SOUTH AFRICA Law and Practice Contributed by: Beverley Clark, Jana van Breda, Elmarie Erasmus and Lauren Christie, Clarks Attorneys
ments, parties may have claims that result in a redistri ‑ bution of assets that is not in line with their prenuptial or postnuptial agreements in terms of Section 7 (3) of the Divorce Act. 2.6 Cohabitation: Division of Assets Between Unmarried Couples Unmarried Couples and the Division of Assets There is currently no legal duty of support for unmar ‑ ried cohabitants in South Africa, either during the cohabitation or after the cohabitation ends. Accord ‑ ingly, a cohabitant partner does not have a right to claim maintenance upon the termination of the rela ‑ tionship. Similarly, cohabitants do not have an auto ‑ matic claim to the assets of their partner at the end of the relationship. Cohabiting parties will retain all assets in their respective names at the termination of the relationship, and there is no “asset sharing”. In certain circumstances, however, the common law rules governing universal partnerships may assist cohabitant partners by providing them with a legal claim. A universal partnership is a contract (which may be express or tacit, verbal or written) in which the cohabitants agree that their property will be shared between them. It is a difficult claim to prove, but South African law has developed to extend the remedy even to partners who may have made a contribution to the partnership only in the domestic sphere. Rights of Cohabitants Cohabiting partners do not acquire any rights or finan ‑ cial claims against their partner’s assets by virtue of a cohabitation relationship. There is no provision for a claim for maintenance or a sharing of assets (“a financial claim”). This is the position regardless of the length of the cohabitation or whether the parties have children. There is no principle of a “common law mar ‑ riage” in South Africa, and the duration of cohabitation does not influence a party’s position for a financial claim. Pursuant to a case in which the right to maintenance was awarded to a cohabitant whose partner had died, it is likely that the law will be varied in due course in relation to cohabitation, so that maintenance rights will be extended to cohabiting partners in certain cir ‑ cumstances.
If partners in a cohabitation relationship have chil ‑ dren, this similarly does not impact their rights or legal claims as a partner. The only claims that would arise on the termination of such a relationship would be claims relating to the children, such as: • care of children; • contact with children; • guardianship of children; and • maintenance for children. When entering into – or during – a cohabitation rela ‑ tionship, parties may elect to enter into a cohabitation agreement to regulate rights and claims in terms of the laws of contract. There are two types of financial orders that form part of divorce orders in South Africa. One is for mainte ‑ nance in respect of a spouse and/or child, and the other is in respect of the proprietary consequences of the marriage, which will depend on the parties’ matri ‑ monial property regime, as explained in 2.3 Division of Assets . These orders can be granted by South African High Courts or regional (lower) courts. If a party fails to comply with a financial order (either maintenance or capital), there are various methods of enforcement, as follows: • a writ of execution; • an emoluments attachment order; • a garnishee order; • attachment of a pension, annuity or other benefit; and • an order declaring the defaulting party in contempt of court, which can result in imprisonment. Writ of execution If a party has failed to comply with a financial court order, the aggrieved party (creditor) can prepare a writ of execution to be issued by the court. This writ of execution is accompanied by an affidavit, setting out the facts relating to the breach of the order, and the court order must be attached. 2.7 Enforcement of Financial Orders Failure to Comply With a Financial Order
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