In a clear sign that South Africa's constitutional democracy is maturing, laws relating to family law and personal rights were easily the most challenged regulations in the highest courts in the land in 2023. Naturally, the judgments have a bearing on how we consider aspects of maintenance, childrens' rights and marriage. Barnard's Family Law team has identified two specific legal areas that may affect the firm's clients in 2024 and should therefore be reviewed or addressed.
CHILDREN
Maintenance
Many divorced parents have a settlement agreement and/or maintenance order wherein their maintenance payments are regulated. An important specification in the maintenance clause would be the escalation of the maintenance amount – including determining when such an escalation must take place as well as the percentage of the escalation. We recommend revisiting your maintenance order and/or maintenance clause to determine when the maintenance amount will escalate and plan accordingly.
If your maintenance order does not include a provision for the escalation of the maintenance amount, it might be valuable to visit Barnard's Family Law team to discuss whether an escalation in maintenance is necessary. The maintenance Court can be approached with an application to revise the maintenance agreement.
Contact
At the beginning of every new year, it is important – when you have children as part of a divorce or separation – to ensure that your annual contact schedule with your child's other parent (or your co-parent) is planned in advance. It might be valuable to have a meeting with the co-parent to discuss the care and contact schedule of the year.
It is also important to be aware of any planned school tours, camps etc. These logistical arrangements need to be made in advance with the co-parent, to ensure that when the time comes the payments etc are not in dispute. Certain school tours also require specific written permission from both parents.
The Children's Court
In an exciting development for family law, the jurisdiction of Children's Courts was expanded at the end of 2023. Children's Courts have been granted the jurisdiction to adjudicate over guardianship disputes. Therefore, people who do not necessarily have the financial means to approach a High Court with a guardianship dispute can now approach their nearest Children's Court for assistance.
GETTING MARRIED?
Ante-nuptial agreements
The beginning of a new year is normally 'high season' for romantic proposals and wedding planning. However, you must remember to ensure that your ante-nuptial agreement is in order, timeously, before you say, "I do."
To be married out of community of property, the parties have to sign an antenuptial contract prior to the commencement of the marriage. An ante-nuptial contract must be signed in the presence of a notary and thereafter registered in the deeds office.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.