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New Case Law on Adultery and Relocation
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THE FAMILY LAW NEWSLETTER - JUNE 2016
Recent Appointment at Bertus Preller & Associates Inc.
Nicole Lawrence was recently appointed as a Junior Associate at BP&A. Nicole studied at the University of Cape Town and obtained a Bachelor of Social Science majoring in Sociology and Social Anthropology in 2009. In 2013 Nicole obtained a Bachelor of Laws LL.B. During her studies she worked as a Student Legal Advisor at the UCT Law Clinic. In 2016 after being admitted as an attorney in the High Court she joined Bertus Preller & Associates Inc., as a Junior Associate and specialises in wide range of Family Law issues. Her specialty fields are:
  • Uncontested / Unopposed Divorces
  • Parental Responsibilities and Rights
  • Custody (care and contact) of Children
  • Same Sex Marriages - Gay and Lesbian 
  • Unmarried Fathers Rights and Access to Children
  • Domestic Violence Matters and Protection Orders
  • Care and Contact disputes concerning Children
  • Child and Spousal Maintenance Law
  • Cohabitation Agreements
  • Rule 43 Applications and Urgent Monetary Relief Applications

NEW CASE LAW

Forfeiture of Assets in Case of Adultery

In MC v JC 2016 (2) SA 227 (GP) the parties were married out of community of property with the accrual. After some 25 years of marriage the husband obtained a decree of divorce in the magistrate’s court, on the ground of irretrievable breakdown of the marriage. The magistrate also ordered that the wife partially forfeit the patrimonial benefits of the marriage in terms of s 9(1) of the Divorce Act 70 of 1979.

Section 9(1) reads: “When a decree of divorce is granted on the ground of the irretrievable breakdown of a marriage the court may make an order that the patrimonial benefits of the marriage be forfeited by one party in favour of the other, either wholly or in part, if the court, having regard to the duration of the marriage, the circumstances which gave rise to the breakdown thereof and any substantial misconduct on the part of either of the parties, is satisfied that, if the order for forfeiture is not made, the one party will in relation to the other be unduly benefited”.

The wife’s ‘substantial misconduct’ was adultery.

On appeal to the High Court the court held that the wife would not “unduly benefit” were she to receive the patrimonial benefits (assets) of the marriage and, accordingly, that she should not forfeit them.

The court had also requested, in the course of the hearing, argument on the constitutionality of s 9(1) with respect to forfeiture on the ground of substantial misconduct. By way of an opinion referred to in law as an “obiter dictum”, the Judge was of the view that s 9(1) might infringe the right to equality. This was because it placed the party who had committed substantial misconduct in an unfavorable position when it came to distribution of the assets of the marriage. In this regard the court referred to the decision in DE v RH 2015 (5) SA 83 (CC). It also pointed out that being forced to remain in an unhappy matrimonial relationship for fear of losing patrimonial benefits may deprive a spouse of the right to dignity.

The court did not, however, decide on the issue, but instead ordered that the appellant (wife) must join the Minister of Justice and Correctional Services as the executive authority responsible for the administration of the Divorce Act as well as the Speaker of Parliament, as the legislative body.

From the judgement it can be asserted that “adultery” on its own would not entitle a spouse to claim a forfeiture of benefits since this may very well be unconstitutional. It remains to be see how the court will deal with this issue when the matter is heard.

Relocation

In JP v JC and another [2016] 1 All SA 794 (KZD) the (applicant) mother referred to as “JP” lodged an application to court in terms of section 18(5) of the Children's Act 38 of 2005 (the "Children's Act") sought an order authorising her to relocate with her minor children; "JMC", a boy born in October 2009 and "JJC", a girl born in June 2012, to the United Kingdom ("UK"), on permanent basis. The (respondent) father referred to as "JC", opposed the application.

The children were born out of a love relationship between the mother and father. The children were primarily residing with the mother and the father maintained contact with them. The father made a monthly contribution to the maintenance of the children in the amount of R2000 per child. The mother had the intention to settle in UK for an indefinite period. In terms of section 18(3)(c)(iii) and (iv) of the Children's Act the consent of the non-custodian parent is usually required for the departure or removal of minor children from the Republic of South Africa and for the children's application for the passports.

The father refused to grant the required consent and his refusal was mainly grounded on the fact that the mother did not properly investigate the practicalities of her decision as she, among other things had no structured plan for the proposed relocation. The father stated that the entire relocation application was based on nothing more than speculation and uncertainty in the hope for a potentially better life in England. The father further stated that the mother and minor children live a good stable life in South Africa. According to him, the application was neither bona fide nor reasonable.

The parties had no parenting plan and nor was a court order in place setting out the father's specific rights of contact. The Family Advocate was directed to hold an enquiry and submit a report pertaining to the best interests of the minor children in relation to the relocation application. The Family Advocate and the in their reports stated that it would not be in the best interest of the children to grant the mother leave to immigrate with the minor children to the UK.

The issues that the court had to consider was whether the mother’s decision to relocate to England was bone fide, reasonable and genuinely taken and whether it was indeed in the best interests of the children to emigrate with the mother to England.
 
In the case of Jackson v Jackson 2002 (2) SA 303 (SCA) at page 318 paragraph 2 [also reported at [2001] JOL 9229 (SCA) - Ed] Scott JA said:
 
". . . It is no doubt true that, generally speaking, where, following a divorce, the custodian parent wishes to emigrate, a Court will not lightly refuse leave for the children to be taken out of the country if the decision of the custodian parent is shown to be bona fide and reasonable. But this is not because of the so-called rights of the custodian parent; it is because, in most cases, even if the access by the non-custodian parent would be materially affected, it would not be in the best interests of the children that the custodian parent would be materially affected, it would not be in the best interests of the children that the custodian parent be thwarted in his or her endeavour to immigrate in pursuance of a decision reasonably and genuinely taken . . . "
 Whether the proposed move was in the best interest of the child, the court has to consider the custodian parent's interests, the reasonableness of his or her decision to relocate, the practical and other considerations on which the decision is based, and the extent to which he or she had properly thought through the advantages and disadvantages to the children of the propose move. See the case of F v F 2006 (3) SA 42 (SCA) at 50C-D.
 
 In the case of Edge v Murray 1962 (3) SA 603 (W) at 605H-606A [also reported at [1962] 3 All SA 361 (W) - Ed] Trollip J said:
 
"It is true that the custodian parent generally has the right to regulate the child's life and determine such matter as the place where it should live and the school which it should attend, and any changes that should from time to time be made in those respects, and the court will not interfere with the exercise of that discretion if the custodian parent acts bona fide in what he or she believes to be the best interest of the child."
 
Following her separation with the father in March 2013 the mother had to raise the minor children single handily and to secure accommodation for herself and children. Since she could not afford a two-bedroomed house she moved in with her parents. She and her two minor children occupied a bedroom at her parental homestead. In May 2013, she was retrenched from her employment and as a consequence she was out of employment for five months. During the period of her unemployment she was supported by her parents, both financially and physically. The children had a very close bond with their maternal parents. These were the people who provided for the mother with a support system. On the other hand, the father had undertaken to pay for a caregiver, to look after children and he failed to honour such an undertaking. Further, there was a short payment of maintenance by the father and in which event the mother's parents had to step in and assist her with the support of the children. As a result, the mother replied on her parents for financial support. According to the mother, it had been agreed between the parties that the father would pay R6 448,50 towards maintenance. However, during the mother's period of unemployment the father reduced the agreed maintenance to R3 838 which had put the mother under severe financial strain. The father was in terms of the agreement obliged to pay R6 448,50 towards maintenance for the two minor children yet he only paid R4 250 per month.
 
The mother had a shortfall of R4 669 each month, this included the father’s maintenance. This had raised fear in the mother that as the years go by the expenses to maintain the minor children would increase to a level where she would not afford to provide for the children. She had therefore found herself being forced to consider and explore other opportunities in order to increase her earning capacity so to be able to sustain herself and minor children. In South Africa, the mother was unable to increase her earning capacity due to her limited educational qualifications. The mother's parents were retired and they wished to relocate to the UK and the direct consequence of the intended relocation was that the mother would no longer have any support system.
 
As a result of the aforesaid the court was of the view that the decision made by the mother to relocate could not be faulted and that its bona fides could not be doubted. In the courts view, it was a rational and well-balanced judgment as to what she considered to be best for her and children. She had also taken into [account] the access the children would have to their father and was willing to have such contact continued. To this end, she even proposed that the father should suspend his monthly contribution towards the maintenance of the children so to save for the air tickets for the father's and the minor children's visits. The court also stated that as the custodian of the minor children, the mother had given mature and rational thought to the matter and has exercised a value judgment as to where their best interests are. See also the case of Godbeer v Godbeer 2000 (3) SA 976 (W) at 982F-J.
 
 
The court also stated that the over-riding consideration was whether the children's interests will be best served by permitting their removal from the country. The court referred to Section 28(2) of the Constitution of the Republic of South Africa, 1996 enshrines the principle that:
 
"a child's best interests are of paramount importance in every matter concerning the child."
 
See also Minister of Welfare and Population Development v Fitzpatrick and others 2000 (3) SA 422 (CC) at 428C [also reported at 2000 (7) BCLR 713 (CC) - Ed].
 
Section 9 of the Children's Act provides:
 
"In all matters concerning the care, protection and well-being of a child the standard that the child's best interest is of paramount importance, must be applied."
 
It was common cause that the mother was the custodian parent in this case. Myriad duties flow from custody, including the duty to provide the child with accommodation, food, clothing and medical care, the duty to educate and to train the child, the duty to maintain and support the child, and a duty to care for the child's physical and emotional well-being. As a consequence, in J v J 2008 (6) SA 30 (C) at 42C it was held that the custodian parent generally has the right to have the child with him or her, to regulate its life and to decide all questions of education, training and religious upbringing. See also Calitz v Calitz 1939 AD 56 at 63; Van Oubenhove v Gruber 1981 (4) SA 857 (A) at 867F-G [also reported at [1981] 4 All SA 666 (A) - Ed].
 
The courts have over the years demonstrated that custodian parent enjoys a broad discretion to act by their reluctance to displace his or her authority. See Edwards v Edwards 1960 (2) SA 523 (D) [also reported at [1960] 2 All SA 70 (D) - Ed]; Edge v Murray 1962 (3) SA 603 (W); Meyer v Van Niekerk 1976 (1) SA 252 (T) [also reported at [1976] 1 All SA 118 (T) - Ed]; Bestuursligaam Van Gene Loow Laerskool v Roodtman [2003] 2 All SA 87 (C) and J v J (supra).
 
In deciding whether the mother could be allowed to relocate the minor children's best interest undoubtedly had to be the main consideration. What is actually in the child's or children's best interests depends on the facts of each particular case. See Lubbe v Du Plessis 2001 (4) SA 57 (C) [also reported at [2001] JOL 8220 (C) - Ed] and F v F 2006 (3) SA 42 (SCA) at 47E-F.
 
In deciding whether or not relocation would be in the child's best interests, the court has to evaluate, weigh and balance a myriad of competing factors including the child's wishes in appropriate cases. See F v F (supra), at 48C. In order to provide guidance in this regard the Legislature has incorporated in section 7 of the Children's Act a comprehensive checklist of factors according to which the court can determine, on the facts of each individual case, what will best serve the interests of the child or children concerned:
 
"7.     Best interests of child standard - (1) Whenever a provision of this Act requires the best interests of the child standard to be applied, the following factors must be taken into consideration where relevant, namely -
 
(a)     The nature of the personal relationship between -
 
 (i)      The child and parents, or any specific parent; and
 
(ii)     The child and any other care-giver or person relevant in those circumstances.
 
(b)     The attitude of the parents, or any specific parent towards -
 
(i)      The child; and
 
(ii)     The exercise of parental responsibilities and rights in respect of the child;
 
(c)     The capacity of the parent, or any specific parent, or of any other care-giver or person, to provide for the needs of the child including emotional and intellectual needs.
 
(d)     The likely effect on the child if any change in the child's circumstances including the likely effect on the child of any separation from:
 
(i)      both or either of the parents; or
 
(ii)     any brother or sister or other child or any other caregiver or person with whom the child has been living;
 
(e)     the practical difficulty and expense of a child having contact with the parents, or any specific parent, and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with the parents, or any specific parent, on a regular basis;
 
(f)     the need for the child -
 
(i)      to remain in the care of his or her parent, family and extended family; and
 
(ii)     to maintain a connection with his or her family, extended family, culture or tradition;
 
(g)     . . .
 
(h)     . . .
 
(i)      . . .
 
(j)      . . .
 
(k)     The need for a child to be brought up within a stable family environment and, where that is not possible, in an environment resembling as closely as possible a caring family environment,
 
(l)      . . . "
 
The question which ultimately had to be decided was whether it was in the best interests of the minor children to emigrate with their mother to UK, leaving their father back in South Africa or whether their interests would be better served by the retention of the status quo, with the children spending more or less equal time with each parent. A child's future, according to the court had to be balanced against the great benefits to be obtained if the child did not emigrate with a custodian parent to foreign country. The court further mentioned that a non-custodian parent does not lose the right to reasonable access simply because the children had been removed from the jurisdiction. The court was of the view that the interest of the children would be best served by allowing the mother to emigrate with them and that it would be competent for the Court to define the first father's rights of access before the removal of the children. See also Botes v Daly 1976 (2) SA 215 (N) at 220H [also reported at [1976] 2 All SA 325 (N) - Ed].
 
In Du Preez v Du Preez 1969 (3) SA 529 (D) at 534E-F [also reported at [1969] 1 All SA 122 (D) - Ed], the court had the following to say:
 
"this is not to say that the opinion and desires of the custodian parent are to be ignored or brushed aside, indeed, the Court takes upon itself a grave responsibility if it decides to override the custodian parent's decision as to what is best in the interest of his child and will only do so after the most careful consideration of all the circumstances, including the reason for the custodian parent's decision and the emotions or impulses which have contributed to it."
 
See also Baily v Bailey 1979 (3) SA 128 (A) [also reported at [1979] 2 All SA 106 (A) - Ed].
 
The Family Advocate recommended that the children should remain resident in the Republic of South Africa, and not relocate to the United Kingdom. They further recommended that the minor children should continue primarily residing with the mother, on condition that the mother remained resident in South Africa for so long as the children are residing with her. The Family Advocate's recommendations were based on [the fact] that the mother had not yet secured any employment in England, and that she made application on the assumption that she will easily find employment because of her qualifications. Although the mother claimed that both her parents and brother who live in South Africa will relocate to England, all these family members, according to the Family Advocate, would have to rely on her brother who is employed as a salesman in England for support, in addition to herself and children. None of these family members according to the family Advocate had settled there or secured employment. The Family Advocate went on to say that although the mother was of the opinion that younger children found it easier to adapt to new circumstances, the opposite could be said: children in the age group three to six years find it difficult to maintain a long distance relationship with a parent, especially "JJC" who required physical handling and care to form an attachment with a parent. Both children had become attached to the father, despite the fact that contact was sporadic. Children develop and assimilate their parents' heritage and culture, as well as traditions. "JMC" and "JJC" were both at the developmental stage, where they were still exploring their environment as points of reference. Granting consent for the mother to relocate to England with the children according to the family advocate would have deprived them from such a learning experience in their personal development because they would only have their mother's environment as point of reference on an on-going basis. There were other alternatives according to the family advocate, for the mother other than relocating to England.
 
The court did not agree with the family advocates recommendations and made it clear that it demonstrated quite clearly that both the Family Advocate did not approach this matter with an open mind, and did not weigh and evaluate all the relevant facts and circumstances pertaining to the welfare and best interests of the children, let alone applying their minds to the issues raised in this matter.
 
In this regard the Supreme Court of Appeal in F v F (supra) at 49B-E, 52A held:
 
"From a constitutional perspective, the rights of a custodian parent to pursue his or her own life or career involve fundamental rights to dignity, privacy and freedom of movement. Thwarting a custodian parent in the exercise of these rights might well have a severe impact on the welfare of the child or children involved. A refusal of permission to emigrate with a child effectively forces the custodian parent to relinquish what he or she views as an impotent life-enhancing opportunity. The negative feelings that such an order might inevitably evoke are directly linked to the custodian parent's emotional and psychological well-being. The welfare of a child is, undoubtedly, best served by being raised in a happy and secure atmosphere. A frustrated and bitter parent cannot, as a matter of logic and human experience, provide a child with that environment . . . Courts must properly consider the impact on the custodian parent of a refusal to remove a child insofar as such refusal may have an adverse effect on the custodian parent and in turn the child."
 
In determining what is in the best interest of the child, the court must decide which of the parents is better able to promote and ensure their physical, moral, emotional and spiritual welfare. This can be assessed by reference to certain factors or criteria set out in section 7 of the Children's Act. The court concluded that the mother had demonstrated capacity to provide for the needs of the children including securing a permanent residence for herself and children and had thereby created a sense of stability. On the other hand, the father had no fixed abode; he was moving from one place to the other and therefore he could not be in a position to provide a stable family environment for the minor children, he had various commitments like hunting and others. Such commitments render him unable to spend quality time with the minor children. Further, the nature of his employment made it impossible for him to get time off or leave during the festive season.
 
According to the court the children had a very close bond with their maternal grandparents. These were the people who provided the mother with support system.
 
The court also took regard of the social assistance benefits available in England which were not available in South Africa. The minor children would qualify for free schooling, as their mother would emigrate on an ancestral visa. The educational and extracurricular activity requirements of the minor children would be met at a Primary School in England. The minor children would also qualify for free health care on the English National Health Service. The expense of schooling and health care were extremely high in South Africa, and the educational career opportunities were minimal in South Africa as compared to UK. In the latter the tertiary education of the children would be subsidized.
 
As a result, the court made the following order:
  

  1. The mother was authorised to remove the two minor children born of the love relationship between the parties, permanently from the jurisdiction of the Court for permanent residence in the United Kingdom, England.
  2. The father was directed forthwith to sign all such documents and take all such steps as were necessary to enable the mother lawfully to remove the children from the Republic of South Africa, failing which the Sheriff of this Court was authorised to take all such steps and sign all documents on his behalf.
  3. On relocation of the mother and the said minor children to England the father was entitled to maintain contact with the said minor children, as follows:
  • In South Africa, or England, for a period not less than three weeks during the minor children's England school summer holiday;
  • In England, wherever the first father is visiting that country at all reasonable times; (iii)  Telephonic and Skype contact at all reasonable times.
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