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Same-sex couple seek R2-million in damages from SA wedding venue

September 18, 2020 No Comments

The battle continues for same-sex couple Megan Watling and Sasha-Lee Heekes. The pair are facing off in court against Western Cape wedding venue Beloftebos, who made headlines in January for refusing to host their same-sex wedding ceremony on religious grounds.

The couple are now seeking R2-million in damages, which they plan to donate to charity. Court papers filed in the Equality court reveal that Watling and Heekes are suing Beloftebos owners Andries and Coia de Villiers for the impairment of dignity, pain and suffering due to unfair discrimination against them.

The brides-to-be also want the court to declare the venue’s refusal to host same-sex weddings as unfair discrimination, and thus unlawful and unconstitutional. They are seeking an unconditional apology from the venue, in which they acknowledge the harm they have caused.

The SA Human Rights Commission (SAHRC) launched an application against the owners in March, following several complaints about the venue. The Comissioner, André Gaum, explained that the outcome they hoped to achieve includes that the venue’s policy be declared discriminatory, and that they are forced to host same-sex marriages. He said that the policy is unconstitutional and amounts to unfair discrimination.

Back in May, Beloftebos filed their own papers claiming that they were discriminated against by the SAHRC. The owners of the establishment claimed that they had filed papers with the Equality Court, opposing the fact that they have discriminated against LGBTI+ people. This means they are arguing that their policy which states that they will not host same-sex weddings, is not discriminatory.

Michael Swain, executive director of Freedom of Religion South Africa said that Beloftebos are “asking the Equality Court to find that the SAHRC unfairly discriminated against them on grounds of conscience, religion and belief, and that the commission is biased and prejudiced in its treatment of them and their belief system”.

Feature image: Facebook / Beloftebos

In Legal & Administration

The new frontier: E-marriage contracts

September 16, 2020 No Comments

As the COVID-19 pandemic continues, industries have had to come up with more creative ways to complete their services in safer way.

To reduce physical contact, the Saudi Arabian government has begun allowing e-marriage contracts. This allows couples to receive their marriage contracts without having to be physically present.

Couples simply need to provide all the relevant data and information and conduct a medical examination before the date of the marriage session. A marriage officer will verify all the data and supply the final contract that can be signed electronically and printed from the online portal.

This service helps in documenting marriage data and finalizing marriage contracts easily and conveniently.

In similar fashion, marriage by proxy has been around for centuries and has allowed people separated by borders to tie the knot without both being physically present. An agent acts on behalf of one of the parties during the solemnization of the marriage.

Marriage by proxy was very common among nobility. Marie Antoinette married Louis-Auguste by proxy in 1770 and French emperor Napoleon married Archduchess Marie Louise by proxy in 1810. This service became even more popular in the early 1900s in America during the war efforts.

Marriage by proxy is most commonly used in cases where one partner is enrolled in military service, imprisoned or due to travel restrictions.

Importantly, this marriage is not legally recognised by most countries as common law requires both parties to be present.

Feature image: Pexels

In Legal & Administration

South Africa’s types of marriages

September 15, 2020 No Comments

Getting married is a big step. If you’re ready for the challenge, you need to be aware of the legal aspects.

Legally, South Africans have a few options to choose from when tying the knot. There are three types of marriages that are recognised under South African law: civil marriages, customary marriages and civil unions. The solemnisation and registration of these marriages are managed by the Department of Home Affairs.

Here is what each marriage means and what it entails.

Civil marriages

Civil marriage is the most common form that couples choose. Only marriage officers authorised in terms of Act No. 25 of 1961 to perform marriages may do so. Presently civil marriages are solemnised at offices of the Department of Home Affairs and at churches (by authorised marriage officers).

A marriage must be conducted in the presence of at least two witnesses in:

– a church or another building used for religious services

– a public office or private house, with open doors

– a hospital or any concerned facility in the case of serious illness of injuries

Two witnesses and the marriage officer must sign the marriage register after the solemnisation of a marriage. Then the marriage officer must issue the parties with a handwritten marriage certificate (BI-27) free of charge.

The marriage officer must then submit the marriage register to the nearest office of the Department of Home Affairs, where the marriage details will be recorded in the National Population Register (NPR).

Customary Marriages

In South Africa, the definition of a customary marriage is one that is “negotiated, celebrated or concluded according to any of the systems of indigenous African customary law which exist in South Africa”. This does not include marriages concluded in accordance with Hindu, Muslim or other religious rites.

For a customary marriage to be recognised as a valid marriage, it had to have been entered into before November 15, 2000.

For those entered into after November 15, 2000 it must comply with the following requirements:

– The marriage must be negotiated, entered into or celebrated in accordance with customary law

– The prospective spouses must be above the age of 18 years

– Both prospective spouses must consent to the marriage

The parents of a prospective spouse who is a minor must consent to the marriage. If he/she has no parents, then his or her legal guardian must consent. If the parents or legal guardian cannot consent, a Commissioner of Child Welfare can be approached for consent. Where consent is refused by either of the parents, the legal guardian or the Commissioner of Child Welfare, only a judge of the High Court may consider granting consent.

If either of the prospective spouses is already a spouse in a civil marriage, a customary marriage cannot be entered into during the subsistence of the civil marriage. A similar provision is also applied to customary marriages entered into from December 1, 1988.

Although there is no restriction on the number of customary marriages that a man may enter into, no further customary marriage may be entered into unless an order of court regulating the future matrimonial property system of his marriages has been obtained.

Registering customary marriages

Customary marriages must be registered within three months of taking place. This can be done at any office of the Department of Home Affairs or through a designated traditional leader in areas where there are no Home Affairs offices.

The following people should present themselves at either a Home Affairs office or a traditional leader in order to register a customary marriage:

– the two spouses (with copies of their valid identity books and a lobola agreement, if available)

– at least one witness from the bride’s family

– at least one witness from the groom’s family

– and/or the representative of each of the families

In the event that the spouses were minors (or one was a minor) at the time of the customary marriage, the parents should also be present when the request to register the marriage is made.

Customary marriages are registered by completing BI-1699 and paying the required fees. An acknowledgement of receipt BI-1700 will then be issued by the Department.

Registering more than one customary marriage

If a male person is already in a customary marriage and wishes to enter into another customary marriage he has to, at his own cost, get a court order from a competent court which will regulate his future matrimonial property system.

It is also possible for a male person who is already in a customary marriage to enter into a civil marriage. They should follow the normal procedure for civil marriages.

Civil Unions

The Civil Union Act (effective from December 2006) allows anyone – regardless of their sexual orientation – to marry either through a civil union, a civil marriage or a customary marriage.
Civil unions may be conducted by:

– designated marriage officers for specific religious denominations or organisations

– designated officers employed by the Department of Home Affairs and the Magistrates’ Courts

At least two competent witnesses must be present at the ceremony.

Requirements for registering a Civil Union

– Both persons must be 18 years or older to enter into a Civil Union

– Both persons may not be already married in terms of any other Act.

Documents required to conclude a Civil Union

– Valid South African identity books for both persons entering into the Civil Union

– A valid passport if one of the partners is a foreign national

– A completed Form DHA-1763 (Declaration for the Purpose of Marriage)

– Form DHA-1766 (Civil Union register), which must be completed by the marriage officer

– A completed Form DHA-1764 (Registration of a Civil Union) in which the couple must indicate whether or not they are entering into a Civil Union marriage or a Civil Union partnership

– A copy of the Divorce Order if one of the partners was previously married but subsequently divorced.

If any of the required documentation cannot be produced, one of the partners must submit an affidavit confirming the documents cannot be made available for the purpose of concluding the Civil Union.

Feature image: Pexels

In Legal & Administration

Concourt to rectify legislation regarding black marriages

September 8, 2020 No Comments

The Constitutional court of South Africa will meet later in September to discuss the legislative issue related to marriages between black couples that took place before 1988 in which they married out of community of property.

In the late 1980s, Apartheid was still formally in effect and this legislation on marriage fell under the Black Administration Act (BAA). This legislative anomaly goes against South African law that stipulates couples automatically enter into a marriage contract in community of property, unless another option is chosen.

The Legal Resources Centre (LRC) is bringing this issue to Concourt on behalf of 72-year-old Agnes Sithole, a housewife in Kwazulu-Natal. Sithole is in a dire situation and faces a major financial loss.

Sithole married in 1972, and only discovered their marriage contract was out of community of property in 2018, reports IOL. Her husband is now threatening to sell their family home, and the law is technically on his side because of their marriage contract.

The LRC is taking the matter to court to have the legislation struck down for being unfairly discriminatory towards women, specifically women of colour. They also want all marriages entered into under the BAA to be declared in community of property. Those who want to remain out of community of property should be given the opportunity to opt out.

For many who married out of community of property under the BAA, the women were adversely affected. The LRC argues that black women in particular were unfairly discriminated against in comparison with other women through this.

“The BAA unfairly discriminated against black women compared with other women,” said the Legal Resources Centre (LRC) in papers it filed at the apex court for the matter.

“Under Section 22(6), the default position for black couples was marriage out of community of property. By contrast, the law regulating civil marriages between couples of all other races provided that the default position was marriage in community of property,” they wrote in court papers filed on the matter.

“The BAA had the result that black women were afforded less protection than other women.”

They estimate that 400 000 other African women married before 1988 could be in a similar situation to Sithole.

“The amendments have failed to bring real, effective or meaningful relief to black women married subject to Section 22(6) of the BAA,” the LRC said.

Picture: Unsplash

In Legal & Administration

How to change your marriage contract

September 7, 2020 No Comments

South Africans intending to tie the knot automatically enter into marriage in community of property when they say ‘I do’.

This marriage contract is all about sharing, with ‘what’s mine is yours’ as the motto. If the marriage end in divorce, all assets are split 50/50. Couples in this marriage contract also assume their partner’s debt.

While this is the most popular marriage contract in the country, many experts advise against it. If, for some reason you decide you no longer want to be married in community of property, you’re in luck. Couples may change their marital regime after they are married, although it is a costly process that should be avoided if possible.

Under Section 21(1) of the Matrimonial Property Act, spouses may apply to the court for leave to change the marital property system if:

– There is sound reason for the change

The best reason to give is that you were unaware that marriage in community of property is the default, and you had not intended to enter into this contract.

– All creditors of the spouse are given sufficient notice of the proposed change

All creditors must be notified by certified post, and notice must be given to the Registrar of Deeds, must be published in the Government Gazette and two local newspapers at least two weeks before your application is heard in court.

– The court is satisfied that no other person will be disadvantaged by the proposed change

The court will decide if the change may occur, and will consider your assets and liabilities to determine whether the rights of any creditors will be affected by the change.

If all these requirements have been met, the Court may authorise the change.

Feature image: Pexels

In Advice

Should you marry in community of property?

September 4, 2020 No Comments

Planning your big day is an exciting time, filled with a number of moving parts. Beyond your wedding flowers and seating chart, it’s important to give lots of thought to the legal side of getting married.

As you join hearts with your partner, you also enter into a legal agreement that can have serious repurcussions later on in life. As such, this might be the most important decision you make in the lead up to your big day.

Couples intending to marry will have to sign a marriage contract. South Africa has three main matrimonial property systems, and each option will largely impact on the couple if they decide to divorce later on in life.

Marriage in community of property:

Legal Wize explains that marriage in community of property essentially combines the estates of the married couple. Property and debts acquired prior to or during the marriage are shared equally in undivided shares (50%). Both spouses are jointly liable to creditors.

South African law automatically opts for this marital regime unless another regime is selected. This is the most popular agreement in the country, although it’s not the advisable option for many reasons.

This contract makes you responsible for all debt incurred by your spouse, including debt incurred before your marriage. Your financial position could thus be weakened by your partner. In the event your assets are seized by a court order to pay creditors for money owed to them, all of your assets can be taken because your estates are joined.

Beyond this, if your spouse dies without a will in place, the surviving spouse is only entitled to half of the assets. The other half are automatically granted to any dependents like children, or the deceased’s nearest relations in the absence of kids.

Of course, if the marriage ends in divorce then all assets will be split equally, regardless of what you came into the marriage with.

This option makes the most sense for couples who enter into the marriage with little assets. However, you cannot predict the future. You might hit it big later on in life and your relationship with your partner may turn sour, but you will still have to share your assets equally in the event of divorce.

Marriage out of community of property with accrual:

Another option is to marry out of community of property with accrual. The accrual system is a formula that is used to calculate how much the larger estate must pay the smaller estate if the marriage comes to an end through death or divorce.

Only property acquired during the marriage can be considered when calculating the accrual. The accrual system does not automatically apply and must be included in an ante-nuptial contract.

An ante-nuptial contract is a contract entered into to regulate whether a marriage will be out of community of property with/without the accrual system. It must be signed by the persons entering into a marriage, two witnesses and a notary public, and it must be registered in the Deeds Registries office within the prescribed time period.

Marriage out of community of property without accrual:

If a couple decides to marry out of community of property without the accrual system, the spouses have their own estates which contain property and debts acquired prior to and during the marriage (“what is mine is mine and what is yours is yours”). Each spouse is separately liable to his/her creditors. Prior to the marriage, an ante-nuptial contract must be entered into to indicate that the marriage will be out of community of property.

This marriage contract protects your individual assets, but disadvantages the spouse who earns less. The breadwinner of the relationship will end up with greater assets because they likely paid for it, disadvantaging the other spouse and all of their unpaid efforts in the marriage. This is especially damaging for those who stop working to raise their children while their partners work, as their reproductive labour goes unrecognised by the law.

Feature image: Pixabay

In Celebs

Zakes Bantwini and Nandi Madida dissolve marriage contract

September 1, 2020 No Comments

Award-winning musician Zakes Bantwini and actress Nandi Madida are dissolving their marriage contract. After four years of marriage, the pair have recently discovered they entered into the wrong contract and are seeking to rectify the mistake.

The couple mistakenly married in community of property, which means their estates are joined together. The power couple now plan to dissolve their marriage contract to enter into a new one out of community of property to protect their individual assets.

Sunday World reported that Bantwini has already filed a court order to remove his wife from their joint estates, which is worth millions.

In an affidavit, Bantwini explains the contract was mistakenly entered into due to a misunderstanding with the marriage officer.

“And as a result of a misunderstanding between ourselves and the marriage officer, who conducted the marriage ceremony, we understood incorrectly as it now appears that he would be in a position to ensure that our marriage would be out of community of property without the application of the accrual system,” read the affidavit.

“At all material times, it was the intention of the second applicant and myself to be married out of community of property without application of the accrual system.”

Feature image: Instagram / Zakes Bantwini

In Legal & Administration

New regulations gazetted for wedding industry amid pandemic

August 26, 2020 No Comments

The South African government has gazetted new directives to help regulate gatherings amid the shift to Level 2. The new directives include changes to how weddings may continue during the pandemic.

According to the new directives, released August 25, there are a host of safety regulations that vendors must follow as the wedding industry reopens. As such, the onus is largely on wedding planners and vendors to make sure guests follow protocol.

Weddings are still limited to 50 people, and all hygienic conditions and physical distancing measures must be adhered to for the limitation of exposure to COVID-19.

The person organising the wedding, exhibition or function and the owner or manager of the venue must ensure compliance with the requirement relating to physical distancing of at least one and a half metres and the wearing of a cloth face mask, a homemade item or another appropriate item that covers the nose and mouth, by all attendees.

A person managing a venue for a wedding, exhibition or other function must:

– set up screening stations at entrances to facilitate the screening of persons before entry

– not allow access to a person who is not wearing a cloth mask, or homemade item that covers the nose and mouth or another appropriate item to cover the nose and mouth

– ensure that every person wears a cloth face mask, a homemade item or another appropriate item that covers the nose and mouth at all times except when eating or drinking

– ensure that every person sanitises before entry

– sanitise microphones and podiums after use by every person.

Read the new gazette here: Tourism-Gazette-weddings-events

Feature image: Unsplash

In Legal & Administration

‘Love is Not Tourism’ movement grows in SA

August 21, 2020 No Comments

As the pandemic continues, long-distance couples are kept apart even longer. For many, it has been at least five months since they’ve physically seen their partner. A new movement is growing across the world to reunite these lovers.

Called the ‘Love is Not Tourism‘ movement, they are speaking out against rules in various countries preventing international travel and keeping them apart.

“The closure of international borders in the wake of the COVID-19 pandemic was – and still is – sensible and even necessary. It is obvious that we must halt tourism to protect us and others,” the movement explains on their website. “But love is not tourism. This is not just about a summer holiday, it is about mental health and the future of people all around the world.

“We as international lovers and families, urge governments of all states to amend their travel restrictions. Allow the un-bureaucratic and safe reunion of partners in long distance relationships as well as family members.”

They also say they are willing to submit to appropriate safety regulations, self-pay for a test upon arrival and quarantine until a negative result is received or a 14-day strict quarantine, as long as unmarried couples and families can visit their most important people.

Countries like Denmark, Iceland, Germany, France and Spain have already introduced measures to allow couples and families to meet up. The movement is calling for other countries in the world to follow suit.

Most regulations protect married couples, but engaged or unmarried couples are not included. Kana Ishii from Toyo and Jarran Muse from New Jersey were meant to marry this year, but COVID-19 halted their plans. In an interview with NBC New York, they explain their separation has left them drained. They are heartbroken that government will not recognise their love just because they are not married yet.

In South Africa, the Facebook page ‘Love is Not Tourism SA’ is quickly gaining traction. Couples separated by borders come to share their stories, as well as any resources they have in their fight to be reunited with their loved one.

Feature image: Pexels

In Legal & Administration

Weddings now allowed under Level 2

August 18, 2020 No Comments

Get ready to say ‘I do’! Weddings are once again allowed in South Africa under Level 2 lockdown regulations.

Following President Cyril Ramaphosa’s announcement on Saturday, August 15 that the country would move to alert Level 2 on midnight of August 17, a number of restrictions of movement and activity have eased.

On Monday, August 17 the new regulations were gazetted, with one point giving extra joy to the wedding industry.

“All gatherings are prohibited except at [regulation 10 0f 15] gathering weddings, subject to a limitation of 50 persons, and directions issued by the relevant Cabinet member,” the Gazette reads.

The gazette also reads that all those attending a gathering must wear a face mask and adhere to all health protocols and social distancing measures.

Under Level 2 lockdown, weddings may continue but only for a maximum of 50 people in a gathering. As such, no big weddings will be allowed.

This is exciting news for those who have had to postpone their big day amid the pandemic. If you’re keen to get married now, you’ll have to start considering a micro wedding. Luckily, we have the best advice.

Also read: Why micro-weddings will be big in 2021

Also read: Decor ideas for intimate wedding tables

Also read: Coronavirus-era wedding guest etiquette

Read the gazetted regulations here: 43620gon891s_0

Feature image: Pexels