of having two conflicting wills can be complex and may include disputes between beneficiaries, uncertainties in estate administration, and potential challenges during the winding-up process. If both wills are considered invalid, the estate might be treated as if the deceased had died without a will, subjecting it to intestacy laws.

Precautions and Expert Guidance

To avoid these legal complexities and ensure that your estate is distributed according to your wishes, it is crucial to seek the counsel of a qualified estate planning attorney. They can assist in creating a clear and legally valid will, revoking any previous wills appropriately, and providing advice on additional estate planning measures, such as trusts, to safeguard your assets and mitigate potential conflicts.

Conclusion

Creating multiple wills with conflicting provisions can have serious legal implications. Seeking professional legal guidance and ensuring that your estate planning documents are up-to-date and consistent can help prevent disputes and ensure that your assets are distributed according to your wishes.

Court awards full parental responsibilities to mother in parental alienation syndrome case

 

TLD v BG [2023] ZAGPJHC 801

Summary

This is a case about an 8-year-old boy whose parents were never married. The court appointed a psychologist to investigate the situation. The psychologist found that the boy was in a difficult family situation, where he lacked empathy under his father's influence and was convinced that his mother and her parents were harmful. This condition is called Parental Alienation Syndrome and can harm a child's mental well-being. The court decided that the mother should have full parental rights for three months, and during this time, the child would get therapy to help him. The court also ruled that the child should have no contact with the father during this period to protect him from further harm.

Therapist's Findings

The expert reported that the child's psychological condition was very worrying. The child was at a greater risk than before, and his mental well-being was deteriorating rapidly. The family environment was chaotic and emotionally unstable, which was harmful to the child's growth. The expert was especially concerned about the child's lack of empathy when influenced by his father's beliefs. This suggested that the child might be losing his ability to understand his mother's feelings and experiences, raising serious concerns about his emotional development.

Court’s ruling

The court found that the child was at significant risk because his parents couldn't cooperate for his well-being. To protect him from further harm caused by parental alienation, the court took decisive action. The court gave the mother full parental responsibilities and rights (she now has the authority to make important decisions about how he is raised and taken care of). Additionally, the court granted her primary custody of the child for three months. To break the cycle of parental alienation and help the child recover, the court ordered that he should have no contact with his father during the three months. This was to shield him from any negative influence or manipulation from his father. During these three months, the child will receive therapy to address the emotional impact of parental alienation and work on building healthy relationships with both parents.

Conclusion

The court's ultimate goal with this ruling was to protect the child’s mental and emotional health. They recognized that intervention was necessary to ensure the best interests of the child. By granting the mother full parental responsibilities and temporarily limiting the father's contact, the court aimed to create a positive environment for his emotional healing and development.