Grandparents – When Must You Pay Maintenance?

“An inability on the part of the parents to maintain a child must be established before a grandparent will be legally liable to do so” (extract from judgment below)

One wonders how many grandparents are aware of (let alone plan for) the possibility that they may have a legal duty to support their grandchildren in certain circumstances.

It could be a heavy blow – trying to navigate one’s retirement financially can be hard enough without suddenly having to maintain not only yourself and your spouse but also a grandchild, possibly for decades. And what about the risk that when you die your deceased estate might remain liable – a drain, possibly a critical one, on your estate’s sufficiency to support your surviving spouse?

A recent Supreme Court of Appeal (SCA) decision confirms that –

  • As a grandparent you are potentially liable for maintenance during your lifetime but
  • When you die, your deceased estate will (as the law currently stands) not be liable. 
The adult granddaughter’s claim and the law

This was a damages claim against the executors of a grandfather’s deceased estate based on the proposition that the estate was liable to pay maintenance for a 30-year-old granddaughter unable to support herself because of psychiatric issues, mild intellectual disability and an autism spectrum disorder. The father had emigrated, had paid no maintenance, and was allegedly untraceable, whilst the mother’s ability or inability to fully support her child had not been established.

The SCA was asked to break new legal ground by extending a grandparent’s liability to his or her deceased estate, but on the evidence before it in this case (i.e. our courts may revisit this issue in the future) the Court declined to extend the law in this way, and set out our current law as follows –

  • Liability for maintenance generally depends on three factors –
    • The claimant’s inability to support him or herself.
    • His or her relationship with the person from whom support is claimed. 
    • That person’s ability to provide support.
  • The primary caregivers are the parents who have a duty of support as far as they are able to do so (this applies also to the parents’ deceased estates when they die). 
  • Parents and children have a reciprocal duty of support.
  • “If parents are unable to support their children who are in need of support, other relatives including grandparents, may be obliged to support them … But that duty is imposed first upon a nearer relative before it moves to remoter ones.” (Emphasis supplied).
  • However, as our law stands, a grandparent’s deceased estate is not liable.
In summary – 3 factors for liability

In other words, you (but currently not your deceased estate) could be liable to pay maintenance if –

  1. Your grandchild is not self-supporting, 
  2. Neither parent (nor their deceased estates) is financially able to provide the necessary support, and 
  3. You are financially able to do so.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.

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Collecting Maintenance in Hard Times – Threaten Jail Time

“Compliance with court orders is always important. There is a particular scourge in this country of spouses, particularly husbands, failing to pay judicially ordered maintenance” (extract from second judgment below)

Getting money out of serial maintenance defaulters is a notoriously difficult exercise, but even the most recalcitrant and cunning dodger will baulk at the prospect of being locked up for contempt of court.

And our courts, mindful of their position as “upper guardian” to all children, have shown again and again that they will have no hesitation in acting firmly against the sort of bad-faith defaulters we are talking about.

What must you prove?

You must prove not only a deliberate breach of the court order, but also that the breach was “wilful” and in bad faith. Although normally in non-criminal matters the standard of proof required is “on a balance of probabilities”, in contempt proceedings you have to prove bad faith on the much higher standard required for criminal convictions i.e. “beyond reasonable doubt”. 

As the Court in the second case below put it: “If, on a conspectus of all the evidence, it is a reasonable possibility that the husband’s non-compliance was not wilful and mala fide, he cannot be subjected to criminal sanctions for contempt.”

Of course, genuine inability to pay, which is no doubt more common now than it was before the COVID-19 lockdown, is a different matter altogether. We are talking here about dodgers who are able to pay but refuse to do so. A defaulter who simply cannot pay should apply for a variation of the court order. If the order stands, payment must be made – end of story.

Two recent High Court decisions illustrate –

First case: A “brazen” defaulter’s choice – pay or go to jail 
  • A father had been ordered, per a 2017 divorce settlement agreement, to pay R15,000 p.m. maintenance for his two minor children. He stopped paying in early 2018 and by the time this matter reached court he had run up arrears of R537,499. 
  • In response to the mother’s application to have him jailed for contempt of court, the father pleaded poverty – a standard ploy.
  • The Court was having none of that, and the mother had no difficulty in proving her case for contempt. 
  • Pointing out that the father was earning R147,000 p.m. (R83,000 net plus R10,000 to a provident fund), that he was paying R11,000 p.m. for a BMW and R14,000 p.m. on online gambling and trading, and commenting that “father’s position is extraordinarily brazen” the Court declared him to be in contempt of court. 
  • To avoid 30 days behind bars he must pay off the arrears in instalments in addition to keeping up his monthly maintenance payments. He also has to pay all legal costs on the punitive “attorney and client” scale.
Second case: Sorry, dogs, it’s not quite the same for you

Although our courts naturally take a dim view of anyone disregarding any form of court order, jail time is not the only possible sanction. Thus, in another recent High Court case a fine (R20,000 conditionally suspended for three years) was imposed rather than a prison sentence.

  • An acrimonious divorce action found a husband ordered to pay his wife on an interim basis for a variety of household expenses, including (the aspect that has captured most attention in the media) expenses relating to the couple’s two dogs for dog food, a dog walker, and veterinary, medical, and pharmaceutical expenses.
  • The husband claimed a genuine misunderstanding of his obligations under the court order (not least regarding his various obligations vis-à-vis the dogs), a defence accepted by the Court in some regards but not in others.
  • He also claimed inability to pay as a result of the lockdown’s effect on his company and his resultant reduction in salary – a defence rejected by the Court on the basis that he had “failed to put up evidence which should have been available to him to support a claim of unaffordability”. Similarly, his counter-application to reduce the amount of cash maintenance payable failed.

As to why the defaulter in this case avoided a prison sentence (as requested by his wife) the Court concluded that “imprisonment is not called for. I am dealing with a first infraction, which is considerably narrower than what the wife alleged.” One wonders whether another factor in that outcome might have been the fact that no children were involved, just a wife seemingly “unattractively intent on extracting more than her ‘pound of flesh’” and two pampered pooches. Certainly, the wife’s failures led the Court to award the wife only 75% of her costs, and on the ordinary cost scale rather than on a punitive scale.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.

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Friends and Lovers: Before You Lend Out Your Car…

“Neither a borrower nor a lender be” (Shakespeare)

This is a case of a “love relationship” gone wrong but the principles of vehicle ownership apply to any situation in which you lend a motor vehicle to anyone else.

A widely-held misconception is that if you are the registered owner of a car, it is yours and you are the owner. Not so, as a recent High Court judgment aptly illustrates –

The registered owner unable to reclaim “her” car 
  • In what must at the time have seemed like a straightforward agreement between two people “in a love relationship”, a woman agreed to lend her lover a vehicle which she bought from a finance company under a loan agreement.
  • They had agreed verbally that he could use the vehicle for his personal use and would repay her for loan instalments, insurance, licencing, servicing, traffic fines and the like.
  • When the relationship soured, the woman asked the Court for an order returning the vehicle to her as owner. 
  • Although there was no dispute that she was indeed registered as owner of the vehicle, the Court dismissed her application on the basis that, whilst possession of a vehicle’s registration papers is prima facie (“at first view”) proof of ownership, it is never conclusive proof of ownership. Nor is any change of ownership required to be registered for transfer to take place. So in this case the registration papers did not prove ownership, the actual owner being the finance company.
  • This is different to the position with land, where registration of ownership in the Deeds Office proves ownership and is necessary for transfer of ownership. That no doubt is the origin of the myth that being registered as the owner of a car proves that you are the owner – an incorrect and dangerous assumption.
  • The woman was accordingly not the owner of the vehicle, rather the finance house was the owner in terms of the lease agreement which provided that it retained ownership until all amounts due under the agreement had been paid in full.
  • End result – the ex-lover keeps the car, for now at least.
Lessons for lending out cars…
  • Should you decide to lend out your car, make sure to do it under a written agreement – the parties in this case were lucky that they could agree on the terms of their verbal agreement as our law reports are replete with bitter and expensive litigation over what everyone said and who agreed to what verbally.
  • Include a term spelling out clearly your rights to recover possession of the vehicle. The woman in this case would have been in a far stronger position if the parties had agreed that, even if the man held up his end of the bargain to pay for all the loan instalments and other expenses, the woman still retained the right to reclaim the vehicle if their relationship ended (she still wouldn’t have sued as owner, just to enforce the agreement). 
  • For life partners and cohabiting couples this is yet another reminder that there is no such thing as a “common law marriage” in our law. There are no automatic marital or other rights attaching to your relationship and applicable when the relationship ends, so entering into a full cohabitation agreement is the only way to safeguard both your and your partner’s financial and personal rights.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.

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Domestic Violence and the Lockdown: Your Personalised Safety Plan

“Preamble to the Domestic Violence Act: “To afford the victims of domestic violence the maximum protection from domestic abuse that the law can provide”

There is great concern that the COVID-19 crisis, particularly the mandatory “stay at home” lockdown phase, will see both an increase in the levels of domestic violence, and a decrease in the ability of victims to access help. It’s a worldwide concern and as the World Health Organisation puts it: “Stress, the disruption of social and protective networks, loss of income and decreased access to services all can exacerbate the risk of violence for women.”

South Africa’s Domestic Violence Act (“domestic violence” isn’t limited to cases of physical harm – it includes a very wide range of abusive conduct) provides legal protection to victims, especially to those most vulnerable such as women, children, disabled people and the elderly.   If you are a victim (or helping a victim) you should be aware of a victim’s rights to lay criminal charges and/or to apply for a protection order.  

Police officers attending to such cases must help victims to lay criminal charges, find shelter and obtain medical treatment where necessary. The Supreme Court of Appeal has confirmed that SAPS members have a positive duty to render assistance to victims.

But how can you achieve that with the lockdown restrictions and its constraints on your freedom of movement and ability to escape the abuser?

Your personalised safety plan

Note that from 14 May 2020 new lockdown regulations specifically allow you to move to a new home where “the movement is necessitated due to domestic violence”. 

Download here the National Shelter Movement of South Africa’s free PDF document “Domestic Violence Safety Planning During the Time of COVID-19” which will help you with suggestions for developing a personalised and practical Safety Plan during lockdown under these headings –

  • “Be Prepared” with a comprehensive list of helplines and contacts (both National and Provincial) and how to access them
  • “Reaching Out”
  • “Signalling for Help”
  • “Delete Searches/Requests for Help”
  • “Planning to Leave”
  • “Legally Speaking”
  • “Leaving”
  • “Staying Safe”.
How a protection order works

The “Staying Safe” section above suggests that you apply for a protection order if you don’t already have one, and that you get help in doing so from a shelter or other organisation. Or you can yourself approach your nearest Magistrates Court and ask for assistance.  

If an order is granted, the issue of a warrant of arrest is authorised at the same time.  The warrant is suspended on condition that there is no breach of the terms of the protection order.  To have the warrant executed, you will need to give details of any violation of the order on affidavit – be aware that you will both face criminal charges and risk a damages claim if you intentionally make any false allegations.  

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.

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Divorce in a Time of Lockdown – What Grounds Can You Rely On?

Note: If, as we hope, you personally have no need for an article on divorce, please think of passing this on to anyone you know who may find it relevant and useful.

The National Lockdown has thrown together many couples not used to spending “24/7” time in each other’s company. Relationships will have strengthened for many couples, but others will be struggling. The fears, anxieties and money worries now looming over us all certainly won’t haven’t helped. 

If your marriage is one of those unfortunate ones that is foundering, counselling hasn’t helped or won’t help, and you have come to the decision that divorce is your only option, be aware that you need a formal court order before your divorce will be legally recognised.

Moreover our law does not recognise the concept of “legal/judicial separation” so if you decide to just physically separate without divorcing, you should take professional advice on drawing up a contract in the form of a “separation agreement”. Normally this would be for a trial period but you could also agree to a longer-term separation. 

The 3 grounds for divorce

In most cases couples opt for formal divorce rather than long-term separation, and it is important to appreciate that a court will only grant a divorce order if it is satisfied that at least one of the three recognised grounds for divorce exists. 

In practice most couples will fall under the first ground i.e. “irretrievable breakdown of marriage” but to give you the full picture, the grounds for divorce in full are (all quotes are straight from the Divorce Act) –

  1. Irretrievable breakdown of marriage

    This is by far the most commonly relied on ground for divorce: “A court may grant a decree of divorce on the ground of the irretrievable breakdown of a marriage if it is satisfied that the marriage relationship between the parties to the marriage has reached such a state of disintegration that there is no reasonable prospect of the restoration of a normal marriage relationship between them.” 

    The court may take into account “any facts or circumstances which may be indicative of the irretrievable breakdown of a marriage” and may also accept evidence that –
    1. The spouses have not lived together for “a continuous period of at least one year immediately prior to the date of the institution of the divorce action”; 
    2. The spouse being sued for divorce has committed adultery and the other spouse “finds it irreconcilable with a continued marriage relationship”; or  
    3. The spouse being sued for divorce “has in terms of a sentence of a court been declared an habitual criminal and is undergoing imprisonment as a result of such sentence”.
      However: “If it appears to the court that there is a reasonable possibility that the parties may become reconciled through marriage counsel, treatment or reflection, the court may postpone the proceedings in order that the parties may attempt a reconciliation.”
  2. Mental illness    

    The court must be satisfied of two things here –   
    1. The spouse must have been admitted to or detained in an institution under our mental health legislation as a patient, State patient or mentally ill convicted prisoner, and “has, for a continuous period of at least two years immediately prior to the institution of the divorce action, not been discharged unconditionally”, and 
    2. After having heard the evidence of at least two psychiatrists, of whom one shall have been appointed by the court, that the defendant is mentally ill and that there is no reasonable prospect that he will be cured of his mental illness.”
  1. A state of continuous unconsciousness “by reason of a physical disorder”

    Again the court must be satisfied of two things here –
    1. The unconsciousness must have lasted “for a continuous period of at least six months immediately prior to the institution of the divorce action”, and
    2. After having heard the evidence of at least two medical practitioners, of whom one shall be a neurologist or a neurosurgeon appointed by the court, that there is no reasonable prospect that the defendant will regain consciousness.
Having grounds for divorce is not the end of the story

You will need also to satisfy the court that “the provisions made or contemplated with regard to the welfare of any minor or dependent child of the marriage are satisfactory or are the best that can be effected in the circumstances”.

Consider also, and prepare for, questions around division of assets and maintenance.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.

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