Family law Archives - Smuts & Co Attorneys

ARE FATHERS ENTITLED TO PATERNAL LEAVE?

Fri, 29 Jun 2018 08:59:37 +0000

Fathers could spend up to two weeks with their newborn babies, while adoptive parents and parents-to-be via surrogacy, could get up to 10 weeks of leave. This is due to the latest Labour Laws Amendment Bill 2017 (“amendment bill”), which was passed by the National Assembly in November 2017.

The current labour legislation provides that fathers who want to stay home with their newborn babies have to take family responsibility leave, which is limited to three days per annual cycle, or they must take their own annual leave for this purpose. They are only entitled to family responsibility leave once they have been employed for four months and work for at least four days a week. The current law also makes no provision for paternity leave for adoption parents or fathers-to-be via surrogacy. A mother is entitled to unpaid maternity leave of up to four months and she may also claim from UIF for 17-weeks during this period.

The position regarding paternal leave has, however, drastically changed since the end of last year. On 28 November 2017, the National Assembly passed the Labour Laws Amendment Bill. The amendment bill regulates the rights of fathers in taking paternal leave when their child is born. In terms of the amendment bill, fathers will be entitled to 10 days paternal leave on the birth of a child. In addition, the amendment bill provides for 10 weeks adoption leave for one parent when adopting a child under the age of two and ten weeks “commissioning parent leave” when an employee’s child is born by means of a surrogacy arrangement. The amendment bill also increases unemployment insurance benefits from 238 days to 365 days and increases maternity benefits to 66% of the earnings of the employee at the date of the application for unemployment insurance benefits.

Five things you need to know about the amendment bill:

Fathers’ paternity leave could be up to two weeks

An employee who is a parent and not entitled to maternity leave, will now be entitled to 10 consecutive working days parental leave when that employee’s child is born. The Basic Conditions of Employment Act 75 of 1997 (BCEA) still provides that mothers are entitled to take maternity leave for up to four months.

A father must have his name on the child’s birth certificate to qualify

Fathers must have their names on the newborn child’s birth certificate in order to apply for paternal leave. The purpose for this is to prevent dishonesty and ensure that the amendment bill cannot be used and abused.

Adoptive parents and parents via surrogacy could get up to 10 weeks of parental leave

An employee who is an adoptive parent of a child less than two years old, is entitled to adoption leave of ten weeks consecutively. In the case of two adoptive parents, one of the employees is entitled to adoption leave and the other to parental leave. The same provision applies for parents-to-be via surrogacy.

Family responsibility leave falls away

The father of a newborn may take three days family responsibility leave in terms of the BCEA –– but under the amendment bill, this no longer applies.

The amendment bill might come into effect by June 2018

The amendment bill will be referred to the National Council of Provinces and if passed, will be submitted to the president for assent. This new amendment bill will bring South Africa in line with other countries, many of which offer between one to four weeks’ paternity leave.

Reference List:

Labour Laws Amendment Bill 2017
Basic Conditions of Employment Act 75 of 1997

This article is a general information sheet and should not be used or relied on as legal or other 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 legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

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THE RIGHTS OF A DOMESTIC PARTNERSHIP

Wed, 27 Jun 2018 09:31:20 +0000

Domestic partnerships, also known as cohabitation relationships, are becoming more common in our modern day society, and it therefore becomes ever more important for parties to understand the different legal implications of being married and merely cohabiting. Parties to a domestic partnership do not enjoy the same legal protection as married couples upon termination of the partnership with regards to maintenance claims, property division or succession.

In the South African legal system, there are three forms of fully legally recognised unions, namely marriages, civil unions and customary marriages. However, in our modern society it is becoming more common for couples to live together in domestic partnerships, without ever getting married. It is important for parties to these partnerships to realise that little to no legal protection is provided upon the termination of such a relationship, either by agreement or due to the death of either party.

The general rule for domestic partnerships was laid down in Butters v Mncora: A domestic partnership does not give rise to any special legal consequences, such as that of a marriage or a civil union.

In 2006, the South African Law Reform Commission acknowledged the need for legal protection to be granted and drafted the “Draft Domestic Partnership Bill.” Parliament has however shown no urgency to pass the Draft Bill, and the legal position in South Africa thus remains unchanged.

Maintenance claims

The Maintenance of Surviving Spouses Act entitles a surviving spouse of a marriage, and a surviving civil partner of a civil union, to institute a claim for maintenance against the estate of the deceased. This provides for a claim of any reasonable maintenance needs that they cannot provide for by their own means, until such time that they remarry or pass away.

Parties of a domestic partnership should note that this protection does not extend to domestic partnerships, and thus no such maintenance claim can be made. Should the Domestic Partnership Bill be enacted in the future, section 28 will offer such an opportunity to claim for maintenance. However, at this stage no such protection is afforded.

Property Division

Parties to a marriage have a choice of two matrimonial property regimes. Simply put this is to be married either in community of property, or out of community of property. Each property system will have different consequences flowing from it either by law or contractually due to an Antenuptial contract. However, no property regimes exist for domestic partnerships, and thus no joint estate can exist as it would in a marriage.

The Supreme Court of Appeal has recently portrayed an increased willingness to extend contract-based legal protection to parties of a domestic partnerships. Contracts can be concluded by parties in domestic partnerships to govern aspects such as division of property upon termination of the partnership. Although these types of contracts are legally enforceable, they may give rise to potential problems. The contract may be concluded solely for the benefit of one of the parties, or circumstances may occur that the parties had not anticipated when the contract was drawn up. In practice however, it seldom happens that parties to a domestic partnership actually enter into a contract. This may be due to a mutual decision, or due to the fact that parties did not foresee a need for such contract.

Intestate Succession

In terms of the Intestate Succession Act, a spouse of a marriage will inherit if the deceased spouse dies without making a will. This has been extended to include partners of a civil union and customary marriage. Provision for inheritance by a partner of a permanent same-sex partnership has also been made in terms of this Act. This has however not been extended to the termination of heterosexual domestic partnerships, and thus no claim can be made in terms of the Intestate Succession Act on the estate of a deceased partner of a domestic partnership.

Couples living together in cohabitation relationships do not have similar rights to institute claims against the other party upon termination as they would have in a marriage or civil union. This could leave financially dependent parties in unanticipated vulnerable positions.

Reference List:

Butters v Mncora 2012 (4) SA 1 (SCA).
Barratt A “Private contract or automatic court discretion? Current trends in legal regulation of permanent life-partnerships” (2015) 26 Stellenbosch Law Review 110-131.
Clark B “Families and domestic partnerships” (2002) 119 South African Law Journal 634-648.
Intestate Succession Act 81 of 1987.
Maintenance of Surviving Spouse Act 27 of 1990.
Skeleton A (ed) Family Law in South Africa (2010), Cape Town: Oxford University Press.
The Domestic Partnership bill in GG 30663 of 14-01-2008.

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HOW CAN AN UNMARRIED FATHER OBTAIN PARENTAL RIGHTS AND RESPONSIBILITIES?

Wed, 02 May 2018 12:03:59 +0000

Under the old dispensation, where parties were divorced, one parent (usually the mother) would usually be awarded custody of a minor child and the other parent (usually the father) would be entitled to visitation rights.

The custodian parent would be vested with making all of the day-to-day decisions of the minor child including which school the child would attend, what religion the child would practice, where the child would reside and so on.

The parents now have joint parental responsibilities and rights, and all major decisions relating to the minor child need to be taken by the parties jointly, which is a far healthier situation for the child.

If the unmarried father only wants to apply for care and/or contact, he can do so in the Children’s Court.
If the unmarried father wants to apply for guardianship, an application must be made in the High Court.
If the unmarried father wants to apply for care, contact and guardianship, he must bring the application in the High Court.

An unmarried biological father may ask a court of law to grant him full parental responsibilities if he:

at the time of the child’s birth, is living with the mother in a permanent life partnership, or
consents to be identified as the child’s father, or
successfully applies to be identified as the child’s father, or
pays damages in terms of Customary Law, or
contributes or has tried to contribute to the child’s maintenance and upbringing for a reasonable period.

What factors will the court take into account when considering an application for parental rights and responsibilities?

The best interests of the child.
The relationship between the unmarried father and the child.
The relationship between any other person and the child, such as the mother.
The degree of commitment the unmarried father has shown towards the child.
Whether the unmarried father has contributed or attempted to contribute to the maintenance of the child.
Any other factor the court considers to be relevant, such as:
- whether the unmarried father has a history of violence towards children;
- the effect of separating the child from his/her mother; or
- the child’s attitude towards the relief sought in the application.

Reference:

https://www.legalwise.co.za/help-yourself/quicklaw-guides/unwed-father/
http://www.parent24.com/Family/Finance_Legal/Unmarried-Know-your-rights-20150826

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IMMEDIATE STEPS FOLLOWING THE DEATH OF A LOVED ONE

Thu, 08 Feb 2018 12:29:03 +0000

The death of a loved one is a difficult process to go through, and when the inevitable occurs, it is important to remember what happens next. The cause of death is determined under 2 categories: natural death, such as illness or heart attack, and unnatural death, such as a suicide or an accident.

Natural or unnatural death.

If the deceased has passed in their home, and cause of death is suspicious, the family is required to contact the South African Police Service (SAPS) to conduct an immediate investigation before contacting the mortuary. In the event where death is natural, the family is required to contact medical professionals to determine the nature of the death, and sign certification of the cause of death.

Death certificate

A prescribed certificate may be issued by the medical practitioner if the death is ruled as natural, either following a period of illness, or a medical examination. Should it be suspected that the death is unnatural, the certificate may only be issued to the concerned police officer after an investigation where the corpse is no longer required for further examination.

An autopsy is not deemed necessary should the death be ruled as natural.

Registration of death may take be done the following places:

Department of Home Affairs
SAPS, if there are no Home Affairs offices available
South African Embassy or Consulate, should the death have occurred abroad
Registered funeral undertakers

An abridged death certificate is issued on the same day of registration, free of charge.

References:

Births and Deaths Registration Act 51 of 1992. (2017). [PDF] Cape Town: Government Gazette. Available at: http://www.gov.za/sites/www.gov.za/files/a51_1992.pdf [Accessed 31 Jul. 2017].

Dha.gov.za. (2017). Department of Home Affairs – Death Certificates. [online] Available at: http://www.dha.gov.za/index.php/death-certificates1 [Accessed 31 Jul. 2017].

Grange, H. (2017). What to do when someone dies | IOL. [online] Iol.co.za. Available at: http://www.iol.co.za/the-star/what-to-do-when-someone-dies-1810336 [Accessed 31 Jul. 2017].

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